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Mr Durkin has fought this battle for many years. He purchased a laptop computer from PC World in Aberdeen for 1,499 on 28 December 1998. He entered a debtor creditor supplier agreement with HFC Bank plc under section 12(b) of the Consumer Credit Act 1974 to fund the purchase, apart from a 50 deposit which he paid. On the next day he rejected the computer because it did not conform to his contract. PC World did not accept that he had validly rescinded the contract until the sheriff at Aberdeen in a judgment dated 26 March 2008 determined that he had. In the meantime, HFC treated him as being in default and intimated that default to credit reference agencies. Mr Durkin claimed damages for financial loss caused by the damage to his credit. The principal issue in this appeal is whether Mr Durkin was entitled to rescind the credit agreement on rescission of the sale agreement. The factual background In December 1998 Mr Durkin wanted to buy a laptop computer which had an internal modem by which he could connect to the internet. On 28 December 1998 he went to PC World in Aberdeen to purchase a suitable product. He specified his requirements to Mr Andrew Taylor, a member of the stores management, who introduced him to a sales assistant, Mr Robert Slorance. The sales assistant identified a product but said he was unsure whether it had an inbuilt modem. Because PC World did not allow customers to remove a laptop from its box before purchase, the sales assistant agreed that Mr Durkin could take the computer home and, if on inspection it was found not to contain an internal modem, he could return it. Mr Durkin paid the deposit and completed and signed the credit agreement, which the sales assistant gave him, for the balance of 1,449. The sales assistant signed the credit agreement on behalf of HFC. When he took his purchase home and opened the sealed box, he discovered that the laptop did not have an internal modem. At about 9 am on the following day he handed back the computer to the store and asked for his deposit of 50 to be returned and the credit agreement cancelled. Mr Taylor refused to accept Mr Durkins rejection of the goods and took no step to cancel the credit agreement. That remained PC Worlds position in the action which Mr Durkin initiated in the sheriff court in Aberdeen in 2004 until the sheriff in his judgment of 26 March 2008 granted a declarator that Mr Durkin had validly rescinded the contract of sale. In the later proceedings before the Inner House PC World did not challenge the sheriffs finding that the contract of sale had been rescinded. Mr Durkin did not pay any money to HFC under the credit agreement. In late February or early March 1999, after he returned from working offshore, he responded to a request for payment by telephoning HFC to advise it that he had rejected the laptop and had rescinded his contract with PC World. He intimated to HFC that he had rescinded the credit agreement also. On 8 March 1999 Mr Durkin wrote to the managing director of PC World to explain that he had rejected the computer, that PC Worlds manager had refused to refund the deposit, and that HFC was demanding money from him because the manager would not tell it that the goods had been rejected. On 22 July 1999 HFC wrote to Mr Durkin to warn him that he had arrears of 326.22 and that if he did not resume payments under the credit agreement it was possible that he might have difficulty in obtaining a mortgage or other credit because HFC reported monthly to credit reference agencies on the status of customer accounts. HFC also informed him that if he did not respond to the letter it would serve a default notice on him in accordance with section 87(1) of the 1974 Act. Mr Durkin telephoned HFC to re affirm his position that the sales contract had been rescinded and that he was not due to pay any sums under the credit agreement. Without making any enquiries about Mr Durkins claim that he had rescinded both the contract of sale and the credit agreement, HFC issued a default notice and intimated to the UK credit reference agencies, Experian Ltd and Equifax Ltd, that he had been in default of his obligations under the credit agreement since 14 January 1999. They recorded the alleged default on their registers. Thereafter Mr Durkin attempted without success to persuade the credit reference agencies to correct their registers. The entries remained on the registers until about 2005 or 2006. The legal proceedings Mr Durkin raised a small claims action against DSG Retail Limited, which trades under the name of, among others, PC World, and recovered his 50 deposit in an out of court settlement in which DSG did not admit any liability. But that did not resolve his problem with HFC. He found that the entries on the credit registers prevented him from opening new accounts with credit card companies and other lending institutions. He had used credit cards in funding his lifestyle and wished to make use of offers of 0% credit on transferred balances to minimise the cost of his borrowing by transferring from one credit card company to another at the end of each period of interest free credit. The entries on the registers of the credit reference agencies prevented him from doing so. Mr Durkin therefore raised an action in Aberdeen sheriff court in early 2004 against both DSG and HFC. He sought a declarator that he had validly rescinded both the contract of sale and the credit agreement and claimed damages of 250,000 from HFC for its negligence in representing to the credit reference agencies that he had defaulted on the credit agreement. He claimed damages from HFC under three heads of loss: (i) damage to his financial credit, (ii) loss from interest charges caused by his inability to exploit seriatim the offers of 0% credit and (iii) loss caused by his inability to put down a 30% deposit on a house in Benalmedena, Spain in October 2003, measured essentially by the difference between the price available in 2003 and the enhanced value of that property three years later. DSG contested Mr Durkins claim that he had rescinded the contract of sale and it was only after proof of the facts that he established that DSG had been in material breach of contract entitling him to rescind the sale contract. HFC contested both his entitlement to rescind the credit agreement and his claim for damages. Sheriff Tierney followed the opinion of Sheriff Principal Reid in United Dominions Trust Ltd v Taylor 1980 SLT (Sh Ct) 28 and held that section 75 of the 1974 Act (which I discuss in paras 18 26 below) had the effect that Mr Durkin had been entitled to rescind and had rescinded both the sale contract and the credit agreement. The sheriff awarded Mr Durkin (i) 8,000 for injury to his credit, (ii) 6,880 for the extra interest which he had had to pay and (iii) 101,794 for the loss of a capital gain arising from his inability to purchase the Spanish property in 2003. Mr Durkin appealed to the Inner House of the Court of Session against the sheriffs assessment of his damages. HFC cross appealed against the sheriffs findings (i) that section 75 of the 1974 Act enabled Mr Durkin to rescind the credit agreement, (ii) that HFC was in breach of its duty of care, and (iii) that HFCs breach of duty had caused the second and third heads of loss. HFC did not dispute the award of 8,000 if it had been in breach of its duty but submitted that there was no evidence to entitle the sheriff to make the awards which he did under the second and third heads of loss. At a hearing before the First Division of the Inner House Mr Durkins appeal on the amount of damages failed. Worse for him, HFCs counsel persuaded the court that section 75 did not allow him to rescind the credit agreement. In addition, the court accepted HFCs submission that, absent averments and evidence of the sort of enquiries which a bank could reasonably have been expected to make, Mr Durkin had not shown that HFC had failed in its duty of care. Further, counsel for HFC analysed the evidence in the transcripts of evidence and the documents and persuaded the court that the evidence did not permit the sheriff to hold that a breach of duty by HFC had caused Mr Durkin loss under the second and third heads of claim. The court therefore amended the sheriffs findings of fact to exclude his claims for loss of interest and the loss arising from his inability to purchase the property in Spain. On 15 June 2010 the First Division granted decree of absolvitor to HFC. This appeal Mr Andrew Smith QC sought permission to advance a new ground of appeal, namely that there was on a proper analysis no contract of sale and no credit agreement. As this stance contradicted the basis on which the case had been pleaded from the outset and argued in the courts below, we refused his application. The issues for this court therefore are (i) whether Mr Durkin had rescinded the credit agreement, (ii) whether HFC was in breach of a duty of care to him and (iii) whether on the findings of fact any breach of HFCs duty of care caused him loss exceeding the 8,000 which the sheriff had awarded for the loss of his credit. Whether Mr Durkin rescinded the credit agreement The credit agreement, which DSGs sales assistant presented to Mr Durkin for his signature in the PC World store, was a personal loan agreement which described in a schedule the purchase of the computer, the 50 deposit payable on supply and the amount of credit which was the balance of the purchase price. The first clause of the terms and conditions was entitled Payment of the Supplier and stated (a) We [HFC] agree to lend to you and you agree to borrow the Amount of Credit. Subject to clause 1(b) below, you authorise us to pay the Amount of Credit to the Supplier. (b) We may withhold payment to the Supplier until we are satisfied that the Goods and/or Services have been supplied and/or installed or completed to your satisfaction. (c) By signing this Agreement you declare that you have paid the Deposit (if any is shown in the Schedule) to the Supplier. In order to understand the arguments about the interpretation of section 75 of the 1974 Act, it is necessary to set out certain statutory provisions. The agreement was a consumer credit agreement under section 8(1) of the 1974 Act as it was an agreement between an individual (the debtor) and any other person (the creditor) by which the creditor provides the debtor with credit of any amount. It was a regulated consumer credit agreement under section 8(3) of the 1974 Act as it was not an exempt agreement. It was also a debtor creditor supplier agreement under section 12 of the 1974 Act. To understand the definitions in section 12 one must first look at section 11. That section lists three types of restricted use credit agreement and also an unrestricted use credit agreement. It provides: (1) A restricted use credit agreement is a regulated consumer credit agreement (a) to finance a transaction between the debtor and the creditor, whether forming part of that agreement or not, or (b) to finance a transaction between the debtor and a person (the supplier) other than the creditor, or (c) to refinance any existing indebtedness of the debtors, whether to the creditor or another person, and restricted use credit shall be construed accordingly. (2) An unrestricted use credit agreement is a regulated consumer credit agreement not falling within subsection (1), and unrestricted use credit shall be construed accordingly. (3) An agreement does not fall within subsection (1) if the credit is in fact provided in such a way as to leave the debtor free to use it as he chooses, even though certain uses would contravene that or any other agreement. Section 12 provides: A debtor creditor supplier agreement is a regulated consumer credit agreement being (a) (b) a restricted use credit agreement which falls within section 11(1)(a), or a restricted use credit agreement which falls within section 11(1)(b) and is made by the creditor under (c) pre existing arrangements, or in contemplation of future arrangements, between himself and the supplier, or an unrestricted use credit agreement which is made by the creditor under pre existing arrangements between himself and a person (the supplier) other than the debtor in the knowledge that the credit is to be used to finance a transaction between the debtor and the supplier. We are not concerned in this case with the circumstance in which the creditor is also the supplier (sections 11(1)(a) and 12(a)). Section 75, which I set out below, covers both restricted use credit agreements under section 12(b) and unrestricted use credit agreements under section 12(c). The agreement in this case is an example of the former, where the creditor pays the money to the supplier. An example of the latter would be where a supplier introduces the customer to a financial organisation to obtain a loan to finance the transaction with him but the customer, who receives the money, could use it for another purpose, even if by that use he broke a contract (section 11(3)). Section 75 provides (so far as relevant): (1) If the debtor under a debtor creditor supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor. (2) Subject to any agreement between them, the creditor shall be entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under subsection (1), including costs reasonably incurred by him in defending proceedings instituted by the debtor. In my view the First Division was correct to hold that section 75(1) did not give the debtor any right to rescind the credit agreement if he did not have such a right under the general law. I have reached this view for the following five reasons. First, it is consistent with the ordinary meaning of the words of section 75(1): they give the debtor who has a claim against a supplier a like claim against the creditor. Thus a debtor, who has a right of action against the supplier for misrepresentation or breach of the contract of supply, can sue the creditor for that misrepresentation or breach of the supply contract. In other words, the creditor is concurrently liable for the suppliers breach. Secondly, it is consistent with that concurrent primary liability that the creditor and the supplier should be jointly and severally liable to the debtor. I do not suggest that the provision of joint and several liability of itself means that the claim against the supplier must be a monetary claim, because the closing words of the subsection can readily be interpreted as having effect where applicable and not as words of limitation. Thirdly, the creditors entitlement to indemnity from the supplier under subsection (2) is consistent with his incurring of concurrent liability for matters which he cannot control. Fourthly, my view matches the relevant recommendation of the Report of the Committee on Consumer Credit chaired by Lord Crowther in 1971 (Cmnd 4596), whose review led to the 1974 Act. In its discussion of the liability of connected lenders (paras 6.6.24 6.6.31) the committee favoured an approach which made the lender answerable in damages for misrepresentations made by the seller in antecedent negotiations and for breaches of any term of the agreement relating to title, fitness or quality of the goods (paras 6.6.26 27). I set out in full the committees recommendation (at para 6.6.28). We therefore recommend that where the price payable under a consumer sale agreement is advanced wholly or in part by a connected lender that lender should be liable for misrepresentations relating to the goods made by the seller in the course of antecedent negotiations, and for defects in title, fitness and quality of the goods. Further, we consider that where the sale and the loan are made by separate contracts, the borrower should nevertheless have the right to set off against any sum payable by him under the loan contract any damages he is entitled to recover from the lender for breaches of the sale agreement by the seller. It is of note that in this recommendation the claim against the lender is derived from the sellers breach of contract or misrepresentation and is not a claim relating to the credit agreement or the actions of the creditor. Fifthly, section 75 also applies to an unrestricted use credit agreement under section 12(c) in which the supplier introduces the debtor to a financial organisation in order to fund a supply transaction with him but the debtor, who receives the money, is not restricted in fact, even if he is by contract, to using the loan which he obtains to finance that particular transaction. In such a case where there was no contractual restriction, if the supply contract were rescinded and the purchase price repaid, the debtor could use the borrowed money for other purposes. There is no obvious need for a right to rescind the finance agreement where the debtor can use the borrowed funds to obtain substitute or other goods and services, if such use does not contravene the credit agreement. Mr Smith relied on section 75 for Mr Durkins entitlement to rescind. For the reasons set out above, I do not think that he can do so. But that is not the end of the matter. In the course of the debate counsel were asked how the debtor would obtain his remedy if the contract of sale were rescinded and the credit agreement were not. Mr Clark submitted that, if the supplier contested the rescission of the contract of supply, the credit contract would remain in force until the debtor had established his right to rescind the supply agreement and had repaid the creditor or made a claim to offset against the creditors claim. On establishing his right to rescind the debtor could raise an action against the supplier to recover his deposit on the basis of unjustified enrichment and also claim damages for breach of contract. Those damages could include the loss he had incurred and would incur in meeting his obligations under the credit agreement. Thus he could pay off his obligations to his creditor. Section 75 would allow him to claim those damages against the creditor, who would probably counter claim for the sums outstanding on the credit agreement and make a third party claim against the supplier. The debtor could wait until the creditor sued him and then plead a section 75 claim for damages to offset the creditors claim. In Scots law the debtor would be able to plead a defence of compensation as the amount of his damages claim against the creditor could readily be measured by the creditors claim against him and any deposit (Henderson & Co Ltd v Turnbull & Co 1909 SC 510, 517 per Lord Low). In English law he could plead an equitable set off (Federal Commerce & Navigation Co Ltd v Molena Alpha Inc [1978] QB 927, 974 975 per Lord Denning MR). In neither jurisdiction would the debtors claim for damages extinguish his debt to the creditor until either it was upheld by a court or the creditor agreed to cancel the debt. It is not consistent with the policy of the 1974 Act that the debtor in a case such as this should have to work out the consequences of the rescission of the supply contract in such a complex way. In my view he does not have to. Section 11(1)(b) of the 1974 Act states that the purpose of the restricted use credit agreement, such as the agreement in this case, is to finance a transaction between the consumer and the supplier. Where, as here, the contract is tied to a particular transaction, it has no other purpose. The rescission of the supply agreement excuses the innocent party from further performance of his obligations (if any) under the supply agreement (Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 844 per Lord Wilberforce) and entitles him to repetition of sums paid and damages. If the supplier were to pay in damages the sums needed to pay off the creditor under the credit agreement, the debtor could not retain those sums or spend them on anything else. He would have to pay the creditor forthwith because he had borrowed money solely for a transaction which had ceased to have effect. In most cases the consumers acceptance of the repudiation of a supply agreement does not frustrate the credit contract by analogy with the coronation case, Krell v Henry [1903] 2 KB 740, because the creditor will have paid the supplier and the purpose of the credit agreement will have been fulfilled by the purchase of the goods, before the consumer rescinds the supply contract. But that does not mean that the debtor has no remedy. It is inherent in a debtor creditor supplier agreement under section 12(b) of the 1974 Act, which is also tied into a specific supply transaction, that if the supply transaction which it financed is in effect brought to an end by the debtors acceptance of the suppliers repudiatory breach of contract, the debtor must repay the borrowed funds which he recovers from the supplier. In my view, in order to reflect that reality, the law implies a term into such a credit agreement that it is conditional upon the survival of the supply agreement. The debtor on rejecting the goods and thereby rescinding the supply agreement for breach of contract may also rescind the credit agreement by invoking this condition. As the debtor has no right to retain or use for other purposes funds lent for the specific transaction, the creditor also may rescind the credit agreement. It appears to me that similar reasoning would apply to a section 12(c) agreement where the credit agreement tied the loan to a particular transaction. agreement. Mr Clark submitted that it was not open to Mr Durkin to argue that the common law gave him a right to rescind because he had staked his case on section 75. I disagree. Mr Durkins assertion throughout has been that he had rescinded both the sale agreement and the credit agreement. His legal advisers relied on a decision of the sheriff principal in United Dominions Trust which, although criticised in textbooks and legal articles, had been followed in other sheriffdoms. If I am correct that a restricted use credit agreement which falls under section 12(b) of the 1974 Act and relates to a specified supply transaction is conditional upon the substantive survival of that supply transaction, so the purchaser can bring to an end the credit agreement without invoking section 75, the result is the same but the mechanism more simple. In this case I do not think that the different legal analysis of the rescission amounts to a different case. I am satisfied therefore that this reformulation of his claim does not come too late for Mr Durkin. I am satisfied therefore that Mr Durkin was entitled to rescind the credit Before considering the delictual case against HFC, it is necessary to take into account section 102(1) of the 1974 Act, which provides: Where the debtor or hirer under a regulated agreement claims to have a right to rescind the agreement, each of the following shall be deemed to be the agent of the creditor or owner for the purpose of receiving any notice rescinding the agreement which is served by the debtor or hirer (b) any person who, in the course of a business carried on by him, acted on behalf of the debtor or hirer in any negotiations for the agreement. Notice means notice in writing (section 189 of the 1974 Act). In this case the sales assistant in the PC World store, Mr Slorance, was the person who discussed with Mr Durkin the provision of credit for the purchase of the computer. He did so on the instructions of the manager, Mr Taylor. Mr Durkin intimated the cancellation of the credit agreement to Mr Taylor orally on 29 December 1998. That was not sufficient for section 102 as it was not in writing. But his letter of 8 March 1999 to the managing director of PC World was confirmation of the rejection of the computer and intimation of the rescission of the credit agreement. By virtue of section 102(1) DSG was deemed to have received notice of that rescission as HFCs agent at that time. But Mr Durkin does not have to rely on section 102. HFC had notice of his asserted rescission of the credit agreement directly through the telephone calls in February and March 1999 which I described in para 4 above. The delictual case against HFC The First Division rejected Mr Durkins case in delict. HFC accepted that it was under a duty to exercise reasonable care not to make untrue statements about Mr Durkin to the credit reference agencies. But HFC submitted that Mr Durkin had failed to plead or prove the nature of the enquiries that it should have carried out and what the outcome of those enquiries would have been. The First Division accepted that submission. Accordingly they held that Mr Durkin had not established that any act or omission by HFC amounted to a breach of duty which had caused him loss. I take a different view. HFC, knowing of Mr Durkins assertion that the credit agreement had been rescinded, was under a duty to investigate that assertion in order reasonably to satisfy itself that the credit agreement remained enforceable before reporting to the credit reference agencies that he was in default. HFC could readily foresee that registration of a default could damage Mr Durkins credit: it said so in its letter of 22 July 1999. As it knew that Mr Durkins assertion of rescission of the sale agreement was unresolved, it had the options of (i) saying nothing to the credit reference agencies or (ii) if it chose to notify them, incurring the duty to him to take reasonable care to ensure that the notification was accurate (cf. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, 486 per Lord Reid). HFC made no enquiries before intimating Mr Durkins alleged default to the credit reference agencies. After Mr Durkin complained about the entries on the credit registers, HFC told him to sort matters out with DSG. As the First Division recorded in amended finding of fact 21, HFC made no enquiries and, at all material times throughout the litigation, accepted without question DSGs position that Mr Durkin had not been entitled to rescind the contract of sale. It is relevant to ask what would have happened if HFC had made enquiries (McWilliams v Sir William Arrol & Co 1962 SC (HL) 70). The answer is clear. If HFC had contacted DSG, it is likely that DSG would have said that it contested the rejection of the computer. But HFC would not have known whether DSGs stance was correct. If it had been faced with a contested rescission of the supply agreement and an asserted rescission of the credit agreement which it was not in a position to resolve, HFC should have refrained from intimating a default until the issues were resolved. HFC could have sought to test the continued effectiveness of the credit agreement by suing Mr Durkin to enforce its terms. Alternatively, it could have waited for Mr Durkin to sue to resolve the issue, as he later did. It would have known that if it did so, it was entitled to be indemnified by DSG under section 75(2) of the 1974 Act. But it should not have intimated the default without a reasonable basis for the belief that it had occurred. In so doing it acted in breach of its duty of care to Mr Durkin. There may be cases in which a creditor, having made enquiries, acts reasonably in reaching the view that the debtors assertions are unfounded. This is not such a case. The quantification of Mr Durkins loss HFC did not contest the award of 8,000 for injury to Mr Durkins credit if it were established that it had breached its duty of care to him. But Mr Smith sought also to restore the sheriffs award of damages for the extra interest which he had paid and for the loss of the capital gain on the Spanish property. Mr Durkin faces an insuperable difficulty in pursuing this part of his appeal. Section 32 of the Court of Session Act 1988 sets out how the Court of Session is to handle appeals from the judgment of a sheriff after proof and limits the role of the Supreme Court in relation to such appeals. It provides in relation to the Court of Session: (4) Where such an appeal is taken to the Court from the judgment of the sheriff principal or sheriff proceeding on a proof, the Court shall in giving judgment distinctly specify in its interlocutor the several facts material to the cause which it finds to be established by the proof, and express how far its judgment proceeds on the matter of facts so found, or on matter of law, and the several points of law which it means to decide. In relation to the Supreme Court it provides: (5) The judgment of the Court on any such appeal shall be appealable to the Supreme Court only on matters of law. The First Division held that the evidence before the sheriff did not establish the extent to which Mr Durkin would have made use of 0% interest rate credit cards between 2001 and 2005 or the net benefit which he would have gained from such use (paras 78 80). They altered the relevant finding of fact to exclude this claim. This court is not empowered to go behind the amended finding of fact absent a demonstrated legal error. Mr Durkins much larger claim for loss of the capital gain on the Spanish property was based on the proposition that his inability to borrow on his credit cards at 0% interest had caused him to borrow more from the Northern Rock Building Society, which had a security over his home. That borrowing used up funds that would otherwise have been available to pay the deposit on the Spanish property which he wished to purchase. The First Division (in paras 80 82) concluded that there was no evidence to support the sheriffs crucial finding that Mr Durkins additional borrowing from the Northern Rock was caused by the non availability of 0% credit rather than by the general level of his expenditure. Again they altered the relevant finding of fact. As a result, on the findings of fact there is no causal link between the adverse credit reference and Mr Durkins inability to fund the purchase of the Spanish property. Again we cannot go behind those findings of fact, there being no demonstrated legal error. Conclusion I would allow the appeal and declare that Mr Durkin was entitled to rescind and validly rescinded the credit agreement by giving notice to HFC in about February 1999. Damages resulting from HFCs breach of its duty of care are confined to injury to Mr Durkins credit in the sum of 8,000. I would give the parties an opportunity to agree the date from which interest should run and the rate or rates of interest to be applied.

UK-Abs

Richard Durkin visited a PC World store in Aberdeen on 28 December 1998 to purchase a laptop computer, making clear that he wanted one with an internal modem. A sales assistant identified a laptop but said he was unsure whether it had an internal modem. He agreed that Mr Durkin could take the computer home and return it if it did not. Mr Durkin paid a 50 deposit and signed a credit agreement given to him by the sales assistant for the balance of 1,449. The assistant signed the credit agreement on behalf of a lender, HFC Bank plc [2]. On returning home, Mr Durkin found that the computer did not have an internal modem. At about 9am the next day, he returned it and asked for his deposit back and for the credit agreement to be cancelled. A store manager refused to accept his rejection of the goods and took no step to cancel the credit agreement [2]. Mr Durkin eventually raised an action and in March 2008 the sheriff declared he had validly rescinded the contract of sale. This was not challenged on appeal [3]. Mr Durkin did not pay any money to HFC under the credit agreement. In February 1999, he responded by telephone to a request for payment, explaining that he had rejected the laptop and rescinded both his contract with PC World and the credit agreement. The following month, Mr Durkin wrote to the managing director of PC World to explain that he had rejected the computer, that PC Worlds manager had refused to refund the deposit and that HFC was demanding money from him because the manager would not tell HFC the goods had been rejected [4]. HFC wrote again in July 1999 warning Mr Durkin that if he did not resume payments he might have difficulty obtaining credit because HFC made monthly reports to credit reference agencies. It added that if he did not respond to the letter, HFC would serve a default notice on him under the Consumer Credit Act 1974. Mr Durkin telephoned HFC to re affirm his position [5]. Without making any enquiries about his claim to have rescinded both agreements, HFC issued a default notice and intimated to credit reference agencies that Mr Durkin had been in default of his obligations under the credit agreement since 14 January 1999. Entries remained on their registers until 2005 or 2006 [6]. Mr Durkin recovered his deposit out of court, but found that the credit register entries prevented him from opening new accounts with other lenders, meaning he could not continue to take advantage of offers of 0% credit on transferred balances to minimise the costs of his borrowing by transferring from one credit card company to another [7]. He raised an action in the Sheriff Court in 2004 seeking a declarator that he had validly rescinded both the contract of sale and the credit agreement. He claimed damages of 250,000 from HFC for its negligence in representing to the credit reference agencies that he had defaulted. He did so under three heads: (i) damage to his financial credit, (ii) loss from interest charges caused by his inability to exploit offers of 0% credit and (iii) loss of a capital gain caused by his inability to put down a 30% deposit on a Spanish property in 2003 [8]. In March 2008, the sheriff held that section 75 of the 1974 Act meant that Mr Durkin had been entitled to rescind and had rescinded the sale contract and the credit agreement. He awarded 8,000 for injury to credit, 6,880 for additional interest Mr Durkin had to pay, and 101,794 for the loss in respect of the Spanish property [9]. In June 2010 Mr Durkins appeal against the sheriffs assessment of damages was refused by the First Division of the Inner House of the Court of Session and HFC successfully cross appealed the findings that section 75 allowed him to rescind the credit agreement and that it had breached its duty of care. The First Division also held that the evidence did not entitle the sheriff to find that a breach of duty by HFC had caused the alleged interest charges and Spanish property losses [10 11]. Lord Hodge delivers the unanimous judgment of the Court, allowing Mr Durkins appeal. Lord Hodge finds that Mr Durkin was entitled to rescind the credit agreement and validly did so by giving notice to HFC in about February 1999 [27]. He sets out the legal framework, explaining that the agreement was a regulated consumer credit agreement and a debtor creditor supplier agreement under the 1974 Act [13 17]. The key provision is section 75(1), which provides that if the debtor under a debtor creditor supplier agreement has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor [18]. Lord Hodge explains that the purpose of the restricted use credit agreement is to finance a transaction between the consumer and the supplier. Where, as here, the contract is tied to a particular transaction, it has no other purpose [22 23]. The rescission of the supply agreement excuses the innocent party from further performance of any obligations he has under it [24]. It is inherent in a debtor creditor supplier agreement under the 1974 Act, which is also tied into a specific supply transaction, that if the supply transaction it financed is brought to an end by the suppliers repudiatory breach of contract, the debtor must repay the borrowed funds recovered from the supplier. In order to reflect that reality, the law implies a term into such a credit agreement that it is conditional upon the survival of the supply agreement. The debtor on rejecting the goods and thereby rescinding the supply agreement for breach of contract may also rescind the credit agreement by invoking this condition [26]. Knowing of Mr Durkins assertion that the credit agreement had been rescinded, HFC was under a delictual duty to investigate that assertion in order reasonably to satisfy itself that the credit agreement remained enforceable before reporting to the credit reference agencies that he was in default. HFC made no such enquiries, accepting without question DSGs position that Mr Durkin had not been entitled to rescind the contract of sale [29 33]. HFC did not contest the award of 8,000 for damage to credit if breach of duty were established. However, the Supreme Court rejects Mr Durkins attempt to restore the sheriffs award of damages for the extra interest he paid and for the loss of the capital gain on the Spanish property. Appeals like the present may only be made on matters of law, meaning the Supreme Court cannot go behind the First Divisions findings of fact on these alleged heads of loss [36 39].

There are two issues in this case, both of them simple to state but neither of them simple to answer. First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the proceedings for her)? Second, what happens if legal proceedings are settled or compromised without it being recognised that one of the parties lacked that capacity (so that she did not have the benefit of a litigation friend and the settlement was not approved by the court as also required by the CPR)? Can matters be re opened long after the event or does the normal rule of English law apply, which is that a contract made by a person who lacks capacity is valid unless the other party to the contract knew or ought to have known that she lacked that capacity in which case it is voidable (the rule in Imperial Loan Co Ltd v Stone [1892] 1 QB 599)? These issues are of very considerable importance, particularly in personal injury cases. On the one hand, there is the need to protect people who lack capacity from making settlements which are disadvantageous to them. On the other hand, people are assumed to have capacity to make their own decisions and should only be deprived of the right to do so in clear cases. There is also a public interest in upholding bargains which everyone, but particularly the other party, thought were valid when they were made and in putting an end to litigation. The spectre looms of many personal injury claims which insurers thought had been settled long ago being reopened on the basis of an incapacity which they had no reason to suspect at the time. The real culprits, they would say, are the claimants original legal advisers (if she had any) against whom she will almost always have a claim for professional negligence. The history of this case On 25 June 1999, there was a road accident on a dual carriageway near the entrance to a roundabout in Goldthorpe (which is roughly half way between Doncaster and Barnsley in South Yorkshire). Mr Burgin, who was riding a motorcycle in the offside lane, struck Ms Dunhill, who was crossing the road having emerged from between parked vehicles in the nearside lane. She suffered a severe closed head injury along with soft tissue injury to both legs. On 13 May 2002, shortly before the limitation period ran out, she issued a claim for damages in the Barnsley county court. She claimed still to be suffering from a complete loss of the senses of smell and taste, some hearing loss, forgetfulness, headaches, personality change, low moods and tearfulness, anxiety, mood swings, occasional suicidal ideation and self mutilation. She claimed general damages for pain, suffering and loss of amenity, and special damages (totalling 2,262.92) for travelling expenses and 10 hours care a day for six months followed by one hour a day for two years, the total claim being limited to 50,000. It was accompanied by two reports from a consultant surgeon specialising in accident and emergency medicine. Mr Burgin denied liability and alternatively alleged contributory negligence. The case was listed for a trial on the issue of liability at the Sheffield county court on 7 January 2003. Ms Dunhill was at court, accompanied by a mental health advocate, and represented by counsel and a trainee solicitor. One of her witnesses to the accident did not arrive and negotiations took place towards a settlement. The claim was eventually compromised for the total sum of 12,500 with costs. This was embodied in a consent order, which was signed by both counsel and placed before the judge. This provided that (i) the defendant pay the claimant the sum of 12,500 in full and final settlement of her claim by 28 January 2003; (ii) the defendant pay the claimants costs, to be the subject of detailed assessment if not agreed; and (iii) there be detailed assessment of the claimants community legal service costs. On any view this was a gross undervaluation of her claim, which her current advisers would put at over 2,000,000 on a full liability basis and the defendants would put at around 800,000. In July 2006, Mrs Dunhill sought the advice of new solicitors. In December 2008, nearly six years after the consent order was made, her litigation friend issued proceedings on her behalf for professional negligence against her former solicitors and counsel. Those proceedings have been stayed pending further order. On 11 February 2009, her litigation friend issued the present proceedings. These took the form of an application in the original action, seeking (i) a declaration that the claimant did not have capacity at the time of the purported settlement of the matter on 7 January 2003, and (ii) that the consent order be set aside and directions given for the further conduct of the claim. Such applications are known as Masterman Lister proceedings, after the case of Masterman Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889, [2003] 1 WLR 1511. It was agreed between the parties that there should first be a trial of whether or not the compromise and consent order made on 7 January 2003 required the approval of the court. This depended on two issues: (i) whether Mrs Dunhill was a patient within the meaning of Part 21 of the Civil Procedure Rules, which regulates the procedure to be adopted in proceedings involving children and (as the Rules then were) patients; and (ii) what the consequences were if she was such a patient, specifically whether this meant that the compromise and consent order should have been approved by the court under CPR 21.10. The defendant has not sought retrospective approval of the settlement. Issue (i) was tried by Silber J in February 2011: [2011] EWHC 464 (QB). The parties were agreed that the test of whether a person was a patient was whether she had the mental capacity to conduct the proceedings. They further agreed that this was to be judged by reference to her capacity to make the decisions likely to be required of her in the course of the proceedings, a test derived from the judgment of Chadwick LJ in Masterman Lister. But they disagreed as to whether this test was to be applied to the proceedings which she had actually brought, on the advice of her legal representatives, or whether it was to be applied to the proceedings as they might have been brought had her lawyers given her different advice. If it was the former, then the most difficult decision she had to take was whether to accept the sum which was offered on 7 January 2003, so in practice the question was whether she was able to understand matters well enough to make that decision. If it was the latter, the defendant concedes that she did not have the capacity to conduct the larger and much more complicated claim which should have been brought. Silber J decided that capacity was to be judged by reference to the decisions which the claimant was actually required to take in the action as drafted and not to the decisions which she might have been required to take had it been differently framed. In practice this meant whether she had capacity to make the compromise on 7 January 2003. He held that, on the evidence, the presumption that she did have that capacity had not been rebutted: [2011] EWHC 464 (QB), para 97. In the light of that decision, issue (ii) did not arise. The claimant appealed on the point of law. The Court of Appeal held that the judge should not have confined himself to the actual decision required of her on 7 January 2003, but should have considered her capacity to conduct the proceedings as they should have been framed. Ward LJ concluded at [2012] EWCA Civ 397, para 29: Since capacity to conduct proceedings includes . the capacity to give proper instructions for and to approve the particulars of claim, the claimant lacked that capacity. For her to have capacity to approve a compromise she needed to know . what she was giving up and, as is conceded, she did not have the faintest idea that she was giving up a minor fortune without which her mental disabilities were likely to increase. As a result, the case was remitted to the High Court to determine issue (ii). This was now framed as whether CPR 21.10 has any application where the claimant has brought a claim in contravention of CPR 21.2, so that in the eyes of the defendant and the court she appeared to be asserting that she was not under a disability? No doubt this reformulation was intended by the defendant to hammer home that the general rule in contract is that laid down in Imperial Loan Co Ltd v Stone. Bean J decided that where a civil claim is issued, the Civil Procedure Rules are incorporated into any agreement made to settle the case and that CPR 21.10(1) required that this settlement be approved by the court irrespective of how matters appeared at the time. Hence the settlement was void, the court order should be set aside and the case should go for trial: [2012] EWHC 3163 (QB); [2012] 1 WLR 3739. Between the hearing before Bean J in early October 2012 and his judgment in November 2012, this court had given the defendant permission to appeal against the decision of the Court of Appeal on issue (i). Accordingly Bean J certified, with the parties consent, that the conditions were met for a leapfrog appeal under sections 12 to 16 of the Administration of Justice Act 1969 on issue (ii). This was in order that both issues could be heard together if this court gave the defendant permission to appeal on issue (ii), which it duly did in March 2013. The whole question of the proper approach to the problem is therefore before this court. As so often happens, the parties do not agree on precisely how the issues should be formulated and new arguments have been introduced to bolster the decisions reached in the courts below. The defendant, in particular, has a sense of grievance at the way in which the issues and the arguments have shifted over time. But in this court we have to do our best to arrive at the right result and thus to allow all relevant arguments to be deployed before us unless this would be unfair to an opposing party. There is no unfairness here. Everyone has been well aware from the outset of what the underlying questions are and each party has had sufficient time to respond to all the arguments deployed. Indeed we are grateful to them for the assistance which we have received. The test of capacity In 2002 when this claim was launched and 2003 when it was compromised, CPR 21.1(2)(b) to the Civil Procedure Rules 1998 (SI 1998/3132 (L 17)) defined a patient as a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his own affairs. This was much the same definition as that in Order 80, rule 1, of the former Rules of the Supreme Court, which referred to his property and affairs; this phrase also used to appear in Part VII of the Mental Health Act 1983 as the definition of those over whose property and affairs the Court of Protection might take control; and in section 38(2) of the Limitation Act 1980 as the definition of those under a disability in respect of whom limitation periods did not begin to run. It suggests a global inability to manage and administer all ones property and affairs, whereas of course a person may be able to manage some of his affairs but not others. The general approach of the common law, now confirmed in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity in question and not globally. Hence it was concluded in Masterman Lister that capacity for this purpose meant capacity to conduct the proceedings (which might be different from capacity to administer a large award resulting from the proceedings). This was also the test adopted by the majority of the Court of Appeal in Bailey v Warren [2006] EWCA Civ 51, [2006] CP Rep 26, where Arden LJ specifically related it to the capacity to commence the proceedings (para 112). It would have been open to the parties in this court to challenge that test, based as it was mainly upon first instance decisions in relation to litigation and the general principle that capacity is issue specific, but neither has done so. In my view, the Court of Appeal reached the correct conclusion on this point in Masterman Lister and there is no need for us to repeat the reasoning which is fully set out in the judgment of Chadwick LJ. Under the Rules as amended when the Mental Capacity Act 2005 came into force (the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204 (L20)), patients in rule 21.1(1)(a) has been replaced by protected parties, and in rule 21.1(2)(d) a protected party is defined as a party, or intended party, who lacks capacity to conduct the proceedings. Thus the current test is stated in the same terms as that which was applicable to these proceedings. The current rule 21.1(2)(c) defines lacks capacity to mean lacks capacity within the meaning of the 2005 Act. Given that the courts had already arrived at a test of capacity on which the 2005 Act test was closely modelled, it seems unlikely that this has introduced any differences between the old and the new law. But that question does not arise in this case, where the issue is what is meant by the proceedings which the party must have the capacity to conduct. This is a question of construing the Rules. Rule 21.2(1) provides that a protected party must have a litigation friend to conduct proceedings on his behalf. By rule 21.4(3), a litigation friend must be someone who can fairly and competently conduct proceedings on behalf of the patient. This in itself suggests a focus on proceedings in general rather than on the proceedings as framed. Furthermore it applies right at the start of any proceedings. Indeed, as will be seen later, rule 21.10 applies to claims which are settled before any proceedings have begun. Read as a whole, therefore, rule 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. The proceedings themselves may take many twists and turns, they may develop and change as the evidence is gathered and the arguments refined. There are, of course, litigants whose capacity fluctuates over time, so that there may be times in any proceedings where they need a litigation friend and other times when they do not. CPR 21.9(2) provides that when a party ceases to be a patient (now, a protected person) the litigation friends appointment continues until it is ended by a court order. But a party whose capacity does not fluctuate either should or should not require a litigation friend throughout the proceedings. It would make no sense to apply a capacity test to each individual decision required in the course of the proceedings, nor, to be fair, did the defendant argue for that. There are, of course, statements in the cases which might suggest a different approach. In Masterman Lister, Kennedy LJ (para 18) quoted with approval the test described by Boreham J in the limitation case of White v Fell (unreported) 12 November 1987 (which the best efforts of counsel in this case have been unable to find for us): To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice . Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately . Finally, she needs sufficient mental capacity to understand and make decisions based upon, or otherwise give effect to, such advice as she may receive. Applied to the facts of this case, this could suggest that, having identified a problem and gone to a lawyer, all that is needed is the capacity to understand and make decisions based upon the actual advice given by that lawyer. The same might be said of the test as stated by Chadwick LJ at para 75 of Masterman Lister: For the purposes of Order 80 and now CPR Pt 21 the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. Equally, of course, those words could be read in the opposite sense, to refer to the advice which the case required rather than the advice which the case in fact received. In truth, such judicial statements, made in the context of a different issue from that with which we are concerned, are of little assistance. But they serve to reinforce the point that, on the defendants argument, the claimants capacity would depend upon whether she had received good advice, bad advice or no advice at all. If she had received good advice or if she had received no advice at all but brought her claim as a litigant in person, then she would lack the capacity to make the decisions which her claim required of her. But if, as in this case, she received bad advice, she possessed the capacity to make the decisions required of her as a result of that bad advice. This cannot be right. I would hold, therefore, that the test of capacity to conduct proceedings for the purpose of CPR Part 21 is the capacity to conduct the claim or cause of action which the claimant in fact has, rather than to conduct the claim as formulated by her lawyers. Judged by that test, it is common ground that Mrs Dunhill did not have the capacity to conduct this claim. The effect of incapacity It follows that Mrs Dunhill should have had a litigation friend when the proceedings were begun, as required by CPR 21.2(1). As Kennedy LJ pointed out in Masterman Lister, at para 30, Order 80 and CPR Pt 21 are worded in such a way as to indicate that in that event the litigation is ineffective and decisions made in the course of litigation are invalid see for example, Order 80, rr 2(1) and 10, CPR rr 21.2(1) and 21.10(1), but CPR r 21.3(4) does suggest a solution. It provides: Any step taken before a child or patient has a litigation friend, shall be of no effect, unless the court otherwise orders. Kennedy LJ went on to say that Provided everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time I cannot envisage any court refusing to regularise the position (para 31). But of course, everything must depend upon the particular facts. It might be appropriate retrospectively to validate some steps but not others. In this case, we have not been asked to validate anything, but no doubt we could do so of our own motion if we thought it just. I would not think it just to do so. While every other step in the proceedings might be capable of cure, the settlement finally disposing of the claim is not. For obvious reasons, we have not been asked retrospectively to validate the settlement and consent order made on 7 January 2003. CPR 21.10(1) relevantly provides: Where a claim is made (a) by or on behalf of a child or patient [now protected party] (b) against a child or . patient [now protected party], no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim, by, on behalf of or against the child or patient [now protected party], without the approval of the court. The embodiment of this settlement in a consent order did not constitute the approval of the court for the purpose of this rule. The purpose of the rule is to impose an external check on the propriety of the settlement and the accompanying practice direction sets out the evidence which must be placed before the court when approval is sought (see now 21PD.6). Given the finding that Mrs Dunhill was a patient at the time, does this automatically mean that the settlement and court order are of no effect? The defendant makes two arguments that the rule does not have that effect. The first is that the rule only applies where the patient (or protected party) has a litigation friend. Only then is the other party to the settlement put on notice that the settlement requires the approval of the court. Despite the particulars of injury given in the Particulars of Claims in this case, it has never been suggested that this defendant either knew or ought to have known of the claimants lack of capacity. As a general proposition, the other party is unlikely to be in a position to know the details of his opponents mental faculties unless these are fully explored in medical reports to which he has access. The problem with the defendants argument is that it involves writing words into the rule which are not there. If anything, the words hint at the reverse, as they refer to a claim made by or on behalf of a patient or protected party. As CPR r 21(2)(a) says, it is the task of a litigation friend to conduct proceedings on behalf of a patient or protected person. Although there are other circumstances in which a claim may be made on behalf of a child or protected party, the inclusion of by suggests proceedings conducted by the patient herself. Equivalent wording is not used in relation to claims made against a patient or protected person; but clearly the same rule must apply to settlements made by or on behalf of claimants or defendants. Defendants who lack capacity require as much protection as claimants against improvident settlements. To disapply the rule where there was no litigation friend would in each case require the words having a litigation friend to be written into the rule. Furthermore, in Dietz v Lennig Chemicals Ltd [1969] 1 AC 170, the House of Lords held that the compromise rule embodied in the predecessor to CPR 21.10(1) applied to the settlement of a claim made on behalf of a child before any proceedings were begun. Following this decision, in Drinkall v Whitwood [2003] EWCA Civ 1547, [2004] 1 WLR 462, Simon Brown LJ pointed out that the claim in CPR 21.10 must mean the cause of action rather than any proceedings in which the claim is asserted. This is clear from the wording of CPR 21.10(2), which provides the procedure whereby settlements made before proceedings are begun are approved by the court (that is, as pointed out in Dietz, by a simplified process rather than having to issue a claim in the ordinary way): Where (a) before proceedings in which a claim is made by, or on behalf of, or against a child or patient [now, protected party] (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and (b) the sole purpose of proceedings on that claim is to obtain the approval of the court to a settlement or compromise of the claim, the claim must (i) be made using the procedure set out in Part 8 (alternative procedure for claims); and (ii) include a request to the court for approval of the settlement or compromise. The claim at the end of (a) must necessarily predate the commencement of proceedings. If the claim in CPR 21.10(2) predates the commencement of proceedings, there is no reason why the claim in CPR 21.10(1) should not also do so. If there are not yet any proceedings, there can be no litigation friend. There is no obvious way to read a limitation to cases where the party lacking capacity has a litigation friend into CPR 21.10(1) as it applies to proceedings which have already been started but not as it applies where proceedings have not yet begun. Nor would it make any practical sense to do so. The other party is, if anything, in a rather better position to assess whether his opponent may lack capacity to conduct the proceedings after they have begun than he is beforehand. Dietz and Drinkall were both cases in which the defendant wished to resile from the compromise of a childs claim which had not yet been finally approved by the court. In Bailey v Warren, the Court of Appeal held that there was no reason to distinguish between claims involving children and claims involving patients in this respect. Hence a settlement made before proceedings began by a person who lacked capacity to conduct proceedings on his claim required the approval of the court under CPR 21.10(1) (although in that case the court gave the settlement its approval). In Bailey v Warren, the Court of Appeal also rejected the defendants second argument. This is of a more fundamental nature than his argument upon the construction of the Rules, although he uses it to bolster his construction argument, for he says that without the limitation for which he contends the rule would be ultra vires. This argument was foreshadowed by Chadwick LJ in Masterman Lister, at para 68: To my mind it is not self evident that rules 10 and 12 [the predecessors to CPR 21.10(1) and 21.11] have any application where the plaintiff brings a claim in contravention of rule 2 so that, in the eyes of the defendant and the court, he is asserting that he is not under a disability. If rules 10 and 12 were intended to apply in such a case (which I doubt) then it would be open to question whether the rule making body had power to change the substantive law expounded in Imperial Loan Co Ltd v Stone [1892] 1 QB 599 and Hart v OConnor [1985] AC 1000. In Imperial Loan Co Ltd v Stone [1892] 1 QB 599, the Court of Appeal held that a contract made by a person who lacked the capacity to make it was not void, but could be avoided by that person provided that the other party to the contract knew (or, it is now generally accepted, ought to have known) of his incapacity. As Mr Rowley points out on behalf of the defendant, this rule is consistent with the objective theory of contract, that a party is bound, not by what he actually intended, but by what objectively he was understood to intend. The rule in Imperial Loan was applied by the Judicial Committee of the Privy Council in Hart v OConnor [1985] AC 1000, a case from New Zealand, where the issue was whether this only applied if the contract was fair. Overruling prior New Zealand authority to the contrary in Archer v Cutler [1980] 1 NZLR 386, but consistently with the decision of the High Court of Australia in McLoughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243, the Board held that a contract made by a person who was ostensibly sane could not be set aside simply because it was unfair but only if there was equitable fraud which would also avail a sane person. This rule, it is argued, applies just as much to the settlement of civil claims as it does to any other sort of contract. Once the parties to ordinary civil litigation have reached agreement, it is not for the court to interfere in their bargain. If they desire to embody it in a consent order, they can do so simply by having it entered and sealed by a court officer under CPR 40.6(2). They do not have to submit it for the approval of any judicial officer. In this case, it was simply a matter of courtesy to show the order to the judge, who had (no doubt) been waiting patiently or getting on with other business while the negotiations were proceeding. Matrimonial proceedings are different, because the parties cannot oust the jurisdiction of the court, and so if they want their agreement embodied in a court order, they cannot avoid at least a degree of judicial scrutiny. Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see In re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210. Thus, it is argued, section 1 of the Civil Procedure Act 1997 gave the Civil Procedure Rule Committee power to make rules governing the practice and procedure to be followed in the civil courts and as further provided in Schedule 1 to the Act. Paragraph 4 of that Schedule provides that the Rules may modify the rules of evidence, thus showing that where it is intended that the Rules could modify the substantive law, express provision is made for this. The comment made by Chadwick LJ in Masterman Lister was obiter dictum, because it was there held that the claimant did not lack capacity to litigate. In Bailey v Warren, it was pointed out that the cases of Dietz and Drinkall had not been cited in Masterman Lister. Dietz is of particular relevance, because it was there argued (on behalf of the party who was trying to uphold the unapproved settlement) that the compromise rule as embodied in the Rules of the Supreme Court, Order 80, rule 11 (the predecessor to CPR 21.10(1)) was ultra vires (see counsels reply at p 179). This argument was dealt with by Lord Pearson (with whom Lord Reid and Lord Pearce certainly agreed) as follows, at p 189: There was a suggestion made in the course of the argument that the Compromise Rule, if it meant what it appears to say if invalid means of no legal effect is ultra vires. I do not accept that suggestion. When the claim of an infant or other person under disability is before the court, the court needs, for the purpose of protecting his interests, full control over any settlement compromising his claim. In my view, the making and re making of the Compromise Rule were valid exercises of the rule making power under the Judicature Acts, which is now contained in section 99 of the Act of 1925. Mr Rowley rightly points out that Dietz was a childs claim, where the common law of contract is different, so their Lordships did not have to address their minds to the position of persons who lacked capacity. In practical terms, of course, it is a great deal easier to know whether one is dealing with a child than it is to know whether one is dealing with a patient or protected party. But the fact that a childs contracts may be avoided in rather wider circumstances than may the contracts of a patient or protected party does not alter the fact that both are subject to the same compromise rule and for the same reasons. It did not occur to the Court of Appeal to distinguish between them in Bailey v Warren. It is fair to say that Lord Pearson gives no reason for his acceptance that the compromise rule is within the powers of the rule making body. Given that it applies to claims compromised before proceedings are brought, it is carving out a substantial but quite specific exception to the common law rule in Imperial Loan Co Ltd v Stone. Nevertheless, we are bound by Dietz unless there is a very good reason to depart from it. Mr Melton, on behalf of the claimant, also points out that paragraph 1 of Schedule 1 to the Civil Procedure Act 1997 expressly provides that Among the matters which Civil Procedure Rules may be made about are any matters which were governed by the former Rules of the Supreme Court or the former county court rules . This could certainly be read as conferring an express power to make rules of court modifying the substantive law to the extent that the previous rules did so, whether or not those rules were within the powers which the previous rule making bodies had been given. Agency Having reached the conclusion that the Compromise Rule is intra vires and applies to this case, there is no need to address a further argument made on behalf of Ms Dunhill. This is to the effect that counsel was acting as her agent, rather than a mere messenger, when making the settlement on 7 January 2003. It has been held that the principals incapacity terminates a contract of agency, whether or not it is known to the agent (Yonge v Toynbee [1910] 1 KB 215), and this must logically apply also to the initial formation of a contract of agency. This means that the agent lacks any actual authority to make a contract on behalf of the incapacitated principal, whether or not the other party to the contract knows of the incapacity. Thus, it is said, the rule in Imperial Loan Co Ltd v Stone does not apply to a contract concluded by an agent on behalf of a principal who lacks the capacity to make it. Nor, it is said, could there be any apparent authority if the principal lacked capacity at the time of making the initial representation as to the agents authority, again whether or not the other party knew of this. Reliance is placed, in particular, upon a passage in Bowstead & Reynolds on Agency (19th ed, (2010) para 2 009). This argument has led the current editor of that work, Professor Peter Watts, to reconsider and disavow what is there stated. The authorities are indeed in a state of some confusion, as is amply demonstrated by A.H Hudson at (1959) 37 Canadian Bar Review 497. It would be most unwise for this court to express any opinion, one way or another, as to the present state of the law. Fortunately, the issue does not arise. Policy Much was made in the course of argument of the competing policy arguments, some of which I touched upon at the outset of this judgment. In particular, Mr Rowley emphasised the need for finality in litigation, the stresses and strains which prolonged litigation places upon both litigants and the courts, the difficulty of re opening cases such as this so long after the event, and the alternative protection given to the parties by their legal advisers, who should bear the consequences of their own mistakes. Against this Mr Melton emphasised the disadvantages of claims for professional negligence when compared with claims for personal injuries, principally the discount for the chance that the claim might not have succeeded and the inability to make a periodical payments order. He also points out that lack of insight is a common feature in head injury cases, so that the parties should be encouraged to investigate capacity at the outset. A litigant in person would, of course, have no legal advisers against whom to make a claim, but the legal position cannot differ according to whether or not a party is, or is not, represented by lawyers. Policy arguments do not answer legal questions. But to the extent that they are at all relevant to the issues before us, the policy underlying the Civil Procedure Rules is clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers. The notes to Order 80 in the last (1999) edition of the Supreme Court Practice stated that among the objects of the compromise rule was to protect minors and patients from any lack of skill or experience of their legal advisers which might lead to a settlement of a money claim for far less than it is worth, a sentiment which has been carried forward into the current edition of Civil Procedure. Conclusion I would therefore dismiss both appeals and uphold the order made by Bean J. On the test properly to be applied, Ms Dunhill lacked the capacity to commence and to conduct proceedings arising out of her claim against Mr Burgin. She should have had a litigation friend from the outset and any settlement should have been approved by the court under CPR 21.10(1). We have not been invited to cure these defects nor would it be just to do so. The consent order must be set aside and the case go for trial.

UK-Abs

On 25 June 1999 the respondent, Ms Dunhill, was struck by a motorcycle driven by the appellant, Mr Burgin, when crossing the road. She suffered a severe head injury. In May 2002 she issued a claim against Mr Burgin for damages limited to 50,000 for her injuries. On the day of the trial, settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for 12,500 plus costs, which was embodied in a consent order put before the judge. Ms Dunhill had in fact suffered very serious injuries and this settlement represented a gross undervalue of her claim, if she could establish that Mr Burgin had been negligent. In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, who applied for a declaration that she had not had mental capacity at the time of the settlement and that the consent order should be set aside with directions for the future conduct of the claim. Two preliminary issues arose. The first was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. The second was the consequence if legal proceedings were compromised without it being recognised that one of the parties lacked that capacity, so that the requirement in Part 21.10 of the Civil Procedure Rules (CPR) that the compromise must be approved by a court was not complied with. The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal ruled that she had to have capacity to conduct the more complicated action which ought to have been brought and Ms Dunhill had lacked that capacity. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10. The Supreme Court gave permission to Mr Burgin to appeal against both findings. The Supreme Court unanimously dismisses the appeals. It holds that, on the test properly to be applied, Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim against Mr Burgin. The consent order must be set aside and the case proceed to trial. Lady Hale gives the only judgment. Test for capacity The general approach of the common law, now enshrined in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity generally and not globally. On the issue before the court the question was Ms Dunhills capacity to conduct the proceedings. CPR 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. This could not depend on whether that person received good advice, bad advice or no advice at all. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers, and on this test it was common ground that Ms Dunhill lacked that capacity [13 18]. The effect of incapacity It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made without the external check on its propriety required by CPR 21.10. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhills incapacity [22]. A settlement of a claim was an established exception to the general position under English law in respect of a contract made by a person who lacks capacity, which is valid unless this fact was or ought to have been known [23 30]. Although there was a need for finality in litigation, and the difficulty of re opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32 33]. Accordingly the consent order must be set aside and the case go for trial [34].

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

UK-Abs

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

On 10 June 2010 the appellants, William Hugh Lauchlan and Charles Bernard ONeill, were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997, and of a subsequent attempt to defeat the ends of justice by disposing of her body at sea. The charges of which they were convicted in that trial had been separated from a number of charges on the same indictment of or relating to sexual offences against children. Their trial on the sexual offence charges took place before Lord Pentland between 26 April and 12 May 2010. Their trial on the murder charges, which is the trial to which this appeal relates, took place (between 17 May and 10 June 2010) before the same judge but with a different jury. The appellants were sentenced to life imprisonment for the murder, with punishment parts of 26 and 30 years respectively, and to concurrent sentences of eight years imprisonment for attempting to defeat the ends of justice. The appellants both appealed against their convictions at the second trial and against their sentences. Lauchlan was granted leave to appeal against his conviction for murder by the sifting judges, but this was restricted to two grounds alleging errors by the trial judge. He was also given leave to appeal against sentence. ONeill too was granted leave to appeal against sentence, but the sifting judges refused him leave to appeal against his conviction for murder. The appellants applied under section 107(8) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) for leave to appeal against their convictions for murder on certain grounds which the sifting judges had held were unarguable. On 8 February 2012 Lauchlan was refused leave to appeal on those grounds by the Appeal Court. ONeill was given leave to appeal on one ground only which alleged an error by the trial judge: [2012] HCJAC 20. The appellants then applied for leave to appeal to this court under paragraph 13 of Schedule 6 to the Scotland Act 1998 on some of the grounds on which they were refused leave on 8 February 2012. On 19 April 2012 the Appeal Court (Lord Justice Clerk Gill, Lord Hodge and Lord McEwan) gave both appellants leave to appeal on a ground alleging undue delay. It gave ONeill leave on another ground alleging apparent bias on the part of the trial judge arising out of things that had happened in the presence of the jury at the end of the first trial: [2012] HCJAC 51. The trial judge had been shown a list of the appellants previous convictions after they had been found guilty of the sexual offence charges, and he then made a comment about their character, having regard to their records and the nature of the offences of which they had been convicted. Jurisdiction This court has jurisdiction to hear appeals in relation to criminal proceedings in the High Court of Justiciary under Part II of Schedule 6 to the Scotland Act 1998 (the 1998 Act). The opening paragraph of Part II is in these terms: 3. This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland. The expression devolution issue is defined in paragraph 1 of Schedule 6, which provides: 1. In this Schedule devolution issue means (a) a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament, (b) a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate, (c) a question whether the purported or proposed exercise of a function by a member of the Scottish Government is, or would be, within devolved competence, (d) a question whether a purported or proposed exercise of a function by a member of the Scottish Government is, or would be, incompatible with any of the Convention rights or with EU law, (e) a question whether a failure to act by a member of the Scottish Government is incompatible with any of the Convention rights or with EU law, (f) any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters. The Scotland Act 2012 (the 2012 Act) made a number of important changes to this courts jurisdiction to deal with devolution issues under Schedule 6 to the 1998 Act. They came into effect on 22 April 2013: The Scotland Act 2012 (Commencement No 3) Order 2013 (2013/6 (C1). This is also the relevant date for the purposes of The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (2013/7 (S1)) (the 2013 Order): see article 1(2) of that Order. This appeal was heard one week later on 29 and 30 April 2013. Section 36(4) of the 2012 Act provides: In paragraph 1 of Schedule 6 (devolution issues), after sub paragraph (f) insert But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of (a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament, (b) a function, (c) the purported or proposed exercise of a function, (d) a failure to act. The effect of the exclusion of questions of the kind referred in section 36(4) of the 2012 Act from the list of devolution issues in paragraph 1 of Schedule 6 to the 1998 Act is that these questions must now be dealt with as compatibility issues under the 1995 Act. Section 288ZA(2), which was inserted into the 1995 Act by section 34(3) of the 2012 Act, provides that compatibility issue means a question, arising in criminal proceedings, as to (a) whether a public authority has acted (or proposes to act) (i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or (ii) in a way which is incompatible with EU law, or (b) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights or with EU law. Section 288ZB(4), which was inserted into the 1995 Act by section 35 of the 2012 Act, provides for references of compatibility issues to the Supreme Court by a court consisting of two or more judges of the High Court of Justiciary. Subsection (6) of that section provides that, on a reference to it under that section, the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue. Subsection (7) provides that, when it has determined a compatibility issue on a reference under that section, the Supreme Court must remit the proceedings to the High Court. Section 288AA, which was inserted into the 1995 Act by section 36(6) of the 2012 Act, provides for appeals to the Supreme Court. It contains the same directions in subsections (2) and (3) as to the way this courts powers are to be exercised in the case of appeals as those in subsections (6) and (7) of section 288ZB which relate to references. Article 2 of the 2013 Order provides: (1) A convertible devolution issue is a question arising in criminal proceedings before the relevant date which (a) is a devolution issue; (b) would have been a compatibility issue had it arisen on or after that date; and (c) has not been finally determined before the relevant date. (2) But a devolution issue arising in criminal proceedings before the relevant date is not a convertible devolution issue if (a) the issue has been referred, or a determination of the issue has been appealed, to the Supreme Court under Schedule 6 to the 1998 Act; and (b) the hearing of the reference or appeal commences before the relevant date. Article 3(1) provides that, subject to qualifications which do not apply in this case, a convertible devolution issue becomes a compatibility issue for all purposes on the relevant date. The allegation of undue delay raised a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the 1998 Act. It arose in criminal proceedings before 22 April 2013, it satisfied the other tests set out in article 2(1) of the 2013 Order and the hearing of the appeal did not commence before 22 April 2013. So it was a convertible devolution issue, and it has now become a compatibility issue by virtue of article 3(1). As it has come before the Supreme Court as an appeal against the determination of that issue by the Appeal Court, it is to be treated as an appeal under section 288AA(1) of the 1995 Act: 2013 Order, articles 4(2) and 7(2). So the powers of this court must be exercised in the manner provided for by section 288AA(2) and (3) of the 1995 Act. The allegation of apparent bias was the subject of an amended note of appeal which had been lodged on ONeills behalf before the hearing before the Appeal Court of his application under section 107(8) of the 1995 Act. It made no mention of any act on the part of the Lord Advocate, so it does not appear to have raised a devolution issue at that stage. But it was submitted on ONeills behalf by his solicitor advocate when he was applying for leave to appeal to this court that this allegation did raise a devolution issue: [2012] HCJAC 51. Lord Hodge explained the position in paras 6 and 7 of the Appeal Courts opinion: 6. In additional ground 15 of his grounds of appeal Mr ONeill complained about the comments of the trial judge, Lord Pentland, at the end of the first phase of the trial. We expressed our views on this ground in paragraphs 81 to 88 of this courts opinions. Mr Carroll submitted that the challenge raised a devolution issue as the Lord Advocate had persevered with the prosecution in the face of what was evidence of an unfair trial. 7. For the reasons which we stated in those paragraphs we did not think that the points which Mr Carroll raised were arguable. We adhere to that view. But we recognise that the splitting of the trial into two phases before two juries and the resulting presentation of previous convictions and the judges remarks at the end of the first phase were very unusual circumstances. We are satisfied that it is appropriate to give leave to appeal on this ground. The way the argument on this ground of appeal proceeded in the Appeal Court suggests that, as it was not presented as a devolution issue at the stage of the application under section 107(8) of the 1995 Act, there has been no determination of that issue by that court against which there could have been an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998. But the Appeal Court had power under paragraph 11 of the Schedule to refer any devolution issue which arose in proceedings before it to this court, and that is what seems to have happened in this case. By the same process of reasoning as applies to the allegation of undue delay, this issue was a convertible devolution issue and is now a compatibility issue. This means that this court has jurisdiction to consider it, and that its powers must be exercised in the manner provided for by section 288ZB(6) and (7) of the 1998 Act. Undue delay (a) the issue The period of time relied on in this case extends from 17 September 1998, when the appellants were detained under section 14 of the 1995 Act on suspicion of conspiracy to murder, to 10 June 2010 when they were convicted. It was not until 5 April 2005 that the appellants appeared on petition at Kilmarnock Sheriff Court on charges which ultimately formed the basis for the charges in the indictment of which they were convicted. There was a further period until 10 September 2008 when the indictment was served on them, but the focus of attention at this stage is on that which occurred between 17 September 1998 and 5 April 2005. The question which this court has been asked to decide requires it to identify the right starting point for the purposes of the reasonable time guarantee in article 6(1) of the European Convention on Human Rights. The issue was focussed by Lord Hodge in the Appeal Courts opinion of 19 April 2012 in this way: 2. Mr McVicar on behalf of Mr Lauchlan sought leave to argue before the Supreme Court that the decision of that court in Ambrose v Harris (2011 SLT 1005) had the result that the starting point in the assessment of reasonable time under article 6 of the European Convention on Human Rights (ECHR) was not, as the Appeal Court had held in ONeill v HM Advocate (2010 SCCR 357), the stage when an accused person appeared on petition but the earlier stage when the accused was interviewed by the police under caution in the exercise of their powers under section 14 of the 1995 Act. Mr Carroll on behalf of Mr ONeill adopted Mr McVicars submissions. 3. We have decided to grant leave to appeal on this ground. We set out our reasoning in paragraphs 25 29 of this courts opinions but recognise that the issue raised is one which arises from statements in a decision of the Supreme Court on which that court may wish to provide further guidance. The parties agree that the issue can be formulated in this way: whether for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the European Convention on Human Rights the appellants were charged on 17 September 1998. That, say the appellants, is the date that should be taken to be the starting point. The Crown contends, on the other hand, that the correct starting point is 5 April 2005. It was suggested by the appellants in the statement of facts and issues that this court should also say whether or not the period between 17 September 1998 and 10 June 2010 when the appellants were convicted constituted an unreasonable delay in the process of determination of the charges against them. But it was accepted during the hearing of the oral argument that this issue would raise questions of fact which are best left for determination by the Appeal Court. (b) the facts The deceased, Mrs Allison McGarrigle, had a son named Robert who was subject to a residential supervision requirement under the Social Work (Scotland) Act 1968. It required him to live during the week with his father in Kilmacolm but he was permitted to visit his mother, who was divorced from his father, during the day on Saturdays. On Saturday 14 June 1997 Robert did not return to his fathers address after visiting his mother. Instead he and his mother went to Largs, where they met the appellants and went to live with them in a property which they were then occupying in that town. On or about 20 June 1997 a drinking session took place there at which a number of people including the appellants, Mrs McGarrigle and Robert were present. Mrs McGarrigle was no longer there the following morning, and she was never seen by Robert again. On 16 February 1998 she was reported to the police as a missing person by her ex husband. The exact date when she was last seen was marked as unknown, but it was noted that she had cashed a benefit cheque in Rothesay on 12 June 1997. By September 1998 the police enquiry into Mrs McGarrigles disappearance was being referred to by the Procurator Fiscal at Kilmarnock as a disappearance in suspicious circumstances, and by the Head of the Crown Office Appeals Unit and Crown Counsel as a murder enquiry. In the meantime, on 17 June 1998, the appellants were convicted of a number of sexual offences including offences against Robert McGarrigle. These offences had been committed between March 1993 and 27 July 1996 when Robert and his mother were living close to where the appellants were then living in Rothesay. On 18 August 1998 the appellants were sentenced in respect of these convictions to periods of 6 years and 8 years imprisonment respectively and became subject to notification requirements under the Sex Offenders Act 1997. They were taken to Peterhead Prison to serve their sentences. On 14 September 1998 the Procurator Fiscal at Kilmarnock wrote to the Governor of Peterhead Prison requesting that the appellants be released into the custody of the police for questioning. On 17 September 1998 they were taken from custody and detained by officers of Grampian Police under section 14 of the 1995 Act on suspicion, as that section requires, of having committed an offence punishable by imprisonment. The offence which they were suspected of having committed was conspiracy to murder. They were taken to a police station in Aberdeen where they were each questioned separately by two police officers. Lauchlan was questioned from 11.14 to 16.45 hours, with breaks between 11.51 and 12.25 hours and 15.18 and 16.01 hours. He was cautioned at the start of his interview. He made it clear when it began that, on the advice of his solicitor, he would not be answering any questions that were put to him, and he maintained that attitude throughout what was a long and unproductive interview. One or two passages are, however, of interest. During the early stages of the interview the police restricted themselves to asking a series of questions. Lauchlan remained silent in response to all of them. He was then told (Appendix 1, p 492, MS p 820): What youve got to realize here is this is not going to go away we are not going to go away. Shortly afterwards Lauchlan broke his silence and this conversation took place (Appendix 1, p 497, MS p 825): WL Look if youre going to charge me with something charge me Ive had enough. DC2 I didnt mention, I have not mentioned charging you with anything. WL If not give this up. DC2 No Im interviewing you William okay. I intend to carry out the interview with or without your co operation I intend to carry out the interview. As the interview went on the questioning became more direct. Lauchlan was asked (Appendix p 512, MS p 840): Did you murder Allison McGarrigle? He did not respond. This question was then put to him (Appendix p 515, MS p 843): DC2 I will ask you for a final time with the weight of the evidence against you and your friend knowing something about the disappearance of Allison McGarrigle will you help us to find her remains? There was no response, so the question was put to him again: DC2 Im not asking you at this stage if you killed her. Im not asking you at this stage if you know who killed her. Im asking you at this stage whether or not you would consider helping us to find her remains. Its a separate question. Are you? .Are you prepared to help us to find Allison McGarrigle yes or no? Answer that one question Ill put to you . Ill finish the interview and put the tape off. So you dont, youre not interested in helping us. Canny go any further than that Wullie As the interview drew to a close one further attempt was made to elicit a response (Appendix p 526, MS p 854): DC1 . If you did not have anything to do with Allison McGarrigles death you have no reason not to speak to us, would you agree wi that? Youre not, your refusal to speak to us. The only reason I can think of is that you have something to do with her death. or that someone very close to you had something to do with her death and that out of loyalty you will not tell us. Which is it? Which is it William? Unless you can come up with another reason why you should refuse to speak to us about it. Its got to be one of those two. So which is it? Convince me otherwise. As the interview was about to end these final questions were put (Appendix p 528, MS p 856): DC2 Did you murder Allison McGarrigle? Did you? DC1 Did you kill Allison McGarrigle? Were you present when someone else did? Lauchlan did not answer them. He remained silent. ONeill was questioned from 10.53 to 16.31 hours, with a break from 13.02 to 14.19 hours. He was cautioned at the start of the interview. He gave his name and age and said that he was unemployed. But he refused to answer any further questions, most of which were met by the words No comment. Several minutes after the opening stage of the questioning there was this exchange (Appendix p 534, MS p 862): charging me and taking me to court. O/N Youre going to charge me int you? Youd be as well just DC1 Charlie, Charlie, were here, weve explained to you what were doing and were speaking to you right. Its as simple as that. I am hoping that you might find it within yourself to give us some assistance, right. Were no up here to crucify Charlie ONeill. As the questioning went on there was no change in ONeills attitude. In the course of a long narrative of the information that was in the hands of the police he was told (Appendix p 578, MS p 906): Im asking you quite bluntly Allison McGarrigles dead, youre involved in her death, youre the only person that can say how much or how little involvement you have but from the information that we have here there is no doubt whatsoever that you are involved in her death. Im giving you the opportunity sitting here in this room the noo tae say tae me, this is what happened, this is how it happened, it may even be why it happened ah dont know and here is what you need to know. Because its no going away Charlie, itll never go away. Itll never go away. Sometime later he was asked (Appendix p 597, MS p 925): Did you kill her Charlie? Was she just too much bother for you? He made no comment in reply. In the course of the next question he was told directly that the reason why he would not answer questions was quite simple: Because you killed her. At the end of the interview one of the interviewing officers said (Appendix p 602, MS p 930): Right what well do at the minute Charlie is well stop the interview. Well need to go and seek some advice. The appellants were not arrested or charged at the conclusion of their interviews, but were returned to Peterhead Prison to continue serving their sentences. Lauchlan was released on licence on 18 January 2002. In March of the following year, in breach of the notification requirements, he travelled to Spain. ONeill was released on licence on 22 May 2003. He too travelled to Spain shortly afterwards in breach of those requirements and met Lauchlan. On 22 April 2004 they were arrested in connection with the apparent abduction of a fourteen year old boy. Steps were then taken for them to return to the United Kingdom to face charges that they were in breach of the notification requirements under the Sex Offenders Act. On 15 March 2005 they pled guilty to these charges, and on 4 April 2005 they were each sentenced to three years imprisonment. On 5 April 2005 they were charged with the murder of Allison McGarrigle and with concealing and disposing of her body in an attempt to pervert the course of justice. They appeared on petition at Kilmarnock Sheriff Court where they were committed for further examination and remanded in custody. (c) articles 6(1) and (3)(c) Article 6(1) of the Convention states that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. In Attorney Generals Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, para 20, Lord Bingham of Cornhill analysed the article in this way: First, the right of a criminal defendant is to a hearing. The article requires that hearing to have certain characteristics. If the hearing is shown not to have been fair, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If the hearing is shown to have been by a tribunal lacking independence or impartiality or legal authority, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If judgment was not given publicly, judgment can be given publicly. But time, once spent, cannot be recovered. If a breach of the reasonable time requirement is shown to have occurred, it cannot be cured. In Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 2002 SC (PC) 89, para 73, I said that these four rights can and should be considered separately, and that a complaint that one of them has been breached cannot be answered by showing that the other rights were not breached: see also Darmalingum v The State [2000] 1 WLR 2303, 2307 2308, per Lord Steyn. Delay is therefore to be seen as affording an independent ground of relief, whether or not there was prejudice or any threat to the fairness of the trial. The fact that an accused person has been convicted after a fair hearing by a proper court cannot justify or excuse a breach of his guarantee of a disposal of the charge against him within a reasonable time: Dyer v Watson, para 94. As Lord Bingham observed in Attorney Generals Reference (No 2 of 2001), para 26, the requirement that a criminal charge be heard within a reasonable time poses the inevitable questions: when, for the purposes of article 6(1), does a person become subject to a criminal charge? When, in other words, does the reasonable time begin? That is the question to which this issue is directed. But it is necessary also to notice article 6(3), which states that everyone charged with a criminal offence has certain minimum rights, including (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. This is because it has been recognised that a person has a Convention right of access to a lawyer under that article, read in conjunction with article 6(1), before answering any questions put to him by the police in circumstances where the questioning might affect his right to a fair trial: Salduz v Turkey (2008) 49 EHRR 421; Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC) 13, [2010] 1 WLR 2601. The question posed by article 6(1) read together with article 6(3) is a different question from that posed by the reasonable time guarantee, although both questions require a date to be identified. That it should be within a reasonable time is one of the characteristics required of a hearing by article 6(1): see para 25, above. So too is the requirement that the hearing is fair. But the answer to the question whether the hearing is fair may depend on things that happened before it is known when the hearing will take place, or whether there will be a hearing at all. So the question can be put this way: when does the person become entitled to that protection to preserve his right to a fair trial? When, in other words, is he to be taken to have been charged for the purposes of those articles? In Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, 2012 SC (UKSC) 53, the questions were raised as to the correct starting point for the purposes of the right to legal advice under article 6 in accordance with the principle in Salduz. In para 62 I said: The correct starting point, when one is considering whether the persons Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6.1. The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium [1980] 2 EHRR 439, para 46; Eckle v Germany [1982] 5 EHRR 1, para 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (Application No 16404/03) (unreported) given 19 February 2009, para 57. In Corigliano v Italy [1982] 5 EHRR 334, para 34 the court said that, whilst charge for the purposes of article 6.1 might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed a criminal offence, as it was put in Eckles case 5 EHRR 1, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation. As the Appeal Court indicated when it gave leave to appeal on this ground, it is with reference to this passage that further guidance is needed, as the appellants argument is that the date of their police interviews should be taken as being the date when the reasonable time begins: [2012] HCJAC 51, paras 2 and 3. Of the four cases decided by the Strasbourg court to which I referred in para 62 of Ambrose, however, only Shabelnik v Ukraine was concerned with the protection that is afforded by article 6(3)(c). Corigliano and Eckle were concerned with the reasonable time guarantee, and Deweer was concerned with the question whether the proceedings were within the scope of the article. The discussion in Shabelnik, para 52, of the manner in which articles 6(1) and (3)(c) are to be applied makes the point that article 6 may be relevant before a case is sent for trial, if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions: see also Imbroscia v Switzerland (1993) 17 EHRR 441, para 36. In Ambrose v Harris, para 63 I said that the Lord Advocates submission that the protection of article 6(3)(c) was not engaged until the individual was taken into custody could not withstand the emphasis that the Strasbourg court puts on the consequences of an initial failure to comply with its provisions, as in Salduzs case, para 50 and Zaichenko v Russia (Application No 39660/02) (unreported) given 18 February 2010, para 35. These remarks were directed to the first of the three characteristics of a hearing required by article 6(1) that the hearing is fair not to the reasonable time guarantee. Yet the court went on in Shabelnik v Ukraine, para 52, to say this: The manner in which article 6(1) and (3)(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. The moment from which article 6 applies in criminal matters also depends on the circumstances of the case, as the prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a substantive, rather than a formal, conception of the charge contemplated by article 6(1). This passage suggests, as does the first sentence of para 62 in Ambrose, that the date when a person becomes subject to a criminal charge and the reasonable time begins is the same as that when the person is charged for the purposes of article 6(3)(c): see also Yankov and Manchev v Bulgaria (Applications Nos 27207/04 and 15614/05) (unreported) given 22 October 2009, para 18, where the starting point was taken to be the date when the police took a statement from the applicant in which he confessed to taking part in the commission of the offence and not the date when a formal charge was directed against him. In some cases the same date may be equally appropriate for each of these two purposes. But they are separate guarantees, and it is not obvious that the relevant date for each of them must be the same. In Salduz v Turkey, para 50 the Grand Chamber pointed out that the right in article 6(3)(c) is one element, among others, of the concept of a fair trial in criminal proceedings in article 6(1). In para 55 it said that, in order for the right to a fair trial to remain sufficiently practical and effective, article 6(1) required that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police unless there were compelling reasons to restrict that right. In Eckle v Germany, on the other hand, the court said in para 73 that in criminal matters the reasonable time referred to in article 6(1) begins to run as soon as a person is charged, and that this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person was officially notified that he would be prosecuted or the date when the preliminary investigations were opened. In Attorney Generals Reference (No 2 of 2001), para 27 Lord Bingham said that as a general rule the relevant period for this purpose will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him a formulation which he hoped might be easier to apply in this country. The reasoning in paras 50 55 of Salduz v Turkey at no point examines the meaning of the word charged but concentrates instead on the requirements of a fair trial. This suggests that different approaches can be applied to the two guarantees as to what is the relevant date. Article 6(3)(c), which applies where a person is charged with a criminal offence, must now be read in a way that makes the guarantee of a fair trial practical and effective. The first interrogation of a suspect may take place, and often does, before the person is officially alerted to the likelihood of criminal proceedings against him. To wait until the stage is reached when there is sufficient evidence to bring a charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. So the focus, for the purposes of this part of article 6, is on the state of affairs when the suspect is first interrogated. Contrast that with the focus of the reasonable time guarantee in article 6(1). It is on the running of time, not on what is needed to preserve the right to a fair trial. Its rationale is that a person charged should not remain too long in a state of uncertainty about his fate: Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55, para 18; Stgmuller v Austria (1969) 1 EHRR 155, para 5. As Lord Bingham said in Attorney Generals Reference (No 2 of 2001), para 16, a person who is facing conviction and punishment should not have to undergo the additional punishment of protracted delay, with all the implications that it may have for his health and family life. So the date as from which time runs is taken to be the date as from which his position has been substantially affected by the official notification. Practice as to how these matters are handled varies from state to state, but in the United Kingdom this could well be some time after the date when he was first subjected to police questioning. (d) discussion It is, of course, plain that the appellants were entitled to the protection of article 6(1) read together with article 6(3)(c) on 17 September 1998 when they were interviewed. Salduz v Turkey had not yet been decided, nor had Cadder v HM Advocate. So they were not offered the protection of having a lawyer present during the police questioning. In the event the absence of a lawyer made no difference, because the appellants knew perfectly well that they were entitled to remain silent and were able steadfastly to resist all attempts to persuade them to provide the police with answers that might incriminate them. Their position was, however, indistinguishable from that of the appellant in Cadder. Like him, they were being questioned as detainees under section 14 of the 1995 Act. They were also being questioned as suspects. In Ambrose v Harris, para 63, I said that the moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of article 6(1). For completeness I should have said for the purposes of article 6(1) read in conjunction with article 6(3)(c), as it is the guarantee of a fair trial that the Salduz protection seeks to serve. I would hold therefore that the date as from which reasonable time begins to run is the subject of a separate guarantee from the guarantee that the trial will be fair, and that it requires to be approached separately. It is not enough that the appellants were being subjected to questioning in circumstances that might have affected their right to a fair trial. The question is whether they were charged on that date, in the sense indicated by Eckle v Germany, para 73, as explained by Lord Bingham in Attorney Generals Reference (No 2 of 2001), para 27. Were they officially notified that they would be prosecuted as it was put in Eckle, or officially alerted to the likelihood of criminal proceedings against them as it was put by Lord Bingham, when they were being interviewed? The appellants were certainly not at any stage of their interviews charged in the formal sense. They both asked the police whether they were going to be charged, and they both received indications to the contrary: see paras 19 and 22, above. Lauchlan was told that he was being interviewed. In ONeills case the interviewer avoided the question. But the fact that the question was asked at all is quite revealing. The appellants had been through this process before. They knew what to expect. It must have been obvious to them that the reason why they were not being charged was that the police did not yet have enough evidence to do so. They were both asked directly whether they had killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that that this amounted to an official notification that they were likely to be prosecuted. All the indications during the prolonged questioning to which they were subjected were that the police were not in a position to report the proceedings with a view to prosecution without having obtained more evidence. The attitude of the police at this stage was entirely understandable. They had not yet established that Mrs McGarrigle was dead. Her body had not been found. In the absence of any evidence to show where, when and how she had died, they were in no position to initiate criminal proceedings against the appellants for her murder. All they had were suspicions based on a volume of circumstantial evidence. That was why so much of the appellants questioning was directed to trying to establish where her body was. It was not until 5 November 1998 that the missing person investigation was scaled down due to lack of progress. The police were still seeking additional evidence by means of press releases, including publications in the Big Issue magazine in June 2002. In August 2003 they received hearsay information to the effect that the appellants had killed Mrs McGarrigle and disposed of her remains in a wheelie bin which was thrown off the back of a boat in Largs. That led to the further inquiries that resulted in their being in a position to charge the appellants on 5 April 2005. That was not the state of affairs when they were being interviewed. I would therefore hold that the date when the reasonable time began was 5 April 2005, and not 17 September 1998 when the appellants were detained and interviewed under section 14 of the 1995 Act. Apparent bias (a) the facts The indictment which was served on the appellants on 10 September 2008 contained eighteen charges, of which the first three concerned the murder of Mrs McGarrigle. The remaining charges were of, or were related to, sexual offences against children. On 17 July 2009, after a preliminary hearing, Lord Kinclaven ordered that the murder charges were to be separated from the sexual offences charges. The consequence of his determination was that the appellants were tried in 2010 in a sequence of two trials before the same judge, Lord Pentland, but before different juries and with a different Advocate Depute. The trial of the sexual offences charges took place between 26 April and 12 May 2010. The Crown accepted pleas of not guilty to some of those charges before the trial began. It withdrew the libel on a number of others at the close of the Crown case, and a submission of no case to answer was sustained with regard to one more. In the result three charges went to the jury, all of which related to sexual offences against boys who were aged 14 and 6 years old at the time of the offences. ONeill was found guilty on all three, and Lauchlan was found guilty on two of them. When the verdicts had been returned and recorded the Advocate Depute moved for sentence. He tendered a schedule of previous convictions in respect of each appellant. He drew attention to the fact that Lauchlan had been convicted in 1998 of two charges of sodomy and four charges of shameless indecency and that in 2005 he had been convicted of offences under sections 2 and 3 of the Sex Offenders Act 1997. He also drew attention to similar convictions in 1998 and 2005 in the case of ONeill. He then mentioned that the Crown had lodged an application for a lifelong restriction order, for which a risk assessment under section 210B of the 1995 Act (as inserted by section 1 of the Criminal Justice (Scotland) Act 2003) would be required, to be made in both cases. He asked that consideration of this matter be continued until the conclusion of the trial on the murder charges. He explained, for the benefit of the jury who had not been made aware of the fact that there was to be another trial, that for this reason there had been an embargo on public reporting of the trial on the sexual offence charges. He said that, as there would be a prejudice to the next trial if the judge were to do any public act at that stage, the matter should be continued. Having ascertained that the solicitor advocates for the defence had no objection to the continuation, the trial judge addressed the appellants. The judge told them first that, as he intended to make the appropriate order under the Sexual Offences Act 2003, he was required by the legislation to state to them both that they had again been convicted of sexual offences to which Part 2 of that Act applied and that they were subject to the notification requirements contained in that Act. He told them that the court had certified those facts, and that the clerk of court would give them a copy of the relevant certificate together with a notice which gave further details of the notification requirements with which they must comply. Then, while the jury were still present, he said this: Having regard to your very serious records, and to the nature of the offence of which you stand convicted on the present indictment, it is clear that you are both evil, determined, manipulative and predatory paedophiles of the worst sort. Beyond that I intend to reserve any observations which I may have to make until the outcome of the next stage of the proceedings is known; that is after you have been tried on the remaining charges to which the advocate depute has made reference. I shall therefore adjourn all questions of sentence until Friday of next week, and I shall continue consideration of the Crowns motion made under section 210B of the 1995 Act for an assessment order. No objection was made at the start of the murder trial on 17 May 2010 to the fact that Lord Pentland was to preside over that trial too, nor was any motion made that he should recuse himself. Two events occurred in the course of that trial which were later commented on. The first occurred on 27 May 2010 when an adjournment of the trial was sought on behalf of ONeill by his solicitor advocate, Mr Carroll. He was said to be suffering from a severe headache and unable to follow what was going on. This was said to be a chronic problem for which he had a prescribed medication which he required to take. The trial judge did not accede to this request immediately but closely questioned Mr Carroll and invited the Advocate Depute to make enquiries with the prison authorities. During a brief adjournment ONeill was given paracetamol and then indicated that he was fit to continue. The second event occurred when a Crown witness, DC Wilkie, became incoherent and obviously unwell while being cross examined by Mr Carroll. The judge adjourned the proceedings immediately to allow the witness to receive medical treatment. He was fit to continue and complete his evidence the next day. (b) the issue This issue was raised on behalf of ONeill only in the Appeal Court. As has already been explained in para 10 above, it was the subject of an amended note of appeal which was lodged shortly before the hearing before the Appeal Court of his application under section 107(8) of the 1995 Act. Mr McVicar did not seek to adopt it on behalf of his client Lauchlan, although he pointed out that if the argument was sound its effect would be to his clients benefit. The devolution issue seems only to have emerged in the course of oral argument in the Appeal Court when it was considering the applications for leave to appeal to this court. It decided to give leave on this issue because it was recognised that the splitting of the trial into two phases before two juries and the resulting presentation of previous convictions and the judges remarks at the end of the first phase were very unusual circumstances. Mr Carroll said that the fact that the trial judge was shown his clients previous convictions was not important to his argument, as it was not unusual for a judge to see the accuseds previous convictions before the start of or during a trial: OHara v HM Advocate 1948 JC 90; Leggate v HM Advocate 1988 JC 127; 1995 Act, section 275A (as inserted by section 10(4) of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002). But they were the trigger, as he put it, for the comments by the trial judge on his clients character. It was to those comments that he directed his argument. The issue has been focussed in the sixth issue in the statement of facts and issues on the appellants behalf in these terms: Whether (i) the conduct of the trial judge can be said to have given rise to a legitimate concern as to the appearance of an absence of impartiality in the context of the appellants right to a fair trial by an impartial tribunal in terms of article 6(1) of the European Convention on Human Rights; and (ii) if the answer to issue 6(i) is affirmative, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants rights under article 6(1). (c) the authorities The test for apparent bias which was laid down in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 was designed to express in clear and simple language a test which was in harmony with the objective test which had been applied by the Strasbourg court. It is set out in para 103 of the judgment in that case in these terms: The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. In Lawal v Northern Spirit Ltd [2004] 1 All ER 187, [2003] ICR 856, para 14 Lord Steyn said that the purpose and effect of the modification which it made to the common law were to bring the common law rule into line with the Strasbourg jurisprudence. Lord Bingham of Cornhill made the same observation in R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679, para 14 when he said that there is now no difference between the common law test of bias and the requirement under article 6 of an independent and impartial tribunal. In Szypusz v United Kingdom (Application No 8400/07) (unreported) given 21 September 2010, para 39 the Strasbourg court acknowledged that its jurisprudence had been taken into account in Porter v Magill, and set out that test. It also acknowledged, in para 40, the further guidance in Helow v Secretary of State for the Home Department [2008] UKHL 62, 2009 SC (HL) 1, [2008] 1 WLR 2416 with regard to the attributes of the fair minded observer as background to the issue that it had to decide. The court is invited in this case to examine the allegation of apparent bias after the proceedings that are said to have been affected by it have taken place. But the principles to be applied are the same as those which determine the question whether, because of things he has said or done previously, the judge should recuse himself. So it may be helpful to look at cases in which it was the judges decision not to recuse himself that was in issue. In President of the Republic of South Africa v South African Rugby Football Union, 1999 (4) SA 147, 177 the Constitutional Court of South Africa made these comments on the position of judges (in that case, members of the Constitutional Court itself) who, it was said, ought to have recused themselves: The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. That passage was quoted with approval by the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, para 21. It referred also in paras 22 24 to three extracts from Australian authorities about the duty of the judge to hear and determine the cases allocated to him which it found to be persuasive: In re JRL, EX arte CJL (1986) 161 CLR 342, 352; In re Ebner (1999) 161 ALR 557, para 37; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] VSCA 35. In para 25 of Locabail there is an extensive discussion of the grounds on which objection to a judge could or could not reasonably be taken. While it was emphasised that every application for recusal must be decided on the facts and circumstances of the individual case, the court noted that a real danger of bias might well be thought to arise if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion. In JSC BTA Bank v Mukhtar Ablyazov (Recusal) [2012] EWCA Civ 1551, the question was whether a judge had been right not to recuse himself as the nominated judge of trial, in circumstances where he had had to hear, prior to trial, an application to commit one of the parties for contempt of court and had found a number of contempts proven, by reason of the doctrine of apparent bias in Magill v Porter. Rix LJ, delivering a judgment with which Toulson and Maurice Kay LJJ agreed, pointed out in para 65 that, although the principles of apparent bias are now well established and were not in dispute in that case, the application of them is wholly fact sensitive. In para 70 he said that it seemed to him that the critical consideration is that what the first judge does, he does as part and parcel of his judicial assessment of the litigation before him: He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair minded and informed observer would consider that there was any possibility of bias. That was a case of civil litigation, but I do not think that there is any difference in principle between the position of a judge in a case of that type and the situation where it is said that there is apparent bias on the part of a judge in a criminal trial. In Helow v Secretary of State for the Home Department, the question was whether there was a real possibility that Lady Cosgrove was biased by reason of her membership of an association and her receipt of its quarterly publication which contained some articles which were fervently pro Israeli and antipathetic to the PLO, of which the appellant was a member. Among the reasons that were given for holding that there was not any real possibility of bias in her case were that the context is crucially important: para 4, by myself; that Lady Cosgrove was a professional judge with years of relevant training and experience: para 23, per Lord Rodger of Earlsferry; and the taking of the judicial oath, albeit as more of a symbol than of itself a guarantee of the impartiality which any professional judge is by training and experience expected to practise and display: para 57, per Lord Mance. (d) discussion What then of this case? The obvious starting point is the context. When he made his remarks, Lord Pentland was addressing the appellants in the performance of his judicial function. The fair minded and informed observer would appreciate that he was a professional judge who had taken the judicial oath and had years of relevant training and experience. He would hear and understand the context in which the remarks were made. They were made in open court from the bench while he was performing his duty as a judge at the trial. He would appreciate too, that when the judge was presiding over the next trial, he would be doing so in the performance of his duty to preside over that case. He would understand, of course, that while the facts were a matter for the jury, the judge too had functions to perform which required him to be impartial. But it would only be if the judge expressed outspoken opinions about the appellants character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties in conducting the trial, that he would doubt the professional judges ability to perform those duties with an objective judicial mind. The context indicates that nothing like that occurred here. The judge had just told the appellants, as he was required to do, that they were subject to the notification requirements. He had been told by the Advocate Depute that an application was to be made for a risk assessment order. He had been asked to defer consideration of it until after the conclusion of the murder trial, but the appellants were entitled to be given some indication as to what they might expect. His comments on the appellants character were directly relevant to that issue. For reasons that would have been obvious in the light of the Advocate Deputes submissions, the judge had to restrict himself to those few comments. He told them that he intended to reserve any further observations until the outcome of the next stage of proceedings was known. The observer would also understand that, if the judge had been passing sentence on the appellants, the remarks he made would have been entirely appropriate as background to the sentences which he would have been obliged to pass. There is one other circumstance which, in this case, can properly be taken into account. The appellants and their solicitor advocates were all present when the remarks were made, and they were all there again at the commencement of the murder trial. Yet no objection was made by any of them either at the end of the sexual offences trial or at the start of the murder trial to the fact that Lord Pentland was to preside over the murder trial. The fair minded and informed observer would not have overlooked this fact. It might well have seemed to him to be odd, if there was any real basis for an objection, that those with the most immediate interest did not take the opportunity of raising the point at that stage. Mr Carrolls explanation was that a challenge at that stage would not have been likely to succeed, as the judge would almost certainly have rejected it. He also said that his objection would have fallen away if the murder trial had been conducted fairly. He pointed to the contrast between the judges handling of the incident when he told the judge that his client was unwell and his handling of the incident when DC Wilkie became ill in the witness box. I am not persuaded by Mr Carrolls explanation. The point which he had to answer is not, I would stress, one of waiver. It is simply that the fair minded and informed observer would take account of the fact that it did not seem to occur to those with the most obvious interest to do so, or their advisors, that the judge had trespassed beyond the proper performance of his duties when he commented on the appellants character. As for his conduct of the trial, the judges concern that no proper reason had been given for interrupting the proceedings when he was told that the appellant was not well and his reaction to the sudden illness of DC Wilkie in the witness box were both readily understandable. I do not find here any grounds for doubting his impartiality. But the only relevant question is whether he should, or should not, have been conducting the trial at all in view of the comments he made at the end of the previous trial about the appellants character. For these reasons I cannot find any basis for the suggestion that the judge was apparently biased, and I would reject it. It follows that the Lord Advocate did not act incompatibly with the appellants article 6(1) right to a fair trial by proceeding with the appellants trial on the murder charges before Lord Pentland. We were addressed on the question whether the appellants waived their right to found on their Convention right, but I do not need to examine that issue as I do not accept that their right was breached. Conclusion (1) that the date when the reasonable time began for the purposes of the appellants article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocates act in proceeding with the trial on the murder charges was not incompatible with the appellants article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings must now be remitted to the High Court of Justiciary. I would determine the two compatibility issues that are before us by holding

UK-Abs

The issues in these appeals relate to the right to a fair trial. Alison McGarrigle had a son, Robert, by her former husband. Robert was subject to a residential supervision order requiring him to live with his father during the week but permitted him to visit his mother on Saturdays. On 14 June 1997 Robert did not return to his fathers address and instead he and his mother went to live with the appellants in a house in Largs. A drinking session took place there on or about the 20 June 1997 at which a number of people including the appellants, Robert and Mrs McGarrigle were present. The next morning she was gone and was never seen by Robert again. She was reported to police as missing on 16 February 1998. The investigation continued but in the meantime, on 17 June 1998, the appellants were convicted of sexual offences including offences against Robert McGarrigle and were sentenced to 6 and 8 years imprisonment respectively. Whilst serving their sentences the appellants were taken by police for questioning on suspicion of conspiracy to murder Alison McGarrigle. They were asked by the officers whether they were involved in her murder, but they both remained silent. Owing to a lack of evidence at that time, proceedings were not commenced against the pair. The appellants were eventually charged in 2005 for the murder of Mrs McGarrigle and remanded in custody. On 10 June 2010 the appellants were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997 and of a subsequent attempt to defeat the ends of justice by disposing of her body in the sea. In a separate trial held immediately before, the appellants were found guilty of a series of sexual offences relating to children. Both trials took place in front of the same judge, Lord Pentland, but with different juries. After the verdict in the first trial the Advocate Depute moved for sentence and handed the judge a list of the appellants previous convictions. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were evil, determined, manipulative and predatory paedophiles of the worst sort. The two issues for the Supreme Court were: (1) when the appellants were charged for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the Convention (the appellants argued that time started to run when they were first questioned in 1998 and therefore there had been a breach of their right); and (2) whether the comments and conduct of the trial judge were such as to breach the appellants right to a fair trial by an impartial tribunal in terms of article 6(1) of the Convention and, if so, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants rights under article 6(1). Both issues arose from the refusal of the Appeal Court to grant leave for the relevant grounds of appeal to be argued in the appeal in Scotland. The Appeal Court did however grant permission to appeal its refusal to the Supreme Court. The Supreme Court held that it had jurisdiction to consider the issues on the basis that they were compatibility issues in terms of the Criminal Procedure (Scotland) Act 1995 (as amended by the Scotland Act 2012), issue (1) being an appeal against a decision of the Appeal Court and issue (2) being a reference from the Appeal Court. The court determines the two compatibility issues as follows: (1) that the date when the reasonable time began for the purposes of the appellants article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocates act in proceeding with the trial on the murder charges was not incompatible with the appellants article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings will be remitted to the High Court of Justiciary [58]. Lord Hope gives the judgment of the court. The meaning of the word charged has been considered in a number of cases regarding article 6(1), which provides that in the determination of any criminal charge against him a person has the right to a fair trial within a reasonable time and article 6(3)(c) which provides a right to legal assistance for anyone charged with a criminal offence [25 32]. The focus of article 6(3)(c) is on the state of affairs when the suspect is first interrogated, as to wait until the stage is reached when there is sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This is in contrast with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. The rationale is the person should not remain too long in a state of uncertainty. Time runs from the date which the suspects position is substantially affected by the official notification. In the United Kingdom this could be some time after he is first questioned [33 34]. The date from which reasonable time begins is the subject of a separate guarantee from the guarantee that the trial will be fair and falls to be approached independently [36]. The appellants were certainly not at any stage of their interviews charged in the formal sense. They were both asked directly whether they killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that this amounted to an official notification that they were likely to be prosecuted [37]. In the absence of any evidence to show where, when and how she had died, the police were in no position to initiate criminal proceedings. In August 2003 they received information that led to further enquiries and resulted in the appellants being charged with murder in 2005 [38]. On the issue of apparent bias, the test is contained in Porter v Magill [2001] UKHL 67 and considered in a number of authorities [47 52]. It would only be if the judge expressed outspoken opinions about the appellants character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, that the fair minded and informed observer would doubt the judges ability to perform those duties with an objective judicial mind. The context indicates that nothing of the kind happened in this instance [53 54]. Furthermore, no objection was made by the defence at any point to the fact that Lord Pentland was to preside over the murder trial as well and there are no grounds for doubting his impartiality [55 56].

Two appeals are before the Court by prisoners who were convicted of murder and sentenced to life imprisonment. In the case of the appellant Peter Chester, the tariff period fixed expired many years ago, but he has not yet satisfied the Parole Board that it is no longer necessary for the protection of the public that he should be confined. In the case of the appellant George McGeoch, the sentencing judge fixed a punishment part of 13 years which expired on 7 October 2011, but he has committed various intervening offences including violently escaping from lawful custody in 2008 for which he received a seven and a half year consecutive sentence. The result is that the earliest date on which McGeoch could be considered for parole is July 2015. Both the appellants claim that their rights have been and are being infringed by reason of their disenfranchisement from voting. Chesters claim for judicial review was issued in December 2008 and relates to voting in United Kingdom and European Parliamentary elections. It relies on Article 3 of Protocol No 1 (A3P1) as incorporated into domestic law by the Human Rights Act 1998 and directly on European Union law. Burton J and the Court of Appeal (Lord Neuberger MR, Laws and Carnwath LJJ), [2010] EWCA Civ 1439, [2011] 1 WLR 14346, dismissed Chesters claim. They held that it was not the courts role to sanction the government for continuing delay in implementing the European Court of Human Rights decision in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 or to repeat the declaration of incompatibility issued by the Scottish Registration Appeal Court in Smith v Scott 2007 SC 345 or issue advice as to the form which compatible legislation might take. They held that European Union law raises no separate issue. McGeochs claim for judicial review was issued in February 2011 and related to voting in local municipal and Scottish Parliamentary elections. It relies solely on European Union law. The Extra Division dismissed the petition on the ground that European Union law only conferred a right to vote in municipal elections in a Member State on European Union citizens residing in a Member State of which they were not nationals. It also considered that Scottish Parliamentary elections were not for this purpose municipal elections. Before the Extra Division McGeoch was refused permission to amend to include a complaint relating to voting in European Parliamentary elections, but a corresponding amendment was permitted by the Supreme Court by order of 15 October 2012. The following summarises my conclusions: (A) Human Rights Act In respect of Chesters claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments (para 2), I would decline the Attorney Generals invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 (Hirst (No 2)) and Scoppola v Italy (No 3) (2012) 56 EHRR (paras 34 35) (Scoppola), but also decline to make any further declaration of incompatibility with the Convention rights (paras 39 42). (B) European law a. In respect of McGeochs and Chesters claims under European law, which can at most relate to elections to the European Parliament and municipal authorities (paras 9, 45 and 46), I conclude that European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely (paras 46 47, 58, 59, 63 64 and 68). b. Had European law conferred any right to vote on which McGeoch and Chester can rely: i. the only relief that might have been considered would have been a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Community or Union law but that would not have appeared appropriate in the particular cases of Chester and McGeoch (para 72); ii. the general ban on voting in European Parliamentary and municipal elections could not have been disapplied as a whole (para 73); iii. it would not have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law (para 74); iv. the Supreme Court could not itself devise a scheme or arrangements that would or might pass muster with European law; that would be for Parliament (para 74); vs neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or EPEA section 8 (paras 82 83). (C) European Court of Justice The resolution of these appeals does not necessitate a reference to the European Court of Justice. In so far as it raises issues of European law for determination, they are either not open to reasonable doubt or involve the application by this Court to the facts of established principles of European law (para 84). (D) Both appeals fall therefore, in my opinion, to be dismissed (para 85). Legislation Entitlement to vote in parliamentary and local government elections in the United Kingdom is governed by the Representation of the People Act 1983 (RPA). Section 1, as substituted by section 1 of the Representation of the People Act 2000, provides that: (1) A person is entitled to vote as an elector at a parliamentary election in any constituency if on the date of the poll he (a) is registered in the register of parliamentary electors for that constituency; (b) is not subject to any legal incapacity to vote (age apart); (c) is either a Commonwealth citizen or a citizen of the Republic of Ireland; and (d) is of voting age (that is, 18 years or over). Section 2 provides in similar terms in relation to local government elections, but with the addition in (c) of the words or a relevant citizen of the Union, to meet the requirements of what is now article 22(1) TFEU. Section 3 of the Act, as amended by section 24 of and paragraph 1 of Schedule 4 to the Representation of the People Act 1985, disenfranchises serving prisoners, providing: Disfranchisement of offenders in prison etc (1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election. (2) For this purpose (a) convicted person means any person found guilty of an offence (whether under the law of the United Kingdom or not), . , but not including a person dealt with by committal or other summary process for contempt of court; (c) a person detained for default in complying with his sentence shall not be treated as detained in pursuance of the sentence The effect of the last words of section 3(2)(a) and of section 3(2)(c) is to exclude persons imprisoned for contempt of court or default in paying a fine. Entitlement to vote in European Parliamentary elections is provided domestically by the European Parliamentary Elections Act 2002 (EPEA). For present purposes section 8(2) and (3) are relevant, and they confer such entitlement on a person: (2) . if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region, and (a) the address in respect of which he is registered in the relevant register of parliamentary electors is within the electoral region, or (b) his registration in the relevant register of parliamentary electors results from an overseas elector's declaration which specifies an address within the electoral region. The disenfranchisement enacted by RPA section 3 is thus extended to apply to European Parliamentary elections. Under the Scotland Act 1998, section 11(1), the persons entitled to vote as electors at an election for membership of the Scottish Parliament in any constituency are those who on the day of the poll would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency. In effect, RPA section 3 is extended to Scottish Parliamentary elections. A3P1 reads: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. The European Parliament is for this purpose a legislature within the meaning of A3P1: see Matthews v United Kingdom (1999) 28 EHRR 361. So too is clearly the Scottish Parliament, under the devolution arrangements instituted by the Scotland Act, giving it wide ranging legislative authority. Lord Hope described as such in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868, para 46: The Scottish Parliament takes its place under our constitutional arrangements as a self standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. The conclusion that the Scottish Parliament is a legislature within A3P1 was a conclusion implicitly accepted by the European Court of Human Rights in McLean and Cole v United Kingdom (Application Nos 12626/13 and 2522/12) (unreported) given 11 June 2013, and was shared by Lord Reed in the Extra Division in the present case (para 29 of his judgment). Conversely, a local government body or municipal authority is not part of a legislature in the United Kingdom within A3P1: McLean and Cole v United Kingdom. Under European Union law, as it stands since 1 December 2009 when the Treaty of Lisbon came into force, a wide range of provisions is potentially relevant. Articles 6, 10 and 14 TEU provide: COMMON PROVISIONS . 6.1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII [Articles 5154] of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 6.3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Unions law. PROVISIONS ON DEMOCRATIC PRINCIPLES . 10. 1. The functioning of the Union shall be founded on representative democracy. 10.2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 10.3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 10.4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. PROVISIONS ON THE INSTITUTIONS . 14.3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot. The pre Lisbon Treaty predecessor of article 14.3 was article 190.1 and 190.4, reading: 190.1 The representatives in the European Parliament of the peoples of the States brought together in the Community shall be elected by direct universal suffrage. 4 The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. To give effect to article 190.4 the Council of Ministers agreed the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (0J 1976 L 278, p 1), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p 1) (the 1976 Act), which continues to apply in the post Lisbon Treaty era. The 1976 Act provides inter alia by what is now article 7: Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions. These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system. Voting in European Parliamentary and municipal elections is dealt with more specifically by Articles 20 and 22 TFEU in a Part headed Non discrimination and Citizenship of the Union: 20.1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. 22.1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. 2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a Candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. Article 52 of the Charter of Fundamental Rights (CFR) deals with the Charters scope and interpretation: 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6. Full account shall be taken of national laws and practices as specified in this Charter. 7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States. The CFR includes the following provisions: Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. The Explanations relating to the CFR, referred to in article 6.1 TEU, state that article 39 CFR: applies under the conditions laid down in the Treaties, in accordance with Article 52(2) of the Charter. Article 39(1) corresponds to the right guaranteed in Article 20(2) [TFEU] (cf. also the legal base in Article 22 [TFEU] for the adoption of detailed arrangements for the exercise of that right) and Article 39(2) corresponds to Article 14(3) [TEU]. Article 39(2) takes over the basic principles of the electoral system in a democratic state. The Explanations state further that article 40 CFR: corresponds to the right guaranteed by Article 20(2) [TFEU] (cf. also the legal base in Article 22 [TFEU] for the adoption of detailed arrangements for the exercise of that right). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these Articles in the Treaties. European Convention on Human Rights The general significance of A3P1 was summarised by Lord Collins in a judgment with which all members of the Court agreed in R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] UKSC 9, [2010] 1 AC 464, para 52. I need only to set out parts of his summary, omitting also some of the case references: 53. First, article 3 of the First Protocol enshrines a characteristic principle of an effective democracy. 54. Second, although article 3 is phrased in terms of the obligation of the contracting states to hold elections which ensure the free expression of the opinion of the people rather than in terms of individual rights, article 3 guarantees individual rights, including the right to vote and the right to stand for election . 55. Third, there is room for implied limitations on the rights enshrined in article 3, and contracting states must be given a wide margin of appreciation in this sphere: Mathieu Mohin v Belgium (1987) 10 EHRR 1, para 52; Yumak v Turkey (2008) 48 EHRR 61, para 109(ii). 56. Fourth, the content of the obligation under article 3 varies in accordance with the historical and political factors specific to each state; . 57. Fifth, article 3 is not (by contrast with some other Convention rights, such as those enumerated in articles 8 to 11) subject to a specific list of legitimate limitations, and the contracting states are therefore free to rely in general in justifying a limitation on aims which are proved to be compatible with the principle of the rule of law and the general objectives of the Convention: Yumak, para 109 (iii); Tanase v Moldova (Application No 7/08) (unreported) given 18 November 2008, para 105. 58. Sixth, limitations on the exercise of the right to vote or stand for election must be imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate, and must not interfere with the free expression of the opinion of the people in the choice of the legislature: Yumak, para 109(iii) to (iv). 59. Seventh, such limitations must not curtail the rights under article 3 to such an extent as to impair their very essence, and deprive them of their effectiveness. They must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature and the laws which it promulgates: Mathieu Mohin, para 52; Yumak, para 109(iv). The European Court of Human Rights has expressed its attitude to the exclusion or limitation of prisoners voting rights in well known decisions. Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 each came first before a simple Chamber of seven judges and then before a Grand Chamber composed of 17 judges. Hirst (No 2) was a claim regarding his disenfranchisement from voting in United Kingdom Parliamentary and local elections brought by a prisoner serving a life sentence in England for manslaughter on the ground of diminished responsibility, whose tariff period had expired without his release. Scoppola was a claim relating to disenfranchisement under Italian law brought by a prisoner serving a sentence of 30 years imprisonment for murder, attempted murder and other offences. In between these two decisions came Greens and MT v United Kingdom (2010) 53 EHRR 710, in which a simple Chamber applied the principles in Hirst (No 2) to complaints of ineligibility to vote in both European and United Kingdom Parliamentary elections. More recently simple Chambers have applied the principles in Hirst (No 2) and Scoppola in Anchugov and Gladkov v Russia (Application Nos 11157/04 and 15162/05) (unreported), 4 July 2013, and Syler v Turkey (Application No 29411/07) (unreported), 17 September 2013. In Greens the Strasbourg Court gave the United Kingdom six months to introduce legislative proposals to amend RPA section 3, a period subsequently extended first pending the decision in Scoppola and then to six months after the Grand Chamber decision in Scoppola, delivered 22 May 2012. A draft Bill was published for pre legislative scrutiny on 22 November 2012 (Cm 8499) and a joint select committee was established to undertake this and to report by 31 October 2013. As envisaged in Hirst (No 2), para 83, the United Kingdom government has continued in this regard to liaise with the Committee of Ministers of the Council of Europe, which has on 6 December 2012 accepted the draft bill and the establishment of the committee as a legitimate means of implementing the judgment in Greens, and at its meeting on 26 September 2013, noted with interest that the pre legislative scrutiny by the committee was now due to be completed by 31 October 2013, underlined the urgency of bringing the legislative process to a conclusion, urged the United Kingdom authorities to provide information on the proposed legislative timescale without further delay and decided to resume examination of the progress made at a meeting in December 2013. This ongoing process was in June 2013 noted by the Strasbourg Court in its judgment in McLean and Cole, paras 36 37, where the Court concluded that, in its light, there was nothing to be gained from examining applications concerning future elections at this time (para 37). In Hirst (No 2), Greens and Scoppola the European Court of Human Rights acknowledged the width of the margin of appreciation, or the wide range of policy alternatives, which States enjoy in relation to voting rights (Hirst (No 2), para 78, Greens, para 114 and Scoppola, para 83). In both Hirst (No 2) and Scoppola the Grand Chamber acknowledged that disenfranchisement of convicted serving prisoners may be considered to pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law (Hirst (No 2), paras 74 75 and Scoppola, para 90). In Hirst (No 2) the Grand Chamber (upholding the earlier Chamber) held that the United Kingdoms ban on prisoner voting was a general, automatic and indiscriminate restriction on a vitally important Convention right which fell outside any acceptable margin of appreciation and was incompatible with A3P1 (para 82). A powerfully constituted minority of the Grand Chamber (including its President and future President) dissented. It took as its test whether the restrictions on prisoner voting impair the very essence of the right to vote or are arbitrary (para O III5), and it pointed out that the Court should be very careful not to assume legislative functions and that there was little consensus in Europe about whether or not prisoners should have the vote (para O III6). It noted that a multi party Speakers Conference on Electoral Law in 1968 had unanimously recommended that convicted persons should not be entitled to vote, and that the RPA had been amended in 2000 only to permit remand prisoners and unconvicted mental patients to vote. As to the majority comment that there was no evidence of substantive debate in Parliament about the ban on convicted prisoners voting, the minority disagreed, on the basis that it was not for the Court to prescribe the way in which national legislatures carry out their legislative functions, and it must be assumed that the RPA reflects political, social and cultural values in the United Kingdom (para O III7) In Scoppola the United Kingdom intervened and the Attorney General appeared before the Grand Chamber to ask that it reconsider Hirst (No 2). But, in its judgment the Grand Chamber said (para 96) that it reaffirmed the principles set out by the Grand Chamber in the Hirst (No 2) judgment, in particular the fact that when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with [A3P1]. However, the Grand Chamber (reversing the simple Chamber) found no contravention in relation to the Italian law in issue in Scoppola. The only dissent, by Judge Thr Bjrgvinsson, related to this conclusion. The Italian law was held compatible with the Convention because disenfranchisement applied only to sentences of three or more years, and lasted for only five years in the case of sentences of three to five years, though for life in the case of longer sentences. The Grand Chamber said that As a result, a large number of convicted prisoners are not deprived of the right to vote (paras 106 and 108). Furthermore, any prisoner could, three years after completing his sentence, apply for rehabilitation, which would be granted upon his displaying consistent and genuine good conduct and would terminate any ancillary penalties and other penal effect of the conviction including disenfranchisement (Scoppola, paras 38 and 109). The Grand Chamber specifically rejected the Chamber view that any decision to deprive a prisoner of the vote should be taken by a court, saying (para 99): While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners' voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge. Indeed, the circumstances in which the right to vote is forfeited may be detailed in the law, making its application conditional on such factors as the nature or the gravity of the offence committed. Judge Thr Bjrgvinsson dissented because in his view the Grand Chamber judgment in Scoppola offer[ed] a very narrow interpretation of the Hirst judgment which stripped it of all its bite (para OI 16). In particular, the Grand Chamber had in his view overlooked significant elements of the reasoning in Hirst (No 2), notably the absence of any direct link between the facts of the individual case and the ban on voting, the bluntness of the Italian legislation, just like the UK legislation, and the absence of evidence that either the legislature or the courts had weighed the proportionality of the ban (para 0I 13). Should the Supreme Court follow the Strasbourg case law? On the present appeal, the Attorney General (withdrawing a concession of incompatibility made in the courts below) has made a fresh challenge to the principles endorsed by the European Court of Human Rights in Hirst (No 2) and Scoppola. He points out, correctly, that the Supreme Court is, under section 2(1) of the Human Rights Act, obliged only to take into account any judgment or decision of the European Court of Human Rights when determining a question which has arisen in connection with a Convention right. In R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, para 11 Lord Phillips said that The requirement to take into account the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court. In Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 48 Lord Neuberger summarised the position: This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see e g R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to take into account European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line. In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level. The Attorney Generals submissions to us in this case have to be considered in that light. Parliament has required this Court to take into account Strasbourg case law (Human Rights Act, section 2(1)(a)) and, So far as it is possible to do so, to read and give effect to legislation in a way which is compatible with the Convention rights (section 3(1)). Parliament has given this Court, if satisfied that a provision of primary legislation is incompatible with a Convention right, power to make a declaration of that incompatibility (section 4). The Act itself contemplates that domestic legislation may not match this countrys international obligations as established by case law of the European Court of Human Rights. It is against this background that the Supreme Court must consider whether the Attorney General has made good his case that the Court should refuse to follow and apply the approach taken by the European Court of Human Rights in Hirst (No 2) and Scoppola. The Attorney General took issue with any description of Hirst (No 2) and Scoppola as a clear and consistent line of decisions. But, whatever else may be said about their reasoning or its outcome, they both clearly stand for the core proposition, directly applicable to the current general ban on convicted prisoners voting, quoted in paras 20 and 22 above. At the heart of the Attorney Generals submissions lies the wide margin of appreciation which States have in this area, and the variety of legislative attitudes in other States, some according with the United Kingdoms. These were matters which the European Court of Human Rights acknowledged, but in the Attorney Generals submission failed to respect. In support of his submission the Attorney General makes a number of points. First, the area is one where there is room (in Laws LJs words in the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR 1436, para 32) for deep philosophical differences of view between reasonable people. In circumstances where the Grand Chamber accepted as a legitimate aim of disenfranchisement enhancing civic responsibility and respect for the rule of law (Scoppola, para 90), the United Kingdom was, as a participatory democracy, entitled to withhold the vote from those serving sentences for offences sufficiently serious to justify such a sentence, including those who, after their tariff period, could not satisfy the Parole Board that it was no longer necessary for the protection of the public that they should be confined (Crime (Sentences) Act 1997, section 28(6)(b)). Secondly, the Grand Chamber in Hirst (No 2) (para 79) attached some significance to a suggested lack of evidence that Parliament [had] ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote, adding only: It may perhaps be said that, by voting the way they did to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners. Nonetheless it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote. The majority in Scoppola did not mention this factor, as Judge Thr Bjrgvinsson, dissenting, pointed out at paras OI 09 and OI 15. Nevertheless, the Attorney General submits that it is relevant that Parliament has, since Hirst (No 2), conducted three formal debates, in Westminster Hall on 11 January 2011, in the Commons on 10 February 2011, when MPs voted 234 to 22 to maintain the status quo, and again in the Commons on 22 November 2012, after the Lord Chancellor introduced a draft Bill, the outcome of which is not yet determined. Mindful of the injunction in the Bill of Rights 1688 That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament, the Attorney General did not suggest that we should seek to evaluate the quality of the debate in Parliament. But he relied upon the fact of debate and the continuation following it of the ban on prisoner voting as underlining his submission that the Convention rights should be understood and applied in a way respecting the choice made by the institution competent to make such choices in a democracy. He pointed out that the Court in its recent decision in Animal Defenders International v United Kingdom (Application No 48876/08, 22 April 2013) demonstrated the considerable weight that it was prepared to attach to exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure [prohibiting religious or political advertising on radio and television] was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process (para 116). Thirdly, the Attorney General argues, it was fallacious to treat the United Kingdom ban as affecting a group of people generally, automatically and indiscriminately, simply because the ban was based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Any rule of law affects a group of people defined by its terms. If a group is rationally defined, there is no reason why there should necessarily be exceptions. As the Grand Chamber pointed out in relation to the Italian legislation in Scoppola (para 106), so also in the United Kingdom a sentencing court takes into account the nature and gravity of the offence as well as individual circumstances when deciding in the first place whether any and if so what sentence of imprisonment is required. As a result, only 8% of convicted offenders go to prison in England, 15% in Scotland. The group affected is confined to convicted prisoners and so excludes those in prison on remand awaiting trial as well as hospital detainees. Further, within the group of convicted prisoners, the ban does not extend to those in prison for contempt or default in paying fines. Despite the Attorney Generals forceful submissions, I do not consider that it would be right for this Court to refuse to apply the principles established by the Grand Chamber decisions in Hirst (No 2) and Scoppola consistently with the way in which they were understood and applied in those decisions. The Grand Chamber in Scoppola was prepared to give the Italian legislator a greater margin of manoeuvre than one would have expected from its previous decision in Hirst (No 2). But this was on the basis that the Italian law did not involve a blanket ban in respect of all or almost all convicted prisoners. It excluded those convicted of minor offences (involving less than three years imprisonment), and it had a two step gradation in the length of the ban according to whether the sentence was for less or for more than five years imprisonment. As a result a large number of convicted prisoners had the vote. Furthermore, there was the possibility of rehabilitation for consistent and genuine good conduct displayed for three years after release. Nothing in Scoppola therefore suggests that the Grand Chamber would revise its view in Hirst (No 2) to the point where it would accept the United Kingdoms present general ban. There is on this point no prospect of any further meaningful dialogue between United Kingdom Courts and Strasbourg. I would also reject the suggestion that the Supreme Court should refuse to apply the principles stated in the Strasbourg case law in the present circumstances. Deep though the philosophical differences of view between reasonable people may be on this point, it would in my opinion exaggerate their legal and social importance to regard them as going to some fundamental substantive or procedural aspect of our law: see the citation from Pinnock in para 26 above. While the diversity of approach in this area within Europe derives from different traditions and social attitudes, it makes it difficult to see prisoner disenfranchisement as fundamental to a stable democracy and legal system such as the United Kingdom enjoys. It is possible to argue, as the Canadian Supreme Court did in Sauv v Canada (No 2) [2002] 3 SCR 519 that the objective of promoting civic responsibility and respect for the law may be undermined, rather than enhanced, by denying serving prisoners the right to vote. The haphazard effects of an effectively blanket ban are certainly difficult to deny. As the Grand Chamber observed in Hirst (No 2) (para 77) it includes a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. The Grand Chamber may have had in mind that, although minor offences involve shorter periods of disenfranchisement, the effect is more likely to be haphazard, depending as it must upon the timing of elections. Application of the principles in Hirst (No 2) and Scoppola This brings me to the effect of the principles in Hirst (No 2) and Scoppola in the present cases. Chesters claim, which relates to voting in European Parliamentary elections, is based directly on the Convention rights as well as on EU law. The first question is therefore whether he is a victim capable of bringing a claim against the respondents under the Human Rights Act. Section 7 of the Act provides: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. In Hirst (No 2), the majority rejected a submission by the United Kingdom Government that the Chamber had assessed the compatibility of the legislation with the Convention in the abstract without consideration of whether removal of the vote from the applicant as a person convicted of a serious offence and sentenced to life imprisonment disclosed a violation. It said (para 72) that Hirsts complaint was in no sense an actio popularis. He was directly and immediately affected by the legislative provision of which complaint is made and in these circumstances the Chamber was justified in examining the compatibility with the Convention of such a measure, without regard to the question whether if the measure had been framed otherwise and in a way which was compatible with the Convention, the applicant might still have been deprived of the vote. It would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post tariff life prisoners or to conclude that such an amendment would necessarily be compatible with Article 3 of Protocol No 1. This was another point on which the minority disagreed, observing the Courts task was not normally to review the relevant law and practice in abstracto and that it was in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment (para O III8). Taking the majority approach, Chester is a victim for the purposes of section 7 of the Human Rights Act, but this means that he satisfies a pre condition to, not that he is necessarily entitled to any particular relief in, a complaint about the general disenfranchisement of prisoners from voting in United Kingdom and European Parliamentary elections which results from EPEA section 8(2) and (3), read with RPA section 3. He claims a declaration that both RPA section 3 and EPEA section 8(2) are incompatible with A3P1. (I note that, in contrast, under European Union law, his primary submission in relation to EPEA section 8(2) is that it can be rendered compatible with European Union law by reading in an additional right to vote in European Parliamentary elections if necessary to comply with European Union law.) The incompatibility of RPA section 3 with A3P1 was recognised by the Registration Appeal Court in Smith v Scott 2007 SC 345, which made a declaration of incompatibility. That declaration was properly made in the case of a convicted person sentenced to five years imprisonment for being concerned with supply of controlled drugs. It entitled the Government to use the remedial order provisions contained in section 10 of the Human Rights Act. The Government decided not to do this. The issue is now however before the United Kingdom Parliament and under active consideration in the light of the decisions in Hirst (No 2), Greens and Scoppola. Further, it is clear from Greens (para 18 above) and the Attorney General accepts that EPEA section 8 is, in relation to European Parliamentary elections, as incompatible with A3P1 as RPA section 3 is, in relation to United Kingdom Parliamentary elections. A declaration is a discretionary remedy, both generally and under the Human Rights Act 1998, section 4 (4). There is in these circumstances no point in making any further declaration of incompatibility. On this I am in agreement with both Burton J at first instance, [2009] EWHC 2923 (Admin), and the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR 1436. The Strasbourg Courts own decision in McLean and Cole to defer consideration of applications concerning future elections in the light of the ongoing Parliamentary process is also consistent with this view. Further, it can, I consider, now be said with considerable confidence that the ban on Chesters voting is one which the United Kingdom Parliament can, consistently with the Convention right, and would maintain, whatever amendments it may be obliged to make or may make to allow any prisoners detained for different reasons or periods to vote. In the original Chamber decision in Hirst (2004) 38 EHRR 825, reference was made to the continuation of the ban on voting after the expiry of the tariff period in the case of a life prisoner as an additional anomaly (para 49). Nevertheless, the Chamber went on to say that it could not speculate as to whether Hirst, whose tariff had expired, would still have been deprived of the vote even if a more limited restriction on the right to [sic] prisoners to vote had been imposed, which was such as to comply with the requirements of [A3P1] (para 51). It is notable that the majority in the Grand Chamber in Hirst (No 2) did not endorse this reference in para 49 of the simple Chambers judgment to an additional anomaly, saying only that it would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post tariff life prisoners or to conclude that such an amendment would necessarily be compatible with [A3P1] (para 72). Only in a concurring opinion of Judge Caflisch did he raise the point, going so far as to say that this may be the essential point for the present case (para O 17(d)). His opinion does not appear to have been shared by other judges, and must now in any event be seen in the light of the decision in Scoppola, accepting that a lifelong ban on voting by prisoners sentenced for five or more years was legitimate. The additional fact that it was subject to removal after three years had elapsed from release, provided that the offender has displayed consistent and genuine good behaviour does not appear to have been critical to this conclusion; but, however that may be, it points strongly in favour of a view that it can be legitimate to withhold a prisoners voting rights until satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Grand Chambers reasoning in its very recent decision in Vinter v United Kingdom (Application Nos 66069/09, 130/10 and 3896/10; 9 July 2013), which post dated submissions in this case, is also worth noting for its explanation of detention during a post tariff period by reference to core aims of imprisonment: 108. First, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. No issue arises under Article 3 if a life sentence is de jure and de facto reducible . In this respect, the Court would emphasise that no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offenders continued detention where necessary for the protection of the public . Indeed, preventing a criminal from re offending is one of the essential functions of a prison sentence . This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the States positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous . [case references omitted] emphasised in Hirst (No 2) that In Greens, the Court noted (para 113) that the Grand Chamber had there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each contracting state to mould into their own democratic vision. The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy maker should be given special weight. See also Scoppola, para 83 and Syler, para 33. Within the domestic legal context, it is now therefore for Parliament as the democratically elected legislature to complete its consideration of the position in relation to both RPA section 3 and EPEA section 8. There is no further current role for this Court, and there is no further claim, for a declaration or, in the light of the incompatibility, for damages which the appellant Chester can bring. European law I turn to the position under European Community and now Union law. Before Burton J and the Court of Appeal, and reflecting no doubt the argument before those courts, any claim under European Union law by Chester was treated as effectively consequential on the incompatibility of the ban with A3P1, and attracted no separate analysis. Bearing in mind the date of Chesters claim for judicial review (December 2008), he is also unable to rely upon European law as it stands after 1 December 2009 under the TEU and TFEU, as a result of the Treaty of Lisbon. This difficulty is not overcome by maintaining that his claim related to forthcoming elections. It still required to be viewed in the light of the law when it was brought. At that date, the Charter of Fundamental Rights did not have direct legal force, so that there was no equivalent of article 6.1 TEU. The predecessor of article 6.3 TEU was article 6.2 of the pre December 2009 TEU reading: The Union shall respect fundamental rights, as guaranteed by the [Human Rights] Convention and as they result from the constitutional traditions common to the Member States, as general principles of Community law. The predecessor of article 14.3 TEU was article 190.1 and 4 of the Treaty on the European Community (EC), set out in para 11 above. Article 22.1 and 22.2 had a precise equivalent in article 19.1 and 19.2 EC, but the predecessor of article 20 was article 17 EC, reading simply: 17.1 Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. McGeochs claim under European Union law was on the other hand issued in early 2011 and relates to voting in local as well as Scottish and European Parliamentary elections. It therefore opens up all possible avenues for exploration under current European Union law. However, there is nothing in European Union law which can entitle McGeoch to complain in respect of his inability to vote in Scottish Parliamentary elections. European Union law refers in various contexts, which have already been set out in this judgment, to voting in European Parliamentary elections and in municipal elections, and to no other elections. It is obvious that Scottish Parliamentary elections fall within neither category: see also what I have already said in para 9 above. That municipal elections are local government elections at a lower level of government, closer to people and with a more direct responsibility for service delivery, is furthermore consistent with the nature of the units found (though in the case of Scotland, not yet updated) in the annex to Council Directive 94/80/EC, which lays down detailed arrangements for the exercise of the right to vote and stand in municipal elections by Union citizens residing in a Member State of which they are not nationals. The submissions under European Union law are put at various different levels. Mr Aidan ONeill QC for McGeoch concentrated upon articles 20 and 22 TFEU, read with articles 39 and 40 CFR. Mr Southey for Chester adopted Mr ONeills submissions, but relied in addition upon the more general provisions of articles 6.3 (or its predecessor article 6.2 in the pre December 2009 TEU), 10 and 14.3 TEU (or the latters predecessor articles 190.1 and 4 EC). In his submission, the effect of these articles was, at the least, to incorporate into European Union law in relation to voting in European Parliamentary elections the principles recognised under Strasbourg case law (Hirst (No 2) and Scoppola) in relation to national legislatures. Quite possibly, he submitted, their effect may even be to lead the Court of Justice to go further than Strasbourg case law by prohibiting on a more extensive basis any limitations on the democratically based universal suffrage to which the Treaties refer. If Mr Southeys wider submission with regard to the wholesale importation into European Community or Union law of the Strasbourg jurisprudence regarding the right to vote were valid, it would be surprising to find no hint of this in any Court of Justice judgment. That is particularly so with regard to Case C 145/04 Spain v United Kingdom [2006] ECR I 7917 and Case 300/04 Eman and Sevinger v College van Burgemeester en Wethouders van den Haag [2006] ECR I 8055, despite the difference in the actual issues. Mr Southeys submission would also mean that a case such as Matthews v United Kingdom (1999) 28 EHRR 361 could, now at least, be pursued in either of two parallel forums. Spain v United Kingdom and Eman and Sevinger The judgments in Spain v United Kingdom and Eman and Sevinger were both issued on the same day (12 September 2006) following an opinion of Advocate General Tizzano (dated 6 April 2006) which had covered both cases. The judgments contain discussion of the scope and effect of European Treaty law which bears on both Mr Southeys wider and Mr ONeills narrower submissions. In Spain v United Kingdom the first issue was whether it was legitimate under European law for the United Kingdom to extend the franchise in European Parliamentary elections to qualifying Commonwealth citizens, as well as European Union citizens, registered in the Gibraltar register. The Court held (para 78) that, in the then current state of Community law the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory. In the course of its reasoning, the Court said: Articles 189 EC and 190 EC do not expressly and precisely state who are to be entitled to the right to vote and to stand as a candidate for the European Parliament. 66 [Article 19 EC] is confined to applying the principle of non discrimination on grounds of nationality to the exercise of that right, by providing that every citizen of the Union residing in a Member State of which he is not a national is to have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. 76 . Article 19(2) EC . is confined, as pointed out in paragraph 66 above, to stating a rule of equal treatment between citizens of the Union residing in a Member State so far as concerns that right to vote and stand for election. While that provision, like Article 19(1) EC relating to the right of Union citizens to vote and to stand as a candidate at municipal elections, implies that nationals of a Member State have the right to vote and to stand as a candidate in their own country and requires the Member States to accord those rights to citizens of the Union residing in their territory, it does not follow that a Member State in a position such as that of the United Kingdom is prevented from granting the right to vote and to stand for election to certain persons who have a close link with it without however being nationals of that State or another Member State. The Court also referred to the provisions of the 1976 Act (paras 67 to 69). In paras 90 to 97 the Court of Justice addressed Spains second plea that the United Kingdom had, in the arrangements made to enable the Gibraltar electorate to vote, gone further than required to comply with the European Court of Justices judgment in Matthews v United Kingdom. It recited in this connection that it was the United Kingdoms obligation to comply with Matthews and that in the light of the case law of the European Court of Human Rights and the fact that that Court has declared the failure to hold elections to the European Parliament in Gibraltar to be contrary to [A3P1] ., the United Kingdom cannot be criticised for adopting the necessary legislation. In Eman and Sevinger the Court was concerned with the legitimacy under European Union law of a provision of Dutch law which conferred the right to vote in European Parliamentary elections upon Dutch nationals residing in the Netherlands or abroad except in Aruba and the Netherlands Antilles. After repeating (para 45) that in the current state of Community law, the definition of the persons entitled to vote and to stand for election falls within the competence of each Member State in compliance with Community law, the Court opened a possible role for European law in the instant case by continuing It must, however, be ascertained whether that law precludes a situation such as that in the main proceedings, in which Netherlands nationals residing in Aruba do not have the right to vote and to stand as a candidate in elections to the European Parliament. In relation to articles 189 and 190 EC, the Court repeated its words in para 65 of Spain v United Kingdom. It also repeated (para 53) that Article 19(2) EC is confined to applying the principle of non discrimination on grounds of nationality to that right to vote and stand for election, by stipulating that every citizen of the Union residing in a Member State of which he is not a national is to have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. The Court further noted that the European Court of Human Rights had accepted that the right to vote might be limited by reference to residence. However, the Court found in the principle of equal treatment or non discrimination, which is one of the general principles of Community law a basis for comparing the position of a Netherlands national resident in the Netherlands Antilles or Aruba and one residing in a non member country (paras 57 58) and for concluding that the Dutch Government had not demonstrated an objective justification for the different treatment of these two persons (para 60). Earlier in its judgment, the Court of Justice had observed that A3P1 did not apply to Aruba; unlike the case with Gibraltar, the European Treaties have no application there, so the European Parliament could not be regarded as the Aruba legislature (para 48). But the Courts decision was based on the fact that the complainants held Dutch nationality and were as such citizens of the Union under article 17(1) EC, and entitled to enjoy the rights conferred by the Treaty under article 17(2). They succeeded under the general European legal principle of non discrimination. In Spain v United Kingdom the Court was thus concerned with Gibraltar which is within the territorial scope of both the Community and the European Convention on Human Rights, but with voting rights which the United Kingdom had conferred on persons who were not United Kingdom nationals for the purposes of Community law. The Court had nonetheless to consider the nature of the United Kingdoms obligation to extend the franchise in European Parliamentary elections to Gibraltar. In Eman and Sevinger, the Court was concerned with Aruba which is outside the territorial scope of the Community, but within the territorial scope of the European Convention on Human Rights (by the combination of declarations dated 29 November 1954 and 24 December 1985 deposited by the Netherlands with the Council of Europe), and with voting rights which had been withheld from persons who were citizens of the European Union. What is notably absent from the Court of Justices judgments in both Spain v United Kingdom and Eman and Sevinger is any suggestion that, by reason of article 6.2 of the pre December 2009 TEU and articles 17 and 190 EC, the European Treaties confer on citizens of the Union an individual right to vote, the scope and conditions of which must be measured by reference to the principles established in European Court of Human Rights jurisprudence, such as Hirst (No 2) and Scoppola. If available, that could have been advanced as a reason why it was obligatory under European Community law for the United Kingdom to take steps to enable the Gibraltar electorate to vote. Instead, the reason given was the United Kingdoms Council of Europe obligations to comply with Strasbourg decisions: see para 49 above. Likewise, in Scoppola there was no suggestion that as Union citizens the claimants were under Community law entitled to enjoy an individual right to vote, complying with the principles established by European Court of Human Rights jurisprudence. Advocate General Tizzano in his opinion for these two cases had adopted much broader reasoning which the Court in its judgments was careful not to endorse. He would have inferred from Community principles and legislation as a whole . that there is an obligation to grant the voting rights in question to citizens of the Member States and, consequently, to citizens of the Union (para 67), deriving this (para 69) from the principles of democracy on which the Union is based, and in particular, to use the words of the Strasbourg Court, the principle of universal suffrage which has become the basic principle in modern democratic States [FN: Eur. Court H.R. Mathieu Mohin and Clerfayt v Belgium, judgment of 2 March 1987 . , Hirst v United Kingdom (No 2), . 30 March 2004] and is also codified within the Community legal order in Article 190(1) EC and Article 1 of the 1976 Act, which specifically provide that the members of the European Parliament are to be elected by direct universal suffrage. He went on to say that this general guidance was also confirmed by the fact that the right in question is a fundamental right safeguarded by [A3P1], and to mention in a footnote that the text of article 6(2) need merely be borne in mind (paras 70 to 71). Turning to Spains second criticism, Advocate General Tizzano also derived from his conclusion that individual voting was a fundamental right of citizens of the Union a converse conclusion that it was illegitimate for the United Kingdom to deviate to any greater extent from its statement in what was then Annex II of the 1976 Act that The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom. As stated in para 49 above, the Court of Justice adopted quite different reasoning and reached an opposite conclusion, based simply on the United Kingdoms obligation to give effect to the European Court of Human Rights ruling in Matthews. The Court of Justice did not therefore endorse Advocate General Tizzanos broad approach, or import the Strasbourg jurisprudence into the general provisions of Community and Union law referring to voting in European Parliamentary elections. There was good reason for this. Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest. There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member States or specifically with the restrictions on prisoner voting which apply in a number of such States. The Strasbourg jurisprudence operates as the relevant control, albeit one that has itself proved in some respects controversial. It would not only unnecessarily duplicate that control at the European Community or Union level, it could also lead to further conflict and uncertainty. Hence the Court of Justice in Eman and Sevinger confined its reasoning to a well established core principle of Treaty law, that of non discrimination, in that case between different categories of Dutch national, to which I shall return (paras 60 64 below). Further, even in the form into which they have been shaped by the Treaty of Lisbon, it is notable that such provisions as the European Treaties contain concerning individual voting rights are notably limited in scope. They relate to the core Treaty concerns of equality between nationals or Union citizens and freedom of movement within the European Union (see para 59 below). For all these reasons, I reject Mr Southeys wider submission set out in (paras 46 47 above). Articles 20.2 and 22 TFEU In Mr ONeills submission, the changes effected by the Treaty of Lisbon significantly altered the Treaty position considered in Spain v United Kingdom and Eman and Sevinger. In those cases article 19 EC was explained as confined to stating rules of equal treatment requiring Union citizens residing in Member States of which they were not nationals to be able to vote and stand in municipal as well as European Parliamentary elections under the same conditions as nationals. The same must apply to the current equivalent, article 22 TFEU. But Mr ONeill relies upon the introduction of the new article 20.2(b). This, he submits, is a self standing provision, expressly conferring the individual right to vote on citizens of the Union in respect of European Parliamentary and municipal elections. In my opinion, it is clear that that is not the effect of article 20.2(b). As its opening sentence proclaims, article 20 deals with the enjoyment of rights provided in the Treaties. What follow are some of the basic rights so enjoyed. They all have a supra national element. Article 20.2(b) is thus expressly limited to recording the existence of the right of Union citizens to vote and stand in municipal and European Parliamentary elections in their Member State of residence under the same conditions as nationals of that State. The omission of express reference to the fact that this is dealing with citizens resident in a State other than that of their nationality is entirely understandable in the context of what was intended as a concise summary. That fact is anyway implicit. The detailed Treaty provisions regarding the rights to which article 20.2(b) refers are contained in article 22.1 and 22.2, which would on Mr ONeills case in fact be not only redundant but also positively misleading in their limitation to the situation of residence in a Member State other than that of nationality. The position is further confirmed by articles 39 and 40 CFR, which again would be positively misleading in their limitation to that situation, and by the Explanations to the CFR which explicitly equate articles 20.2 and 22: see para 16 above. There is no basis for or likelihood in Mr ONeills supporting submission that article 20.2(b) was expressly aimed at, in effect, endorsing Advocate General Tizzanos views as to where European Union law was or should go in conferring individual rights. Had that been remotely intended, quite different explicit language would have been used. Non discrimination The other limb of Mr ONeills submissions involves reliance on the principle of non discrimination applied in Eman and Sevinger. The infringement there consisted in unequal treatment by Dutch law in relation to voting in European Parliamentary elections by Netherlands nationals in comparable situations. The most fundamental area in which this principle has always manifested itself is in relation to discrimination on the grounds of nationality: see article 7 of the original EEC Treaty, now article 18 TFEU, which provides: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited. But the principle has achieved much wider application. Article 13.1 EC (now substantially reproduced as article 19.1 TFEU) provides: Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council . may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 13 has been responsible for some well known, if in some respects controversial case law. The Court of Justice has accepted that, although the Treaty contemplates that the general principle of non discrimination underlying article 13 will be implemented by directives, Member States will be bound thereby to discontinue, disregard or set aside measures so far as they involve discrimination on a basis contrary to article 13 at least after the time for transposition of such a directive: Case C 555/07 Kkkdeveci v Swedex GmbH & Co KG [2010] 2 CMLR 33, para 61 and perhaps even when legislating in the area of the directive during the period for transposition: Case C 144/04 Mangold v Helm [2005] ECR I 9981. However, for the general principle of non discrimination to apply, the context must fall within the scope of Community or now Union law: see Mangold, para 75, Case C 427/06 Bartsch v Bosch und Siemens Hausgerte (BSH) Altersfrsorge GmBH [2008] ECR I 7245, para 25, Kkkdeveci, para 23, Case C 147/08 Rmer v Freie und Hansestadt Hamburg [2013] CMLR 11, para 70, and Craig and de Burca, EU Law: Text, Cases and Materials [OUP: 4th ed, 2008, p 891]. The only difficulty about Eman and Sevinger is to identify the link with European law, once one has rejected the conclusion that European law recognises all EU citizens as having under European law an individual right to vote in European Parliamentary elections (paras 56 to 58 above). The general principle was simply stated to be applicable in a context where, and on the basis that, Netherlands nationals, who were under article 17.1 EC Union citizens, were being treated unequally in comparable situations in relation to European Parliamentary elections, having regard to the difference in treatment of Netherlands nationals resident, on the one hand, in the Netherlands Antilles and Aruba and, on the other hand, in other non EU member countries: see in particular paras 45, 56 to 58 of the Courts judgment. It is however a general principle of Strasbourg law under article 14 of the Convention that additional rights falling within the general scope of any Convention right for which the state has voluntarily decided to provide must in that event be provided without discrimination: Belgian Linguistics Case (No 2) (1968) 1 EHRR 252, 283, R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484, paras 12, 17 18. This principle in my opinion clearly underlies Eman and Sevinger. As the Court noted (para 53), article 19 EC (now article 22 TFEU) only covered nationals resident in another Member State. But the Dutch legislator had chosen to extend the right to vote to its nationals resident outside any Member State but not in the Dutch Antilles or Aruba. There was no justification for this different treatment of comparable situations in a context which fell within the scope of European law, that is voting by nationals residing outside their own member state. Supporting this is also the consideration that the Court accepted that the definition of the persons entitled to vote and to stand falls within the competence of each Member State in compliance with Community law (Spain v United Kingdom, para 78, Eman and Sevinger, para 45). If the qualification in compliance with Community law were meant to require scrutiny by reference to European Community law of all national limitations affecting European Parliamentary elections for their non discriminatory quality even where no other link with European law was established other than that the elections were European Parliamentary elections, that could, depending upon the intensity of the scrutiny, effectively erode the general principle that the Court was accepting. Position if the principle of non discrimination had been engaged This brings me to consideration of the nature and intensity of the scrutiny which would be required, if (contrary to my conclusion in paras 63 64) the principle of non discrimination were to be viewed as all embracing in the manner advocated by Mr ONeill and Mr Southey. In both Strasbourg and Luxembourg case law, discrimination issues are customarily described as involving a two stage process, consisting of first the identification of an appropriate comparator and then, if one is found, examination of the justification for any difference in treatment: see e.g. Edward and Lane, European Union Law (EE, 2013) para 6.125, citing numerous authorities. The exercise as presented is neither a unitary nor an entirely open one, or a court would in every case be required to ascertain the differences between two different situations and ask whether, assessing such differences and their significance as best it could, it considered the differences in their treatment to be fair or justified. There must be basic comparability before the court embarks on considering justification. Thus, in Eman and Sevinger itself the Court observed (para 57) that the principle of equal treatment or non discrimination, which is one of the general principles of Community law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified The principle was reiterated in Case C485/08 P, Gualtieri v European Commission [2010] ECR I 3009, para 70 with reference to Eman and Sevinger as well as other cases including Case C 227/04 P Lindorfer v Council of the European Union [2007] ECR I6767. As the Court noted in Case C 267/06 Maruko v Versorgungsanstalt der deutschen Bhnen [2008] ECR I 1757, para 73, it is for the national court to determine whether two persons are in a comparable position. That does not however mean an identical position. The referring court in Maruko identified a gradual movement towards recognising equivalence of life partnership and marriage, meaning that, although the two were not identical, persons of the same sex could be regarded as being in a situation comparable to that of spouses so far as concerns the survivors benefit at issue in that case. The Court of Justice in Case 147/08 Rmer v Freie und Hansestadt Hamburg approved that approach, saying: 41 Accordingly, the existence of direct discrimination, within the meaning of the Directive, presupposes, first, that the situations being weighed up are comparable. 42 In that regard, it should be pointed out that, as is apparent from the judgment in Maruko at [67][73], first, it is required not that the situations be identical, but only that they be comparable and, secondly, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned. Gualtieri was an appeal from the General Court and provides a contrasting example. The claimant complained that she received a lower daily allowance on the basis of the proximity of her spouses residence to her place of secondment than she would have done if she had been single, but living in a de facto union. The Court upheld the General Courts conclusion that the two situations were not comparable, saying: 75 . it must be observed that, although de facto unions and legally recognised unions, such as marriage, may display similarities in certain respects, those similarities do not necessarily mean that those two types of union must be treated in the same way. 76 In those circumstances, the decision to apply the criterion of matrimonial legal status appears neither arbitrary nor manifestly inappropriate in relation to the objective of reducing the allowances paid to SNEs [national experts seconded to the Commission] when they are in a situation in which it can be assumed that they bear fewer costs and disadvantages on account of their matrimonial status. Applying these principles to the present case, I do not regard convicted prisoners serving their sentence as in a comparable position either to free persons or to remand prisoners awaiting trial. They have a very different status, to which it is evident that very different considerations may apply and which are capable at least of giving rise to very different arguments. It follows that, assuming that the general principle of non discrimination applies under European Union law to eligibility to vote in European Parliamentary elections, there is in my view no basis for its application in the context of a complaint that convicted prisoners are discriminated against by reference to free persons or remand prisoners. The position assuming contrary conclusions I have concluded that the appellants are not entitled to invoke European law, because, firstly, it confers no individual right by reference to which the Strasbourg case law of Hirst (No 2) and Scoppola could be relevant (paras 58 and 59) and, secondly, the general principle of non discrimination recognised in Eman and Sevinger is not engaged (paras 63 64) or, if it is engaged, does not assist the appellants (para 68). In what follows, I will, for completeness, consider the position assuming opposite conclusions on all these points. If European law recognises an individual right to vote in European Parliamentary and/or municipal elections, I would reject Mr Southeys submission that it would or might go further than the Strasbourg case law in allowing convicted prisoners the vote. Court of Justice jurisprudence pays close attention to and, with very few exceptions, follows Strasbourg jurisprudence. Examples of divergence are few and far between, although one may, ironically, have occurred in a sequel to Eman and Sevinger concerning the right to vote in elections for the Kingdom of Holland, in so far as it is arguable that the Strasbourg court went less far in Sevinger and Eman v Netherlands (2007) 46 EHRR 179 than the Court of Justice did in Eman and Sevinger itself: see an instructive case note by Professor Leonard F M Besselink on this Strasbourg authority in (2008) 45 CMLR 787. In the present case, I reject in particular the submission that the Court of Justice might return to the theme suggested in Frodl v Austria (2010) 52 EHRR 267, para 34 by reference to Hirst (No 2), para 82 that it is essential that any disenfranchisement of a convicted prisoner be ordered on a case by case basis by a judge, rather than be pre determined by an otherwise appropriate legislative scheme. This suggestion was very clearly, and for very obvious reasons, rejected by the Grand Chamber in Scoppola v Italy, paras 99 100, a rejection which the simple Chamber in Anchugov, para 107, took pains to reiterate; see also (though coupled with a reference to judicial interventions being likely to guarantee the proportionality of restrictions on prisoners voting rights) Syler, para 39. The majority in the European Court of Human Rights in Hirst (No 2) found a violation because Hirst was directly and immediately affected by the legislative provision of which complaint is made and that the Chamber was justified in examining the compatibility with the Convention of such a measure, without regard to the question whether, if the measure had been framed otherwise and in a way which was compatible with the Convention, the applicant might still have been deprived of the vote (para 72). But it regarded the finding of a violation as just satisfaction and awarded no damages. As the Court said in Kkkdevici, para 51, it is for a national court, in applying national law, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, para 77). In the present cases, on the assumptions (contrary to my conclusions), first, that European law recognises an individual right to vote paralleling in substance that recognised in the Strasbourg case law of Hirst (No 2) and Scoppola, and, second, that the view taken by the majority of the Grand Chamber in Hirst (No 2) regarding standing to claim a general declaration were to be transposed into European law, the only relief that could be considered under domestic law would be a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Union law. Thereafter, it would be for the United Kingdom Parliament to address the position and make such legislative changes as were considered appropriate. But, for reasons paralleling those given in paras 40 42 above, it appears improbable that the Convention rights would, even when viewed through the prism of European Union law, involve or require the granting of declarations in the abstract at the instance of claimants like both Chester and McGeoch, detained in circumstances summarised in para 1 above, from whom the United Kingdom Parliament could legitimately, and it seems clear would, under any amended legislative scheme still withhold the vote. I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law. It is clear from both Hirst (No 2) and Scoppola that, under the principles established by those cases, a ban on eligibility will be justified in respect of a very significant number of convicted prisoners. Nor would it have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law; the legislation is entirely clear and it would flatly contradict the evident intention of the United Kingdom, when enacting it, to read into it or to read it as subject to some unspecified scheme or set of qualifications allowing some unspecified set of convicted prisoners to vote under some unspecified conditions and arrangements. It would also be impossible for the Supreme Court itself to devise an alternative scheme of voting eligibility that would or might pass muster in a domestic or supra national European Court. Equally, the Court could not determine or implement the practical and administrative arrangements that would need to be made to enable any convicted prisoners eligible under any such scheme to have the vote. Such matters would be beyond its jurisdiction. In the domestic constitutional scheme, any scheme conferring partial eligibility to vote on some convicted prisoners is quintessentially a matter for the United Kingdom Parliament to consider, determine and arrange. In the passage quoted in para 72 above, the Court of Justice made clear that it is only within the limits of its jurisdiction that a national court can be expected to provide the legal protection that European Union law requires. That being so, the creation of any new scheme must be a matter for the United Kingdom Parliament. That does not necessarily conclude this Courts role under European law. The principles established in Case C 6/90 Francovich v Italian Republic [1992] IRLR 84 and Joined Cases C 46/93 and C 48/93 Brasserie du Pecheur SA v Federal Republic of Germany and R v Secretary of State for Transport, Ex p Factortame Ltd (No 4) [1996] QB 404 require domestic courts, under certain conditions, to order their State to make good any loss caused by breach of European Union law, even where the breach consists in legislation incompatible with that law. After these decisions by the Court of Justice, the principles stated by that Court were examined and applied domestically by the House of Lords in R v Secretary of State, Ex p Factortame Ltd (No 5) [2000] 1 AC 524. Neither Chester nor McGeoch has set out, supported with evidence or pursued any claim for damages in the courts below. Both now seek to claim damages, still without any supporting evidence, and, if necessary, to have their cases remitted for further determination in this regard. I will however put on one side without deciding the question whether either should be given leave to enable them at this late stage to raise any damages claim, and consider the nature and application of the relevant principles, assuming that such claims were to be permitted. An important factor in determining whether liability in damages may exist under European law is the width of the discretion available to the legislator: see Ex p Factortame, paras 44 to 46. In this respect the Court equated the position of the Community and national legislators (para 47). A strict (meaning more limited) approach was taken towards the liability of the Community (or therefore of national legislators) in the exercise of legislative activities. This was explained (para 45) as due to two considerations: 45. First, even where the legality of measures is subject to judicial review, exercise of the legislative function must not be hindered by the prospect of actions for damages whenever the general interest of the Community requires legislative measures to be adopted which may adversely affect individual interests. Secondly, in a legislative context characterized by the exercise of a wide discretion, which is essential for implementing a Community policy, the Community cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers As the Court went on to point out, the national legislature like the Community institutions does not systematically have a wide discretion when it acts in a field governed by Community law (para 46). It depends on the nature of the European law or principle being implemented. However, in the context of eligibility to vote, it is clear that national legislatures have a wide discretion. Where a wide legislative discretion of this nature exists, three conditions govern the incurring of any liability on account of the legislative choices made by the State pursuant to such discretion. These were explained in Ex p Factortame as follows: 51 In such circumstances, Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious, and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties. 52 First, those conditions satisfy the requirements of the full effectiveness of the rules of Community law and of the effective protection of the rights which those rules confer. 53 Secondly, those conditions correspond in substance to those defined by the Court in relation to Article 215 in its case law on liability of the Community for damage caused to individuals by unlawful legislative measures adopted by its institutions. 55 As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. 56 The factors which the competent court may take into consideration include the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. 57 On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case law of the Court on the matter from which it is clear that the conduct in question constituted an infringement. These principles were reiterated in Case 392/93 R v HM Treasury, Ex p British Telecommunications plc [1996] QB 615, an example of a case where the Court of Justice held that the breach had not involved a manifest and grave disregard of European law, and Case 278/05 Robins v Secretary of State for Work and Pensions [2007] ICR 779, where the Court emphasised the importance of the breadth of the legislative discretion in that case and the fact that the provisions of the relevant directive did not make it possible to establish with any precision the level of pension protection which it required. Turning to apply these principles to the present cases, I make the twin assumptions (again contrary to my conclusions) that (a) European Union confers rights to vote on individual citizens of the Union, subject to the United Kingdoms legislative discretion to introduce limitations, but that (b) the present general prohibition on prisoner voting is contrary to principles paralleling those stated by the Strasbourg court in Hirst (No 2) and Scoppola and/or the general European Union principle of equality or non discrimination. On those assumptions, the second and third conditions for any personal claim arise for consideration. The second condition is that the breach was sufficiently serious. This in turn depends, under European law, upon whether Parliament, the relevant United Kingdom authority, can be said manifestly and gravely to have disregarded the limits on its discretion. This must be judged taking into consideration the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable (para 77 above). In relation to voting by convicted prisoners, the United Kingdom legislature enjoyed a wide margin of discretion. Further, this is in a context where there has been and remains a considerable lack of certainty about what the parameters of that discretion may be. This is evident from a reading of the Strasbourg case law, particularly the two Hirst judgments, the Chamber judgment in Frodl v Austria (2010) 52 EHRR 267 and the Grand Chamber judgment over ruling the Chamber judgment in Scoppola v Italy, in which the European Court of Human Rights has sought to identify the relevant considerations and to apply them to particular facts. Accordingly, it is clearly very arguable that this condition is not met. I will not however say more about the application of the second condition in this case, in view of one further factor, which I prefer to leave open. The test stated in the European authorities postulates some degree of examination of the conduct of the relevant national authority. Since the relevant United Kingdom authority is here Parliament in enacting and continuing in force the relevant legislation, an assessment of some of these matters (particularly whether the infringement was intentional or involuntary, excusable or inexcusable) may threaten conflict with the constitutional principle enshrined in the Bill of Rights 1688 that domestic courts in the United Kingdom ought not to impeach or question proceedings in Parliament. To avoid this, it may perhaps be necessary to approach a claim for damages in a case like the present on an objective basis, without regard to what has actually happened or been said in Parliament. The decision in R v Secretary of State, Ex p Factortame (No 5) [2000] 1 AC 524 does not appear to throw any light on this problem, because there does not seem there to have been any call to consider Parliamentary debates. On any view, however, the fact of Parliamentary activity, referred to in Greens and continuing, can no doubt be taken into account. The third condition is that there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties. In relation to both the second and the third conditions, it must in my opinion be relevant to have regard to the particular position of the present appellants. The questions are whether, in refusing them the vote, the United Kingdom has manifestly and gravely disregarded the limits on its discretion and whether they have sustained damage directly caused by the United Kingdoms breach of an obligation owed to give each of them a right to vote. In Strasbourg case law, according to the majority in Hirst (No 2), a claimant can complain that the law in general is incompatible with the Convention rights, without showing that it was or would have been incompatible with such rights to deprive him in particular of the vote. But to award a convicted prisoner damages without showing that European Union law required him, rather than some other prisoner or prisoners, to have the vote would be positively inconsistent with the conditions stated in Francovich and Ex p Factortame. On that basis, I consider that any claim for damages by McGeoch and Chester must on any view fail. McGeoch is still serving the punishment part of his sentence resulting from the combination of his life and consecutive fixed term sentence. There can, in the light of Scoppola, be no question about the United Kingdoms entitlement to deprive a prisoner in his position of the vote. Chester is in his post tariff period of his life sentence, but it is notable that the European Court of Human Rights deliberately refrained from endorsing the original Chamber view or Judge Caflischs concurring minority view (para 40 above) that there is a critical distinction between the tariff and post tariff period. Further, in Scoppola, the Strasbourg court accepted that disenfranchisement could continue for life in the case of sentences of five years or more. This was subject only to the right, three years after release, to apply for rehabilitation, which would be granted upon his displaying consistent and genuine good conduct: see para 22 above. The requirement to display good conduct in order to regain voting rights was thus regarded as not only relevant, but acceptable. The Strasbourg court accepted as a legitimate aim enhancing civic responsibility and respect for the rule of law. Continuing detention for a period lasting so long as necessary for the protection of the public (paras 30 and 40 above) can be no less relevant and acceptable as a criterion for continuing deprivation of the right to vote during that period. The underlying consideration, that the offender is not fully rehabilitated or ready to participate responsibly in the countrys democratic life, is the same in each case. This is underlined by the passage from the Grand Chambers recent decision in Vinter quoted in para 41 above. Conclusions My conclusions on the issues argued on this appeal are summarised in para 4 above. It remains only to consider whether the resolution of this appeal necessitates a reference to the European Court of Justice. This depends upon whether it depends upon the determination of any question of European law which is open to reasonable doubt under the principles stated in Case 283/81 CILFIT Srl v Ministry of Health [1982] ECR 3415 and recently discussed in this Court in X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59, [2013] ICR 249. In my opinion, the conclusions of European law reached in paras 45, 58, 59 and 63 64 are acte clair, and they are by themselves sufficient to resolve the appeals. Were it necessary for the decision of these appeals, I would also regard the conclusions in para 70 as acte clair. The further conclusions (again not necessary for the resolution of these appeals) reached in other paras are matters for this Court to determine, applying established principles of European law where relevant. In the circumstances, I do not consider that any reference to the Court of Justice is called for. It follows that, in my opinion, both appeals should be dismissed. LADY HALE (with whom Lord Hope and Lord Kerr agree) Prisoners voting is an emotive subject. Some people feel very strongly that prisoners should not be allowed to vote. And public opinion polls indicate that most people share that view. A YouGov poll in November 2012 found that 63% of respondents said that no prisoners should be allowed to vote, 15% said that those serving sentences of less than six months should be allowed to vote, 9% said that those serving less than four years should be allowed to vote, and 8% said that all prisoners should be allowed to vote. A YouGov poll in January 2011 which asked the same questions produced respective figures of 69%, 6%, 3% and 8%. This suggests that public opinion may be becoming more sympathetic to the idea, with 32% now favouring some relaxation in the present law, but there is still a substantial majority against it. It is not surprising, therefore, that in February 2011 elected Parliamentarians also voted overwhelmingly against any relaxation of the present law. In such circumstances, it is incumbent upon the courts to tread delicately. As I shall explain, in my view it is now clear that the courts should not entertain a human rights claim on behalf of Mr Chester or, indeed, of Mr McGeoch had he made one. Both are serving sentences of life imprisonment for murder. Mr Chester was sentenced to life imprisonment for the murder of his niece, with a tariff of 20 years which expired in October 1997. The Parole Board has not yet found him suitable for release on licence. Mr McGeoch was also sentenced to life imprisonment for murder, with a tariff of 13 years which expired in October 2011; but he has had further convictions for serious offences committed while in prison and is currently serving seven and a half years for violently escaping from prison in 2008. I do not consider that the human rights of either were violated by the Electoral Registration Officers refusal to register them on the electoral roll. Their claims under European Union law are another story, because they raise novel arguments which require to be resolved. On those claims I have nothing to add to the judgment of Lord Mance, with which I agree. Of course, in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story. Democracy is about more than respecting the views of the majority. It is also about safeguarding the rights of minorities, including unpopular minorities. Democracy values everyone equally even if the majority does not: Ghaidan v Godin Mendoza [2004] 2 AC 557, para 132. It follows that one of the essential roles of the courts in a democracy is to protect those rights. It was for that reason that Lord Bingham took issue with the argument of a previous Attorney General, Lord Goldsmith, in A v Secretary of State for the Home Department [2005] 2 AC 68, para 42: I do not . accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. The present Attorney General has wisely not suggested any such thing. He recognises that it is the courts task to protect the rights of citizens and others within the jurisdiction of the United Kingdom in the ways which Parliament has laid down for us in the Human Rights Act 1998. But insofar as he implied that elected Parliamentarians are uniquely qualified to determine what the franchise should be, he cannot be right. If the current franchise unjustifiably excludes certain people from voting, it is the courts duty to say so and to give them whatever remedy is appropriate. More fundamentally, Parliamentarians derive their authority and legitimacy from those who elected them, in other words from the current franchise, and it is to those electors that they are accountable. They have no such relationship with the disenfranchised. Indeed, in some situations, they may have a vested interest in keeping the franchise as it is. To take an obvious example, we would not regard a Parliament elected by an electorate consisting only of white, heterosexual men as uniquely qualified to decide whether women or African Caribbeans or homosexuals should be allowed to vote. If there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional. Given that, by definition, Parliamentarians do not represent the disenfranchised, the usual respect which the courts accord to a recent and carefully considered balancing of individual rights and community interests (as, for example, in R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] AC 719 and R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] AC 1312, both upheld in Strasbourg for that very reason) may not be appropriate. Of course, the exclusion of prisoners from voting is of a different order from the exclusion of women, African Caribbeans or homosexuals. It is difficult to see how any elected politician would have a vested interest in excluding them (save just possibly from local elections in places where there are very large prisons). The arguments for and against their exclusion are quite finely balanced. On the one hand, unlike women, African Caribbeans and homosexuals, prisoners share a characteristic which many think relevant to whether or not they should be allowed to vote: they have all committed an offence deemed serious enough to justify their removal from society for at least a while and in some cases indefinitely. While clearly this does not mean that all their other rights are forfeited, why should they not for the same time forfeit their right to take part in the machinery of democracy? Hence I see the logic of the Attorney Generals argument, that by deciding that an offence is so serious that it merits a custodial penalty, the court is also deciding that the offence merits exclusion from the franchise for the time being. The custody threshold means that the exclusion, far from being arbitrary and disproportionate, is tailored to the justice of the individual case. One problem with that argument is that it does not explain the purpose of the exclusion. Any restriction of fundamental rights has to be a proportionate means of pursuing a legitimate aim. Is it simply an additional punishment, a further mark of societys disapproval of the criminal offence? Or is it rather to encourage a sense of civic responsibility and respect for democratic institutions? If so, it could well be argued that this is more likely to be achieved by retaining the vote, as a badge of continuing citizenship, to encourage civic responsibility and reintegration in civil society in due course. This is indeed, as Laws LJ observed in the Court of Appeal, a matter on which thoughtful people can hold diametrically opposing views. A more concrete objection to the Attorney Generals argument is that the custody threshold in this country has never been particularly high. As Lord Bingham of Cornhill CJ observed in R v Howells [1999] 1 WLR 307, 310, deciding when an offence is so serious that only a custodial sentence can be justified is one of the most elusive problems of criminal sentencing. Between 1992 and 2002, the custodial sentencing rate rose from 5% to 15% in the magistrates courts and from 44% to 63% in the Crown Court (for an overview of sentencing trends in the last 20 years, see Ministry of Justice, The Story of the Prison Population 1993 2012, 2013). Some of the rise may be accounted for by the greater seriousness of the offences coming before the courts, but this cannot be the whole explanation. There are many people in prison who have not committed very serious crimes, but for whom community punishments are not available, or who have committed minor crimes so frequently that the courts have run out of alternatives. Also, the threshold has varied over time in accordance with changes in penal policy which have nothing to do with electoral policy: what, for example, are we to make of the ups and downs in the legislative popularity of suspended sentences? Exactly the same crime may attract an immediate custodial sentence and disenfranchisement at one time or a suspended sentence without disenfranchisement at another. Moreover, the custody threshold has traditionally varied as between different parts of the United Kingdom, with a significantly greater use of imprisonment in Scotland than in England and Wales (although this is diminishing). The sentencing regimes are different in England and Wales, Scotland and Northern Ireland, but the exclusion from voting is the same. All of this suggests an element of arbitrariness in selecting the custody threshold as a unique indicator of offending so serious as to justify exclusion from the democratic process. To this may be added the random impact of happening to be in prison on polling day and the various reasons why someone who has been sentenced to a period of imprisonment may not in fact be in prison on that day. He may, as Lord Clarke points out, be on bail pending an appeal; or he may be released early under electronic monitoring. Then there is the situation of mental patients. All those who are detained in hospital as a result of an order made in a criminal court, apart from those on remand, are also disenfranchised (Representation of the People Act 1983, section 3A(1),(2)). This includes patients who have been found unfit to plead or not guilty by reason of mental disorder, whose culpability may be very different from that of convicted prisoners. There is no equivalent of the custody threshold (as long as the offence is punishable with imprisonment) and no correlation between the seriousness of the offence and the length of time that the patient will be detained in hospital. I mention these additional matters to explain why, in common with Lord Clarke, I have some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate. But I acknowledge how difficult it would be to devise any alternative scheme which would not also have some element of arbitrariness about it. The Strasbourg court, having stepped back from the suggestion in Frodl v Austria (2010) 52 EHRR 267 that exclusion from the franchise requires a judicial decision in every case and approved the Italian law in Scoppola v Italy (No 3) (2012) 56 EHRR 663, must be taken to have accepted this. However, I have no sympathy at all for either of these appellants. I cannot envisage any law which the United Kingdom Parliament might eventually pass on this subject which would grant either of them the right to vote. In Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, the Strasbourg court declined to conclude that applying the ban to post tariff life prisoners would necessarily be compatible with article 3 of the First Protocol. But it seems clear from the decision in Scoppola v Italy (No 3) that Strasbourg would now uphold a scheme which deprived murderers sentenced to life imprisonment of the right to vote, certainly while they remained in prison, and probably even after they were released on licence, as long as there was then a power of review. Hence I cannot see how Mr Chester can sensibly have a claim to a remedy under the Human Rights Act. It may be, as Lord Mance has concluded, that he qualifies as a victim for the purpose of section 7 of the Human Rights Act. But this is only in the sense that, as the majority of the Grand Chamber in Hirst (No 2) held, he was directly affected by the law in question. This justified that court, in the majority view, examining the compatibility of the law with the Convention, irrespective of whether he might justifiably have been deprived of the vote under some other law. A strong minority, including the then President, Judge Wildhaber, and his successor, Judge Costa, pointed out that this was not the usual practice of the court (para OIII8): The Court has consistently held in its case law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention. It is, in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment. Generally speaking, the Court's judgment concentrates above all on finding the British legislation incompatible with the Convention in abstracto. We regret that despite this focus it gives the states little or no guidance as to what would be solutions compatible with the Convention. Since restrictions on the right to vote continue to be compatible, it would seem obvious that the deprivation of the right to vote for the most serious offences such as murder or manslaughter, is not excluded in the future. Either the majority are of the view that deprivations for the post tariff period are excluded, or else they think that a judge has to order such deprivations in each individual case. We think that it would have been desirable to indicate the correct answer. In other words, it would have been in accordance with the consistent practice of the court for the majority to indicate in precisely what way Mr Hirsts rights had been violated by the law in question. It seems to me that the courts of this country should adopt that sensible practice when considering the application of the various remedies provided by the Human Rights Act. In this case, there can be no question of Mr Chester having a cause of action under section 6(1) of the Human Rights Act. The Electoral Registration Officer for Wakefield refused his application for inclusion on the electoral roll. But in my view that could not have been incompatible with his Convention rights, because (at least following Scoppola v Italy) the Convention does not give him the right to vote. But even if it was incompatible, the public authority could not have acted differently, because of the provisions of the Representation of the People Act, and so by virtue of section 6(2)(a) the act was not unlawful. Nor is there any question of our reading and giving effect to the Act in a way which is compatible with the Convention rights, in accordance with our duty under section 3(1). No one has suggested that it would be possible to do so in a case such as this. It is obvious that any incompatibility can only be cured by legislation and the courts cannot legislate. But even if we could, we would only seek to read and give effect to the statute in a way which was compatible with the rights of the individual litigant before us. As, in my view at least, the ban on voting is not incompatible with the rights of this particular litigant, a reading which was compatible with the rights of a completely different litigant would do him no good. That leaves the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act. This applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. This does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant. There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims. It is principally for that reason that I would decline to make a declaration of incompatibility on the application of either Mr Chester or (had he made one) Mr McGeoch. Indeed, in my view the courts should not entertain such claims. It is otherwise, of course, in borderline cases. In those circumstances it seems to me unnecessary to express a view on whether we should follow or depart from the substance of the decision in Hirst v LORD CLARKE I agree that these appeals should be disposed of as proposed by Lord Mance and Lord Sumption. I also agree with the reasoning of both Lord Mance and Lord Sumption, subject to this. I would be less critical than Lord Sumption of the decisions of the European Court of Human Rights to which they refer. The reasoning of the Strasbourg Court has very recently been summarised in Anchugov and Gladkov v Russia (Application Nos 11157/04 and 15162/05), 4 July 2013, at paras 93 100. In particular, in para 100 it distinguished between Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 in this way: 100. The principles set out in the Hirst (No 2) case were later reaffirmed in the Scoppola (No 3) [GC] judgment. The Court reiterated, in particular, that when disenfranchisement affected a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it was not compatible with Article 3 of Protocol No 1 (see Scoppola (No 3) [GC], cited above, para 96). The Court found no violation of that Convention provision in the particular circumstances of this latter case however, having distinguished it from the Hirst (No 2) case. It observed that in Italy disenfranchisement was applied only in respect of certain offences against the State or the judicial system, or offences punishable by a term of imprisonment of three years or more, that is, those which the courts considered to warrant a particularly harsh sentence. The Court thus considered that the legal provisions in Italy defining the circumstances in which individuals may be deprived of the right to vote show[ed] the legislatures concern to adjust the application of the measure to the particular circumstances of [each] case, taking into account such factors as the gravity of the offence committed and the conduct of the offender (ibid, para 106). As a result, the Italian system could not be said to have a general automatic and indiscriminate character, and therefore the Italian authorities had not overstepped the margin of appreciation afforded to them in that sphere (ibid, paras 108 and 110). On the facts the Court held at para 101 that the position in Russia was very similar to that in Hirst (No 2), namely that the applicants were stripped of their right to vote by virtue of a provision of the Russian Constitution which applied to all persons convicted and serving a custodial sentence, irrespective of the length of their sentence and of the nature or gravity of their offence and their individual circumstances. The Court compared Hirst (No 2) at para 82 with Scoppola (No 3) at paras 105 110. The Court said at para 102 that it was prepared to accept that the relevant measure pursued the aims of enhancing civic responsibility and the respect for the rule of law and ensuring the proper functioning and preservation of civil society and the democratic regime and that those aims could not, as such, be excluded as untenable or incompatible with A3P1. The essence of the Courts decision is set out in para 103. It rejected the Governments arguments on the issue of proportionality, reiterating the point made in para 82 of Hirst (No 2), that, although the margin of appreciation is wide, it is not all embracing and added: the right to vote is not a privilege; in the twenty first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the basic principle. In the light of modern day penal policy and of current human rights standards, valid and convincing reasons should be put forward for the continued justification of maintaining such a general restriction on the right of prisoners to vote as that provided for in Article 32(3) of the Russian Constitution (ibid, para 79). Further, at para 105 the Court emphasised the fact that the Russian constitution imposed a blanket ban on all those imprisoned, from two months, which is the minimum period of imprisonment following conviction in Russia, to life and from relatively minor offences to offences of the utmost seriousness. At para 106 it stressed that, as in the United Kingdom, there was no evidence that, when deciding whether to impose a custodial sentence, the court should take into account the fact that the sentence would involve disenfranchisement, so that there was no direct link between the facts of a particular case and the loss of the right to vote. It recognised in para 107 that removal of the right to vote without an ad hoc judicial decision does not of itself give rise to a violation but, in response to an argument that the adoption of the Russian constitution was preceded by extensive public debate, it observed that the Government had submitted no relevant materials to support it. In doing so, it expressly followed an almost identical conclusion in para 79 of Hirst (No 2). As I see it, the thrust of the conclusions in the Strasbourg cases is that a blanket ban is disproportionate and indiscriminate, at any rate without detailed analysis of the problem because, as it is put at para 82 of Hirst (No 2), the ban applies automatically to all prisoners irrespective of the nature and gravity of the relevant offence or the individual circumstances of the particular offender. It thus applies to those sentenced to very short sentences and operates in an arbitrary way for two reasons. First, it applies in the same way to a person sentenced to 28 days or 28 years. Yet there is clearly an enormous gulf in terms of culpability between those sentenced to 28 days for, say, persistent shoplifting and those sentenced to 28 years for a very serious offence. Secondly, whether a person loses the right to vote depends upon the chance that the relevant person happens to be in prison on a particular day, by comparison perhaps with a co defendant who received an identical sentence but is on bail pending appeal. Moreover, it is difficult to see how it can be proportionate to deprive a person of a vote which is relevant to the governance of the state for a period of five years in circumstances where that person may be in prison for no more than 14 days. I appreciate that, wherever the line may be drawn, there may be an element of arbitrariness as to the choice and effect of a particular line. But there seems to me to be much to be said for the Strasbourg Courts approach to a blanket ban, at any rate absent detailed consideration of the pros and cons of such a ban. However that may be, I agree that this Court should follow the now settled jurisprudence in the Strasbourg Court for the reasons given by Lord Mance and Lord Sumption. Since writing the above, I have read the judgment of Baroness Hale in draft and would simply like to add that I agree with it. LORD SUMPTION (with whom Lord Hughes agrees) I agree with the orders proposed by Lord Mance, for all of the reasons that he gives in his judgment as well as those given in the judgment of Lady Hale. I wish to add my own observations on one question only, namely whether we should apply the principles stated by the European Court of Human Rights in Hirst (No 2) and Scoppola. It is an issue which raises in an acute form the potential conflict between the interpretation of the European Convention on Human Rights by the European Court of Human Rights and the processes by which alone laws are made in a democracy. The conflict arises from the requirement of the European Court of Human Rights that the United Kingdom should amend the Representation of the People Act 1983 so as to give at least some convicted prisoners the right to vote in national and local elections, something for which there is at present only negligible support in the House of Commons and very little among the public at large. If democracy is viewed as a system of decision making by those answerable to the electorate (as opposed to a system of values thought to be characteristic of democracies), this is bound to be a matter of real concern. Of course, as Lady Hale has pointed out, it does not follow that a democracy can properly do whatever it likes, simply by virtue of the democratic mandate for its acts. The protection of minorities is a necessary concern of any democratic constitution. But the present issue has nothing whatever to do with the protection of minorities. Prisoners belong to a minority only in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law. In any democracy, the franchise will be determined by domestic laws which will define those entitled to vote in more or less inclusive terms. The right to vote may be based on citizenship or residence, or a combination of the two. There will invariably be a minimum voting age and may be other conditions of eligibility, such as mental capacity. In the United Kingdom, the right to vote at parliamentary and local government elections is enjoyed by Commonwealth citizens and citizens of the Republic of Ireland aged over 18, who are on the electoral roll, and not subject to any legal incapacity to vote. Inclusion on the electoral roll depends on current (or in some cases recent) residence. The only legal incapacity of any significance relates to convicted prisoners. Section 3(1) of the Representation of the People Act 1983 provides that convicted prisoners are legally incapable of voting at any parliamentary or local government election. There are limited exceptions for those committed for contempt of court or detained for default of compliance with another sentence (such as a fine). Section 8(1) and (2) of the European Parliamentary Elections Act 2002 apply the same rules of eligibility to elections for the European Parliament. These provisions are entirely clear. There is no way in which they can be read down so as to allow voting rights to any category of convicted prisoners other than those falling within the specified exceptions. The exclusion of convicted prisoners from the franchise is not a universal principle among mature democracies, but neither is it uncommon. Information provided by the Foreign Office in answer to a parliamentary question (updated to July 2012) indicates that at least 18 European countries including Denmark, Finland, Ireland, Spain, Sweden and Switzerland have no restrictions on voting by prisoners. Bulgaria, Estonia, Georgia, Hungary, Japan, Liechtenstein, Russia and the United States ban all convicted prisoners from voting, as do two of the seven Australian states. In some countries such as France disenfranchisement is reserved for those convicted of certain particularly serious offences, and in others such as Belgium for cases in which the prisoner is sentenced to a period of imprisonment exceeding a given threshold. In France, the Netherlands and Belgium disenfranchisement is an additional penalty imposed as a matter of judicial discretion. In other countries, such as Germany and Italy, it is automatic in specified cases. In Belgium, Italy and some jurisdictions of the United States, the loss of voting rights may continue even after a prisoners release. It is apparent that this is not a question on which there is any consensus. From a prisoners point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty. There are no doubt prisoners whose interest in public affairs or strong views on particular issues are such that their disenfranchisement represents a serious loss, just as there are prisoners (probably more numerous) whose enthusiasm for active sports makes imprisonment a special hardship. The severity of a sentence of imprisonment for the convicted person will always vary with a wide variety of factors whose impact on him or her will inevitably be arbitrary to some degree. It has been said, for example, that disenfranchisement may bear hardly on someone sentenced to, say, a short period of imprisonment which happens to coincide with a general election. For some prisoners, this will no doubt be true. But I decline to regard it as any more significant than the fact that it may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer. Article 3 of the First Protocol to the Human Rights Convention provides that the contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. In 2005, the Grand Chamber of the European Court of Human Rights held in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 that a blanket restriction on voting by all prisoners violated article 3 of the First Protocol. In Greens and MT v United Kingdom (2010) 53 EHRR 710, the European Court of Human Rights delivered a pilot judgment on a large number of petitions by convicted prisoners which sought damages for the denial of their rights under article 3 of the First Protocol, consequent upon the decision in Hirst. The court refused to make an award of damages, but directed that the United Kingdom should bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a manner which is Convention compliant and effectively stayed further proceedings on pending petitions of the same kind until the expiry of that period. The deadline was subsequently extended by the European Court until six months after the judgment of the Grand Court in another case, Scoppola v Italy (No 3) (2012) 56 EHRR 663, in which the United Kingdom government proposed to intervene to make submissions about the correctness of Hirst. However, the judgment in that case, which was delivered on 22 May 2012, reaffirmed both the reasoning and the decision in Hirst. The deadline imposed by the Strasbourg Court expired in November 2012. In December 2006, in the light of the decision in Hirst, the Government published a consultation paper setting out two alternative proposals for amending section 3 of the Representation of the People Act. One was to enfranchise prisoners sentenced to less than a specified term, which would be low. , such as one year in prison. The other was to allow sentencers a discretion on whether the franchise should be withdrawn in the particular case. A further consultation paper was published in April 2009 summarising responses to the first paper and seeking views on the approach to be adopted. The Government indicated its own preference for an automatic restriction of the franchise based on the seriousness of the offence, as reflected in the length of the sentence. On 20 December 2010, after the decision of the European Court of Human Rights in Greens and MT, the Government announced that it would propose to Parliament that offenders sentenced to a term of imprisonment of less than four years would have the right to vote in parliamentary and European Parliament elections, unless the sentencing judge directed otherwise. Subsequently, the question of prisoners voting rights was debated twice. There was a Westminster Hall adjournment debate on 10 January 2011, at which many members of the House of Commons expressed strong opposition to enfranchising any prisoners. A month later, on 11 February 2011, there was an all day debate on the floor of the House of Commons on a motion put forward jointly by senior backbench MPs from both sides of the House, that legislative decisions of this nature should be a matter for democratically elected lawmakers; and supports the current situation in which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand. This motion was carried by 234 votes to 22, both front benches abstaining. On 22 November 2012 the Government published the Voting Eligibility (Prisoners) Draft Bill (Cm 8499), setting out three options, (a) a ban on voting by prisoners sentenced to four years imprisonment or more, (b) a ban for prisoners sentenced to more than six months imprisonment, or (c) a general ban, i.e. a restatement of the present position. The explanatory memorandum accompanying the draft Bill pointed out that option (c) could not be regarded as compatible with the Convention. The draft Bill is currently being considered by a joint Select Committee of both Houses. For the moment, however, the only reasonable conclusion that can be drawn from this history is that there is no democratic mandate for the enfranchisement of convicted prisoners. It is an international obligation of the United Kingdom under article 46.1 of the Convention to abide by the decisions of the European Court of Human Rights in any case to which it is a party. This obligation is in terms absolute. The remainder of article 46 contains provisions for its collective enforcement by the institutions of the Council of Europe. Many states have written constitutions which give automatic effect in domestic law to treaties to which they are party. Constitutional provisions of this kind are generally accompanied by provisions giving the legislature a role in the ratification of treaties. But the making of treaties in the United Kingdom is an exercise of the royal prerogative. There was no legal requirement for parliamentary scrutiny until the enactment of Part 2 of the Constitutional Reform and Governance Act 2010, although pursuant to an undertaking given to Parliament in April 1924 treaties were in practice laid before Parliament and there was a recognised constitutional convention (the so called Ponsonby Rule) that this should be done. The result of the constitutional status of treaties in the United Kingdom is that they are not a source of rights or obligations in domestic law unless effect is given to them by statute: R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 747 748 (Lord Bridge of Harwich), 762 (Lord Ackner); R v Lyons [2003] 1 AC 976; In re McKerr [2004] 1 WLR 807, para 25 (Lord Nicholls of Birkenhead), para 48 (Lord Steyn), para 63 (Lord Hoffmann), para 80 (Lord Rodger of Earlsferry) and para 90 (Lord Brown of Eaton under Heywood). The Human Rights Act 1998 might have given direct legal effect to interpretations of the Human Rights Convention by the Strasbourg Court, or required the executive to give effect to them by statutory instrument. Both techniques were employed in relation to EU law by the European Communities Act 1972. But, as is well known, its drafting was a compromise designed to make the incorporation of the Convention into English law compatible with the sovereignty of Parliament. Neither of these techniques was therefore adopted. Under section 10 of and Schedule 2 to the Act, the Crown has a power but not a duty to amend legislation by order so as to conform with the Convention where there are compelling reasons for doing so, but this is subject to prior parliamentary approval under the positive resolution procedure (there are special provisions in urgent cases for an order to be made with provisional effect subject to such a resolution being passed). It follows that the interpretation of the Convention by the Strasbourg Court takes effect in English law only by decision of the English courts. Section 2(1) of the Act provides that a United Kingdom court determining a question which has arisen in connection with a Convention right must take into account any judgment, decision or declaration of the European Court of Human Rights. For this purpose Convention rights are those set out in those of its provisions to which effect is given by the Act, i.e. articles 2 to 12 and 14 of the Convention, articles 1 to 3 of the First Protocol and article 1 of the Thirteenth Protocol: see section 1(1) and (2). Whatever may be meant by taking into account a decision of the Strasbourg Court, it is clearly less than an absolute obligation. The international law obligation of the United Kingdom under article 46.1 of the Convention goes further than section 2(1) of the Act, but it is not one of the provisions to which the Act gives effect. In the ordinary use of language, to take into account a decision of the European Court of Human Rights means no more than to consider it, which is consistent with rejecting it as wrong. However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases. The courts have for many years interpreted statutes and developed the common law so as to achieve consistency between the domestic law of the United Kingdom and its international obligations, so far as they are free to do so. In enacting the Human Rights Act 1998, Parliament must be taken to have been aware that effect would be given to the Act in accordance with this long standing principle. A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court. In R v Horncastle [2010] 2 AC 373 at para 11, Lord Phillips of Worth Matravers, with the agreement of the rest of this court, rejected the submission that it should hold itself to be bound by a clear statement of principle of the European Court on the precise issue that was before it: The requirement to take into account the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court. In Manchester City Council v Pinnock (Nos 1 and 2) [2011] 2 AC 104, para 48, Lord Neuberger MR, again with the agreement of the whole court, expanded on this statement: This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see e.g. R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to take into account European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line. It follows that the exceptionally delicate issues presently before the court cannot be resolved by summarily applying the decisions of the European Court of Human Rights in Hirst and Scoppola. It is necessary to consider the basis on which the Strasbourg Court approached the relevant features of our domestic law. What is the rationale of the statutory rule excluding convicted prisoners from the franchise? In his Second Treatise of Government (1690), John Locke considered that because (as he saw it) all social obligations were ultimately founded upon implicit contract, a criminal, having repudiated that contract, had no rights. He had repudiated the collective security which was the purpose of the social contract and returned to the pre existing state of nature in which force was the only law. It followed, Locke thought, that he may be destroyed as a lion or tyger, one of those wild savage beasts, with whom men can have no society nor security. The same view was taken by others who identified the social contract as the foundation of the state, including Thomas Hobbes and Jean Jacques Rousseau. It is tempting to regard the present British rule about prisoners voting rights as a distant reflexion of this view, and plenty of commentators have succumbed to the temptation. But like most rhetoric, this is misleading. The disenfranchisement of convicted prisoners is not and never has been a form of outlawry, or civil death (the phrase sometimes used to describe the current state of the law on prisoners voting rights). On the contrary, until the 1960s, it was mainly the incidental consequence of other rules of law. In the first place, until 1870, convicted felons automatically suffered the confiscation of their real property, as a result of which they could not meet the property qualification which at that time was part of United Kingdom electoral law. The Forfeiture Act 1870 abolished the rule of confiscation. But section 2 partially preserved its effect on the franchise by providing that those sentenced for treason or felony to a period of imprisonment exceeding one year could not vote in parliamentary elections until they had served their sentence. This remained the position until the Criminal Law Act 1967 abolished the distinction between felonies and misdemeanours and amended section 2 of the Act of 1870 so that it applied only to those convicted of treason. Secondly, section 41(5) of the Representation of the People Act 1918 provided that an inmate in any prison, lunatic asylum, workhouse, poorhouse, or any other similar institution was not to be treated as resident there. This had the unintended effect of excluding from registration not only convicted prisoners, but prisoners on remand, an anomaly which was not corrected until the Representation of the People Act 2000 allowed remand prisoners to be treated as residing in the place where they were in custody. Thirdly, even those prisoners who before 1969 were eligible to vote were generally unable in practice to do so because of the absence of the necessary administrative arrangements. Except in the case of servicemen, postal voting was not introduced until the Representation of the People Act 1948, and was not available generally until the Representation of the People Act 2000. The modern law on this subject can be said to date from the Speakers Conference on Electoral Reform, which sat from 1965 to 1968 and issued its final report in February 1968 (Cmnd 3550). The conference was a non partisan body drawn from all parties in the House of Commons and meeting under the chairmanship of the Speaker. It gave systematic consideration to all aspects of electoral law including the franchise and, apparently for the first time, the question of prisoners voting rights. Only its conclusions, not its reasons, were published, but the final report records that it considered evidence and documentation from many sources. It unanimously recommended that all convicted prisoners should be ineligible to vote. This recommendation was accepted, and effect was given to it by section 3 of the Representation of the People Act 1969. The rationale of the exclusion of convicted prisoners from the franchise is as complex as the rationale for imprisonment itself. Section 142(1) of the Criminal Justice Act 2003 provides: Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing (a) (b) (c) (d) the punishment of offenders, the reduction of crime (including its reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons affected by (e) their offences. All of these factors, except in the earlier period for (e), have been features of sentencing policy for very many years. For my part, I doubt whether the disenfranchisement of convicted prisoners can realistically be regarded as an additional punishment or a deterrent, and it may at least arguably be said to work against the reform and rehabilitation of the offender. But in my opinion, it has a more fundamental rationale. All criminal law, and penal policy in particular, has an important demonstrative function, which underlies all five of the statutory sentencing factors. The sentencing of offenders, and imprisonment more than any other sentence, is a reassertion of the rule of law and of the fundamental collective values of society which the convicted person has violated. This does not mean that the offender is disenfranchised because he is unpopular. Nor does it mean that he is regarded as having lost all civil rights or all claims against society, which is why the expression civil death is inappropriate. The present rule simply reflects the fact that imprisonment is more than a mere deprivation of liberty. It is a temporary reclusion of the prisoner from society, which carries with it the loss of the right to participate in societys public, collective processes. Similar principles appear to underlie the exclusion of convicted offenders from the franchise in the many other jurisdictions which practise it, whether on an automatic or a discretionary basis, and in particular those in which the suspension or abrogation of voting rights may be imposed independently of a prison sentence or continue after a term of imprisonment has been served. Fundamental to this approach, and to the automatic character of the exclusion of convicted prisoners from the franchise is the principle that sentences of imprisonment are imposed only for the more serious offences. This has always been a central feature of sentencing policy. Currently, section 152 of the Criminal Justice Act 2003, repeating previous statutory provisions and the long standing practice of the Court of Appeal (Criminal Division) provides: (2) The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. The only exceptions relate either to a very few grave offences where the sentence is prescribed (such as murder, some firearms offences, repeated violence or Class A drug trafficking) or to a separate sentencing regime for dangerous repeat offenders. The section also provides that it does not apply in cases where the offender has refused to accept or comply with the conditions on which some lesser sentence would have been imposed. These principles are broadly reflected in the composition of the prison population. As Lord Mance has pointed out, only 8 per cent of persons convicted of an offence in England and 15 per cent in Scotland are sentenced to imprisonment. A statistical breakdown of the prison population as at 30 September 2010 suggests that 85% of prisoners serving sentences of less than five years were convicted of violent or sexual offences, robbery, burglary, theft, handling, fraud, forgery or drug offences. No doubt the threshold of seriousness for the passing of a sentence of imprisonment will vary in practice from one country to another. Different offences will perfectly properly be regarded as having more serious implications for some societies than for others. The United Kingdom is widely thought to have a relatively low threshold, but I am not aware that any comprehensive comparative study has been carried out which takes account of the underlying patterns of criminality. Although article 3 of the First Protocol is in unqualified terms, the jurisprudence of the Strasbourg Court has acknowledged from the outset that the right to vote may be subject to limitations of a kind which is familiar in the case law governing other Convention rights. The limitations must pursue a legitimate aim by proportionate means and must not be such as to impair the essence of the right: see Mathieu Mohin and Clerfayt v Belgium (1988) 10 EHRR 1, para 52; Matthews v United Kingdom (1999) 28 EHRR 361, para 63. It has generally been held that the essence of the right is not impaired if it does not thwart the free expression of the opinion of the people as a whole: see Holland v Ireland (Application No 24827/94) (unreported) 14 April 1998. It follows that the exclusion of certain categories of person from the franchise may be compatible with the Convention notwithstanding that as far as those persons are concerned the exclusion is total while it lasts. The case law has consistently emphasised that these are matters on which the state enjoys a wide margin of appreciation. In Hirst this was said to reflect the numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (para 61). The United Kingdom government argued before the Strasbourg Court in Hirst that the objective of disenfranchisement was to serve as an additional punishment. The court accepted that that was a possible rationalisation, and regarded it as a legitimate objective, compatible with article 3 of the First Protocol. The rule was nevertheless held to be incompatible because it was disproportionate, essentially as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects and could no longer be said to serve the aim of punishing the applicant once his tariff (that period representing retribution and deterrence) had expired (para 76). The court considered the governments argument that the exclusion affected only those convicted of crimes serious enough to warrant a custodial sentence, and the very similar argument put forward by an intervener that imprisonment was the last resort of criminal justice. They appear to have rejected this argument on the facts, observing that sentences of imprisonment are imposed for a wide range of offenders and for periods from one day to life, and that because disenfranchisement was automatic the sentencer had no opportunity to assess its proportionality in any particular case (paras 77, 80). The court considered that the absolute character of the rule disenfranchising convicted prisoners and its application to all convicted prisoners put it beyond the states margin of appreciation. They were fortified in this conclusion by their view that there was no evidence that Parliament had weighed the proportionality of a general exclusion. The court referred to the Speakers Conference of 1965 1968, and the Home Office working party of 1998 1999, and acknowledged that Parliament might be said implicitly to have endorsed their conclusions: Nonetheless [they concluded] it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote. (para 79). The court concluded as follows, at para 82: Therefore, while the court reiterates that the margin of appreciation is wide, it is not all embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with article 3 of Protocol No 1. Scoppola v Italy (No 3) (2012) 56 EHRR 663 was directly concerned with the automatic lifetime exclusion from the franchise which was the consequence under Italian law of the imposition of a sentence of life imprisonment. However, the United Kingdom rule was indirectly in question, because the Grand Chamber reviewed the decision in Hirst and the British government intervened to make submissions about it. The Chamber had held that the Italian rule violated article 3 of the First Protocol because of its automatic character. The Grand Chamber held that it was compatible with the Convention. It found that the rule pursued the legitimate aim of preventing crime and enhancing civil responsibility and respect for the rule of law (para 90). Turning to proportionality, it held that notwithstanding the statements in Hirst the test of proportionality did not require that disenfranchisement should be discretionary. It could be automatic, provided that the principles governing its imposition were sufficiently related to the gravity of the offence. The provisions of the relevant Italian law were held to be proportionate, unlike the English rule, because they disenfranchised only those convicted of particularly serious offences and those sentenced to the longer terms of imprisonment. Subject to the point about the absence of judicial discretion, the Grand Chamber reaffirmed the decision in Hirst. Accordingly, the Strasbourg Court has arrived at a very curious position. It has held that it is open to a Convention state to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person. It has held that the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence. It has held that disenfranchisement may be automatic, once a sentence above that threshold has been imposed. But it has also held that even with the wide margin of appreciation allowed to Convention states in this area, it is not permissible for the threshold for disenfranchisement to correspond with the threshold for imprisonment. Wherever the threshold for imprisonment is placed, it seems to have been their view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated. It might perhaps have been justified by a careful examination of the principles of sentencing in the United Kingdom, with a view to demonstrating that they involve the imprisonment of some categories of people for offences so trivial that one could not rationally suppose them to warrant disenfranchisement. That would be an indictment not just of the principle of disenfranchisement but of the sentencing principles themselves. However, no such exercise appears to have been carried out. I confess that I also find it surprising that the Strasbourg Court should have concluded in Hirst that the United Kingdom Parliament adopted the present rule per incuriam, so to speak, in 1969, without properly considering the justification for it as a matter of penal policy. The absence of debate to which the court referred reflects the attention which had already been given to the issue by the Speakers Conference, and the complete consensus on the appropriateness of the voting ban. Without the decisions in Hirst and Scoppola, I would have held that the question how serious an offence has to be to warrant temporary disenfranchisement is a classic matter for political and legislative judgment, and that the United Kingdom rule is well within any reasonable assessment of a Convention states margin of appreciation. However, the contrary view has now been upheld twice by the Grand Chamber of the European Court of Human Rights, and is firmly established in the courts case law. It cannot be said that the Grand Chamber overlooked or misunderstood any relevant principle of English law. The problems about the view which the court ultimately came to were fairly pointed out in both cases in the course of argument. Whatever parliamentary consideration may or may not have been given to the issue in 1969, it has undoubtedly received a great deal of parliamentary attention more recently, in debates which were drawn to the Grand Chambers attention in Scoppola but made no difference to its view. There is no realistic prospect that further dialogue with Strasbourg will produce a change of heart. In those circumstances, we would be justified in departing from the case law of the Strasbourg Court only if the disenfranchisement of convicted prisoners could be categorised as a fundamental feature of the law of the United Kingdom. I would regard that as an extreme suggestion, and in agreement with Lord Mance I would reject it. A wider and perhaps more realistic assessment of the margin of appreciation would have avoided the current controversy. But it would be neither wise nor legally defensible for an English court to say that article 3 of the First Protocol has a meaning different from that which represents the settled view of the principal court charged with its interpretation, and different from that which will consequently apply in every other state party to the Convention.

UK-Abs

The appellants in these two appeals are prisoners serving sentences of life imprisonment imposed for murder, combined in the case of McGeogh with a later sentence of seven and a half years for violent escape from lawful custody. Both the appellants claim that their rights have been and are being infringed because they are not entitled to vote. United Kingdom law currently contains a general prohibition on voting by prisoners. In a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (ECtHR) has held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1 (A3P1, the duty to hold free and fair elections) of the European Convention on Human Rights (the Convention) [18 22]. The appellant Peter Chester issued a claim for judicial review in December 2008 in relation to UK and European Parliamentary elections. He relies on A3P1, as incorporated into domestic law by the Human Rights Act (the HRA), and also on European Community or now Union law (EU law). The appellant George McGeochs claim for judicial review was issued in February 2011 in relation to local and Scottish Parliamentary elections. He relies solely on EU law [1 3]. Both claims were dismissed by the courts below. The High Court and Court of Appeal held in Chesters case that it was not their role to sanction the Government for the delay in implementing the decision in Hirst (No 2) or to advise as to how the Government might implement a voting system that would be compatible with A3P1, and that EU law raised no separate issue. The Inner House dismissed McGeoghs claim on the ground that EU law only conferred a right to vote in municipal (i.e. local) elections on EU citizens residing in a Member State of which they were not nationals. The Supreme Court permitted McGeoch to add a complaint that his rights in relation to EU Parliamentary elections were also being infringed [2 3]. The issues before the Supreme Court are: (a) whether it should apply the principles established in Hirst (No 2);(b) whether, if such principles are applied, the current ban on voting is incompatible with Chesters rights under A3P1, and Supreme Court should make a further declaration of incompatibility under the HRA; (c) whether EU law recognises an individual right to vote, in terms paralleling or greater than that arising under A3P1, on which the appellants can rely upon as EU citizens claiming to vote in their own countries; and (d) what consequences would follow if EU law were to recognise an individual right to vote of this nature and, in particular, what if any relief would be available to Chester and McGeogh. The Supreme Court unanimously dismisses both appeals. Lord Mance gives the lead judgment. Lady Hale, Lord Clarke and Lord Sumption give additional judgments. With regard to claims under the Convention, the Supreme Court applies the principles in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declines to make any further declaration of incompatibility in respect of Chester [39 42]. With regard to EU law, this does not provide an individual right to vote paralleling that recognised by the ECtHR in its case law. The resolution of these appeals does not require a reference to the Court of Justice of the European Union (CJEU) [46 47, 58, 59, 63 64 and 68]. Claims under the Human Rights Act Under the HRA, the Supreme Court is required to take into account decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with A3P1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHRs caselaw [25 35]. Accepting that, on the reasoning in Hirst (No 2), Chester was a victim for the purposes of the HRA and the Convention and entitled as such to bring a claim against the respondents, that does not necessarily entitle him to any particular remedy under the HRA. A declaration of incompatibility is a discretionary remedy. The incompatibility of the prohibition on prisoner voting in the UK with the Convention is already the subject of a declaration of incompatibility made in Smith v Scott and is currently under review by Parliament. In these circumstances there is no point in making a further declaration of incompatibility. This is particularly so in the case of Chester. Given that he is serving a sentence of life imprisonment, ECtHR caselaw indicates that he would not himself have a right to benefit from any amendments to the law on prisoner voting necessary to remedy the present incompatibility of UK law with the Convention [36 42]. That is so although his tariff period has expired and he remains in detention because his detention continues to be necessary for the protection of the public. Claims under EU law The provisions on voting contained in the applicable European Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. Eligibility to vote in Member States is basically a matter for national legislatures [58 59]. The CJEU has scrutinised national eligibility criteria for conformity with the EU legal principle of non discrimination in a context where Netherlands law extended the right to vote of its nationals to nationals resident in some, but not all, non EU States. But there is no equivalent link with EU law in the present cases [60 64]. Additional EU analysis For completeness, the Supreme Court has considered the consequences if, contrary to their conclusions, EU law were to regarded as conferring an individual right to vote on which McGeoch and Chester could rely. On that hypothesis, it considers that: The EU legal principle of non discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison [65 68] In any event, the general ban on prisoner voting could not have been disapplied as a whole, and the relevant domestic legislation could not have been interpreted compatibly with EU law. Nor could the Supreme Court itself have devised a scheme compatible with EU law; that would be for Parliament. Therefore, the only relief that might have been appropriate would have been a declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the UK were inconsistent with EU law, although even that would not have appeared appropriate in the instant cases [72 74]. Neither of the appellants could have had any arguable claim for damages in respect of any breach of EU law [82 83].

On 10 June 2010 the appellants, William Hugh Lauchlan and Charles Bernard ONeill, were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997, and of a subsequent attempt to defeat the ends of justice by disposing of her body at sea. The charges of which they were convicted in that trial had been separated from a number of charges on the same indictment of or relating to sexual offences against children. Their trial on the sexual offence charges took place before Lord Pentland between 26 April and 12 May 2010. Their trial on the murder charges, which is the trial to which this appeal relates, took place (between 17 May and 10 June 2010) before the same judge but with a different jury. The appellants were sentenced to life imprisonment for the murder, with punishment parts of 26 and 30 years respectively, and to concurrent sentences of eight years imprisonment for attempting to defeat the ends of justice. The appellants both appealed against their convictions at the second trial and against their sentences. Lauchlan was granted leave to appeal against his conviction for murder by the sifting judges, but this was restricted to two grounds alleging errors by the trial judge. He was also given leave to appeal against sentence. ONeill too was granted leave to appeal against sentence, but the sifting judges refused him leave to appeal against his conviction for murder. The appellants applied under section 107(8) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) for leave to appeal against their convictions for murder on certain grounds which the sifting judges had held were unarguable. On 8 February 2012 Lauchlan was refused leave to appeal on those grounds by the Appeal Court. ONeill was given leave to appeal on one ground only which alleged an error by the trial judge: [2012] HCJAC 20. The appellants then applied for leave to appeal to this court under paragraph 13 of Schedule 6 to the Scotland Act 1998 on some of the grounds on which they were refused leave on 8 February 2012. On 19 April 2012 the Appeal Court (Lord Justice Clerk Gill, Lord Hodge and Lord McEwan) gave both appellants leave to appeal on a ground alleging undue delay. It gave ONeill leave on another ground alleging apparent bias on the part of the trial judge arising out of things that had happened in the presence of the jury at the end of the first trial: [2012] HCJAC 51. The trial judge had been shown a list of the appellants previous convictions after they had been found guilty of the sexual offence charges, and he then made a comment about their character, having regard to their records and the nature of the offences of which they had been convicted. Jurisdiction This court has jurisdiction to hear appeals in relation to criminal proceedings in the High Court of Justiciary under Part II of Schedule 6 to the Scotland Act 1998 (the 1998 Act). The opening paragraph of Part II is in these terms: 3. This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland. The expression devolution issue is defined in paragraph 1 of Schedule 6, which provides: 1. In this Schedule devolution issue means (a) a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament, (b) a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate, (c) a question whether the purported or proposed exercise of a function by a member of the Scottish Government is, or would be, within devolved competence, (d) a question whether a purported or proposed exercise of a function by a member of the Scottish Government is, or would be, incompatible with any of the Convention rights or with EU law, (e) a question whether a failure to act by a member of the Scottish Government is incompatible with any of the Convention rights or with EU law, (f) any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters. The Scotland Act 2012 (the 2012 Act) made a number of important changes to this courts jurisdiction to deal with devolution issues under Schedule 6 to the 1998 Act. They came into effect on 22 April 2013: The Scotland Act 2012 (Commencement No 3) Order 2013 (2013/6 (C1). This is also the relevant date for the purposes of The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (2013/7 (S1)) (the 2013 Order): see article 1(2) of that Order. This appeal was heard one week later on 29 and 30 April 2013. Section 36(4) of the 2012 Act provides: In paragraph 1 of Schedule 6 (devolution issues), after sub paragraph (f) insert But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of (a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament, (b) a function, (c) the purported or proposed exercise of a function, (d) a failure to act. The effect of the exclusion of questions of the kind referred in section 36(4) of the 2012 Act from the list of devolution issues in paragraph 1 of Schedule 6 to the 1998 Act is that these questions must now be dealt with as compatibility issues under the 1995 Act. Section 288ZA(2), which was inserted into the 1995 Act by section 34(3) of the 2012 Act, provides that compatibility issue means a question, arising in criminal proceedings, as to (a) whether a public authority has acted (or proposes to act) (i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or (ii) in a way which is incompatible with EU law, or (b) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights or with EU law. Section 288ZB(4), which was inserted into the 1995 Act by section 35 of the 2012 Act, provides for references of compatibility issues to the Supreme Court by a court consisting of two or more judges of the High Court of Justiciary. Subsection (6) of that section provides that, on a reference to it under that section, the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue. Subsection (7) provides that, when it has determined a compatibility issue on a reference under that section, the Supreme Court must remit the proceedings to the High Court. Section 288AA, which was inserted into the 1995 Act by section 36(6) of the 2012 Act, provides for appeals to the Supreme Court. It contains the same directions in subsections (2) and (3) as to the way this courts powers are to be exercised in the case of appeals as those in subsections (6) and (7) of section 288ZB which relate to references. Article 2 of the 2013 Order provides: (1) A convertible devolution issue is a question arising in criminal proceedings before the relevant date which (a) is a devolution issue; (b) would have been a compatibility issue had it arisen on or after that date; and (c) has not been finally determined before the relevant date. (2) But a devolution issue arising in criminal proceedings before the relevant date is not a convertible devolution issue if (a) the issue has been referred, or a determination of the issue has been appealed, to the Supreme Court under Schedule 6 to the 1998 Act; and (b) the hearing of the reference or appeal commences before the relevant date. Article 3(1) provides that, subject to qualifications which do not apply in this case, a convertible devolution issue becomes a compatibility issue for all purposes on the relevant date. The allegation of undue delay raised a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the 1998 Act. It arose in criminal proceedings before 22 April 2013, it satisfied the other tests set out in article 2(1) of the 2013 Order and the hearing of the appeal did not commence before 22 April 2013. So it was a convertible devolution issue, and it has now become a compatibility issue by virtue of article 3(1). As it has come before the Supreme Court as an appeal against the determination of that issue by the Appeal Court, it is to be treated as an appeal under section 288AA(1) of the 1995 Act: 2013 Order, articles 4(2) and 7(2). So the powers of this court must be exercised in the manner provided for by section 288AA(2) and (3) of the 1995 Act. The allegation of apparent bias was the subject of an amended note of appeal which had been lodged on ONeills behalf before the hearing before the Appeal Court of his application under section 107(8) of the 1995 Act. It made no mention of any act on the part of the Lord Advocate, so it does not appear to have raised a devolution issue at that stage. But it was submitted on ONeills behalf by his solicitor advocate when he was applying for leave to appeal to this court that this allegation did raise a devolution issue: [2012] HCJAC 51. Lord Hodge explained the position in paras 6 and 7 of the Appeal Courts opinion: 6. In additional ground 15 of his grounds of appeal Mr ONeill complained about the comments of the trial judge, Lord Pentland, at the end of the first phase of the trial. We expressed our views on this ground in paragraphs 81 to 88 of this courts opinions. Mr Carroll submitted that the challenge raised a devolution issue as the Lord Advocate had persevered with the prosecution in the face of what was evidence of an unfair trial. 7. For the reasons which we stated in those paragraphs we did not think that the points which Mr Carroll raised were arguable. We adhere to that view. But we recognise that the splitting of the trial into two phases before two juries and the resulting presentation of previous convictions and the judges remarks at the end of the first phase were very unusual circumstances. We are satisfied that it is appropriate to give leave to appeal on this ground. The way the argument on this ground of appeal proceeded in the Appeal Court suggests that, as it was not presented as a devolution issue at the stage of the application under section 107(8) of the 1995 Act, there has been no determination of that issue by that court against which there could have been an appeal under paragraph 13 of Schedule 6 to the Scotland Act 1998. But the Appeal Court had power under paragraph 11 of the Schedule to refer any devolution issue which arose in proceedings before it to this court, and that is what seems to have happened in this case. By the same process of reasoning as applies to the allegation of undue delay, this issue was a convertible devolution issue and is now a compatibility issue. This means that this court has jurisdiction to consider it, and that its powers must be exercised in the manner provided for by section 288ZB(6) and (7) of the 1998 Act. Undue delay (a) the issue The period of time relied on in this case extends from 17 September 1998, when the appellants were detained under section 14 of the 1995 Act on suspicion of conspiracy to murder, to 10 June 2010 when they were convicted. It was not until 5 April 2005 that the appellants appeared on petition at Kilmarnock Sheriff Court on charges which ultimately formed the basis for the charges in the indictment of which they were convicted. There was a further period until 10 September 2008 when the indictment was served on them, but the focus of attention at this stage is on that which occurred between 17 September 1998 and 5 April 2005. The question which this court has been asked to decide requires it to identify the right starting point for the purposes of the reasonable time guarantee in article 6(1) of the European Convention on Human Rights. The issue was focussed by Lord Hodge in the Appeal Courts opinion of 19 April 2012 in this way: 2. Mr McVicar on behalf of Mr Lauchlan sought leave to argue before the Supreme Court that the decision of that court in Ambrose v Harris (2011 SLT 1005) had the result that the starting point in the assessment of reasonable time under article 6 of the European Convention on Human Rights (ECHR) was not, as the Appeal Court had held in ONeill v HM Advocate (2010 SCCR 357), the stage when an accused person appeared on petition but the earlier stage when the accused was interviewed by the police under caution in the exercise of their powers under section 14 of the 1995 Act. Mr Carroll on behalf of Mr ONeill adopted Mr McVicars submissions. 3. We have decided to grant leave to appeal on this ground. We set out our reasoning in paragraphs 25 29 of this courts opinions but recognise that the issue raised is one which arises from statements in a decision of the Supreme Court on which that court may wish to provide further guidance. The parties agree that the issue can be formulated in this way: whether for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the European Convention on Human Rights the appellants were charged on 17 September 1998. That, say the appellants, is the date that should be taken to be the starting point. The Crown contends, on the other hand, that the correct starting point is 5 April 2005. It was suggested by the appellants in the statement of facts and issues that this court should also say whether or not the period between 17 September 1998 and 10 June 2010 when the appellants were convicted constituted an unreasonable delay in the process of determination of the charges against them. But it was accepted during the hearing of the oral argument that this issue would raise questions of fact which are best left for determination by the Appeal Court. (b) the facts The deceased, Mrs Allison McGarrigle, had a son named Robert who was subject to a residential supervision requirement under the Social Work (Scotland) Act 1968. It required him to live during the week with his father in Kilmacolm but he was permitted to visit his mother, who was divorced from his father, during the day on Saturdays. On Saturday 14 June 1997 Robert did not return to his fathers address after visiting his mother. Instead he and his mother went to Largs, where they met the appellants and went to live with them in a property which they were then occupying in that town. On or about 20 June 1997 a drinking session took place there at which a number of people including the appellants, Mrs McGarrigle and Robert were present. Mrs McGarrigle was no longer there the following morning, and she was never seen by Robert again. On 16 February 1998 she was reported to the police as a missing person by her ex husband. The exact date when she was last seen was marked as unknown, but it was noted that she had cashed a benefit cheque in Rothesay on 12 June 1997. By September 1998 the police enquiry into Mrs McGarrigles disappearance was being referred to by the Procurator Fiscal at Kilmarnock as a disappearance in suspicious circumstances, and by the Head of the Crown Office Appeals Unit and Crown Counsel as a murder enquiry. In the meantime, on 17 June 1998, the appellants were convicted of a number of sexual offences including offences against Robert McGarrigle. These offences had been committed between March 1993 and 27 July 1996 when Robert and his mother were living close to where the appellants were then living in Rothesay. On 18 August 1998 the appellants were sentenced in respect of these convictions to periods of 6 years and 8 years imprisonment respectively and became subject to notification requirements under the Sex Offenders Act 1997. They were taken to Peterhead Prison to serve their sentences. On 14 September 1998 the Procurator Fiscal at Kilmarnock wrote to the Governor of Peterhead Prison requesting that the appellants be released into the custody of the police for questioning. On 17 September 1998 they were taken from custody and detained by officers of Grampian Police under section 14 of the 1995 Act on suspicion, as that section requires, of having committed an offence punishable by imprisonment. The offence which they were suspected of having committed was conspiracy to murder. They were taken to a police station in Aberdeen where they were each questioned separately by two police officers. Lauchlan was questioned from 11.14 to 16.45 hours, with breaks between 11.51 and 12.25 hours and 15.18 and 16.01 hours. He was cautioned at the start of his interview. He made it clear when it began that, on the advice of his solicitor, he would not be answering any questions that were put to him, and he maintained that attitude throughout what was a long and unproductive interview. One or two passages are, however, of interest. During the early stages of the interview the police restricted themselves to asking a series of questions. Lauchlan remained silent in response to all of them. He was then told (Appendix 1, p 492, MS p 820): What youve got to realize here is this is not going to go away we are not going to go away. Shortly afterwards Lauchlan broke his silence and this conversation took place (Appendix 1, p 497, MS p 825): WL Look if youre going to charge me with something charge me Ive had enough. DC2 I didnt mention, I have not mentioned charging you with anything. WL If not give this up. DC2 No Im interviewing you William okay. I intend to carry out the interview with or without your co operation I intend to carry out the interview. As the interview went on the questioning became more direct. Lauchlan was asked (Appendix p 512, MS p 840): Did you murder Allison McGarrigle? He did not respond. This question was then put to him (Appendix p 515, MS p 843): DC2 I will ask you for a final time with the weight of the evidence against you and your friend knowing something about the disappearance of Allison McGarrigle will you help us to find her remains? There was no response, so the question was put to him again: DC2 Im not asking you at this stage if you killed her. Im not asking you at this stage if you know who killed her. Im asking you at this stage whether or not you would consider helping us to find her remains. Its a separate question. Are you? .Are you prepared to help us to find Allison McGarrigle yes or no? Answer that one question Ill put to you . Ill finish the interview and put the tape off. So you dont, youre not interested in helping us. Canny go any further than that Wullie As the interview drew to a close one further attempt was made to elicit a response (Appendix p 526, MS p 854): DC1 . If you did not have anything to do with Allison McGarrigles death you have no reason not to speak to us, would you agree wi that? Youre not, your refusal to speak to us. The only reason I can think of is that you have something to do with her death. or that someone very close to you had something to do with her death and that out of loyalty you will not tell us. Which is it? Which is it William? Unless you can come up with another reason why you should refuse to speak to us about it. Its got to be one of those two. So which is it? Convince me otherwise. As the interview was about to end these final questions were put (Appendix p 528, MS p 856): DC2 Did you murder Allison McGarrigle? Did you? DC1 Did you kill Allison McGarrigle? Were you present when someone else did? Lauchlan did not answer them. He remained silent. ONeill was questioned from 10.53 to 16.31 hours, with a break from 13.02 to 14.19 hours. He was cautioned at the start of the interview. He gave his name and age and said that he was unemployed. But he refused to answer any further questions, most of which were met by the words No comment. Several minutes after the opening stage of the questioning there was this exchange (Appendix p 534, MS p 862): charging me and taking me to court. O/N Youre going to charge me int you? Youd be as well just DC1 Charlie, Charlie, were here, weve explained to you what were doing and were speaking to you right. Its as simple as that. I am hoping that you might find it within yourself to give us some assistance, right. Were no up here to crucify Charlie ONeill. As the questioning went on there was no change in ONeills attitude. In the course of a long narrative of the information that was in the hands of the police he was told (Appendix p 578, MS p 906): Im asking you quite bluntly Allison McGarrigles dead, youre involved in her death, youre the only person that can say how much or how little involvement you have but from the information that we have here there is no doubt whatsoever that you are involved in her death. Im giving you the opportunity sitting here in this room the noo tae say tae me, this is what happened, this is how it happened, it may even be why it happened ah dont know and here is what you need to know. Because its no going away Charlie, itll never go away. Itll never go away. Sometime later he was asked (Appendix p 597, MS p 925): Did you kill her Charlie? Was she just too much bother for you? He made no comment in reply. In the course of the next question he was told directly that the reason why he would not answer questions was quite simple: Because you killed her. At the end of the interview one of the interviewing officers said (Appendix p 602, MS p 930): Right what well do at the minute Charlie is well stop the interview. Well need to go and seek some advice. The appellants were not arrested or charged at the conclusion of their interviews, but were returned to Peterhead Prison to continue serving their sentences. Lauchlan was released on licence on 18 January 2002. In March of the following year, in breach of the notification requirements, he travelled to Spain. ONeill was released on licence on 22 May 2003. He too travelled to Spain shortly afterwards in breach of those requirements and met Lauchlan. On 22 April 2004 they were arrested in connection with the apparent abduction of a fourteen year old boy. Steps were then taken for them to return to the United Kingdom to face charges that they were in breach of the notification requirements under the Sex Offenders Act. On 15 March 2005 they pled guilty to these charges, and on 4 April 2005 they were each sentenced to three years imprisonment. On 5 April 2005 they were charged with the murder of Allison McGarrigle and with concealing and disposing of her body in an attempt to pervert the course of justice. They appeared on petition at Kilmarnock Sheriff Court where they were committed for further examination and remanded in custody. (c) articles 6(1) and (3)(c) Article 6(1) of the Convention states that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. In Attorney Generals Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, para 20, Lord Bingham of Cornhill analysed the article in this way: First, the right of a criminal defendant is to a hearing. The article requires that hearing to have certain characteristics. If the hearing is shown not to have been fair, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If the hearing is shown to have been by a tribunal lacking independence or impartiality or legal authority, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If judgment was not given publicly, judgment can be given publicly. But time, once spent, cannot be recovered. If a breach of the reasonable time requirement is shown to have occurred, it cannot be cured. In Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 2002 SC (PC) 89, para 73, I said that these four rights can and should be considered separately, and that a complaint that one of them has been breached cannot be answered by showing that the other rights were not breached: see also Darmalingum v The State [2000] 1 WLR 2303, 2307 2308, per Lord Steyn. Delay is therefore to be seen as affording an independent ground of relief, whether or not there was prejudice or any threat to the fairness of the trial. The fact that an accused person has been convicted after a fair hearing by a proper court cannot justify or excuse a breach of his guarantee of a disposal of the charge against him within a reasonable time: Dyer v Watson, para 94. As Lord Bingham observed in Attorney Generals Reference (No 2 of 2001), para 26, the requirement that a criminal charge be heard within a reasonable time poses the inevitable questions: when, for the purposes of article 6(1), does a person become subject to a criminal charge? When, in other words, does the reasonable time begin? That is the question to which this issue is directed. But it is necessary also to notice article 6(3), which states that everyone charged with a criminal offence has certain minimum rights, including (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. This is because it has been recognised that a person has a Convention right of access to a lawyer under that article, read in conjunction with article 6(1), before answering any questions put to him by the police in circumstances where the questioning might affect his right to a fair trial: Salduz v Turkey (2008) 49 EHRR 421; Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC) 13, [2010] 1 WLR 2601. The question posed by article 6(1) read together with article 6(3) is a different question from that posed by the reasonable time guarantee, although both questions require a date to be identified. That it should be within a reasonable time is one of the characteristics required of a hearing by article 6(1): see para 25, above. So too is the requirement that the hearing is fair. But the answer to the question whether the hearing is fair may depend on things that happened before it is known when the hearing will take place, or whether there will be a hearing at all. So the question can be put this way: when does the person become entitled to that protection to preserve his right to a fair trial? When, in other words, is he to be taken to have been charged for the purposes of those articles? In Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, 2012 SC (UKSC) 53, the questions were raised as to the correct starting point for the purposes of the right to legal advice under article 6 in accordance with the principle in Salduz. In para 62 I said: The correct starting point, when one is considering whether the persons Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6.1. The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium [1980] 2 EHRR 439, para 46; Eckle v Germany [1982] 5 EHRR 1, para 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (Application No 16404/03) (unreported) given 19 February 2009, para 57. In Corigliano v Italy [1982] 5 EHRR 334, para 34 the court said that, whilst charge for the purposes of article 6.1 might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed a criminal offence, as it was put in Eckles case 5 EHRR 1, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation. As the Appeal Court indicated when it gave leave to appeal on this ground, it is with reference to this passage that further guidance is needed, as the appellants argument is that the date of their police interviews should be taken as being the date when the reasonable time begins: [2012] HCJAC 51, paras 2 and 3. Of the four cases decided by the Strasbourg court to which I referred in para 62 of Ambrose, however, only Shabelnik v Ukraine was concerned with the protection that is afforded by article 6(3)(c). Corigliano and Eckle were concerned with the reasonable time guarantee, and Deweer was concerned with the question whether the proceedings were within the scope of the article. The discussion in Shabelnik, para 52, of the manner in which articles 6(1) and (3)(c) are to be applied makes the point that article 6 may be relevant before a case is sent for trial, if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions: see also Imbroscia v Switzerland (1993) 17 EHRR 441, para 36. In Ambrose v Harris, para 63 I said that the Lord Advocates submission that the protection of article 6(3)(c) was not engaged until the individual was taken into custody could not withstand the emphasis that the Strasbourg court puts on the consequences of an initial failure to comply with its provisions, as in Salduzs case, para 50 and Zaichenko v Russia (Application No 39660/02) (unreported) given 18 February 2010, para 35. These remarks were directed to the first of the three characteristics of a hearing required by article 6(1) that the hearing is fair not to the reasonable time guarantee. Yet the court went on in Shabelnik v Ukraine, para 52, to say this: The manner in which article 6(1) and (3)(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. The moment from which article 6 applies in criminal matters also depends on the circumstances of the case, as the prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a substantive, rather than a formal, conception of the charge contemplated by article 6(1). This passage suggests, as does the first sentence of para 62 in Ambrose, that the date when a person becomes subject to a criminal charge and the reasonable time begins is the same as that when the person is charged for the purposes of article 6(3)(c): see also Yankov and Manchev v Bulgaria (Applications Nos 27207/04 and 15614/05) (unreported) given 22 October 2009, para 18, where the starting point was taken to be the date when the police took a statement from the applicant in which he confessed to taking part in the commission of the offence and not the date when a formal charge was directed against him. In some cases the same date may be equally appropriate for each of these two purposes. But they are separate guarantees, and it is not obvious that the relevant date for each of them must be the same. In Salduz v Turkey, para 50 the Grand Chamber pointed out that the right in article 6(3)(c) is one element, among others, of the concept of a fair trial in criminal proceedings in article 6(1). In para 55 it said that, in order for the right to a fair trial to remain sufficiently practical and effective, article 6(1) required that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police unless there were compelling reasons to restrict that right. In Eckle v Germany, on the other hand, the court said in para 73 that in criminal matters the reasonable time referred to in article 6(1) begins to run as soon as a person is charged, and that this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person was officially notified that he would be prosecuted or the date when the preliminary investigations were opened. In Attorney Generals Reference (No 2 of 2001), para 27 Lord Bingham said that as a general rule the relevant period for this purpose will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him a formulation which he hoped might be easier to apply in this country. The reasoning in paras 50 55 of Salduz v Turkey at no point examines the meaning of the word charged but concentrates instead on the requirements of a fair trial. This suggests that different approaches can be applied to the two guarantees as to what is the relevant date. Article 6(3)(c), which applies where a person is charged with a criminal offence, must now be read in a way that makes the guarantee of a fair trial practical and effective. The first interrogation of a suspect may take place, and often does, before the person is officially alerted to the likelihood of criminal proceedings against him. To wait until the stage is reached when there is sufficient evidence to bring a charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. So the focus, for the purposes of this part of article 6, is on the state of affairs when the suspect is first interrogated. Contrast that with the focus of the reasonable time guarantee in article 6(1). It is on the running of time, not on what is needed to preserve the right to a fair trial. Its rationale is that a person charged should not remain too long in a state of uncertainty about his fate: Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55, para 18; Stgmuller v Austria (1969) 1 EHRR 155, para 5. As Lord Bingham said in Attorney Generals Reference (No 2 of 2001), para 16, a person who is facing conviction and punishment should not have to undergo the additional punishment of protracted delay, with all the implications that it may have for his health and family life. So the date as from which time runs is taken to be the date as from which his position has been substantially affected by the official notification. Practice as to how these matters are handled varies from state to state, but in the United Kingdom this could well be some time after the date when he was first subjected to police questioning. (d) discussion It is, of course, plain that the appellants were entitled to the protection of article 6(1) read together with article 6(3)(c) on 17 September 1998 when they were interviewed. Salduz v Turkey had not yet been decided, nor had Cadder v HM Advocate. So they were not offered the protection of having a lawyer present during the police questioning. In the event the absence of a lawyer made no difference, because the appellants knew perfectly well that they were entitled to remain silent and were able steadfastly to resist all attempts to persuade them to provide the police with answers that might incriminate them. Their position was, however, indistinguishable from that of the appellant in Cadder. Like him, they were being questioned as detainees under section 14 of the 1995 Act. They were also being questioned as suspects. In Ambrose v Harris, para 63, I said that the moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of article 6(1). For completeness I should have said for the purposes of article 6(1) read in conjunction with article 6(3)(c), as it is the guarantee of a fair trial that the Salduz protection seeks to serve. I would hold therefore that the date as from which reasonable time begins to run is the subject of a separate guarantee from the guarantee that the trial will be fair, and that it requires to be approached separately. It is not enough that the appellants were being subjected to questioning in circumstances that might have affected their right to a fair trial. The question is whether they were charged on that date, in the sense indicated by Eckle v Germany, para 73, as explained by Lord Bingham in Attorney Generals Reference (No 2 of 2001), para 27. Were they officially notified that they would be prosecuted as it was put in Eckle, or officially alerted to the likelihood of criminal proceedings against them as it was put by Lord Bingham, when they were being interviewed? The appellants were certainly not at any stage of their interviews charged in the formal sense. They both asked the police whether they were going to be charged, and they both received indications to the contrary: see paras 19 and 22, above. Lauchlan was told that he was being interviewed. In ONeills case the interviewer avoided the question. But the fact that the question was asked at all is quite revealing. The appellants had been through this process before. They knew what to expect. It must have been obvious to them that the reason why they were not being charged was that the police did not yet have enough evidence to do so. They were both asked directly whether they had killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that that this amounted to an official notification that they were likely to be prosecuted. All the indications during the prolonged questioning to which they were subjected were that the police were not in a position to report the proceedings with a view to prosecution without having obtained more evidence. The attitude of the police at this stage was entirely understandable. They had not yet established that Mrs McGarrigle was dead. Her body had not been found. In the absence of any evidence to show where, when and how she had died, they were in no position to initiate criminal proceedings against the appellants for her murder. All they had were suspicions based on a volume of circumstantial evidence. That was why so much of the appellants questioning was directed to trying to establish where her body was. It was not until 5 November 1998 that the missing person investigation was scaled down due to lack of progress. The police were still seeking additional evidence by means of press releases, including publications in the Big Issue magazine in June 2002. In August 2003 they received hearsay information to the effect that the appellants had killed Mrs McGarrigle and disposed of her remains in a wheelie bin which was thrown off the back of a boat in Largs. That led to the further inquiries that resulted in their being in a position to charge the appellants on 5 April 2005. That was not the state of affairs when they were being interviewed. I would therefore hold that the date when the reasonable time began was 5 April 2005, and not 17 September 1998 when the appellants were detained and interviewed under section 14 of the 1995 Act. Apparent bias (a) the facts The indictment which was served on the appellants on 10 September 2008 contained eighteen charges, of which the first three concerned the murder of Mrs McGarrigle. The remaining charges were of, or were related to, sexual offences against children. On 17 July 2009, after a preliminary hearing, Lord Kinclaven ordered that the murder charges were to be separated from the sexual offences charges. The consequence of his determination was that the appellants were tried in 2010 in a sequence of two trials before the same judge, Lord Pentland, but before different juries and with a different Advocate Depute. The trial of the sexual offences charges took place between 26 April and 12 May 2010. The Crown accepted pleas of not guilty to some of those charges before the trial began. It withdrew the libel on a number of others at the close of the Crown case, and a submission of no case to answer was sustained with regard to one more. In the result three charges went to the jury, all of which related to sexual offences against boys who were aged 14 and 6 years old at the time of the offences. ONeill was found guilty on all three, and Lauchlan was found guilty on two of them. When the verdicts had been returned and recorded the Advocate Depute moved for sentence. He tendered a schedule of previous convictions in respect of each appellant. He drew attention to the fact that Lauchlan had been convicted in 1998 of two charges of sodomy and four charges of shameless indecency and that in 2005 he had been convicted of offences under sections 2 and 3 of the Sex Offenders Act 1997. He also drew attention to similar convictions in 1998 and 2005 in the case of ONeill. He then mentioned that the Crown had lodged an application for a lifelong restriction order, for which a risk assessment under section 210B of the 1995 Act (as inserted by section 1 of the Criminal Justice (Scotland) Act 2003) would be required, to be made in both cases. He asked that consideration of this matter be continued until the conclusion of the trial on the murder charges. He explained, for the benefit of the jury who had not been made aware of the fact that there was to be another trial, that for this reason there had been an embargo on public reporting of the trial on the sexual offence charges. He said that, as there would be a prejudice to the next trial if the judge were to do any public act at that stage, the matter should be continued. Having ascertained that the solicitor advocates for the defence had no objection to the continuation, the trial judge addressed the appellants. The judge told them first that, as he intended to make the appropriate order under the Sexual Offences Act 2003, he was required by the legislation to state to them both that they had again been convicted of sexual offences to which Part 2 of that Act applied and that they were subject to the notification requirements contained in that Act. He told them that the court had certified those facts, and that the clerk of court would give them a copy of the relevant certificate together with a notice which gave further details of the notification requirements with which they must comply. Then, while the jury were still present, he said this: Having regard to your very serious records, and to the nature of the offence of which you stand convicted on the present indictment, it is clear that you are both evil, determined, manipulative and predatory paedophiles of the worst sort. Beyond that I intend to reserve any observations which I may have to make until the outcome of the next stage of the proceedings is known; that is after you have been tried on the remaining charges to which the advocate depute has made reference. I shall therefore adjourn all questions of sentence until Friday of next week, and I shall continue consideration of the Crowns motion made under section 210B of the 1995 Act for an assessment order. No objection was made at the start of the murder trial on 17 May 2010 to the fact that Lord Pentland was to preside over that trial too, nor was any motion made that he should recuse himself. Two events occurred in the course of that trial which were later commented on. The first occurred on 27 May 2010 when an adjournment of the trial was sought on behalf of ONeill by his solicitor advocate, Mr Carroll. He was said to be suffering from a severe headache and unable to follow what was going on. This was said to be a chronic problem for which he had a prescribed medication which he required to take. The trial judge did not accede to this request immediately but closely questioned Mr Carroll and invited the Advocate Depute to make enquiries with the prison authorities. During a brief adjournment ONeill was given paracetamol and then indicated that he was fit to continue. The second event occurred when a Crown witness, DC Wilkie, became incoherent and obviously unwell while being cross examined by Mr Carroll. The judge adjourned the proceedings immediately to allow the witness to receive medical treatment. He was fit to continue and complete his evidence the next day. (b) the issue This issue was raised on behalf of ONeill only in the Appeal Court. As has already been explained in para 10 above, it was the subject of an amended note of appeal which was lodged shortly before the hearing before the Appeal Court of his application under section 107(8) of the 1995 Act. Mr McVicar did not seek to adopt it on behalf of his client Lauchlan, although he pointed out that if the argument was sound its effect would be to his clients benefit. The devolution issue seems only to have emerged in the course of oral argument in the Appeal Court when it was considering the applications for leave to appeal to this court. It decided to give leave on this issue because it was recognised that the splitting of the trial into two phases before two juries and the resulting presentation of previous convictions and the judges remarks at the end of the first phase were very unusual circumstances. Mr Carroll said that the fact that the trial judge was shown his clients previous convictions was not important to his argument, as it was not unusual for a judge to see the accuseds previous convictions before the start of or during a trial: OHara v HM Advocate 1948 JC 90; Leggate v HM Advocate 1988 JC 127; 1995 Act, section 275A (as inserted by section 10(4) of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002). But they were the trigger, as he put it, for the comments by the trial judge on his clients character. It was to those comments that he directed his argument. The issue has been focussed in the sixth issue in the statement of facts and issues on the appellants behalf in these terms: Whether (i) the conduct of the trial judge can be said to have given rise to a legitimate concern as to the appearance of an absence of impartiality in the context of the appellants right to a fair trial by an impartial tribunal in terms of article 6(1) of the European Convention on Human Rights; and (ii) if the answer to issue 6(i) is affirmative, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants rights under article 6(1). (c) the authorities The test for apparent bias which was laid down in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 was designed to express in clear and simple language a test which was in harmony with the objective test which had been applied by the Strasbourg court. It is set out in para 103 of the judgment in that case in these terms: The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. In Lawal v Northern Spirit Ltd [2004] 1 All ER 187, [2003] ICR 856, para 14 Lord Steyn said that the purpose and effect of the modification which it made to the common law were to bring the common law rule into line with the Strasbourg jurisprudence. Lord Bingham of Cornhill made the same observation in R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679, para 14 when he said that there is now no difference between the common law test of bias and the requirement under article 6 of an independent and impartial tribunal. In Szypusz v United Kingdom (Application No 8400/07) (unreported) given 21 September 2010, para 39 the Strasbourg court acknowledged that its jurisprudence had been taken into account in Porter v Magill, and set out that test. It also acknowledged, in para 40, the further guidance in Helow v Secretary of State for the Home Department [2008] UKHL 62, 2009 SC (HL) 1, [2008] 1 WLR 2416 with regard to the attributes of the fair minded observer as background to the issue that it had to decide. The court is invited in this case to examine the allegation of apparent bias after the proceedings that are said to have been affected by it have taken place. But the principles to be applied are the same as those which determine the question whether, because of things he has said or done previously, the judge should recuse himself. So it may be helpful to look at cases in which it was the judges decision not to recuse himself that was in issue. In President of the Republic of South Africa v South African Rugby Football Union, 1999 (4) SA 147, 177 the Constitutional Court of South Africa made these comments on the position of judges (in that case, members of the Constitutional Court itself) who, it was said, ought to have recused themselves: The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial. That passage was quoted with approval by the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, para 21. It referred also in paras 22 24 to three extracts from Australian authorities about the duty of the judge to hear and determine the cases allocated to him which it found to be persuasive: In re JRL, EX arte CJL (1986) 161 CLR 342, 352; In re Ebner (1999) 161 ALR 557, para 37; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] VSCA 35. In para 25 of Locabail there is an extensive discussion of the grounds on which objection to a judge could or could not reasonably be taken. While it was emphasised that every application for recusal must be decided on the facts and circumstances of the individual case, the court noted that a real danger of bias might well be thought to arise if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion. In JSC BTA Bank v Mukhtar Ablyazov (Recusal) [2012] EWCA Civ 1551, the question was whether a judge had been right not to recuse himself as the nominated judge of trial, in circumstances where he had had to hear, prior to trial, an application to commit one of the parties for contempt of court and had found a number of contempts proven, by reason of the doctrine of apparent bias in Magill v Porter. Rix LJ, delivering a judgment with which Toulson and Maurice Kay LJJ agreed, pointed out in para 65 that, although the principles of apparent bias are now well established and were not in dispute in that case, the application of them is wholly fact sensitive. In para 70 he said that it seemed to him that the critical consideration is that what the first judge does, he does as part and parcel of his judicial assessment of the litigation before him: He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair minded and informed observer would consider that there was any possibility of bias. That was a case of civil litigation, but I do not think that there is any difference in principle between the position of a judge in a case of that type and the situation where it is said that there is apparent bias on the part of a judge in a criminal trial. In Helow v Secretary of State for the Home Department, the question was whether there was a real possibility that Lady Cosgrove was biased by reason of her membership of an association and her receipt of its quarterly publication which contained some articles which were fervently pro Israeli and antipathetic to the PLO, of which the appellant was a member. Among the reasons that were given for holding that there was not any real possibility of bias in her case were that the context is crucially important: para 4, by myself; that Lady Cosgrove was a professional judge with years of relevant training and experience: para 23, per Lord Rodger of Earlsferry; and the taking of the judicial oath, albeit as more of a symbol than of itself a guarantee of the impartiality which any professional judge is by training and experience expected to practise and display: para 57, per Lord Mance. (d) discussion What then of this case? The obvious starting point is the context. When he made his remarks, Lord Pentland was addressing the appellants in the performance of his judicial function. The fair minded and informed observer would appreciate that he was a professional judge who had taken the judicial oath and had years of relevant training and experience. He would hear and understand the context in which the remarks were made. They were made in open court from the bench while he was performing his duty as a judge at the trial. He would appreciate too, that when the judge was presiding over the next trial, he would be doing so in the performance of his duty to preside over that case. He would understand, of course, that while the facts were a matter for the jury, the judge too had functions to perform which required him to be impartial. But it would only be if the judge expressed outspoken opinions about the appellants character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties in conducting the trial, that he would doubt the professional judges ability to perform those duties with an objective judicial mind. The context indicates that nothing like that occurred here. The judge had just told the appellants, as he was required to do, that they were subject to the notification requirements. He had been told by the Advocate Depute that an application was to be made for a risk assessment order. He had been asked to defer consideration of it until after the conclusion of the murder trial, but the appellants were entitled to be given some indication as to what they might expect. His comments on the appellants character were directly relevant to that issue. For reasons that would have been obvious in the light of the Advocate Deputes submissions, the judge had to restrict himself to those few comments. He told them that he intended to reserve any further observations until the outcome of the next stage of proceedings was known. The observer would also understand that, if the judge had been passing sentence on the appellants, the remarks he made would have been entirely appropriate as background to the sentences which he would have been obliged to pass. There is one other circumstance which, in this case, can properly be taken into account. The appellants and their solicitor advocates were all present when the remarks were made, and they were all there again at the commencement of the murder trial. Yet no objection was made by any of them either at the end of the sexual offences trial or at the start of the murder trial to the fact that Lord Pentland was to preside over the murder trial. The fair minded and informed observer would not have overlooked this fact. It might well have seemed to him to be odd, if there was any real basis for an objection, that those with the most immediate interest did not take the opportunity of raising the point at that stage. Mr Carrolls explanation was that a challenge at that stage would not have been likely to succeed, as the judge would almost certainly have rejected it. He also said that his objection would have fallen away if the murder trial had been conducted fairly. He pointed to the contrast between the judges handling of the incident when he told the judge that his client was unwell and his handling of the incident when DC Wilkie became ill in the witness box. I am not persuaded by Mr Carrolls explanation. The point which he had to answer is not, I would stress, one of waiver. It is simply that the fair minded and informed observer would take account of the fact that it did not seem to occur to those with the most obvious interest to do so, or their advisors, that the judge had trespassed beyond the proper performance of his duties when he commented on the appellants character. As for his conduct of the trial, the judges concern that no proper reason had been given for interrupting the proceedings when he was told that the appellant was not well and his reaction to the sudden illness of DC Wilkie in the witness box were both readily understandable. I do not find here any grounds for doubting his impartiality. But the only relevant question is whether he should, or should not, have been conducting the trial at all in view of the comments he made at the end of the previous trial about the appellants character. For these reasons I cannot find any basis for the suggestion that the judge was apparently biased, and I would reject it. It follows that the Lord Advocate did not act incompatibly with the appellants article 6(1) right to a fair trial by proceeding with the appellants trial on the murder charges before Lord Pentland. We were addressed on the question whether the appellants waived their right to found on their Convention right, but I do not need to examine that issue as I do not accept that their right was breached. Conclusion (1) that the date when the reasonable time began for the purposes of the appellants article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocates act in proceeding with the trial on the murder charges was not incompatible with the appellants article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings must now be remitted to the High Court of Justiciary. I would determine the two compatibility issues that are before us by holding

UK-Abs

The issues in these appeals relate to the right to a fair trial. Alison McGarrigle had a son, Robert, by her former husband. Robert was subject to a residential supervision order requiring him to live with his father during the week but permitted him to visit his mother on Saturdays. On 14 June 1997 Robert did not return to his fathers address and instead he and his mother went to live with the appellants in a house in Largs. A drinking session took place there on or about the 20 June 1997 at which a number of people including the appellants, Robert and Mrs McGarrigle were present. The next morning she was gone and was never seen by Robert again. She was reported to police as missing on 16 February 1998. The investigation continued but in the meantime, on 17 June 1998, the appellants were convicted of sexual offences including offences against Robert McGarrigle and were sentenced to 6 and 8 years imprisonment respectively. Whilst serving their sentences the appellants were taken by police for questioning on suspicion of conspiracy to murder Alison McGarrigle. They were asked by the officers whether they were involved in her murder, but they both remained silent. Owing to a lack of evidence at that time, proceedings were not commenced against the pair. The appellants were eventually charged in 2005 for the murder of Mrs McGarrigle and remanded in custody. On 10 June 2010 the appellants were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997 and of a subsequent attempt to defeat the ends of justice by disposing of her body in the sea. In a separate trial held immediately before, the appellants were found guilty of a series of sexual offences relating to children. Both trials took place in front of the same judge, Lord Pentland, but with different juries. After the verdict in the first trial the Advocate Depute moved for sentence and handed the judge a list of the appellants previous convictions. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were evil, determined, manipulative and predatory paedophiles of the worst sort. The two issues for the Supreme Court were: (1) when the appellants were charged for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the Convention (the appellants argued that time started to run when they were first questioned in 1998 and therefore there had been a breach of their right); and (2) whether the comments and conduct of the trial judge were such as to breach the appellants right to a fair trial by an impartial tribunal in terms of article 6(1) of the Convention and, if so, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants rights under article 6(1). Both issues arose from the refusal of the Appeal Court to grant leave for the relevant grounds of appeal to be argued in the appeal in Scotland. The Appeal Court did however grant permission to appeal its refusal to the Supreme Court. The Supreme Court held that it had jurisdiction to consider the issues on the basis that they were compatibility issues in terms of the Criminal Procedure (Scotland) Act 1995 (as amended by the Scotland Act 2012), issue (1) being an appeal against a decision of the Appeal Court and issue (2) being a reference from the Appeal Court. The court determines the two compatibility issues as follows: (1) that the date when the reasonable time began for the purposes of the appellants article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocates act in proceeding with the trial on the murder charges was not incompatible with the appellants article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings will be remitted to the High Court of Justiciary [58]. Lord Hope gives the judgment of the court. The meaning of the word charged has been considered in a number of cases regarding article 6(1), which provides that in the determination of any criminal charge against him a person has the right to a fair trial within a reasonable time and article 6(3)(c) which provides a right to legal assistance for anyone charged with a criminal offence [25 32]. The focus of article 6(3)(c) is on the state of affairs when the suspect is first interrogated, as to wait until the stage is reached when there is sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This is in contrast with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. The rationale is the person should not remain too long in a state of uncertainty. Time runs from the date which the suspects position is substantially affected by the official notification. In the United Kingdom this could be some time after he is first questioned [33 34]. The date from which reasonable time begins is the subject of a separate guarantee from the guarantee that the trial will be fair and falls to be approached independently [36]. The appellants were certainly not at any stage of their interviews charged in the formal sense. They were both asked directly whether they killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that this amounted to an official notification that they were likely to be prosecuted [37]. In the absence of any evidence to show where, when and how she had died, the police were in no position to initiate criminal proceedings. In August 2003 they received information that led to further enquiries and resulted in the appellants being charged with murder in 2005 [38]. On the issue of apparent bias, the test is contained in Porter v Magill [2001] UKHL 67 and considered in a number of authorities [47 52]. It would only be if the judge expressed outspoken opinions about the appellants character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, that the fair minded and informed observer would doubt the judges ability to perform those duties with an objective judicial mind. The context indicates that nothing of the kind happened in this instance [53 54]. Furthermore, no objection was made by the defence at any point to the fact that Lord Pentland was to preside over the murder trial as well and there are no grounds for doubting his impartiality [55 56].

The appellant has been allowed to remain anonymous for the purpose of these proceedings and has been referred to by the initials, I.A. He is a native of Iran, having been born there on 20 September 1976. He arrived in the United Kingdom on 23 August 2007 and applied for asylum the following day. An initial, screening interview of the appellant took place on 24 August 2007 followed by a substantive interview on 20 September 2007. In anticipation of the second of those interviews, he made a statement dated 19 September in which he described his background and the circumstances in which his claim to asylum was made. The account which follows in the next 5 paragraphs is taken from that statement. The appellant stated that he was a member of a Kurdish family. He said that his parents, 3 sisters and 4 brothers continued to live in Iran. While still a young man, the appellant claimed to have witnessed ill treatment of people who visited detainees in a detention centre near his place of work. This experience prompted a desire to join the Kurdistan Democratic Party of Iran (KDPI). Initially thereafter, he had some loose association with that party, largely consisting of the distribution of leaflets and writing political slogans on walls. On one occasion he and another man, who was a member of KDPI, sprayed anti colour paint on a car belonging to the prison authorities of Bukan, his home city in West Azerbaijan. They were seen by a prison guard who shouted at them but they were able to flee the scene without being detained. The appellant was, he alleged, terrified that the authorities would arrest him because of his involvement in this incident, so he decided to leave the country. At that time, the appellant was 16 years old. After the car painting incident, he did not return home. He stayed briefly with an aunt in Saghez and then went to another city. Shortly afterwards he was smuggled from there into Kurdistan in Iraq where he joined the KDPI. He was involved with them for about 6 or 7 years and then separated from them because, he said, the leaders began thinking more of their own interests than the interests of the Kurdish people of Iran. In 1998 the appellant applied for asylum at the United Nations High Commission for Refugees (UNHCR) in Kurdistan and was recognised as a refugee. He was advised that he would be sent to a safe country in due course. He claimed that this did not happen because Saddam Husseins regime refused to offer any assistance to UNHCR refugees. He therefore decided to leave Iraq and go to Turkey. It appears that he arrived in Turkey in May 2002. After he arrived in Turkey the appellant presented himself to the UNHCR in Van city. He was again recognised as a refugee. (From information lately received from UNHCR it is clear that this second recognition occurred in May 2003.) UNHCR again undertook to send him to a safe country. Despite this, the appellant remained in Turkey for a further 3 years. He claimed that after he had been accepted by the UNHCR as a refugee he was sent to Kutahya city in western Turkey and was not permitted to leave. In 2006, frustrated by UNHCRs inaction, the appellant and 20 other refugees protested in front of their offices. The police arrested and detained them. After some 3 months the appellant was served with a court summons to appear in court. He claimed that he was frightened to appear in court and so went into hiding until he managed to leave Turkey and travel to the United Kingdom. After arriving in the United Kingdom the appellant had been in contact with his family in Iran. He learned that the authorities had visited his home on a number of occasions and that his father had been taken to the Intelligence Office in Bukan and had been questioned about the appellants whereabouts. He claimed that his parents had been expelled from Iran to Iraq because of his involvement with KDPI. They remained there for only 2 days, however, and were then permitted to return to Iran. During his interview on 20 September 2007, the appellant said that after joining the KDPI he carried out activities for them in the organising department of the party. He also claimed that he had gone back to Iran in 1993, 1994 and 1995 in order to recruit for KDPI and for propaganda purposes. He and others who accompanied him were attacked by Iranian security forces with rockets and mortars. He said that he was in charge of 15 20 freedom fighters within the KDPI. On their trips to Iran, they would stay about 3 months at a time. They carried weapons in case they were involved in fighting with Iranian troops. In the event they did not engage in fighting although they were on occasions attacked by cannons and mortars. The appellant also told his interviewers that he had discovered in 2002 that his father had been imprisoned by the Iranian authorities but he did not know when. The appellants claim for refugee status was refused by the Secretary of State on 27 September 2007. That initial refusal was withdrawn, however, while further inquiries were made of UNHCR. Before the second decision on his application was made, another statement dated 30 November 2007 was submitted on the appellants behalf. This purported to deal with some of the matters raised in the first refusal letter. In the second statement the appellant said that he had not referred to his having returned to Iran in 1993 1995 because the solicitors who had acted for him at the time that the first statement was compiled had prepared it on the basis of questions that they had put to him and the answers that he had given. The question of his having returned to Iran had not been raised in this exchange. The appellant also said in the second statement that he had been a peshmerga between 1992 and 1994. (A peshmerga or peshmerge (in Kurdish: Pmerge) is the term used by Kurds to refer to armed Kurdish fighters. Literally meaning those who face death the peshmerga forces of Kurdistan have been in existence since the advent of the Kurdish independence movement in the early 1920s.) During this time the appellant also wrote articles and poetry in support of the peshmerga cause, he said. He also described the guns which he had been trained to use and claimed that he had worked as a radio operator and had trained other peshmerga. He alleged that he had been on a mission with one Mohammed Armandzadeh in about 1995. Mr Armandzadeh had been arrested in the course of the mission and had later been executed. Mr Armandzadehs brother, Kamaran, was a friend of the appellant and in his second statement the appellant claimed that he and Kamaran had lived together in Iraq. Kamaran had worked as a paramedic in a hospital run by KDPI. It was claimed that the two had worked together for some years or for 3 4 years. In his second statement the appellant claimed that the only document that he had taken with him when he left Iraq was his certificate of refugee status that had been issued by UNHCR. He said that he had left all other documents with a Dr Maraf Khazadar. Even after he had been refused asylum in the United Kingdom, he did not ask Dr Khazadar to send the documents to him. He explained that he did not do so because, culturally, [Dr Khazadar] is a respected elder gentleman, [and] it would not be appropriate to ask such a favour of him. The appellant claimed that after he had been refused asylum on the second occasion, he knew that one of his sisters was living in Iraq and he asked her to obtain the documents for him. The documents included a card with a photograph of the appellant which, he claimed, showed that he was a security guard at a KDPI Congress; a second card with his photograph purporting to show that he was a trainee in the Political and Military School of the KDPI; and a document which stated that the appellant was a former peshmerga for KDPI. These documents and their late production played an important part in the determination of the appellants appeal against the refusal of asylum for reasons that I will consider below. The second refusal letter was issued on 5 November 2008. The appellants account was deemed to be incredible. It was considered unlikely that the appellant would have been sought by the Iranian authorities as a result of the car spraying incident in Iran. His story was that he had been observed engaging in what was thought to be a low level of vandalism. It was not accepted that this would result in his acquiring a noteworthy profile in Iran or that he would be at significant risk throughout Iran. The claim that the appellant's parents had been expelled from the country 2 years later in 1994 as a result of his activities was considered not to be believable. If the authorities had positively identified the appellant, it would not have taken them 2 years to take action against his parents. Nor would such action have taken the form of such a brief period of exile. Moreover, if they had been exiled while the appellant was active as a peshmerga, it was thought unlikely that they would have returned to Iran. It was also noted that, despite the appellant's claims that the Iranian authorities were aware of his activities as a peshmerga with the KDPI, his family had not received adverse interest from the authorities since 2002. If the appellants claim of repeated armed incursions into Iranian territory with the KDPI was true, it was considered that he would have noticed the omission of such significant evidence from his first statement of 19 September 2007. He would have ensured that these details were included in his submitted statement. Their omission from his statement severely damaged his credibility. A discrepancy was also identified in the accounts which the appellant and Mr Armandzadeh gave of their having worked together. When these accounts were compared it was concluded that the two men could only have been together for something short of a year at most. This was considered to be a significant discrepancy. There was also a divergence in their accounts of how many people had attended the protest In Turkey. In the respondents estimation, these inconsistencies meant that Mr Armandzadeh had failed to offer suitable corroboration of the appellants story. At the time that the appellant had submitted his second statement to the respondent he also sent a statement purporting to come from the KDPI which, he claimed, confirmed that he had been a member of that organisation. This was dismissed by the respondent as being lacking in details that might have supported the appellants account. The respondent did not accept that the appellant had been a member of the KDPI. It was concluded that if he had genuinely been in fear of returning to Iran he would not have left the protection of UNHCR on two occasions. Even if his claims were true, it was considered that he would not have been identified as a KDPI supporter if he was now returned to Iran. The determination of the Asylum and Immigration Tribunal In January 2009 Immigration Judge (IJ) Agnew conducted a hearing of the appellants appeal against the Secretary of States decision under section 82(1) of the Nationality Immigration and Asylum Act 2002. The judge heard testimony from the appellant and Mr Kamaran Armandzadeh. She also received voluminous documentary evidence. This included background evidence relating to the situation in Iran and the Kurdish population in that country. It also included expert evidence submitted on behalf of the appellant and this is fully summarised in the judges written determination. IJ Agnew considered the documents which the appellant claimed had been sent by his sister from Iraq. She noted that a residence card in the bundle of documents disclosed that the appellants sister had permission to reside in Iraq until 11 November 2008 but the postage date on the package containing the documents was 16 November 2008. She found the appellants explanation for failing to obtain the documents before he did to be wholly implausible. She considered therefore that they were to be approached with considerable caution. On that account she attached little weight to them. A letter purporting to come from the KDPI and signed by Khosro or Khostow Abdallahi (said to be the leader or chief representative of the KDPI in Europe) attracted IJ Agnews particular attention. Having reviewed the evidence about this letter and its avowed provenance, the judge declared herself to be not satisfied that the letter was signed or written by the leader of KDPI. The appellants explanation for omitting to mention in his first statement that he had returned to Iran on several occasions was rejected by the judge. This was, she said, most crucial to his case. It was not believable that he would not have been given the opportunity by his solicitors to give an account about these incursions into Iran. The failure to give that account was all the more striking because of the importance attached to it by the experts who provided reports on the appellants behalf. The judge found the account given by the appellant of what had happened to his family, particularly the brief expulsion of his parents to Iraq, to be entirely unconvincing. She also pointed to a number of discrepancies in the statements supplied by Kamaran Armandzadeh, the most significant of which was that in the first statement it was suggested that IA had been with Mr Armandzadehs brother when the latter was captured whereas in the second statement it was stated that he did not know whether IA was with his brother on the mission or not. The judge stated that she did not find IA or Kamaran Armandzadeh to be credible witnesses; the appellant had not established that he was involved with the KDPI or that the Iranian authorities had or would have any interest in him. She therefore dismissed his appeal. In paras 18 26 of her determination IJ Agnew dealt with the argument that the grant of refugee status by UNHCR should be followed by the grant of asylum in the United Kingdom unless there were the most clear and substantial grounds for departing from that decision. The judge referred to the decision in Secretary of State for the Home Department v KK (Congo) (Recognition elsewhere as refugee) [2005] UKIAT 54 and, applying the decision in that case, at para 25 said: As I have noted, independent documentary evidence regarding the procedures used to issue the appellant the refugee certificate in Iraq and refugee status in Turkey by the UNHCR was not before me, nor evidence regarding on what basis the appellant applied for this status and on which it was granted. The appellant's evidence was most vague. Therefore, whilst the granting of refugee status to the appellant should be regarded as a starting point, it is not necessarily a very strong one, on its own, without any helpful evidence as to the basis and procedures for the previous grant. I, however, do bear in mind that it is a starting point, that it is significant and that whilst considering the substantive merits of the case, the most clear and substantial grounds, if they exist, must be provided for coming to a different conclusion The appeal to the Extra Division of the Court of Session The decision of IJ Agnew was challenged in the Court of Session on the basis that she had failed to give any weight to the decision of UNHCR to grant refugee status. That circumstance, counsel argued, should have loomed large in the consideration of the appellants case. It ought to have been taken into account in the assessment of his credibility. Instead it was compartmentalised so that it remained detached from other evidence adduced at the hearing. It was, moreover, wrongly discounted by the judge because she had no information about how or why UNHCR came to its decision. These arguments were rejected by the Extra Division: [2011] CSIH 28; 2011 SC 625. It considered that the immigration judge had approached the effect of the UNHCRs decisions properly and had accorded them appropriate weight. Lord Clarke, who delivered the opinion of the court, said that the tribunal had followed the approach commended by Sullivan LJ in the case of MM (Iran) v SSHD [2011] INLR 206 (in a judgment delivered after the tribunals determination in the present case). Sullivan LJ at para 27 of MM had said: In reality, a decision by the UNHCR as to refugee status will, given the UNHCR's particular expertise and responsibilities under the Refugee Convention, be given considerable weight by the Secretary of State and the tribunal unless in any particular case the decision taker concludes that there are cogent reasons not to do so on the facts of that individual case. It would be just as unrealistic to contend that a decision by the UNHCR as to refugee status must always be given considerable weight regardless of any indications to the contrary as it would be to contend that it could be given less than considerable weight for no good reason. In agreeing with Sullivan LJs judgment on this aspect of the matter, Lord Clarke said at para 15 of the Extra Divisions judgment: While UNHCR decisions as to status have no binding legal effect, they are to be treated with great respect in the interests of legal diplomacy and comity having regard to their source. The mind of the decision maker, in this jurisdiction, where an applicant can lay claim to UNHCR status, as a given datism, must in its decision making process not lose sight of that fact in reaching its disposal of the case before it. A decision of the UNHCR on refugee status will be a very important piece of evidence throughout the decision makers journey. But it has ultimately no greater claim than that and, if the other material before the decision maker leads him/her to considerations that point cogently against the conclusion arrived at by the UNHCR, then the decision maker is fully justified in departing from the latter conclusion. The UNHCR material No information was available to IJ Agnew or the Extra Division as to how UNHCR had arrived at its decisions to grant IA refugee status. In an extremely helpful intervention Ms Carmichael QC on behalf of UNHCR explained why it is not always possible or desirable to respond to requests for information about why a particular decision on refugee status had been taken. At para 35 of its written case, UNHCR said this: UNHCR is not always able [to], nor can it be expected to, respond to every request for documentation and/or information on a particular decision. There are good reasons why UNHCR is not able to provide such information in an individual case, including the observance of confidentiality/data protection principles, capacity or resources, access and/or the security of staff, refugees and/or operations which may be compromised. I recognise the force in these reasons but it was helpful to be informed that UNHCR is currently reviewing the question of the release of documentation on request from individuals who make claims to asylum in particular countries. As I shall discuss in the next paragraph, experience in this case has illustrated how information about the reasons that refugee status has been granted by UNHCR and about its method of assessing claims can be of pivotal importance to an examination of a claim for asylum in this country. It is of particular assistance that the basis on which the decision to accord refugee status be disclosed, even if no further information can be provided. As it happens, in response to a request from the appellants legal advisers and following confirmation from him that he consented to disclosure of documentation about the grant of refugee status for the purposes of this appeal, UNHCR provided redacted notes of an interview and assessment of the appellant by UNHCR staff in Turkey in May 2003. The solicitors acting on behalf of UNHCR have intimated (in the letter to the appellants solicitors which enclosed the material) that they wished to preserve as far as possible the confidentiality of these notes. It would not be appropriate therefore to set out their contents in extenso. It is sufficient for present purposes to say that they contain details of the appellants incursions into Iran, a considerable amount of information concerning the organisation, command structure and areas of operation of KDPI and a rather more believable explanation of the circumstances in which his parents were sent to Iraq. Of particular importance, potentially at least, is that some of the information given by the appellant in the interview ought to be capable of being checked for accuracy. It is eminently possible that a significantly different view about his credibility would have been formed had this information been available to IJ Agnew. The effect of the grant of refugee status by UNHCR By virtue of the Convention relating to the Status of Refugees (the 1951 Convention) and its 1967 Protocol, UNHCR has a supervisory responsibility in relation to the observance and application of the 1951 Convention. Under the 1950 Statute of the Office of the High Commissioner (the Statute), UNHCR is required to provide international protection to refugees. It is also tasked with the duty to work with governments in order to seek permanent solutions to problems presented by refugees. Para 8(a) of the Statute requires UNHCR to fulfil its mandate by, promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto. Article 35 of the 1951 Convention and Article II of the 1967 Protocol oblige state parties to cooperate with UNHCR in the exercise of its functions. One aspect of the discharge by UNHCR of its supervisory responsibility is the issuing of interpretative guidelines, including UNHCRs Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and UNHCRs subsequent Guidelines on International Protection. It is accepted by all that, despite the expertise and experience in dealing with refugees which UNHCR enjoys and despite the responsibilities with which it is charged, its decisions as to refugee status do not oblige countries to accede to applications for asylum by those who have been accorded that status by UNHCR. This is frankly accepted by UNHCR itself. Importantly, it is not only accepted, it is positively asserted by UNHCR, that states have an independent, autonomous responsibility under the 1951 Convention and the 1967 Protocol to determine a persons refugee status when that is claimed. That duty cannot be relinquished to UNHCR. These considerations provide the setting for the examination of the role that a UNHCR decision on refugee status should play in the assessment by a country of a claim to asylum. The Extra Division considered that a decision of the UNHCR on refugee status would constitute an important piece of evidence in the decision makers evaluation of the claim for asylum. But in circumstances where no material as to how or why UNHCR reached its decision is available (as was the case here) it is difficult to see how its conclusion can properly be regarded as evidence other than of the fact that that determination had been made. In Secretary of State for the Home Department v KK (Congo) [2005] UKIAT 54, Ouseley J described an earlier grant of refugee status by another country as a starting point. At para 18 he said: The earlier grant of asylum is not binding, but it is the appropriate starting point for the consideration of the claim; the grant is a very significant matter. There should be some certainty and stability in the position of refugees. The adjudicator must consider whether there are the most clear and substantial grounds for coming to a different conclusion. The adjudicator must be satisfied that the decision was wrong. The language of Babela is that of the burden of proof: their status is prima facie made out but it can be rebutted; the burden of proof in so doing is on the Secretary of State. We do not think that that is entirely satisfactory as a way of expressing it and it leaves uncertain to what standard the burden has to be discharged and what he has to disprove. The same effect without some of the legal difficulties is established by the language which we have used. The statement that the adjudicator must be satisfied that the decision was wrong gives rise to difficulty. Is this a requirement that the adjudicator be satisfied that the decision was wrong when taken, or is wrong in light of the information available at the time that the adjudicators decision is being made? If the former, it is difficult to see how any judgment could be made of its correctness if it is a decision of UNHCR which (as will currently be the position in the majority of cases) is unaccompanied by any information as to the reasons that it was taken. If it means that the decision is not the correct one in light of the information available at the time the adjudicator makes its decision, it is not easy to see what part it plays in influencing the contemporary decision. It appears that Ouseley J contemplated that the wrongness of the original decision could arise from either of the scenarios mooted in the preceding paragraph for in para 19 of his judgment he said: But the important point is that it does not prevent the United Kingdom from challenging the basis of the grant in the first place. It does not require only that there be a significant change in circumstances since the grant was made. Clear and substantial grounds may show that the grant should never have been made by the authorities; it may be relevant to show that the authorities in the country in question lacked relevant information or did not apply the Geneva Convention in the same way. Exclusionary provisions may be relevant. The procedures adopted for examination of the claim may also be relevant. Considerations of international comity may be rather different as between EU member states and those with less honest administrations or effective legal systems. In MMs case Sullivan LJ dealt with the issue in para 27 of his judgment in this way: In reality, a decision by the UNHCR as to refugee status will, given the UNHCR's particular expertise and responsibilities under the Refugee Convention, be given considerable weight by the Secretary of State and the tribunal unless in any particular case the decision taker concludes that there are cogent reasons not to do so on the facts of that individual case. It would be just as unrealistic to contend that a decision by the UNHCR as to refugee status must always be given considerable weight regardless of any indications to the contrary as it would be to contend that it could be given less than considerable weight for no good reason. This formulation is different from the approach in KK. In the latter case, Ouseley J considered that clear and substantial grounds should exist for coming to a different conclusion from the earlier grant of refugee status. It is implicit in his approach that the earlier grant must be given considerable weight in any event. But a different conclusion can be reached if, notwithstanding the considerable weight that should be accorded the earlier grant, substantial grounds for considering that the decision was wrong are established. On Sullivan LJs formulation the weight to be attached to a decision of UNHCR to grant refugee status should initially be regarded as considerable but that can be substantially reduced if the decision maker concludes that there are cogent reasons not to accord it that level of influence on the facts of a particular case. On this approach it would not be necessary to show that the decision of UNHCR was wrong (which is what Ouseley J in KK considered was necessary), merely that there are reasons for diminishing the weight to be applied to it. Sullivan LJs is a much more open textured approach to the part that the UNHCR decision should play. Departure from an earlier decision of UNHCR for the reason that it can be considered to be wrong is inevitably problematical if the basis on which that decision was taken remains unexplained. This is so even if the judgment is that the earlier UNHCR determination is incompatible with what is currently considered to be the right decision. If nothing is known of the basis on which the earlier determination was made, it is difficult to see how it can be condemned as wrong even if the current view is that refusal of asylum is plainly right. On that account, I do not consider that it is helpful to approach the question of the weight to be given to the UNHCR determination by asking whether it was right or wrong. Moreover, if one starts with the proposition that the decision must be given considerable weight unless shown to be wrong, this partakes of the application of a presumption that the UNHCR decision must carry the day unless it is shown to be wrong. Since the circumstances in which the determination of refugee status by UNHCR was made are likely, in most cases, to be unknown when the decision on asylum is reached, the foundation for a presumption and its aptness to play such an important role cannot be assessed. Applying a presumption against a background of such a lack of knowledge cannot be a sound basis for a reliable determination. Although the reasons underlying a decision by UNHCR to grant refugee status will not generally be disclosed before a determination of a claim to asylum is made, the nature and range of the functions undertaken by UNHCR in the matter of refugees and displaced persons should inform the approach of a decision maker in determining whether asylum should be granted to a claimant who has been recognised as a refugee by that organisation. Paragraph 1 of the UNHCR Statute provides that: The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees . This mandate has been enlarged by successive UN General Assembly and UN Economic and Social Council resolutions. It extends to situations of forced displacement as the result of conflict or public disorder. Quite apart from its own role in the determination of refugee status of claimants, UNHCR has a supervisory function in monitoring the procedures and criteria applied by states engaged in the same exercise of determining claims for asylum. It also has an obligation to determine and declare whether individuals or groups give rise to particular need of protection, even when a government may have carried out a similar determination and despite any different finding that state institutions may have reached. Indeed, refugee status determinations are considered by UNHCR to be a core protection function. Certain core principles and standards are incorporated into refugee status determinations in every UNHCR office to ensure that all asylum seekers, regardless of where they apply for refugee status can depend on the application of consistent adjudication of their claims. And, in order to ensure a harmonised and dependable approach, in November 2003 UNHCR produced Procedural Standards for Refugee Status Determination under UNHCRs Mandate. These, together with existing guidance on the procedural aspects of refugee status determinations, are designed to establish and promote fundamental principles to enhance the quality, fairness and integrity of UNHCR procedures. Standards are set in relation to case management, training and supervision of those who make decisions on refugee status claims. In addition to the Procedural Standards UNHCR offices are required to follow and implement various other guidelines which are contained in a wide variety of instruction manuals. The organisation seeks to ensure high standards of quality and consistency in decision making on refugee claims by requiring strict adherence to the guidelines. The guidelines themselves are the product of accumulated learning which draws on the jurisprudence of international, regional and national courts and an abundance of other sources. In 2012 UNHCR conducted refugee status determinations in 62 countries; in 49 of those it had sole responsibility for this form of determination and in the remaining 13 countries it carried out these determinations jointly with governments or under a parallel procedure. UNHCRs decisions on refugee status have been accepted as the basis for the departure and recognition in receiving states of over 330,000 refugees from 2008 to 2012 to 24 resettlement countries. These have involved approximately 60 85,000 departures per year. It can be seen, therefore, that UNHCR exerts considerable influence throughout the world in the recognition of and care for refugees. Although little may be known about the actual process of decision making by UNHCR in granting refugee status in an individual case, the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision making in the field of refugee status determinations must invest its decisions with considerable authority. But translating respect for that authority into tangible impact on decision making by national authorities is not straightforward. For the reasons given at para 37 above, I do not believe that the application of a presumption that the UNHCR decision should be followed unless shown to be wrong is appropriate. A fortiori, the imposition of a burden of proof on the state authorities to establish that the UNHCR decision was wrong is inapposite. How then, is the prior decision to be treated? In its written submission UNHCR suggested a practical approach to this question in the following passage from para 4(3) of its written case: A state decision maker cannot disregard UNHCRs recognition of refugee status in evaluating the individuals claim unless there are cogent reasons for doing so. A state decision maker may, after an examination of all the evidence available to him or her arrive at a decision regarding an applicants eligibility for refugee status different from the UNHCR recognition where there are cogent reasons for doing so. Cogent reasons would include: a. Where reliable information is available to the state decision maker which supports a finding that the applicant does not meet the definition of a refugee in article 1A(2) of the 1951 Convention, for example where changes have occurred in the circumstances of the applicant or his or her country of origin which directly affect the assessment of the claim for refugee status. Other examples could include where previously unavailable or new information is now before the state decision maker and which directly affects the assessment of the claim for refugee status. Information of this sort will often be information which post dates UNHCRs decision. b. Where reliable information is available to the state decision maker which brings the applicant within the exclusion clauses in article 1F of the 1951 Convention. c. Where reliable information is available to the decision maker which, when considered in the light of all the available information, supports a finding that the applicants statements on material elements of the claim are not credible. As a template of how the matter should be approached by national authorities (provided it is not considered to be wholly exhaustive of the factors that might be taken into account) I consider that this has much to commend it. It is to be observed that the credibility of the applicant is accepted as a basis on which the earlier UNHCR decision may be departed from. But it should also be noticed that this is dependent on the availability of reliable information which calls the believability of the applicants claim into significant question. This suggests that information should be from a source other than the applicants own account and, as a general rule, I would accept that this is a sensible requirement. Of course, where a claimants story is so riddled with inconsistency and implausibility as to render it unbelievable, a national decision maker would not be obliged to accept it simply because it was accompanied by a favourable UNHCR decision on refugee status. Absent such an extreme example, however, it seems to me that where the possible rejection of a claim for asylum rests solely on credibility, if the claimant has UNHCR refugee status, his claim should not be rejected unless his credibility is undermined by information that emanates from a source other than his own account. Fitting the fact of an earlier UNHCR decision in favour of refugee status into (in the case of a determination by the Secretary of State) the quasi judicial and (in the case of the tribunal) the judicial model of determination of a claim to asylum is not easy. It does not supply evidence which can be independently evaluated by the decision maker. Nor does it, in my opinion, raise a presumption by which the adjudicators assessment of the evidence is adjusted. It does not impose a burden of proof on the state authorities who resist the claim. It must be given weight but the manner in which it should be accorded weight does not conform to any conventional trial norm. Unsatisfactory though it may be, it seems to me that the influence that such a decision has on the determination of a claim to asylum must be expressed in general (and consequently, fairly imprecise) terms. The circumstance that the weight to be given to the UNHCR decision cannot be articulated in an exact way must not be allowed to detract from the influence that it wields. Quite apart from the respect that is due to such a decision by reason of the unique and matchless experience and expertise of UNHCR, considerations of comity, legal diplomacy and the need for consistency of approach in international protection of refugees demand no less. The United Kingdoms obligation to cooperate with UNHCR also impels this approach. Moreover, as a general rule, the UNHCR decision will have been taken at a time more proximate to the circumstances which caused the claim to have been made. Frequently, it will have been made with first hand knowledge of and insight into those conditions superior to that which a national adjudicator can be expected to possess. All of these factors require of the national decision maker close attention to the UNHCR decision and considerable pause before arriving at a different conclusion. The approach cannot be more closely prescribed than this, in my opinion. The UNHCR conclusion on refugee status provides a substantial backdrop to the decision to be made by the national authority. A claimant for asylum who has been accorded refugee status by UNHCR starts in a significantly better position than one who does not have that status. But I would be reluctant to subscribe to the notion that this represents a starting point in the inquiry because that also hints at the idea of a presumption. Recognition of refugee status by UNHCR does not create a presumption, does not shift the burden of proof and is not a starting point (if by that one implies that it is presumptively assumed to be conclusive) but substantial countervailing reasons are required to justify a different conclusion. Did the immigration judge give sufficient weight to the UNHCR decision? In para 25 of her determination IJ Agnew said this: whilst the granting of refugee status to the appellant should be regarded as a starting point, it is not necessarily a very strong one, on its own, without any helpful evidence as to the basis and procedures for the previous grant. I, however, do bear in mind that it is a starting point, that it is significant and that whilst considering the substantive merits of the case, the most clear and substantial grounds, if they exist, must be provided for coming to a different conclusion. This discussion might be considered to be internally inconsistent in that the suggestion that the grant of refugee status is not necessarily a very strong one does not rest easily with the later observation that it is significant. Quite apart from this, however, the grant of refugee status should always be regarded as significant. It does not require to be bolstered by helpful evidence as to the basis and procedures on which it was granted for it to amount to an important consideration. Of course, if such information is present the significance of the grant of refugee status may be increased. But it is not diminished by the absence of such material. It is unwise, however, to isolate parts of the determination from its overall treatment of the approach to be taken to the prior grant of refugee status by UNHCR. IJ Agnew was careful to say that clear and substantial grounds were required to justify a different conclusion. It is clear that she conducted a careful analysis of the material which led her to decide that she should not follow the UNHCRs determination. And it is also clear that there was material extraneous to IAs account by which its veracity could be tested. The judge was entitled to have regard to his failure to mention that he had led incursions into Iran in the first statement. Likewise, she could quite properly take into account the discrepancies between IAs and Kamaran Armandzadehs accounts of their time together and the striking inconsistency in the latters versions of whether IA had been on a mission with Mr Armandzadehs brother. The (apparently) unexplained post mark on the package containing the documents said to have been dispatched by the appellants sister was another relevant factor. I find it impossible to say that these matters, taken together with the judges marked reservations about the believability of the appellants own story, were not sufficient to justify her rejection of his appeal. I should say that I consider that the judge was entitled indeed bound to consider the credibility of the appellants account, judged on its own terms, once she had found that there were sufficient reasons from external sources to question its reliability. While his account would not justify the description so riddled with inconsistency and implausibility as to render it utterly unbelievable (see para 46 above), once there was material outside his statements and evidence which challenged it, the judge was right to examine the appellants various versions for any intrinsic lack of trustworthiness. The fresh evidence In E and R v Secretary of State for the Home Department [2004] QB 1044, the Court of Appeal considered the question of when it was appropriate to permit fresh evidence to be introduced in an asylum appeal. It was held that mistake of fact giving rise to unfairness was a separate head of challenge on an appeal on a point of law. Admission of fresh evidence designed to establish misunderstanding or ignorance of an established and relevant fact was subject to Ladd v Marshall principles, which may be departed from where the interests of justice require. In para 66 Carnwath LJ said this about the ordinary requirements for a finding of unfairness: First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been established, in the sense that it was uncontentious and objectively verifiable. Thirdly the appellant (or his advisers) must not been have been [sic] responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunals reasoning. In the present case it was argued that the evidence of the interview of the appellant by UNHCR in May 2003 established a mistake about an existing fact in that the immigration judge had concluded that the appellant had not been present on incursions into Iran as he had claimed. In my view, evidence of the UNHCR interview does not establish a case of mistake about an existing fact, if indeed, the finding of the immigration judge on this issue can properly be described as a fact. It is certainly evidence of an earlier account which, on one view, adds credence to a number of elements of the account which IA subsequently gave. But it cannot be described as an uncontentious and objectively verifiable fact. The appellant advances an alternative basis on which the evidence should be admitted. This is that it informs consideration of the general issues of principle and it is in the interests of justice that it should be received. While it is open to the appellant to argue that the determination of UNHCR was properly made, it is submitted that it would be artificial to rely on an assertion to that effect when the true facts about why the determination was made are now known. I would admit the evidence in the interests of justice but for somewhat different reasons from those advanced on behalf of the appellant and for a slightly different purpose. The interview record discloses the approach that is taken to the investigation of a claim to refugee status and the range of subjects covered in the interview. As a tangible example of this type of inquiry, it provides useful material on which to make a judgment as to how influential a grant of refugee status should be as a matter of general practice. This stands quite apart from the question whether it rehabilitates the case that the appellant made to the immigration judge. The interview notes should be admitted, in my opinion, therefore, solely for the purpose of assessing the level of influence that a decision by UNHCR on refugee status should have. Disposal Since I have concluded that the judge was entitled, on the information before her, to reject the appellants account and to find that, notwithstanding the grant of refugee status by UNHCR on two occasions, the appellant should be refused asylum, I would dismiss the appeal. It was submitted on the appellants behalf that the matter should be remitted to the immigration judge so that she could consider the new material contained in the UNHCR record of interview with the appellant. I can see the force in that suggestion, not least because of my conclusion (at para 27 above) that, had this information been available to IJ Agnew, it is distinctly possible that she might have reached a different view on his credibility. But it appears to me that the better course is for the appellant to submit a fresh claim under rule 353 of the Immigration Rules (which, we were told, he would do in the event of failure in the appeal). Rule 353 provides: When a human rights or asylum claim has been refused. and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. It will be, of course, a matter for the Secretary of State and, if necessary an immigration judge, to decide whether the new material from UNHCR constitutes a fresh claim. But it appears to me that submissions based on the UNHCR interview record are plainly of a significantly different order from those which have already been submitted on the appellants behalf. It will also be for the Secretary of State to consider if the new material creates a reasonable prospect of success. Given that the rejection of the appellants claim depended so heavily on the conclusion that his account was not believable, and that the new material sounds directly on the question of his credibility, one would have thought that the relatively modest hurdle of reasonable prospect of success would be comfortably overcome. And this is the more so because the interview record appears to reinforce in some material particulars the account that he gave in his second written statement and during the hearing before IJ Agnew.

UK-Abs

The issue in this appeal is the weight to be accorded to an earlier grant of refugee status by the United Nations High Commission for Refugees (UNHCR) to a claimant who applies for asylum t o the United Kingdom. The appellant, referred to as IA, is an Iranian national, born in 1976. He left Iran for Iraq when he was 16 and in 1998 applied for and was granted recognition as a refugee to the UNHCR in Iraqi Kurdistan on the basis that he feared persecution as a member of the Kurdistan Democratic Party of Iran (KDPI). He left Iraq for Turkey in May 2002, presented himself to the UNHCR there and was again recognised as a refugee. No action was taken to send him to a safe country and 3 years later he left Turkey, travelled to the United Kingdom and applied for asylum. The respondent, the Secretary of State for the Home Department, refused his application on 27 September 2007 and on 5 November 2008. IAs account was found not to be credible, partly because important matters which he referred to in his asylum interview had not been included in his original statement, and because of the circumstances in which he produced documents supporting his case after the first refusal. There was also a discrepancy between his account of working with Mr Armandzadeh for the KDPI and that given on his behalf by Mr Armandzadeh. IAs appeal to Immigration Judge Agnew was dismissed. She took the grant of refugee status to IA by the UNHCR as a starting point and as significant, despite the lack of evidence as to the basis and procedures for its grant, and held that clear and substantial grounds were needed to come to a different conclusion. She found those grounds to exist. IA had not established that he was involved with the KDPI or that the Iranian authorities would have any interest in him. IAs appeal to the Extra Division of the Court of Session was also dismissed. IA appealed to the Supreme Court. Before this appeal, the UNHCR disclosed documents relating to the grant of refugee status to him. It supported the consistency of IAs case on a number of points. The Supreme Court unanimously dismisses the appeal. It holds that the national decision maker must pay close attention to a UNHCR grant of refugee status and considerably pause before arriving at a different conclusion, but that the immigration judge had been entitled to reject IAs appeal in this case. It will be open to IA to submit a fresh claim to the Secretary of State based on the new material from the UNHCR. Lord Kerr, with whom the other justices agree, gives the only judgment. The UNHCR has a supervisory responsibility in relation to the 1951 Convention relating to the Status of Refugees. State parties to the Convention are obliged to cooperate with UNHCR in the exercise of its functions but its decisions as to refugee status are not binding on state parties, who have an independent autonomous responsibility under the Convention to determine a persons refugee status on asylum applications [28 29]. The accumulated and unrivalled expertise of the UNHCR and its experience and promotion of procedures of high standard and consistent decision making in the field of refugee status determinations must invest its decisions with considerable authority [44]. The issue was how to translate that respect into a tangible impact on decision making by national authorities; in particular, how to resolve matters relating to the credibility of the asylum applicant. The approach proposed by the UNHCR, who intervened in the appeal, was sensible: a UNHCR determination could be disregarded where reliable information was available to the decision maker which called the credibility of the applicants claim into significant question. The information should be from a source other than the applicants own account, unless his story was so riddled with inconsistency and implausibility as to render it unbelievable [46]. It was difficult to fit the fact of the UNHCR decision into the model of determination of a claim to asylum and its influence had therefore to be expressed in general and consequently imprecise terms [47]. This fact must not be allowed to detract from the influence that it wields. Considerations of comity, legal diplomacy and the need for consistency of approach in international protection of refugees required this. A UNHCR decision would generally have been taken at a more proximate time to the circumstances which caused the claim to be made and with first hand knowledge and insight into those conditions [48]. All these factors required of the national decision maker close attention to the UNHCR decision and considerable pause before arriving at a different conclusion. It was not a presumption, nor did it shift the burden of proof, but substantial countervailing reasons were required to justify a different conclusion [49]. In IAs case, it was clear that the Immigration Judge conducted a careful analysis of the material which led her not to follow the UNHCRs determination. There was external evidence which called into question the credibility of IAs account, which entitled her then to examine his account for any intrinsic untrustworthiness [52 53]. IA was entitled to rely on the new evidence of the interview he gave to the UNHCR in May 2003, for the purpose of assessing the level of influence that the UNHCR decision should have. His case would not however be remitted to the immigration judge, even though it was possible that she might have reached a different view on his credibility had it been available earlier, as the better course was for IA to submit a fresh claim under rule 353 of the Immigration Rules. It seemed likely that the Secretary of State would be satisfied that the new material created a reasonable prospect of success and so accept it as a fresh claim [58 61]. The present appeal was therefore dismissed.

This appeal is about the defence of illegality: ex turpi causa non oritur actio. The first claimant Les Laboratoires Servier is a French pharmaceutical company which originated the perindopril erbumine compound, an ACE inhibitor used for treating hypertension and cardiac insufficiency. The respondents are companies of the Apotex Group, a Canadian pharmaceuticals group specialising in the manufacture and marketing of generic pharmaceutical products. The parties have agreed that for the purpose of resolving the issues on this appeal, both groups can be treated as one entity without regard to the distinct corporate personality of the companies comprising them. 4. A number of patents for the perindopril erbumine compound have been granted to Servier and its associated companies. In Europe, patent protection for the compound itself expired in June 2003. However, the corresponding Canadian patent for the compound will not expire until 2018. The present dispute relates to a United Kingdom patent not for the compound but for a specific crystalline form of the compound, which was granted to Servier. Its UK subsidiary Servier Laboratories Ltd was the exclusive licensee. In March 2006 Apotex wrote to Servier to notify them that they intended to market generic perindopril in the UK, and at the end of July 2006, upon obtaining marketing authorisation, they began to do so. On 1 August 2006, Servier began proceedings against Apotex for infringement of the UK patent. On 7 August, Mann J granted an interlocutory injunction restraining the importation and sale by the Apotex companies of generic perindopril erbumine in the United Kingdom. The injunction was obtained upon Servier giving the ordinary undertaking to comply with any order that the court might make if it should later find that the order had caused loss to Apotex for which it should be compensated. Pumfrey J gave judgment on the claim on 11 July 2007 [2007] EWHC 1538. He held that the patent had been infringed but that it was invalid, and discharged the injunction. Serviers appeal was dismissed by the Court of Appeal on 28 April 2008 [2008] EWCA Civ 445. 6. 5. Meanwhile, separate proceedings were in progress in Canada for infringement of the Canadian patent for the compound itself. An interlocutory injunction had been refused in those proceedings. But on 2 July 2008, Snider J held that the Canadian patent was valid and infringed, and granted a final injunction. The Canadian Federal Court of Appeal dismissed Apotexs appeal on 30 June 2009, and leave to appeal to the Supreme Court of Canada was refused on 25 March 2010. A separate trial of damages is expected in November 2014. It is agreed that damages under the undertaking in the English proceedings fall to be assessed on the basis that but for the injunction Apotex would have sold in the United Kingdom an additional 3.6 million packs of perindopril erbumine tablets. The active ingredient would have been manufactured by Apotex Pharmachem Inc in Canada and sold at a 30% mark up to Apotex Inc. Apotex Inc would have formulated it into tablets, also in Canada, and sold the tablets to Apotex UK Ltd which would then have sold them on the UK market. Under the terms of the sale to Apotex UK Ltd, Apotex Inc would have received 90% of the profits arising from UK sales. The assessment was heard before Norris J in June 2008, and judgment was reserved. In July 2008, after Snider J had given judgment in Canada but before Norris J had given judgment on the assessment in England, Servier applied to Norris J to re amend their defence to plead two points arising out of Snider Js judgment. The first, which I shall call the illegality point was that it was contrary to public policy for Apotex to recover damages for being prevented from selling a product whose manufacture in Canada would have been illegal there as an infringement of Serviers Canadian patent. The second, which I shall call the cost of manufacture point was that in assessing Apotexs loss of profit the damages for infringement to which they would be entitled in the Canadian proceedings should be treated as an additional cost of manufacture, thereby reducing or eliminating the profit. On 9 October 2008, Norris J gave judgment on the assessment: [2009] FSR 220. He refused permission to amend, on the ground that the application came too late and would cause undue prejudice to Apotex. He then awarded Apotex 17.5 million damages plus interest of approximately 2.1 million, to be split 90/10 between Apotex Inc and Apotex UK. However, on 12 February 2010, the Court of Appeal allowed an appeal from the refusal of the amendment, and directed that Norris Js award of damages should be treated as an interim order pending determination of the new issues: [2010] EWCA Civ 279. Subsequently, Lewison J made an order staying the second of the new issues (the cost of manufacture issue) until damages had been assessed in Canada. 8. 7. The judgments below 9. The illegality point turns in this case on three issues: (1) Does the infringement of a foreign patent rights constitute a relevant illegality (turpitude) for the purpose of the defence? If so, is Apotex seeking to found its claim on it? Is Servier entitled to take the public policy point having given an undertaking in damages? (2) (3) 10. Arnold J gave judgment on these questions on 29 March 2011: [2011] RPC 574. He decided all three points in favour of Servier. On the first point, he held that a relevant illegality was one which was sufficiently serious in all the circumstances of the case, including in particular whether the illegal act was done with knowledge or deliberately. On the second point, he held that the claim was barred because Apotex could not make good its claim for damages without affirming that it would have manufactured the product in Canada, where it was illegal to do so. On the third point, he held that it was not inconsistent with the undertaking as to damages for Servier to raise the illegality defence. In the result, Arnold J held that the whole of Apotexs claim on the undertaking was barred, and ordered the repayment of the amount which they had received in satisfaction of Norris Js judgment. 11. Apotex appealed to the Court of Appeal. Shortly before the hearing of the appeal they conceded that any damages awarded in the Canadian proceedings should be deducted from Norris Js award irrespective of the fate of the public policy point. The Court of Appeal gave judgment on 3 May 2012 allowing the appeal: [2013] Bus LR 80. The leading judgment was given by Etherton LJ, with whom Laws LJ and Kitchin LJ agreed. The essential point on which he differed from the judge was issue (1). In his view, the infringement of Serviers Canadian patent was not a relevant illegality for the purposes of the defence. This was because (para. 73) in dealing with the illegality defence, the court was entitled, to take into account a wide range of considerations in order to ensure that the defence only applies where it is a just and proportionate response to the illegality involved in the light of the policy considerations underlying it. Etherton LJ considered that this test was not satisfied because (i) Apotex honestly and reasonably believed the Canadian patent to be invalid; (ii) it was important as a matter of principle that Servier, having enjoyed a monopoly by virtue of the injunction, should have to pay when it was found not to be entitled to it; (iii) the sale of the tablets in the United Kingdom was not an infringement of the Canadian patent, whose effect was limited to Canada; (iv) the Canadian court had refused to grant an interlocutory injunction restraining the manufacture of the active ingredient or its formulation into tablets in Canada; and (v) any public policy arising from the illegality of the manufacture and formulation of the product in Canada was sufficiently addressed by Apotexs concession that credit had to be given for the damages payable in the Canadian proceedings for the infringements committed there. If Etherton LJ had been satisfied that the infringement of the Canadian patent was a relevant illegality, he would have upheld the illegality defence. This was because like the judge he considered that there was a sufficiently close causal relationship between the patent infringement and the loss suffered by virtue of the injunction; and because, like the judge again, he was not impressed by the suggestion that the taking of the illegality defence was inconsistent with the undertaking in damages. 12. The Court of Appeal approved the concession made by Apotex about the credit to be given for the damages for infringement payable in Canada. It followed that the financial consequences of its decision must depend on what happens on the assessment of damages in Canada. The illegality defence: a rule of law 13. English law has a long standing repugnance for claims which are founded on the claimant's own illegal or immoral acts. The law on this point was already well established when Lord Mansfield CJ articulated it in his celebrated statement of principle in Holman vs Johnson (1775) 1 Cowp. 34l, 343: No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. If, from the plaintiffs own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est condition defendentis. The doctrine necessarily operates harshly in some cases, for it is relevant only to bar claims which would otherwise have succeeded. For this reason it is in the nature of things bound to confer capricious benefits on defendants some of whom have little to be said for them in the way of merits, legal or otherwise. Lord Mansfield acknowledged this when he pointed out: The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff . Lord Mansfields formulation begs many questions. But as these citations show, two features of this area of law have been characteristic of it from the outset. First, it is a rule of law and not a mere discretionary power. Secondly, it is based on public policy, and not on the perceived balance of merits between the parties to any particular dispute. 14. The question what is involved in founding on an immoral or illegal act has given rise to a large body of inconsistent authority which rarely rises to the level of general principle. The main reason for the disordered state of the case law is the distaste of the courts for the consequences of applying their own rules, consequences which Lord Mansfield had pointed out two centuries ago. The only rational way of addressing this problem, if these consequences are regarded as intolerable, is to transform the rule into a mere power whose actual exercise would depend on the perceived equities of each case. The most notable modern attempt to achieve this transformation was made by the Court of Appeal in Euro Diam v Bathurst Ltd [1990] 1 QB 1, in which the illegality defence was invoked in response to a claim on a property insurance. The Court of Appeal placed the reported cases in a number of distinct factual categories, united by a common principle. Kerr LJ, delivering the only reasoned judgment, expressed that principle at p 35 by saying that the test was whether in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts. That question, he suggested, needed to be approached pragmatically and with caution, depending on the circumstances. Under this public conscience test, the application of the illegality defence was not discretionary in law. But it was clearly discretionary in nature. In substance it called for a value judgment about the significance of the illegality and the injustice of barring the claimants claim on account of it. 15. This development had been foreshadowed by some earlier decisions of the Court of Appeal. But it was decisively rejected by the House of Lords in Tinsley v Milligan [1994] 1 AC 240. That appeal arose out of an agreement under which two ladies bought a house to live in out of jointly owned funds. They agreed to vest it in one of them alone so that the other could claim social security benefits on the fraudulent basis that she did not own her home and was paying rent. In the ordinary course, the joint purchase of property by two people in the name of one of them would give rise to an equitable proprietary interest in the other. The question was whether the assertion of this interest in a court of law was debarred by the dishonesty of the parties purpose. The Court of Appeal, by a majority, had applied the public conscience test. Ralph Gibson LJ dissented [1992] Ch. 310, observing in his judgment, at p 334, that in so far as the basis of the ex turpi causa defence, as founded on public policy, is directed at deterrence it seems to me that the force of the deterrent effect is in the existence of the known rule and in its stern application. Lawyers have long known of the rule and must have advised many people of its existence. 16. In the House of Lords, the committee was divided on the correct test as well as on the correct result. But it was unanimous in rejecting the public conscience test, on the ground that it was unprincipled. The leading speech on this point was that of Lord Goff. Like almost every court which has reviewed the question, he took as his starting point the statement of Lord Mansfield in Holman v Johnson. At p 355, he observed: That principle has been applied again and again, for over 200 years. It is applicable in courts of equity as well as courts of law: see, e.g., the notes to Roberts vs Roberts (1818) Dan. 143, 150 151 and Ayerst vs Jenkins (1873) L.R. 16 Eq. 275, 283, per Lord Selborne L.C. In 1869 Mellor J. said that the maxim in pari delicto potior est conditio possidentis is as thoroughly settled as any proposition of law can be: see Taylor vs Chester (1869) L.R. 4 Q.B. 309, 313. It is important to observe that, as Lord Mansfield made clear, the principle is not a principle of justice; it is a principle of policy, whose application is indiscriminate and so can lead to unfair consequences as between the parties to litigation. Moreover the principle allows no room for the exercise of any discretion by the court in favour of one party or the other. Lord Goff acknowledged (at p 364 D E) that [t]he real criticism of the present rules is not that they are unprincipled, but rather that they are indiscriminate in their effect, and are capable therefore of producing injustice. Indeed, in the case before him, he regarded the claimants misconduct as relatively minor and pointed out that she had already made amends for it by repaying the sums dishonestly obtained in social security benefits. However, he considered that the illegality defence was governed by established rules of law (p 364F). Endorsing the view of Ralph Gibson LJ in the passage from which I have cited above, he rejected the public conscience test as contrary to 200 years of authority, because it required the court to weigh, or balance, the adverse consequences of respectively granting or refusing relief. This is little different, if at all, from stating that the court has a discretion whether to grant or refuse relief. It is very difficult to reconcile such a test with the principle of policy stated by Lord Mansfield CJ in Holman v Johnson . or with the established principles to which I have referred. (p 358 E F). Its adoption, he said, would constitute a revolution in this branch of the law, under which what is in effect a discretion would become vested in the court to deal with the matter by the process of a balancing operation, in place of a system of rules ultimately derived from the principle of public policy enunciated by Lord Mansfield CJ in Holman v Johnson. (p 363B). As he pointed out (at p 362 G H), short of treating the application of the rule as discretionary, it is difficult to make a principled distinction between degrees of iniquity. 17. Lord Browne Wilkinson (p 369B) agreed with Lord Goff on this point, observing that the consequences of being a party to an illegal transaction cannot depend, as the majority in the Court of Appeal held, on such an imponderable factor as the extent to which the public conscience would be affronted by recognising rights created by illegal transactions. The other members of the committee all agreed with the speeches of Lord Goff and Lord Browne Wilkinson on this point. 18. The House was divided on the question what should be substituted for the public conscience test. Lord Keith and Lord Goff favoured a rule which would bar any claim tainted by a sufficiently close factual connection with the illegal purpose, and would have dismissed the claim to an equitable interest in the house on that ground. Lord Browne Wilkinson, with whom Lord Jauncey and Lord Lowry agreed, preferred the reliance test derived from the decision of the Court of Appeal in Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65 and of the Privy Council in Palaniappa Chettiar v Arunasalam Chettiar [1962] AC 294. The effect of this test was that the claim was barred only if the claimant needed to rely on (i.e. to assert, whether by way of pleading or evidence) facts which disclosed the illegality: see Lord Browne Wilkinson at pp 370C D, 375 376; cf. Lord Jauncy at p 366C G. Both are intended to exclude those consequences of an illegal act which are merely collateral to the claim. Neither makes the application of the illegality defence dependent on a value judgment about the significance of the illegality or the consequences for the parties of barring the claim. For present purposes, it is enough to point out that neither test is discretionary in nature. Neither of them is based on achieving proportionality between the claimants misconduct and his loss, a concept derived from public law which is not easily transposed into the law of obligations. On the contrary, Lord Goff recognised, as Lord Mansfield had before him, that the practical operation of the law in this field will often produce disproportionately harsh consequences. 19. The Court of Appeal was bound by Tinsley v Milligan, and we have not been invited to depart from it on this appeal. It was, however, suggested and accepted by Etherton LJ, that a wider view of the law was open to the courts in the light of Lord Hoffmanns observation in Gray v Thames Trains Ltd [2009] 1 AC 1339, para 30 that the maxim ex turpi causa expresses not so much a principle as a policy. Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations. I do not think that this dictum will bear the weight that has been placed on it. A court will commonly examine the policy rationale of a rule of law in order to discover what the rule is. This is what Lord Hoffmann was doing in the passage cited, which introduces an extended discussion of the various rules which the courts had evolved to deal with the dilemma that the denial of relief to one party would confer an unjustified benefit on the other. These rules did not seek to deal with the dilemma by leaving the court to make a value judgment about the seriousness of the illegality and the impact on the parties of allowing the defence. As Lord Hoffmann explained them, they dealt with it by defining as a matter of law when the illegality defence applied and when it did not. In Lord Hoffmanns view two rules were relevant where the illegality defence was raised in answer to a claim for compensation. There was a narrower rule that you cannot recover damage which is the consequence of a sentence imposed upon you for a criminal act; and a wider rule that you cannot recover compensation for loss which you have suffered in consequence of your own criminal act. The former test operated automatically, once it was ascertained that the loss claimed was a penalty imposed by a criminal court or the necessary consequence of the sentence, such as loss of earnings during a period of imprisonment. The latter test was simply a question of causation. Neither the narrower nor the wider rule depended on the courts assessment of the significance of the illegality, the proportionality of its application or the merits of the particular case. Nor does anything else in the speeches justify a test which would include such an assessment. 20. Tinsley v Milligan has had its critics. The Law Commission in successive reports on the illegality defence made little secret of its preference for the approach of the Court of Appeal in Euro Diam. The Commission initially proposed the introduction of a statutory scheme adopting a discretionary approach to the application of the illegality defence, on the ground that the House of Lords decision in Tinsley v Milligan had ruled out the development of judge made law in that direction. They later withdrew that proposal, because recent decisions of judges at first instance and in the Court of Appeal suggested to them that the effect of that decision was being eroded by lower courts: see The Illegality Defence: A Consultative Report (2009) (Consultation Paper 189), at paras 3.104 3.105, 3.123 3.124. At para 3.140 of the latter report, the Commission observed that the public conscience test, although rejected in Tinsley v Milligan, was nevertheless useful in suggesting that the present rules should be regarded as no more than guidance that help the court to focus its attention on particular features of the case before it. What lies behind these rules is a set of policies. This is why the courts are sometimes required to bend the rules (if possible) to give better effect to the underlying policies as they apply to the facts of the case before them. I confess that I find this difficult to justify as an approach to authority or the proper development of the law. It is directly inconsistent with the decision of the House of Lords in Tinsley v Milligan and the whole of the reasoning which underlies it. It makes the law uncertain, by inviting the courts to depart from existing rules of law in circumstances where it is difficult for them to acknowledge openly what they are doing or to substitute a coherent alternative structure. The present position was to my mind accurately stated by Lord Walker of Gestingthorpe when commenting on the Commissions original proposals in Stone & Rolls Ltd v Moore Stephens (a firm) [2009] AC 1391 paras 130 and 131: These proposals, if enacted by Parliament, would introduce more flexibility into this area of the law (although without reintroducing a general public conscience discretion) . The present state of the law is as laid down by the majority of the House in Tinsley v Milligan [1994] 1 AC 340. Any legislative change is likely to widen the test, not to narrow it. 21. It follows that the disposition of this case by the Court of Appeal cannot possibly be justified by the considerations put forward by Etherton LJ. Etherton LJ rejected the illegality defence on the ground that the infringement of Serviers Canadian patent was not turpitude for the purpose of the illegality defence. However, he did not address the question in what, as a matter of principle, turpitude consisted. He rejected the argument of Servier that patent infringement was necessarily turpitude and also the argument of Apotex that it never was. Instead, he held (para 76) that it all depends on the precise circumstances. The circumstances to which he attached importance were the five factors to which I have referred above: see para 11. Of these factors the first (Apotexs honest belief in the invalidity of the Canadian patent) was an assessment of the moral culpability of Apotexs infringement. The other four were all part of a complex inquiry into how far the infringement of the Canadian patent could be said to matter in the particular circumstances of this case. Arnold J had adopted much the same approach, although by reference to a narrower range of factors. The difference between them was essentially that Arnold J took a graver view of the infringements than Etherton LJ, partly because he was less impressed by the argument that Apotex genuinely believed that the Canadian patent was invalid, and partly because he attached more weight to the importance of respecting the Canadian patents. This difference encapsulates the vice of the test that they both applied. The answer depended not on the character of the illegality but on largely subjective judgments about how badly Apotex had behaved and how much it mattered. This was a process, discretionary in all but name, whose outcome would have been exceptionally difficult for either partys advisers to predict in advance. In my opinion, it was contrary to established legal principle. 22. However, it does not follow that the courts should be insensitive to the draconian consequences which the ex turpi causa principle can have if it is applied too widely. The starting point in any review of the modern law must be that we are concerned with a principle based on the application of general rules of law and not on fact based evaluations of the effect of applying them in each individual case. However, the content of the rules must recognise that within the vast and disparate category of cases where a party in some sense founds his claim upon an immoral or illegal act there are important differences of principle. The application of the ex turpi causa principle commonly raises three questions: (i) what acts constitute turpitude for the purpose of the defence? (ii) what relationship must the turpitude have to the claim? (iii) on what principles should the turpitude of an agent be attributed to his principal, especially when the principal is a corporation? Each of these questions requires a principled distinction to be made between different kinds of immoral or illegal act and different ways in which they may give rise to claims. For present purposes, we are concerned only with the question what constitutes turpitude for the purposes of the defence. The question what relationship it must have to the claim arises only if that question is answered in favour of Servier, and no question of attribution arises in this case at all. What is turpitude? 23. The paradigm case of an illegal act engaging the defence is a criminal offence. So much so, that much modern judicial analysis deals with the question as if nothing else was relevant. Yet in his famous statement of principle in Holman v Johnson Lord Mansfield spoke not only of criminal acts but of immoral or illegal ones. What did he mean by this? I think that what he meant is clear from the characteristics of the rule as he described it, and as judges have always applied it. He meant acts which engage the interests of the state or, as we would put it today, the public interest. The illegality defence, where it arises, arises in the public interest, irrespective of the interests or rights of the parties. It is because the public has its own interest in conduct giving rise to the illegality defence that the judge may be bound 24. to take the point of his own motion, contrary to the ordinary principle in adversarial litigation. In some contexts, notably the invalidity of contracts prohibited by law, the ex turpi causa principle can be analysed as part of the substantive law governing the parties rights. The contract is void, and any right derived from it is non existent. But in general, although described as a defence, it is in reality a rule of judicial abstention. It means that rather than regulating the consequences of an illegal act (for example by restoring the parties to the status quo ante, in the same way as upon the rescission of a contract) the courts withhold judicial remedies, leaving the loss to lie where it falls. This is so even in a contractual context, when the court is invited to determine the financial consequence of a contracts voidness for illegality. The ex turpi causa principle precludes the judge from performing his ordinary adjudicative function in a case where that would lend the authority of the state to the enforcement of an illegal transaction or to the determination of the legal consequences of an illegal act. In Lord Mansfields day, and for some time thereafter, this rule of abstention was sometimes expressed as a principle protecting the innocence or dignity of the court against defilement. In the notorious Highwaymens Case, Everet vs Williams (1725) (noted at (1893) 9 LQR 197), in which the court was invited to take an account between two highwaymen, it not only dismissed the claim as scandalous and impertinent but ordered the arrest of the plaintiffs solicitor and fined him. Two centuries later, in Parkinson v College of Ambulance Ltd and Harrison [1925] 2 KB 1, 13, Lush J said of a contract to procure an honour, that [n]o Court could try such an action and allow such damages to be awarded with any propriety or decency. Today, the same concept would be expressed in less self indulgent terms as a principle of consistency. This was the point made by McLachlin J in her much admired judgment in Hall v Hebert (1993) 101 DLR (4th) 129, 165: To allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which contract, tort, the criminal law must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to create an intolerable fissure in the laws conceptually seamless webWe thus see that the concern, put at its most fundamental, is with the integrity of the legal system. 25. The ex turpi causa principle is concerned with claims founded on acts which are contrary to the public law of the state and engage the public interest. The paradigm case is, as I have said, a criminal act. In addition, it is concerned with a limited category of acts which, while not necessarily criminal, can conveniently be described as quasi criminal because they engage the public interest in the same way. Leaving aside the rather special case of contracts prohibited by law, which can give rise to no enforceable rights, this additional category of non criminal acts giving rise to the defence includes cases of dishonesty or corruption, which have always been regarded as engaging the public interest even in the context of purely civil disputes; some anomalous categories of misconduct, such as prostitution, which without itself being criminal are contrary to public policy and involve criminal liability on the part of secondary parties; and the infringement of statutory rules enacted for the protection of the public interest and attracting civil sanctions of a penal character, such as the competition law considered by Flaux J in Safeway Stores Ltd v Twigger [2010] 3 All ER 577. 26. There are dicta which suggest that the ex turpi causa principle may be wider than this, that it may be engaged by a purely civil wrong such as a tort or breach of contract. The clearest and best known of them is that of Kennedy J in Burrows v Rhodes [1899] 1 QB 816, 828. He thought that no claim for damages could be founded on an act if the act is manifestly unlawful or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offence. However, the only English case which he cited as supporting this proposition so far as it relates to civil wrongs, is Shackell v Rosier (1836) 2 Bing NC 634, which concerned a claim on a contract to indemnify the Plaintiff against damages and costs payable in consequence of having published a criminal libel: see Tindall CJ at 645 646. Weld Blundell v Stephens [1920] AC 956 concerned another libel action. The plaintiff had been successfully sued for a libel contained in a document which he had supplied to his accountant. The majority of the House of Lords held that he could not recover the damages he had had to pay to the defamed party from his accountant, who had negligently left the document about so that it came to the formers attention. The difficulty about this case is that its ratio has never been clear. Lord Dunedin proposed to dismiss the claim on the ground that the plaintiff was relying on his own wrong, namely the libel by which he had incurred liability. Lord Sumner decided the case on causation. He thought that the claim should be dismissed on the ground that the plaintiff had had to pay damages because of the libel, not the negligence. Lord Wrenbury thought that the claim should be dismissed on both grounds, and specifically approved the dictum of Kennedy J in Burrows v Rhodes. Viscount Finlay, who dissented, thought that a civil wrong was not to be equated to a criminal act for the purpose of the ex turpi causa principle: see p 971. Lord Parmoor, who also dissented, made the same distinction: pp 995 996. 27. In Columbia Picture Industries Inc. v Robinson [1987] Ch. 38, the plaintiff had obtained an Anton Piller order for an improper purpose and without full disclosure, against a defendant whose business consisted almost entirely in the manufacture and sale of pirated videos. Scott J declined to order an inquiry into damages under the plaintiffs undertaking because the losses had been incurred in a business which was illicit albeit not criminal under the law as it then stood. The point does not seem to have been argued in any detail, if at all, and the reasoning was both brief and cryptic. The judge appears to have reached his conclusion on two grounds. The first was that under the then law the pirated tapes which were the stock in trade of the defendants business belonged to the copyright owners, so that the defendants inability to sell them caused him no loss. The second was that the defendants business was dishonest (the judge thought the case analogous to the Highwaymens Case). By this I think that he must have meant that any sales that the defendant would have made but for the Anton Piller order would have been made by dishonestly misleading his customers about the origin of the videos. It is I think only on that footing the judges second reason can be justified. Scott J was not suggesting that a breach of copyright was in itself a sufficient basis on which to raise the illegality defence. 28. Apart from these decisions, the researches of counsel have uncovered no cases in the long and much litigated history of the illegality defence, in which it has been applied to acts which are neither criminal nor quasi criminal but merely tortious or in breach of contract. In my opinion the question what constitutes turpitude for the purpose of the defence depends on the legal character of the acts relied on. It means criminal acts, and what I have called quasi criminal acts. This is because only acts in these categories engage the public interest which is the foundation of the illegality defence. Torts (other than those of which dishonesty is an essential element), breaches of contract, statutory and other civil wrongs, offend against interests which are essentially private, not public. There is no reason in such a case for the law to withhold its ordinary remedies. The public interest is sufficiently served by the availability of a system of corrective justice to regulate their consequences as between the parties affected. It is right to add that there may be exceptional cases where even criminal and quasi criminal acts will not constitute turpitude for the purposes of the illegality defence. In Gray v Thames Trains Ltd at para 83, Lord Rodger of Earlsferry suggested that some offences might be too trivial to engage the defence. In general, however, the exceptional cases are implicit in the rule itself. This applies in particular where the act in question was not in reality the claimants at all. Leaving aside questions of attribution which arise when an agent is involved, and which are no part of the present appeal, there is a recognised exception to the category of turpitudinous acts for cases of strict 29. liability, generally arising under statute, where the claimant was not privy to the facts making his act unlawful: see Stone & Rolls Ltd v Moore Stephens (a firm) [2009] 1 AC 1391, paras 24, 27 (Lord Phillips of Worth Matravers). In such cases, the fact that liability is strict and that the claimant was not aware of the facts making his conduct unlawful may provide a reason for holding that it is not turpitude at all. This is the most satisfactory explanation of the decision of the Singapore Court of Appeal in United Project Consultants Pte Ltd v Leong Kwok Ong (trading as Leon Kwok Onn & Co) [2005] 4 SLR 214, where a taxpayer sought to recover from his accountant an administrative penalty under a statutory provision dealing with the innocent submission of an incorrect tax return: see paras. 55, 57. More generally, the wrong alleged against the defendant may consist precisely in causing an innocent claimant to commit an offence of strict liability. The leading case is Burrows v Rhodes [1899] QB 816, which arose out of the Jameson Raid of 1895. The plaintiff was induced to enlist in the raid, contrary to section 11 of the Foreign Enlistment Act 1870, by the defendants fraudulent representation that it had the sanction of the Crown (which would have made it lawful). In most cases of this kind the illegality defence would not arise, for there would be no criminal act, the element of mens rea being absent. But the pleadings in Burrows required the court to make the rather artificial assumption that the plaintiff would have been convicted under section 11 even without mens rea: see pp 830 832 (Kennedy J). The court held that even so, the defence was not available. This was because the plaintiff was not aware of the facts making enlistment illegal and on the assumption being made by the court he was criminally liable only because that liability was strict. As Kennedy J suggested at p 834, the exception would not necessarily have applied if Burrows had been claiming damages arising directly from the sentence of a criminal court or from some other penal sanction imposed on him by law. That situation would have engaged Lord Hoffmanns narrower rule, and in that context it must be assumed that the sentence was what the criminal court regarded as appropriate to reflect the personal responsibility of the accused for the crime that he had committed: Gray v Thames Trains Ltd [2009] 1 AC 1339, para 41 (Lord Hoffmann). Cf. Askey v Golden Wine Co Ltd [1948] 2 All ER 35, 38 (Denning LJ); State Railway Authority of New South Wales v Wiegold (1991) 25 NSWLR 500, 514 (Samuels JA). The application of the exception for cases of strict liability may require a court to determine whether the claimant was in fact privy to the illegality. To that extent, an inquiry into the claimants moral culpability may be necessary in such cases before his act can be characterised in law as turpitude. This may be a difficult question, but it is not a question of degree. The conclusion will be a finding that the claimant was aware of the illegality or that he was not. It is a long way from the kind of value judgment implicit in the search for a proportionate relationship between the illegality and its legal consequences of the claim. Conclusion 30. In my opinion, the illegality defence is not engaged by the consideration that Apotexs lost profits would have been made by selling product manufactured in Canada in breach of Serviers Canadian patent. A patent is of course a public grant of the state. But it does not follow that the public interest is engaged by a breach of the patentees rights. The effect of the grant is simply to give rise to private rights of a character no different in principle from contractual rights or rights founded on breaches of statutory duty or other torts. The only relevant interest affected is that of the patentee, and that is sufficiently vindicated by the availability of damages for the infringements in Canada, which will be deducted from any recovery under Serviers undertaking in England. There is no public policy which could justify in addition the forfeiture of Apotexs rights. In those circumstances, the second and third issues before the Court of Appeal do not arise. I would accordingly dismiss the appeal. LORD MANCE 33. The Court of Appeal approached the defence of illegality on the basis that it required in each case an intense analysis of the particular facts and of the proper application of the various policy considerations underlying the illegality principle so as to produce a just and proportionate response to the illegality, per Etherton LJ, para 75. This and the courts ensuing analysis of a number of the factors on which it relied fit uneasily with the clear cut, if potentially harsh, approach applicable on the basis of Tinsley v Milligan [1994] 1 AC 340. Nevertheless, I arrive at the same result as the Court of Appeal, but by different reasoning. I agree with Lord Sumption that this appeal should fail on the simple basis that the manufacture and supply of product in breach of the Canadian patent would, for the reasons he gives in paras 23 to 30, not have involved turpitude such as to engage the maxim ex turpi cause action non oritur. 34. 35. The second and third issues which Lord Sumption identifies in para 22 do not therefore arise. I note only that the second might on the face of it have arisen, 31. 32. 36. 37. had it not been for the parties agreement, noted by Lord Sumption in para 2, that each group should be treated as one entity. In fact, the European patent upon which the present proceedings are based was owned by the first appellant, Les Laboratoires Servier, a licence under it being granted to the second appellant, Servier Laboratories Ltd., while the Canadian patent, which would have been infringed by further manufacture but for the English injunction, was owned by another company in the group, ADIR, with a licence under it being granted to Servier Canada Inc. In the Apotex group, as Lord Sumption recounts in para 6, the active ingredient would have been manufactured by Apotex Pharmachem Inc, and then sold at a 30% mark up to Apotex Inc, which would have made it into tablets, which it would then have sold to Apotex UK Ltd for a price equivalent to 90% of Apotex UK Ltds profits on resale in the United Kingdom. 38. The English proceedings and the injunction were issued against all these three Apotex companies, as well as another, Apotex Europe Ltd. The injunction ordered that the Defendants must not dispose of, offer to dispose of, or import in the United Kingdom their generic perindopril erbumine product, on the basis of an undertaking that if the court later finds that this order has caused loss to the defendants, which shall include Apotex UK Ltd, and decides that the defendants should be compensated for that loss, the claimants [that is now, the two appellants] will comply with any order the court shall makes. 39. In the Canadian proceedings under the Canadian patent, Les Laboratoires Servier and Servier Laboratories were included as plaintiffs, but were struck out at trial as having no cause of action. The claim for infringement of the Canadian patent ultimately succeeded in the names of only ADIR and Servier Canada Inc against Apotex Inc and Apotex Pharmachem Inc. 40. The basis of the agreement that each group should in the present English proceedings be treated as one entity was not disclosed or explored. There may well have been some undisclosed legal basis for treating the individual group members as one entity or as having combined together. Subject to that, there might, on the face of it, have been an argument that it was only Apotex Inc and Apotex UK Ltd that would ever have disposed or, offered to dispose of, or imported the product into the United Kingdom or therefore were prevented from so doing by the injunction. Equally, there might have been an argument that the only companies which could have had any complaint under the Canadian patent would have been ADIR and Servier Canada Inc (the latter not party to the English proceedings) and that any complaint which they could have had would have been in respect of the products manufacture in and export from Canada, rather than in respect of importation into, or disposition in, England. 41. That might then perhaps have meant that (i) the companies with potential claims against Les Laboratoires Servier and Servier Laboratories Ltd under the undertaking were Apotex Inc and Apotex UK Ltd, which would exclude any claim in respect of Apotex Pharmachem Incs loss of profit, while (ii) the only relevant hypothetical cross claim would have been by ADIR against Apotex Pharmachem Inc. and Apotex Inc., for loss of the 30% mark up and the 90% profit that they would have made. The appellants liable under the undertaking not being the same as the claimants under the cross claim, no set off could then on the face of it have arisen. 42. This is all very tentative, since it was not explored. But it highlights a certain distance between the subject matter of the undertaking and the hypothetical cross claim, which could have had some bearing on the answer to the second question, had that arisen. 43. As to the third question, if the separate corporate identities of the members of each group had been insisted upon, then it seems not beyond all doubt that some point might have arisen under this question also. As it is, however, Lord Sumption correctly observes that no question of attribution arises. 44. This is not therefore the case in which to examine the difficult issues of attribution which may arise where a company acts through an agent whether that be an agent who is only capable of binding the company vicariously or whether the agent may, for some purposes at least, also be equated with the company (e.g. because he is its alter ego or its sole controlling owner) and so be capable of binding it personally. Such issues were discussed in Stone & Rolls Ltd v Moore Stephens (a firm) [2009] UKHL 30, [2009] 1 AC 1391, but do not require revisiting here. 45. Equally, this is not a case in which any question arises as to the correctness or otherwise of a decision such as that of the Court of Appeal in Safeway Stores Ltd v Twigger [2010] EWCA Civ 1492, which held that a company could not recover from directors or employees who had by involving the company in acts contravening the Competition Act 1998 caused it to incur a personal liability for penalties imposed under that Act. LORD TOULSON 46. In this appeal Servier is attempting to extend the doctrine of illegality beyond any previously reported decision in circumstances where I see no good public policy reason to do so. 48. 47. Apotexs claim arises under a cross undertaking in damages. The present proceedings were brought in England for alleged infringement of a UK patent. On 7 August 2006 Mann J granted Servier an interlocutory injunction restraining Apotex from importing and selling a chemical compound (generic perindopril erbumine) in the UK, upon Servier giving the usual cross undertaking in damages. On 11 July 2007 Serviers claim was dismissed and the injunction was discharged. In parallel Canadian proceedings Apotex was found liable for infringement of Serviers Canadian patent for the same chemical compound. An interlocutory injunction had been refused. Damages in the Canadian proceedings remain to be assessed. It is accepted that if the English interlocutory injunction had not been granted, Apotex would have imported and sold in the UK an additional 3.6 million packs of tablets. Apotex recognises that in calculating its damages under the cross undertaking for loss of profits from the lost UK sales it must offset not only the costs of manufacture but also the amount which it would have had to pay in the Canadian action as damages for manufacturing the tablets in breach of the Canadian patent. 50. On an inquiry into damages on a cross undertaking, as a matter of general principle the courts task is to put the party seeking to enforce the undertaking in the same position as if the injunction had not been granted. In Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 361, Lord Diplock said: [The court] retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry at which [the] principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction. 51. There has been no suggestion in this case that the conduct of Apotex in relation to the injunction was such as to make it inequitable for the court to enforce the undertaking. Arnold J did not proceed on that basis, nor has Servier argued that the court should refuse to enforce the cross undertaking on discretionary grounds. 52. The order made by the Court of Appeal accords with Lord Diplocks method of assessment. As Etherton LJ explained in his judgment at para 88, its effect is to place Apotex in precisely the position in which it would have been if there had been no UK interlocutory injunction, and it does not offend comity with Canada. Apotex will recover whatever sum may be left after deducting, from the proceeds of the lost sales, both the costs of the sales and the amount for which it would have had to account to Servier in the Canadian proceedings by way of damages for patent infringement. The result, Etherton LJ said, would neither be offensive to comity with Canada nor infringe English public policy. 53. By contrast, the order sought by Servier would potentially place it in a better position than if it had not obtained the English injunction for which it gave a cross undertaking. I use the word potentially, because it remains to be seen how the Canadian court will calculate damages for the infringement which led to UK sales by Apotex. It will be a simple matter to apply the same approach to the lost sales as the Canadian court will apply in relation to actual sales made by Apotex. The result may be that Apotex will be unable to establish any loss, after deduction of the damages which it would have had to pay in Canada, but that will depend on the outcome of the Canadian proceedings. 54. Servier argues that Apotexs claim under the cross undertaking is barred by the doctrine of illegality. It does not contend that the contracts for the lost sales would have been unlawful contracts under English law. It does not suggest, for example, that at the date when the Canadian court found that there had been a breach of the Canadian patent in the manufacture of the tablets, UK purchasers of the tablets who had not yet paid for them could have refused to make payment on the ground that the contracts of sale were unenforceable by Apotex because of illegality. Servier submits, however, that Apotexs claim under the cross undertaking for loss of payments which it would have received under contracts, lawful in themselves, is barred by illegality because performance of the contracts would have involved or resulted from breach of the Canadian patent. Etherton LJ said in his judgment, and his statement has not been challenged, that infringement of a Canadian patent constitutes a statutory wrong of strict liability under Canadian law. 55. Servier is unable to cite any precedent for saying that a claim for money otherwise payable under English law offends the doctrine of illegality if it arises from a contract involving the commission of a strict liability tort (whether as the object of the contract or in its performance). 56. There are very few reported cases in which the doctrine of illegality has been applied to tort. In Brown Jenkinson & Co Ltd v Percy Dalton (London) Ltd [1957] 2 QB 621, the Court of Appeal held a contract to be unenforceable which had as its object the commission of the tort of deceit, but in that case Pearce LJ qualified his judgment by saying, at p 640, that in none of the cases cited before the court had a plaintiff failed where he was not fraudulently minded. Fraud for the purposes of deceit includes a false statement made in reckless disregard whether it be true or false, but there is no precedent for applying the doctrine of illegality to a tort of strict liability. In this case the protagonists are pharmaceutical companies who were involved in a bona fide commercial dispute about the validity of certain patents. 57. Servier relies on the often quoted statement of Lord Mansfield in Holman v Johnson in which he said that The principle of public policy is this; ex dolo malo non oritur actio. That statement made in 1775 remains a succinct statement of broad principle, but, as the cases over the last 340 years demonstrate, it does not provide a simple measuring rod for determining the boundaries of the principle. The case law is notoriously untidy. In deciding whether the principle should be applied in circumstances not directly covered by well established authorities, it is right to proceed carefully on a case by case basis, considering the policies which underlie the broad principle. This has been said in the past by judges at the highest level. 58. In Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, 293, Lord Wright said: Each case has to be considered on its merits. Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds. 59. In Gray v Thames Trains Ltd [2009] AC 1339, 1370, para 30, Lord Hoffmann said: The maxim ex turpi causa expresses not so much a principle as a policy. Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations. 60. This observation was endorsed by Lord Phillips in Stone & Rolls Ltd v Moore Stephens (a firm) [2009] 1 AC 1391, para 25, where he said that it is necessary to give consideration to the policy underlying ex turpi causa in order to decide whether the defence was bound to defeat a claim. In Hounga v Allen [2014] 1 WLR 2889, [2014] UKSC 47, Lord Wilson said in the judgment of the majority, at para 42: 61. The defence of illegality rests upon the foundation of public policy. The principle of public policy is this said Lord Mansfield by way of preface to his classic exposition of the defence in Holman v Johnson (1775) 1 Cowp 341, 343. Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification: Maxim Nordenfelt Guns and Ammunition Co Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask What is the aspect of public policy which founds the defence? and, second, to ask But is there another aspect of public policy to which application of the defence would run counter? 62. I would therefore make no criticism of the Court of Appeal for considering whether public policy considerations merited applying the doctrine of illegality to the facts of the present case. In so doing it adopted a similar approach to that of the majority of this court in Hounga v Allen. 63. Cross undertakings are a standard and valuable feature of litigation, particularly but not only in commercial litigation. There is a public interest in their enforceability in bona fide disputes. It saves the court from having to make a more detailed and therefore time consuming and expensive assessment of the merits at an interlocutory stage than might otherwise be necessary, since the cross undertaking is designed to protect the defendant against the applicant gaining a financial advantage from obtaining an injunction which is later set aside on the claim failing. I cannot see a good public policy reason why Servier should be put in a better position than if the English injunction had not been granted, or why Apotex should be required to give greater credit to Servier on account of its breach of the Canadian patent than the amount assessed by the Canadian court as properly reflecting that breach. 64. There may come a case where it is necessary for this court to carry out a detailed re analysis of Tinsley v Milligan [1994] 1 AC 340, in the light of subsequent authorities and the consultative and final reports of the Law Commission (LCCP No 189 and Law Com No 320), in which the case has not for the first time been criticised; but nobody invited such a reconsideration in this case. The argument in this case was about whether the doctrine of illegality extends to the present case. I am satisfied that there is no good reason why it does or should do so, and I agree that the appeal should be dismissed. 49.

UK-Abs

This appeal is about the meaning of turpitude in the ex turpi causa defence. This defence allows a defendant to resist a claim which is founded on the claimants own illegal or immoral acts. The appellants (collectively Servier) hold a number of patents for perindopril erbumine (a drug used for treating hypertension and cardiac insufficiency). European patent protection for the compound itself expired in June 2003, but a UK patent protecting a crystalline form continued and Serviers UK subsidiary was the exclusive licensee. Canadian patent protection for the compound itself will not expire until 2018. The respondents (collectively Apotex) are a Canadian group specialising in the manufacture and marketing of generic pharmaceutical products. The parties agreed that, for the purposes of this appeal, each group of companies could be treated as one legal entity each. Apotex began to import and sell generic perindopril erbumine tablets in the UK at the end of July 2006. Servier obtained an interim injunction against Apotex to stop it from doing this. In order to get the injunction, Servier had to give a cross undertaking in damages, meaning that it promised to compensate Apotex for any loss caused by the injunction if it later turned out that the injunction should not have been granted. In the event, the court found that the UK patent was invalid, and so Apotex became entitled to compensation from Servier. It is agreed that such compensation should be calculated on the basis that Apotex would have sold an additional 3.6m packs of tablets in the UK if there had been no injunction. These packs would have been manufactured in Canada but sold in the UK. Meanwhile, the parties were also litigating in Canada about the Canadian patent. That patent was found to be valid and infringed. Damages have not yet been assessed. The illegality issue arises because Servier argues that it is contrary to public policy for Apotex to recover damages for being prevented from selling a product whose manufacture in Canada would have been unlawful there as an infringement of Serviers Canadian patent. Servier won on this point at first instance before Arnold J but lost in the Court of Appeal. The Court of Appeal thought that the infringement of the Canadian patent did not count as turpitude for the purposes of the illegality defence, because: (i) Apotex honestly and reasonably believed that the Canadian patent was invalid too; (ii) it was important that Servier should pay once it had been discovered that it was enjoying a monopoly it was not entitled to; and (iii) the effect of the Canadian patent was limited to Canada, where (iv) the Canadian court had refused to grant an injunction and (v) Apotex was paying damages which would be taken into account when calculating Serviers liability on the cross undertaking. Servier appealed to the Supreme Court. The Supreme Court unanimously dismisses Serviers appeal, but on grounds which differ from those of the Court of Appeal. It holds that the infringement of the Canadian patent by Apotex does not constitute turpitude for the purposes of the ex turpi causa defence. Lord Sumption, with whom Lord Neuberger and Lord Clarke agree, gives the main judgment. Lord Mance agrees with Lord Sumption and offers some further comments. Lord Toulson also dismisses the appeal but agrees with the approach taken by the Court of Appeal. The majority of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 rejected the public conscience approach on the ground that it imported a discretionary element into what was in reality a rule of law [13 18]. The Court of Appeal was wrong to treat the question as depending on the culpability of the illegality, the proportionality of the application of the defence or the general merits of the particular case [19]. Turpitude involves a breach of the public law of the state (or in some cases its public policy). The paradigm case of turpitude is a criminal act. In addition, the category of turpitude includes certain quasi criminal acts, such as: (i) dishonesty or corruption; (ii) certain anomalous acts (such as prostitution) which, while not criminal, are contrary to public policy and commonly involve criminal liability on the part of others; and (iii) the infringement of statutory rules enacted for the protection of the public interest and attracting civil sanctions of a penal character [23 30; 34]. The grant of a patent gives rise to private rights, the infringement of which does not engage the public interest so as to give rise to the ex turpi causa defence [30]. Lord Toulson agrees that the appeal should be dismissed, but he says that the Court of Appeal was right to take public policy considerations into account, because the defence is based on public policyas a majority of the Supreme Court recognised in Hounga v Allen [2014] UKSC 47 [62]. The public interest in the enforceability of cross undertakings in damages is an important factor pointing in favour of the recovery of damages by Apotex [63]. It may, however, be necessary to re analyse Tinsley v Milligan [1994] 1 AC 340 in a future case [64].

Two appeals are before the Court by prisoners who were convicted of murder and sentenced to life imprisonment. In the case of the appellant Peter Chester, the tariff period fixed expired many years ago, but he has not yet satisfied the Parole Board that it is no longer necessary for the protection of the public that he should be confined. In the case of the appellant George McGeoch, the sentencing judge fixed a punishment part of 13 years which expired on 7 October 2011, but he has committed various intervening offences including violently escaping from lawful custody in 2008 for which he received a seven and a half year consecutive sentence. The result is that the earliest date on which McGeoch could be considered for parole is July 2015. Both the appellants claim that their rights have been and are being infringed by reason of their disenfranchisement from voting. Chesters claim for judicial review was issued in December 2008 and relates to voting in United Kingdom and European Parliamentary elections. It relies on Article 3 of Protocol No 1 (A3P1) as incorporated into domestic law by the Human Rights Act 1998 and directly on European Union law. Burton J and the Court of Appeal (Lord Neuberger MR, Laws and Carnwath LJJ), [2010] EWCA Civ 1439, [2011] 1 WLR 14346, dismissed Chesters claim. They held that it was not the courts role to sanction the government for continuing delay in implementing the European Court of Human Rights decision in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 or to repeat the declaration of incompatibility issued by the Scottish Registration Appeal Court in Smith v Scott 2007 SC 345 or issue advice as to the form which compatible legislation might take. They held that European Union law raises no separate issue. McGeochs claim for judicial review was issued in February 2011 and related to voting in local municipal and Scottish Parliamentary elections. It relies solely on European Union law. The Extra Division dismissed the petition on the ground that European Union law only conferred a right to vote in municipal elections in a Member State on European Union citizens residing in a Member State of which they were not nationals. It also considered that Scottish Parliamentary elections were not for this purpose municipal elections. Before the Extra Division McGeoch was refused permission to amend to include a complaint relating to voting in European Parliamentary elections, but a corresponding amendment was permitted by the Supreme Court by order of 15 October 2012. The following summarises my conclusions: (A) Human Rights Act In respect of Chesters claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments (para 2), I would decline the Attorney Generals invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 (Hirst (No 2)) and Scoppola v Italy (No 3) (2012) 56 EHRR (paras 34 35) (Scoppola), but also decline to make any further declaration of incompatibility with the Convention rights (paras 39 42). (B) European law a. In respect of McGeochs and Chesters claims under European law, which can at most relate to elections to the European Parliament and municipal authorities (paras 9, 45 and 46), I conclude that European law does not incorporate any right to vote paralleling that recognised by the European Court of Human Rights in its case law or any other individual right to vote which is engaged or upon which, if engaged, they are able to rely (paras 46 47, 58, 59, 63 64 and 68). b. Had European law conferred any right to vote on which McGeoch and Chester can rely: i. the only relief that might have been considered would have been a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Community or Union law but that would not have appeared appropriate in the particular cases of Chester and McGeoch (para 72); ii. the general ban on voting in European Parliamentary and municipal elections could not have been disapplied as a whole (para 73); iii. it would not have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law (para 74); iv. the Supreme Court could not itself devise a scheme or arrangements that would or might pass muster with European law; that would be for Parliament (para 74); vs neither of the appellants could have had any arguable claim for damages in respect of any breach of European law which may be involved in RPA section 3 and/or EPEA section 8 (paras 82 83). (C) European Court of Justice The resolution of these appeals does not necessitate a reference to the European Court of Justice. In so far as it raises issues of European law for determination, they are either not open to reasonable doubt or involve the application by this Court to the facts of established principles of European law (para 84). (D) Both appeals fall therefore, in my opinion, to be dismissed (para 85). Legislation Entitlement to vote in parliamentary and local government elections in the United Kingdom is governed by the Representation of the People Act 1983 (RPA). Section 1, as substituted by section 1 of the Representation of the People Act 2000, provides that: (1) A person is entitled to vote as an elector at a parliamentary election in any constituency if on the date of the poll he (a) is registered in the register of parliamentary electors for that constituency; (b) is not subject to any legal incapacity to vote (age apart); (c) is either a Commonwealth citizen or a citizen of the Republic of Ireland; and (d) is of voting age (that is, 18 years or over). Section 2 provides in similar terms in relation to local government elections, but with the addition in (c) of the words or a relevant citizen of the Union, to meet the requirements of what is now article 22(1) TFEU. Section 3 of the Act, as amended by section 24 of and paragraph 1 of Schedule 4 to the Representation of the People Act 1985, disenfranchises serving prisoners, providing: Disfranchisement of offenders in prison etc (1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election. (2) For this purpose (a) convicted person means any person found guilty of an offence (whether under the law of the United Kingdom or not), . , but not including a person dealt with by committal or other summary process for contempt of court; (c) a person detained for default in complying with his sentence shall not be treated as detained in pursuance of the sentence The effect of the last words of section 3(2)(a) and of section 3(2)(c) is to exclude persons imprisoned for contempt of court or default in paying a fine. Entitlement to vote in European Parliamentary elections is provided domestically by the European Parliamentary Elections Act 2002 (EPEA). For present purposes section 8(2) and (3) are relevant, and they confer such entitlement on a person: (2) . if on the day of the poll he would be entitled to vote as an elector at a parliamentary election in a parliamentary constituency wholly or partly comprised in the electoral region, and (a) the address in respect of which he is registered in the relevant register of parliamentary electors is within the electoral region, or (b) his registration in the relevant register of parliamentary electors results from an overseas elector's declaration which specifies an address within the electoral region. The disenfranchisement enacted by RPA section 3 is thus extended to apply to European Parliamentary elections. Under the Scotland Act 1998, section 11(1), the persons entitled to vote as electors at an election for membership of the Scottish Parliament in any constituency are those who on the day of the poll would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency. In effect, RPA section 3 is extended to Scottish Parliamentary elections. A3P1 reads: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. The European Parliament is for this purpose a legislature within the meaning of A3P1: see Matthews v United Kingdom (1999) 28 EHRR 361. So too is clearly the Scottish Parliament, under the devolution arrangements instituted by the Scotland Act, giving it wide ranging legislative authority. Lord Hope described as such in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868, para 46: The Scottish Parliament takes its place under our constitutional arrangements as a self standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. The conclusion that the Scottish Parliament is a legislature within A3P1 was a conclusion implicitly accepted by the European Court of Human Rights in McLean and Cole v United Kingdom (Application Nos 12626/13 and 2522/12) (unreported) given 11 June 2013, and was shared by Lord Reed in the Extra Division in the present case (para 29 of his judgment). Conversely, a local government body or municipal authority is not part of a legislature in the United Kingdom within A3P1: McLean and Cole v United Kingdom. Under European Union law, as it stands since 1 December 2009 when the Treaty of Lisbon came into force, a wide range of provisions is potentially relevant. Articles 6, 10 and 14 TEU provide: COMMON PROVISIONS . 6.1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII [Articles 5154] of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 6.3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Unions law. PROVISIONS ON DEMOCRATIC PRINCIPLES . 10. 1. The functioning of the Union shall be founded on representative democracy. 10.2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 10.3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 10.4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. PROVISIONS ON THE INSTITUTIONS . 14.3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot. The pre Lisbon Treaty predecessor of article 14.3 was article 190.1 and 190.4, reading: 190.1 The representatives in the European Parliament of the peoples of the States brought together in the Community shall be elected by direct universal suffrage. 4 The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. To give effect to article 190.4 the Council of Ministers agreed the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (0J 1976 L 278, p 1), as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 (OJ 2002 L 283, p 1) (the 1976 Act), which continues to apply in the post Lisbon Treaty era. The 1976 Act provides inter alia by what is now article 7: Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions. These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system. Voting in European Parliamentary and municipal elections is dealt with more specifically by Articles 20 and 22 TFEU in a Part headed Non discrimination and Citizenship of the Union: 20.1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. 22.1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. 2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a Candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. Article 52 of the Charter of Fundamental Rights (CFR) deals with the Charters scope and interpretation: 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6. Full account shall be taken of national laws and practices as specified in this Charter. 7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States. The CFR includes the following provisions: Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. The Explanations relating to the CFR, referred to in article 6.1 TEU, state that article 39 CFR: applies under the conditions laid down in the Treaties, in accordance with Article 52(2) of the Charter. Article 39(1) corresponds to the right guaranteed in Article 20(2) [TFEU] (cf. also the legal base in Article 22 [TFEU] for the adoption of detailed arrangements for the exercise of that right) and Article 39(2) corresponds to Article 14(3) [TEU]. Article 39(2) takes over the basic principles of the electoral system in a democratic state. The Explanations state further that article 40 CFR: corresponds to the right guaranteed by Article 20(2) [TFEU] (cf. also the legal base in Article 22 [TFEU] for the adoption of detailed arrangements for the exercise of that right). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these Articles in the Treaties. European Convention on Human Rights The general significance of A3P1 was summarised by Lord Collins in a judgment with which all members of the Court agreed in R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] UKSC 9, [2010] 1 AC 464, para 52. I need only to set out parts of his summary, omitting also some of the case references: 53. First, article 3 of the First Protocol enshrines a characteristic principle of an effective democracy. 54. Second, although article 3 is phrased in terms of the obligation of the contracting states to hold elections which ensure the free expression of the opinion of the people rather than in terms of individual rights, article 3 guarantees individual rights, including the right to vote and the right to stand for election . 55. Third, there is room for implied limitations on the rights enshrined in article 3, and contracting states must be given a wide margin of appreciation in this sphere: Mathieu Mohin v Belgium (1987) 10 EHRR 1, para 52; Yumak v Turkey (2008) 48 EHRR 61, para 109(ii). 56. Fourth, the content of the obligation under article 3 varies in accordance with the historical and political factors specific to each state; . 57. Fifth, article 3 is not (by contrast with some other Convention rights, such as those enumerated in articles 8 to 11) subject to a specific list of legitimate limitations, and the contracting states are therefore free to rely in general in justifying a limitation on aims which are proved to be compatible with the principle of the rule of law and the general objectives of the Convention: Yumak, para 109 (iii); Tanase v Moldova (Application No 7/08) (unreported) given 18 November 2008, para 105. 58. Sixth, limitations on the exercise of the right to vote or stand for election must be imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate, and must not interfere with the free expression of the opinion of the people in the choice of the legislature: Yumak, para 109(iii) to (iv). 59. Seventh, such limitations must not curtail the rights under article 3 to such an extent as to impair their very essence, and deprive them of their effectiveness. They must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature and the laws which it promulgates: Mathieu Mohin, para 52; Yumak, para 109(iv). The European Court of Human Rights has expressed its attitude to the exclusion or limitation of prisoners voting rights in well known decisions. Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 each came first before a simple Chamber of seven judges and then before a Grand Chamber composed of 17 judges. Hirst (No 2) was a claim regarding his disenfranchisement from voting in United Kingdom Parliamentary and local elections brought by a prisoner serving a life sentence in England for manslaughter on the ground of diminished responsibility, whose tariff period had expired without his release. Scoppola was a claim relating to disenfranchisement under Italian law brought by a prisoner serving a sentence of 30 years imprisonment for murder, attempted murder and other offences. In between these two decisions came Greens and MT v United Kingdom (2010) 53 EHRR 710, in which a simple Chamber applied the principles in Hirst (No 2) to complaints of ineligibility to vote in both European and United Kingdom Parliamentary elections. More recently simple Chambers have applied the principles in Hirst (No 2) and Scoppola in Anchugov and Gladkov v Russia (Application Nos 11157/04 and 15162/05) (unreported), 4 July 2013, and Syler v Turkey (Application No 29411/07) (unreported), 17 September 2013. In Greens the Strasbourg Court gave the United Kingdom six months to introduce legislative proposals to amend RPA section 3, a period subsequently extended first pending the decision in Scoppola and then to six months after the Grand Chamber decision in Scoppola, delivered 22 May 2012. A draft Bill was published for pre legislative scrutiny on 22 November 2012 (Cm 8499) and a joint select committee was established to undertake this and to report by 31 October 2013. As envisaged in Hirst (No 2), para 83, the United Kingdom government has continued in this regard to liaise with the Committee of Ministers of the Council of Europe, which has on 6 December 2012 accepted the draft bill and the establishment of the committee as a legitimate means of implementing the judgment in Greens, and at its meeting on 26 September 2013, noted with interest that the pre legislative scrutiny by the committee was now due to be completed by 31 October 2013, underlined the urgency of bringing the legislative process to a conclusion, urged the United Kingdom authorities to provide information on the proposed legislative timescale without further delay and decided to resume examination of the progress made at a meeting in December 2013. This ongoing process was in June 2013 noted by the Strasbourg Court in its judgment in McLean and Cole, paras 36 37, where the Court concluded that, in its light, there was nothing to be gained from examining applications concerning future elections at this time (para 37). In Hirst (No 2), Greens and Scoppola the European Court of Human Rights acknowledged the width of the margin of appreciation, or the wide range of policy alternatives, which States enjoy in relation to voting rights (Hirst (No 2), para 78, Greens, para 114 and Scoppola, para 83). In both Hirst (No 2) and Scoppola the Grand Chamber acknowledged that disenfranchisement of convicted serving prisoners may be considered to pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law (Hirst (No 2), paras 74 75 and Scoppola, para 90). In Hirst (No 2) the Grand Chamber (upholding the earlier Chamber) held that the United Kingdoms ban on prisoner voting was a general, automatic and indiscriminate restriction on a vitally important Convention right which fell outside any acceptable margin of appreciation and was incompatible with A3P1 (para 82). A powerfully constituted minority of the Grand Chamber (including its President and future President) dissented. It took as its test whether the restrictions on prisoner voting impair the very essence of the right to vote or are arbitrary (para O III5), and it pointed out that the Court should be very careful not to assume legislative functions and that there was little consensus in Europe about whether or not prisoners should have the vote (para O III6). It noted that a multi party Speakers Conference on Electoral Law in 1968 had unanimously recommended that convicted persons should not be entitled to vote, and that the RPA had been amended in 2000 only to permit remand prisoners and unconvicted mental patients to vote. As to the majority comment that there was no evidence of substantive debate in Parliament about the ban on convicted prisoners voting, the minority disagreed, on the basis that it was not for the Court to prescribe the way in which national legislatures carry out their legislative functions, and it must be assumed that the RPA reflects political, social and cultural values in the United Kingdom (para O III7) In Scoppola the United Kingdom intervened and the Attorney General appeared before the Grand Chamber to ask that it reconsider Hirst (No 2). But, in its judgment the Grand Chamber said (para 96) that it reaffirmed the principles set out by the Grand Chamber in the Hirst (No 2) judgment, in particular the fact that when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with [A3P1]. However, the Grand Chamber (reversing the simple Chamber) found no contravention in relation to the Italian law in issue in Scoppola. The only dissent, by Judge Thr Bjrgvinsson, related to this conclusion. The Italian law was held compatible with the Convention because disenfranchisement applied only to sentences of three or more years, and lasted for only five years in the case of sentences of three to five years, though for life in the case of longer sentences. The Grand Chamber said that As a result, a large number of convicted prisoners are not deprived of the right to vote (paras 106 and 108). Furthermore, any prisoner could, three years after completing his sentence, apply for rehabilitation, which would be granted upon his displaying consistent and genuine good conduct and would terminate any ancillary penalties and other penal effect of the conviction including disenfranchisement (Scoppola, paras 38 and 109). The Grand Chamber specifically rejected the Chamber view that any decision to deprive a prisoner of the vote should be taken by a court, saying (para 99): While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners' voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge. Indeed, the circumstances in which the right to vote is forfeited may be detailed in the law, making its application conditional on such factors as the nature or the gravity of the offence committed. Judge Thr Bjrgvinsson dissented because in his view the Grand Chamber judgment in Scoppola offer[ed] a very narrow interpretation of the Hirst judgment which stripped it of all its bite (para OI 16). In particular, the Grand Chamber had in his view overlooked significant elements of the reasoning in Hirst (No 2), notably the absence of any direct link between the facts of the individual case and the ban on voting, the bluntness of the Italian legislation, just like the UK legislation, and the absence of evidence that either the legislature or the courts had weighed the proportionality of the ban (para 0I 13). Should the Supreme Court follow the Strasbourg case law? On the present appeal, the Attorney General (withdrawing a concession of incompatibility made in the courts below) has made a fresh challenge to the principles endorsed by the European Court of Human Rights in Hirst (No 2) and Scoppola. He points out, correctly, that the Supreme Court is, under section 2(1) of the Human Rights Act, obliged only to take into account any judgment or decision of the European Court of Human Rights when determining a question which has arisen in connection with a Convention right. In R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, para 11 Lord Phillips said that The requirement to take into account the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court. In Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 48 Lord Neuberger summarised the position: This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see e g R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to take into account European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line. In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level. The Attorney Generals submissions to us in this case have to be considered in that light. Parliament has required this Court to take into account Strasbourg case law (Human Rights Act, section 2(1)(a)) and, So far as it is possible to do so, to read and give effect to legislation in a way which is compatible with the Convention rights (section 3(1)). Parliament has given this Court, if satisfied that a provision of primary legislation is incompatible with a Convention right, power to make a declaration of that incompatibility (section 4). The Act itself contemplates that domestic legislation may not match this countrys international obligations as established by case law of the European Court of Human Rights. It is against this background that the Supreme Court must consider whether the Attorney General has made good his case that the Court should refuse to follow and apply the approach taken by the European Court of Human Rights in Hirst (No 2) and Scoppola. The Attorney General took issue with any description of Hirst (No 2) and Scoppola as a clear and consistent line of decisions. But, whatever else may be said about their reasoning or its outcome, they both clearly stand for the core proposition, directly applicable to the current general ban on convicted prisoners voting, quoted in paras 20 and 22 above. At the heart of the Attorney Generals submissions lies the wide margin of appreciation which States have in this area, and the variety of legislative attitudes in other States, some according with the United Kingdoms. These were matters which the European Court of Human Rights acknowledged, but in the Attorney Generals submission failed to respect. In support of his submission the Attorney General makes a number of points. First, the area is one where there is room (in Laws LJs words in the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR 1436, para 32) for deep philosophical differences of view between reasonable people. In circumstances where the Grand Chamber accepted as a legitimate aim of disenfranchisement enhancing civic responsibility and respect for the rule of law (Scoppola, para 90), the United Kingdom was, as a participatory democracy, entitled to withhold the vote from those serving sentences for offences sufficiently serious to justify such a sentence, including those who, after their tariff period, could not satisfy the Parole Board that it was no longer necessary for the protection of the public that they should be confined (Crime (Sentences) Act 1997, section 28(6)(b)). Secondly, the Grand Chamber in Hirst (No 2) (para 79) attached some significance to a suggested lack of evidence that Parliament [had] ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote, adding only: It may perhaps be said that, by voting the way they did to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners. Nonetheless it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote. The majority in Scoppola did not mention this factor, as Judge Thr Bjrgvinsson, dissenting, pointed out at paras OI 09 and OI 15. Nevertheless, the Attorney General submits that it is relevant that Parliament has, since Hirst (No 2), conducted three formal debates, in Westminster Hall on 11 January 2011, in the Commons on 10 February 2011, when MPs voted 234 to 22 to maintain the status quo, and again in the Commons on 22 November 2012, after the Lord Chancellor introduced a draft Bill, the outcome of which is not yet determined. Mindful of the injunction in the Bill of Rights 1688 That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament, the Attorney General did not suggest that we should seek to evaluate the quality of the debate in Parliament. But he relied upon the fact of debate and the continuation following it of the ban on prisoner voting as underlining his submission that the Convention rights should be understood and applied in a way respecting the choice made by the institution competent to make such choices in a democracy. He pointed out that the Court in its recent decision in Animal Defenders International v United Kingdom (Application No 48876/08, 22 April 2013) demonstrated the considerable weight that it was prepared to attach to exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure [prohibiting religious or political advertising on radio and television] was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process (para 116). Thirdly, the Attorney General argues, it was fallacious to treat the United Kingdom ban as affecting a group of people generally, automatically and indiscriminately, simply because the ban was based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Any rule of law affects a group of people defined by its terms. If a group is rationally defined, there is no reason why there should necessarily be exceptions. As the Grand Chamber pointed out in relation to the Italian legislation in Scoppola (para 106), so also in the United Kingdom a sentencing court takes into account the nature and gravity of the offence as well as individual circumstances when deciding in the first place whether any and if so what sentence of imprisonment is required. As a result, only 8% of convicted offenders go to prison in England, 15% in Scotland. The group affected is confined to convicted prisoners and so excludes those in prison on remand awaiting trial as well as hospital detainees. Further, within the group of convicted prisoners, the ban does not extend to those in prison for contempt or default in paying fines. Despite the Attorney Generals forceful submissions, I do not consider that it would be right for this Court to refuse to apply the principles established by the Grand Chamber decisions in Hirst (No 2) and Scoppola consistently with the way in which they were understood and applied in those decisions. The Grand Chamber in Scoppola was prepared to give the Italian legislator a greater margin of manoeuvre than one would have expected from its previous decision in Hirst (No 2). But this was on the basis that the Italian law did not involve a blanket ban in respect of all or almost all convicted prisoners. It excluded those convicted of minor offences (involving less than three years imprisonment), and it had a two step gradation in the length of the ban according to whether the sentence was for less or for more than five years imprisonment. As a result a large number of convicted prisoners had the vote. Furthermore, there was the possibility of rehabilitation for consistent and genuine good conduct displayed for three years after release. Nothing in Scoppola therefore suggests that the Grand Chamber would revise its view in Hirst (No 2) to the point where it would accept the United Kingdoms present general ban. There is on this point no prospect of any further meaningful dialogue between United Kingdom Courts and Strasbourg. I would also reject the suggestion that the Supreme Court should refuse to apply the principles stated in the Strasbourg case law in the present circumstances. Deep though the philosophical differences of view between reasonable people may be on this point, it would in my opinion exaggerate their legal and social importance to regard them as going to some fundamental substantive or procedural aspect of our law: see the citation from Pinnock in para 26 above. While the diversity of approach in this area within Europe derives from different traditions and social attitudes, it makes it difficult to see prisoner disenfranchisement as fundamental to a stable democracy and legal system such as the United Kingdom enjoys. It is possible to argue, as the Canadian Supreme Court did in Sauv v Canada (No 2) [2002] 3 SCR 519 that the objective of promoting civic responsibility and respect for the law may be undermined, rather than enhanced, by denying serving prisoners the right to vote. The haphazard effects of an effectively blanket ban are certainly difficult to deny. As the Grand Chamber observed in Hirst (No 2) (para 77) it includes a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. The Grand Chamber may have had in mind that, although minor offences involve shorter periods of disenfranchisement, the effect is more likely to be haphazard, depending as it must upon the timing of elections. Application of the principles in Hirst (No 2) and Scoppola This brings me to the effect of the principles in Hirst (No 2) and Scoppola in the present cases. Chesters claim, which relates to voting in European Parliamentary elections, is based directly on the Convention rights as well as on EU law. The first question is therefore whether he is a victim capable of bringing a claim against the respondents under the Human Rights Act. Section 7 of the Act provides: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. In Hirst (No 2), the majority rejected a submission by the United Kingdom Government that the Chamber had assessed the compatibility of the legislation with the Convention in the abstract without consideration of whether removal of the vote from the applicant as a person convicted of a serious offence and sentenced to life imprisonment disclosed a violation. It said (para 72) that Hirsts complaint was in no sense an actio popularis. He was directly and immediately affected by the legislative provision of which complaint is made and in these circumstances the Chamber was justified in examining the compatibility with the Convention of such a measure, without regard to the question whether if the measure had been framed otherwise and in a way which was compatible with the Convention, the applicant might still have been deprived of the vote. It would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post tariff life prisoners or to conclude that such an amendment would necessarily be compatible with Article 3 of Protocol No 1. This was another point on which the minority disagreed, observing the Courts task was not normally to review the relevant law and practice in abstracto and that it was in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment (para O III8). Taking the majority approach, Chester is a victim for the purposes of section 7 of the Human Rights Act, but this means that he satisfies a pre condition to, not that he is necessarily entitled to any particular relief in, a complaint about the general disenfranchisement of prisoners from voting in United Kingdom and European Parliamentary elections which results from EPEA section 8(2) and (3), read with RPA section 3. He claims a declaration that both RPA section 3 and EPEA section 8(2) are incompatible with A3P1. (I note that, in contrast, under European Union law, his primary submission in relation to EPEA section 8(2) is that it can be rendered compatible with European Union law by reading in an additional right to vote in European Parliamentary elections if necessary to comply with European Union law.) The incompatibility of RPA section 3 with A3P1 was recognised by the Registration Appeal Court in Smith v Scott 2007 SC 345, which made a declaration of incompatibility. That declaration was properly made in the case of a convicted person sentenced to five years imprisonment for being concerned with supply of controlled drugs. It entitled the Government to use the remedial order provisions contained in section 10 of the Human Rights Act. The Government decided not to do this. The issue is now however before the United Kingdom Parliament and under active consideration in the light of the decisions in Hirst (No 2), Greens and Scoppola. Further, it is clear from Greens (para 18 above) and the Attorney General accepts that EPEA section 8 is, in relation to European Parliamentary elections, as incompatible with A3P1 as RPA section 3 is, in relation to United Kingdom Parliamentary elections. A declaration is a discretionary remedy, both generally and under the Human Rights Act 1998, section 4 (4). There is in these circumstances no point in making any further declaration of incompatibility. On this I am in agreement with both Burton J at first instance, [2009] EWHC 2923 (Admin), and the Court of Appeal, [2010] EWCA Civ 1439, [2011] 1 WLR 1436. The Strasbourg Courts own decision in McLean and Cole to defer consideration of applications concerning future elections in the light of the ongoing Parliamentary process is also consistent with this view. Further, it can, I consider, now be said with considerable confidence that the ban on Chesters voting is one which the United Kingdom Parliament can, consistently with the Convention right, and would maintain, whatever amendments it may be obliged to make or may make to allow any prisoners detained for different reasons or periods to vote. In the original Chamber decision in Hirst (2004) 38 EHRR 825, reference was made to the continuation of the ban on voting after the expiry of the tariff period in the case of a life prisoner as an additional anomaly (para 49). Nevertheless, the Chamber went on to say that it could not speculate as to whether Hirst, whose tariff had expired, would still have been deprived of the vote even if a more limited restriction on the right to [sic] prisoners to vote had been imposed, which was such as to comply with the requirements of [A3P1] (para 51). It is notable that the majority in the Grand Chamber in Hirst (No 2) did not endorse this reference in para 49 of the simple Chambers judgment to an additional anomaly, saying only that it would not in any event be right for the Court to assume that, if Parliament were to amend the current law, restrictions on the right to vote would necessarily still apply to post tariff life prisoners or to conclude that such an amendment would necessarily be compatible with [A3P1] (para 72). Only in a concurring opinion of Judge Caflisch did he raise the point, going so far as to say that this may be the essential point for the present case (para O 17(d)). His opinion does not appear to have been shared by other judges, and must now in any event be seen in the light of the decision in Scoppola, accepting that a lifelong ban on voting by prisoners sentenced for five or more years was legitimate. The additional fact that it was subject to removal after three years had elapsed from release, provided that the offender has displayed consistent and genuine good behaviour does not appear to have been critical to this conclusion; but, however that may be, it points strongly in favour of a view that it can be legitimate to withhold a prisoners voting rights until satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Grand Chambers reasoning in its very recent decision in Vinter v United Kingdom (Application Nos 66069/09, 130/10 and 3896/10; 9 July 2013), which post dated submissions in this case, is also worth noting for its explanation of detention during a post tariff period by reference to core aims of imprisonment: 108. First, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. No issue arises under Article 3 if a life sentence is de jure and de facto reducible . In this respect, the Court would emphasise that no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offenders continued detention where necessary for the protection of the public . Indeed, preventing a criminal from re offending is one of the essential functions of a prison sentence . This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the States positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous . [case references omitted] emphasised in Hirst (No 2) that In Greens, the Court noted (para 113) that the Grand Chamber had there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each contracting state to mould into their own democratic vision. The Court recalls that its role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy maker should be given special weight. See also Scoppola, para 83 and Syler, para 33. Within the domestic legal context, it is now therefore for Parliament as the democratically elected legislature to complete its consideration of the position in relation to both RPA section 3 and EPEA section 8. There is no further current role for this Court, and there is no further claim, for a declaration or, in the light of the incompatibility, for damages which the appellant Chester can bring. European law I turn to the position under European Community and now Union law. Before Burton J and the Court of Appeal, and reflecting no doubt the argument before those courts, any claim under European Union law by Chester was treated as effectively consequential on the incompatibility of the ban with A3P1, and attracted no separate analysis. Bearing in mind the date of Chesters claim for judicial review (December 2008), he is also unable to rely upon European law as it stands after 1 December 2009 under the TEU and TFEU, as a result of the Treaty of Lisbon. This difficulty is not overcome by maintaining that his claim related to forthcoming elections. It still required to be viewed in the light of the law when it was brought. At that date, the Charter of Fundamental Rights did not have direct legal force, so that there was no equivalent of article 6.1 TEU. The predecessor of article 6.3 TEU was article 6.2 of the pre December 2009 TEU reading: The Union shall respect fundamental rights, as guaranteed by the [Human Rights] Convention and as they result from the constitutional traditions common to the Member States, as general principles of Community law. The predecessor of article 14.3 TEU was article 190.1 and 4 of the Treaty on the European Community (EC), set out in para 11 above. Article 22.1 and 22.2 had a precise equivalent in article 19.1 and 19.2 EC, but the predecessor of article 20 was article 17 EC, reading simply: 17.1 Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. McGeochs claim under European Union law was on the other hand issued in early 2011 and relates to voting in local as well as Scottish and European Parliamentary elections. It therefore opens up all possible avenues for exploration under current European Union law. However, there is nothing in European Union law which can entitle McGeoch to complain in respect of his inability to vote in Scottish Parliamentary elections. European Union law refers in various contexts, which have already been set out in this judgment, to voting in European Parliamentary elections and in municipal elections, and to no other elections. It is obvious that Scottish Parliamentary elections fall within neither category: see also what I have already said in para 9 above. That municipal elections are local government elections at a lower level of government, closer to people and with a more direct responsibility for service delivery, is furthermore consistent with the nature of the units found (though in the case of Scotland, not yet updated) in the annex to Council Directive 94/80/EC, which lays down detailed arrangements for the exercise of the right to vote and stand in municipal elections by Union citizens residing in a Member State of which they are not nationals. The submissions under European Union law are put at various different levels. Mr Aidan ONeill QC for McGeoch concentrated upon articles 20 and 22 TFEU, read with articles 39 and 40 CFR. Mr Southey for Chester adopted Mr ONeills submissions, but relied in addition upon the more general provisions of articles 6.3 (or its predecessor article 6.2 in the pre December 2009 TEU), 10 and 14.3 TEU (or the latters predecessor articles 190.1 and 4 EC). In his submission, the effect of these articles was, at the least, to incorporate into European Union law in relation to voting in European Parliamentary elections the principles recognised under Strasbourg case law (Hirst (No 2) and Scoppola) in relation to national legislatures. Quite possibly, he submitted, their effect may even be to lead the Court of Justice to go further than Strasbourg case law by prohibiting on a more extensive basis any limitations on the democratically based universal suffrage to which the Treaties refer. If Mr Southeys wider submission with regard to the wholesale importation into European Community or Union law of the Strasbourg jurisprudence regarding the right to vote were valid, it would be surprising to find no hint of this in any Court of Justice judgment. That is particularly so with regard to Case C 145/04 Spain v United Kingdom [2006] ECR I 7917 and Case 300/04 Eman and Sevinger v College van Burgemeester en Wethouders van den Haag [2006] ECR I 8055, despite the difference in the actual issues. Mr Southeys submission would also mean that a case such as Matthews v United Kingdom (1999) 28 EHRR 361 could, now at least, be pursued in either of two parallel forums. Spain v United Kingdom and Eman and Sevinger The judgments in Spain v United Kingdom and Eman and Sevinger were both issued on the same day (12 September 2006) following an opinion of Advocate General Tizzano (dated 6 April 2006) which had covered both cases. The judgments contain discussion of the scope and effect of European Treaty law which bears on both Mr Southeys wider and Mr ONeills narrower submissions. In Spain v United Kingdom the first issue was whether it was legitimate under European law for the United Kingdom to extend the franchise in European Parliamentary elections to qualifying Commonwealth citizens, as well as European Union citizens, registered in the Gibraltar register. The Court held (para 78) that, in the then current state of Community law the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory. In the course of its reasoning, the Court said: Articles 189 EC and 190 EC do not expressly and precisely state who are to be entitled to the right to vote and to stand as a candidate for the European Parliament. 66 [Article 19 EC] is confined to applying the principle of non discrimination on grounds of nationality to the exercise of that right, by providing that every citizen of the Union residing in a Member State of which he is not a national is to have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. 76 . Article 19(2) EC . is confined, as pointed out in paragraph 66 above, to stating a rule of equal treatment between citizens of the Union residing in a Member State so far as concerns that right to vote and stand for election. While that provision, like Article 19(1) EC relating to the right of Union citizens to vote and to stand as a candidate at municipal elections, implies that nationals of a Member State have the right to vote and to stand as a candidate in their own country and requires the Member States to accord those rights to citizens of the Union residing in their territory, it does not follow that a Member State in a position such as that of the United Kingdom is prevented from granting the right to vote and to stand for election to certain persons who have a close link with it without however being nationals of that State or another Member State. The Court also referred to the provisions of the 1976 Act (paras 67 to 69). In paras 90 to 97 the Court of Justice addressed Spains second plea that the United Kingdom had, in the arrangements made to enable the Gibraltar electorate to vote, gone further than required to comply with the European Court of Justices judgment in Matthews v United Kingdom. It recited in this connection that it was the United Kingdoms obligation to comply with Matthews and that in the light of the case law of the European Court of Human Rights and the fact that that Court has declared the failure to hold elections to the European Parliament in Gibraltar to be contrary to [A3P1] ., the United Kingdom cannot be criticised for adopting the necessary legislation. In Eman and Sevinger the Court was concerned with the legitimacy under European Union law of a provision of Dutch law which conferred the right to vote in European Parliamentary elections upon Dutch nationals residing in the Netherlands or abroad except in Aruba and the Netherlands Antilles. After repeating (para 45) that in the current state of Community law, the definition of the persons entitled to vote and to stand for election falls within the competence of each Member State in compliance with Community law, the Court opened a possible role for European law in the instant case by continuing It must, however, be ascertained whether that law precludes a situation such as that in the main proceedings, in which Netherlands nationals residing in Aruba do not have the right to vote and to stand as a candidate in elections to the European Parliament. In relation to articles 189 and 190 EC, the Court repeated its words in para 65 of Spain v United Kingdom. It also repeated (para 53) that Article 19(2) EC is confined to applying the principle of non discrimination on grounds of nationality to that right to vote and stand for election, by stipulating that every citizen of the Union residing in a Member State of which he is not a national is to have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. The Court further noted that the European Court of Human Rights had accepted that the right to vote might be limited by reference to residence. However, the Court found in the principle of equal treatment or non discrimination, which is one of the general principles of Community law a basis for comparing the position of a Netherlands national resident in the Netherlands Antilles or Aruba and one residing in a non member country (paras 57 58) and for concluding that the Dutch Government had not demonstrated an objective justification for the different treatment of these two persons (para 60). Earlier in its judgment, the Court of Justice had observed that A3P1 did not apply to Aruba; unlike the case with Gibraltar, the European Treaties have no application there, so the European Parliament could not be regarded as the Aruba legislature (para 48). But the Courts decision was based on the fact that the complainants held Dutch nationality and were as such citizens of the Union under article 17(1) EC, and entitled to enjoy the rights conferred by the Treaty under article 17(2). They succeeded under the general European legal principle of non discrimination. In Spain v United Kingdom the Court was thus concerned with Gibraltar which is within the territorial scope of both the Community and the European Convention on Human Rights, but with voting rights which the United Kingdom had conferred on persons who were not United Kingdom nationals for the purposes of Community law. The Court had nonetheless to consider the nature of the United Kingdoms obligation to extend the franchise in European Parliamentary elections to Gibraltar. In Eman and Sevinger, the Court was concerned with Aruba which is outside the territorial scope of the Community, but within the territorial scope of the European Convention on Human Rights (by the combination of declarations dated 29 November 1954 and 24 December 1985 deposited by the Netherlands with the Council of Europe), and with voting rights which had been withheld from persons who were citizens of the European Union. What is notably absent from the Court of Justices judgments in both Spain v United Kingdom and Eman and Sevinger is any suggestion that, by reason of article 6.2 of the pre December 2009 TEU and articles 17 and 190 EC, the European Treaties confer on citizens of the Union an individual right to vote, the scope and conditions of which must be measured by reference to the principles established in European Court of Human Rights jurisprudence, such as Hirst (No 2) and Scoppola. If available, that could have been advanced as a reason why it was obligatory under European Community law for the United Kingdom to take steps to enable the Gibraltar electorate to vote. Instead, the reason given was the United Kingdoms Council of Europe obligations to comply with Strasbourg decisions: see para 49 above. Likewise, in Scoppola there was no suggestion that as Union citizens the claimants were under Community law entitled to enjoy an individual right to vote, complying with the principles established by European Court of Human Rights jurisprudence. Advocate General Tizzano in his opinion for these two cases had adopted much broader reasoning which the Court in its judgments was careful not to endorse. He would have inferred from Community principles and legislation as a whole . that there is an obligation to grant the voting rights in question to citizens of the Member States and, consequently, to citizens of the Union (para 67), deriving this (para 69) from the principles of democracy on which the Union is based, and in particular, to use the words of the Strasbourg Court, the principle of universal suffrage which has become the basic principle in modern democratic States [FN: Eur. Court H.R. Mathieu Mohin and Clerfayt v Belgium, judgment of 2 March 1987 . , Hirst v United Kingdom (No 2), . 30 March 2004] and is also codified within the Community legal order in Article 190(1) EC and Article 1 of the 1976 Act, which specifically provide that the members of the European Parliament are to be elected by direct universal suffrage. He went on to say that this general guidance was also confirmed by the fact that the right in question is a fundamental right safeguarded by [A3P1], and to mention in a footnote that the text of article 6(2) need merely be borne in mind (paras 70 to 71). Turning to Spains second criticism, Advocate General Tizzano also derived from his conclusion that individual voting was a fundamental right of citizens of the Union a converse conclusion that it was illegitimate for the United Kingdom to deviate to any greater extent from its statement in what was then Annex II of the 1976 Act that The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom. As stated in para 49 above, the Court of Justice adopted quite different reasoning and reached an opposite conclusion, based simply on the United Kingdoms obligation to give effect to the European Court of Human Rights ruling in Matthews. The Court of Justice did not therefore endorse Advocate General Tizzanos broad approach, or import the Strasbourg jurisprudence into the general provisions of Community and Union law referring to voting in European Parliamentary elections. There was good reason for this. Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest. There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member States or specifically with the restrictions on prisoner voting which apply in a number of such States. The Strasbourg jurisprudence operates as the relevant control, albeit one that has itself proved in some respects controversial. It would not only unnecessarily duplicate that control at the European Community or Union level, it could also lead to further conflict and uncertainty. Hence the Court of Justice in Eman and Sevinger confined its reasoning to a well established core principle of Treaty law, that of non discrimination, in that case between different categories of Dutch national, to which I shall return (paras 60 64 below). Further, even in the form into which they have been shaped by the Treaty of Lisbon, it is notable that such provisions as the European Treaties contain concerning individual voting rights are notably limited in scope. They relate to the core Treaty concerns of equality between nationals or Union citizens and freedom of movement within the European Union (see para 59 below). For all these reasons, I reject Mr Southeys wider submission set out in (paras 46 47 above). Articles 20.2 and 22 TFEU In Mr ONeills submission, the changes effected by the Treaty of Lisbon significantly altered the Treaty position considered in Spain v United Kingdom and Eman and Sevinger. In those cases article 19 EC was explained as confined to stating rules of equal treatment requiring Union citizens residing in Member States of which they were not nationals to be able to vote and stand in municipal as well as European Parliamentary elections under the same conditions as nationals. The same must apply to the current equivalent, article 22 TFEU. But Mr ONeill relies upon the introduction of the new article 20.2(b). This, he submits, is a self standing provision, expressly conferring the individual right to vote on citizens of the Union in respect of European Parliamentary and municipal elections. In my opinion, it is clear that that is not the effect of article 20.2(b). As its opening sentence proclaims, article 20 deals with the enjoyment of rights provided in the Treaties. What follow are some of the basic rights so enjoyed. They all have a supra national element. Article 20.2(b) is thus expressly limited to recording the existence of the right of Union citizens to vote and stand in municipal and European Parliamentary elections in their Member State of residence under the same conditions as nationals of that State. The omission of express reference to the fact that this is dealing with citizens resident in a State other than that of their nationality is entirely understandable in the context of what was intended as a concise summary. That fact is anyway implicit. The detailed Treaty provisions regarding the rights to which article 20.2(b) refers are contained in article 22.1 and 22.2, which would on Mr ONeills case in fact be not only redundant but also positively misleading in their limitation to the situation of residence in a Member State other than that of nationality. The position is further confirmed by articles 39 and 40 CFR, which again would be positively misleading in their limitation to that situation, and by the Explanations to the CFR which explicitly equate articles 20.2 and 22: see para 16 above. There is no basis for or likelihood in Mr ONeills supporting submission that article 20.2(b) was expressly aimed at, in effect, endorsing Advocate General Tizzanos views as to where European Union law was or should go in conferring individual rights. Had that been remotely intended, quite different explicit language would have been used. Non discrimination The other limb of Mr ONeills submissions involves reliance on the principle of non discrimination applied in Eman and Sevinger. The infringement there consisted in unequal treatment by Dutch law in relation to voting in European Parliamentary elections by Netherlands nationals in comparable situations. The most fundamental area in which this principle has always manifested itself is in relation to discrimination on the grounds of nationality: see article 7 of the original EEC Treaty, now article 18 TFEU, which provides: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited. But the principle has achieved much wider application. Article 13.1 EC (now substantially reproduced as article 19.1 TFEU) provides: Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council . may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 13 has been responsible for some well known, if in some respects controversial case law. The Court of Justice has accepted that, although the Treaty contemplates that the general principle of non discrimination underlying article 13 will be implemented by directives, Member States will be bound thereby to discontinue, disregard or set aside measures so far as they involve discrimination on a basis contrary to article 13 at least after the time for transposition of such a directive: Case C 555/07 Kkkdeveci v Swedex GmbH & Co KG [2010] 2 CMLR 33, para 61 and perhaps even when legislating in the area of the directive during the period for transposition: Case C 144/04 Mangold v Helm [2005] ECR I 9981. However, for the general principle of non discrimination to apply, the context must fall within the scope of Community or now Union law: see Mangold, para 75, Case C 427/06 Bartsch v Bosch und Siemens Hausgerte (BSH) Altersfrsorge GmBH [2008] ECR I 7245, para 25, Kkkdeveci, para 23, Case C 147/08 Rmer v Freie und Hansestadt Hamburg [2013] CMLR 11, para 70, and Craig and de Burca, EU Law: Text, Cases and Materials [OUP: 4th ed, 2008, p 891]. The only difficulty about Eman and Sevinger is to identify the link with European law, once one has rejected the conclusion that European law recognises all EU citizens as having under European law an individual right to vote in European Parliamentary elections (paras 56 to 58 above). The general principle was simply stated to be applicable in a context where, and on the basis that, Netherlands nationals, who were under article 17.1 EC Union citizens, were being treated unequally in comparable situations in relation to European Parliamentary elections, having regard to the difference in treatment of Netherlands nationals resident, on the one hand, in the Netherlands Antilles and Aruba and, on the other hand, in other non EU member countries: see in particular paras 45, 56 to 58 of the Courts judgment. It is however a general principle of Strasbourg law under article 14 of the Convention that additional rights falling within the general scope of any Convention right for which the state has voluntarily decided to provide must in that event be provided without discrimination: Belgian Linguistics Case (No 2) (1968) 1 EHRR 252, 283, R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484, paras 12, 17 18. This principle in my opinion clearly underlies Eman and Sevinger. As the Court noted (para 53), article 19 EC (now article 22 TFEU) only covered nationals resident in another Member State. But the Dutch legislator had chosen to extend the right to vote to its nationals resident outside any Member State but not in the Dutch Antilles or Aruba. There was no justification for this different treatment of comparable situations in a context which fell within the scope of European law, that is voting by nationals residing outside their own member state. Supporting this is also the consideration that the Court accepted that the definition of the persons entitled to vote and to stand falls within the competence of each Member State in compliance with Community law (Spain v United Kingdom, para 78, Eman and Sevinger, para 45). If the qualification in compliance with Community law were meant to require scrutiny by reference to European Community law of all national limitations affecting European Parliamentary elections for their non discriminatory quality even where no other link with European law was established other than that the elections were European Parliamentary elections, that could, depending upon the intensity of the scrutiny, effectively erode the general principle that the Court was accepting. Position if the principle of non discrimination had been engaged This brings me to consideration of the nature and intensity of the scrutiny which would be required, if (contrary to my conclusion in paras 63 64) the principle of non discrimination were to be viewed as all embracing in the manner advocated by Mr ONeill and Mr Southey. In both Strasbourg and Luxembourg case law, discrimination issues are customarily described as involving a two stage process, consisting of first the identification of an appropriate comparator and then, if one is found, examination of the justification for any difference in treatment: see e.g. Edward and Lane, European Union Law (EE, 2013) para 6.125, citing numerous authorities. The exercise as presented is neither a unitary nor an entirely open one, or a court would in every case be required to ascertain the differences between two different situations and ask whether, assessing such differences and their significance as best it could, it considered the differences in their treatment to be fair or justified. There must be basic comparability before the court embarks on considering justification. Thus, in Eman and Sevinger itself the Court observed (para 57) that the principle of equal treatment or non discrimination, which is one of the general principles of Community law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified The principle was reiterated in Case C485/08 P, Gualtieri v European Commission [2010] ECR I 3009, para 70 with reference to Eman and Sevinger as well as other cases including Case C 227/04 P Lindorfer v Council of the European Union [2007] ECR I6767. As the Court noted in Case C 267/06 Maruko v Versorgungsanstalt der deutschen Bhnen [2008] ECR I 1757, para 73, it is for the national court to determine whether two persons are in a comparable position. That does not however mean an identical position. The referring court in Maruko identified a gradual movement towards recognising equivalence of life partnership and marriage, meaning that, although the two were not identical, persons of the same sex could be regarded as being in a situation comparable to that of spouses so far as concerns the survivors benefit at issue in that case. The Court of Justice in Case 147/08 Rmer v Freie und Hansestadt Hamburg approved that approach, saying: 41 Accordingly, the existence of direct discrimination, within the meaning of the Directive, presupposes, first, that the situations being weighed up are comparable. 42 In that regard, it should be pointed out that, as is apparent from the judgment in Maruko at [67][73], first, it is required not that the situations be identical, but only that they be comparable and, secondly, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned. Gualtieri was an appeal from the General Court and provides a contrasting example. The claimant complained that she received a lower daily allowance on the basis of the proximity of her spouses residence to her place of secondment than she would have done if she had been single, but living in a de facto union. The Court upheld the General Courts conclusion that the two situations were not comparable, saying: 75 . it must be observed that, although de facto unions and legally recognised unions, such as marriage, may display similarities in certain respects, those similarities do not necessarily mean that those two types of union must be treated in the same way. 76 In those circumstances, the decision to apply the criterion of matrimonial legal status appears neither arbitrary nor manifestly inappropriate in relation to the objective of reducing the allowances paid to SNEs [national experts seconded to the Commission] when they are in a situation in which it can be assumed that they bear fewer costs and disadvantages on account of their matrimonial status. Applying these principles to the present case, I do not regard convicted prisoners serving their sentence as in a comparable position either to free persons or to remand prisoners awaiting trial. They have a very different status, to which it is evident that very different considerations may apply and which are capable at least of giving rise to very different arguments. It follows that, assuming that the general principle of non discrimination applies under European Union law to eligibility to vote in European Parliamentary elections, there is in my view no basis for its application in the context of a complaint that convicted prisoners are discriminated against by reference to free persons or remand prisoners. The position assuming contrary conclusions I have concluded that the appellants are not entitled to invoke European law, because, firstly, it confers no individual right by reference to which the Strasbourg case law of Hirst (No 2) and Scoppola could be relevant (paras 58 and 59) and, secondly, the general principle of non discrimination recognised in Eman and Sevinger is not engaged (paras 63 64) or, if it is engaged, does not assist the appellants (para 68). In what follows, I will, for completeness, consider the position assuming opposite conclusions on all these points. If European law recognises an individual right to vote in European Parliamentary and/or municipal elections, I would reject Mr Southeys submission that it would or might go further than the Strasbourg case law in allowing convicted prisoners the vote. Court of Justice jurisprudence pays close attention to and, with very few exceptions, follows Strasbourg jurisprudence. Examples of divergence are few and far between, although one may, ironically, have occurred in a sequel to Eman and Sevinger concerning the right to vote in elections for the Kingdom of Holland, in so far as it is arguable that the Strasbourg court went less far in Sevinger and Eman v Netherlands (2007) 46 EHRR 179 than the Court of Justice did in Eman and Sevinger itself: see an instructive case note by Professor Leonard F M Besselink on this Strasbourg authority in (2008) 45 CMLR 787. In the present case, I reject in particular the submission that the Court of Justice might return to the theme suggested in Frodl v Austria (2010) 52 EHRR 267, para 34 by reference to Hirst (No 2), para 82 that it is essential that any disenfranchisement of a convicted prisoner be ordered on a case by case basis by a judge, rather than be pre determined by an otherwise appropriate legislative scheme. This suggestion was very clearly, and for very obvious reasons, rejected by the Grand Chamber in Scoppola v Italy, paras 99 100, a rejection which the simple Chamber in Anchugov, para 107, took pains to reiterate; see also (though coupled with a reference to judicial interventions being likely to guarantee the proportionality of restrictions on prisoners voting rights) Syler, para 39. The majority in the European Court of Human Rights in Hirst (No 2) found a violation because Hirst was directly and immediately affected by the legislative provision of which complaint is made and that the Chamber was justified in examining the compatibility with the Convention of such a measure, without regard to the question whether, if the measure had been framed otherwise and in a way which was compatible with the Convention, the applicant might still have been deprived of the vote (para 72). But it regarded the finding of a violation as just satisfaction and awarded no damages. As the Court said in Kkkdevici, para 51, it is for a national court, in applying national law, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, para 77). In the present cases, on the assumptions (contrary to my conclusions), first, that European law recognises an individual right to vote paralleling in substance that recognised in the Strasbourg case law of Hirst (No 2) and Scoppola, and, second, that the view taken by the majority of the Grand Chamber in Hirst (No 2) regarding standing to claim a general declaration were to be transposed into European law, the only relief that could be considered under domestic law would be a generally phrased declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the United Kingdom were inconsistent with European Union law. Thereafter, it would be for the United Kingdom Parliament to address the position and make such legislative changes as were considered appropriate. But, for reasons paralleling those given in paras 40 42 above, it appears improbable that the Convention rights would, even when viewed through the prism of European Union law, involve or require the granting of declarations in the abstract at the instance of claimants like both Chester and McGeoch, detained in circumstances summarised in para 1 above, from whom the United Kingdom Parliament could legitimately, and it seems clear would, under any amended legislative scheme still withhold the vote. I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law. It is clear from both Hirst (No 2) and Scoppola that, under the principles established by those cases, a ban on eligibility will be justified in respect of a very significant number of convicted prisoners. Nor would it have been possible to read the RPA section 3 or EPEA section 8 compatibly with European law; the legislation is entirely clear and it would flatly contradict the evident intention of the United Kingdom, when enacting it, to read into it or to read it as subject to some unspecified scheme or set of qualifications allowing some unspecified set of convicted prisoners to vote under some unspecified conditions and arrangements. It would also be impossible for the Supreme Court itself to devise an alternative scheme of voting eligibility that would or might pass muster in a domestic or supra national European Court. Equally, the Court could not determine or implement the practical and administrative arrangements that would need to be made to enable any convicted prisoners eligible under any such scheme to have the vote. Such matters would be beyond its jurisdiction. In the domestic constitutional scheme, any scheme conferring partial eligibility to vote on some convicted prisoners is quintessentially a matter for the United Kingdom Parliament to consider, determine and arrange. In the passage quoted in para 72 above, the Court of Justice made clear that it is only within the limits of its jurisdiction that a national court can be expected to provide the legal protection that European Union law requires. That being so, the creation of any new scheme must be a matter for the United Kingdom Parliament. That does not necessarily conclude this Courts role under European law. The principles established in Case C 6/90 Francovich v Italian Republic [1992] IRLR 84 and Joined Cases C 46/93 and C 48/93 Brasserie du Pecheur SA v Federal Republic of Germany and R v Secretary of State for Transport, Ex p Factortame Ltd (No 4) [1996] QB 404 require domestic courts, under certain conditions, to order their State to make good any loss caused by breach of European Union law, even where the breach consists in legislation incompatible with that law. After these decisions by the Court of Justice, the principles stated by that Court were examined and applied domestically by the House of Lords in R v Secretary of State, Ex p Factortame Ltd (No 5) [2000] 1 AC 524. Neither Chester nor McGeoch has set out, supported with evidence or pursued any claim for damages in the courts below. Both now seek to claim damages, still without any supporting evidence, and, if necessary, to have their cases remitted for further determination in this regard. I will however put on one side without deciding the question whether either should be given leave to enable them at this late stage to raise any damages claim, and consider the nature and application of the relevant principles, assuming that such claims were to be permitted. An important factor in determining whether liability in damages may exist under European law is the width of the discretion available to the legislator: see Ex p Factortame, paras 44 to 46. In this respect the Court equated the position of the Community and national legislators (para 47). A strict (meaning more limited) approach was taken towards the liability of the Community (or therefore of national legislators) in the exercise of legislative activities. This was explained (para 45) as due to two considerations: 45. First, even where the legality of measures is subject to judicial review, exercise of the legislative function must not be hindered by the prospect of actions for damages whenever the general interest of the Community requires legislative measures to be adopted which may adversely affect individual interests. Secondly, in a legislative context characterized by the exercise of a wide discretion, which is essential for implementing a Community policy, the Community cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers As the Court went on to point out, the national legislature like the Community institutions does not systematically have a wide discretion when it acts in a field governed by Community law (para 46). It depends on the nature of the European law or principle being implemented. However, in the context of eligibility to vote, it is clear that national legislatures have a wide discretion. Where a wide legislative discretion of this nature exists, three conditions govern the incurring of any liability on account of the legislative choices made by the State pursuant to such discretion. These were explained in Ex p Factortame as follows: 51 In such circumstances, Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious, and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties. 52 First, those conditions satisfy the requirements of the full effectiveness of the rules of Community law and of the effective protection of the rights which those rules confer. 53 Secondly, those conditions correspond in substance to those defined by the Court in relation to Article 215 in its case law on liability of the Community for damage caused to individuals by unlawful legislative measures adopted by its institutions. 55 As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. 56 The factors which the competent court may take into consideration include the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. 57 On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case law of the Court on the matter from which it is clear that the conduct in question constituted an infringement. These principles were reiterated in Case 392/93 R v HM Treasury, Ex p British Telecommunications plc [1996] QB 615, an example of a case where the Court of Justice held that the breach had not involved a manifest and grave disregard of European law, and Case 278/05 Robins v Secretary of State for Work and Pensions [2007] ICR 779, where the Court emphasised the importance of the breadth of the legislative discretion in that case and the fact that the provisions of the relevant directive did not make it possible to establish with any precision the level of pension protection which it required. Turning to apply these principles to the present cases, I make the twin assumptions (again contrary to my conclusions) that (a) European Union confers rights to vote on individual citizens of the Union, subject to the United Kingdoms legislative discretion to introduce limitations, but that (b) the present general prohibition on prisoner voting is contrary to principles paralleling those stated by the Strasbourg court in Hirst (No 2) and Scoppola and/or the general European Union principle of equality or non discrimination. On those assumptions, the second and third conditions for any personal claim arise for consideration. The second condition is that the breach was sufficiently serious. This in turn depends, under European law, upon whether Parliament, the relevant United Kingdom authority, can be said manifestly and gravely to have disregarded the limits on its discretion. This must be judged taking into consideration the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable (para 77 above). In relation to voting by convicted prisoners, the United Kingdom legislature enjoyed a wide margin of discretion. Further, this is in a context where there has been and remains a considerable lack of certainty about what the parameters of that discretion may be. This is evident from a reading of the Strasbourg case law, particularly the two Hirst judgments, the Chamber judgment in Frodl v Austria (2010) 52 EHRR 267 and the Grand Chamber judgment over ruling the Chamber judgment in Scoppola v Italy, in which the European Court of Human Rights has sought to identify the relevant considerations and to apply them to particular facts. Accordingly, it is clearly very arguable that this condition is not met. I will not however say more about the application of the second condition in this case, in view of one further factor, which I prefer to leave open. The test stated in the European authorities postulates some degree of examination of the conduct of the relevant national authority. Since the relevant United Kingdom authority is here Parliament in enacting and continuing in force the relevant legislation, an assessment of some of these matters (particularly whether the infringement was intentional or involuntary, excusable or inexcusable) may threaten conflict with the constitutional principle enshrined in the Bill of Rights 1688 that domestic courts in the United Kingdom ought not to impeach or question proceedings in Parliament. To avoid this, it may perhaps be necessary to approach a claim for damages in a case like the present on an objective basis, without regard to what has actually happened or been said in Parliament. The decision in R v Secretary of State, Ex p Factortame (No 5) [2000] 1 AC 524 does not appear to throw any light on this problem, because there does not seem there to have been any call to consider Parliamentary debates. On any view, however, the fact of Parliamentary activity, referred to in Greens and continuing, can no doubt be taken into account. The third condition is that there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties. In relation to both the second and the third conditions, it must in my opinion be relevant to have regard to the particular position of the present appellants. The questions are whether, in refusing them the vote, the United Kingdom has manifestly and gravely disregarded the limits on its discretion and whether they have sustained damage directly caused by the United Kingdoms breach of an obligation owed to give each of them a right to vote. In Strasbourg case law, according to the majority in Hirst (No 2), a claimant can complain that the law in general is incompatible with the Convention rights, without showing that it was or would have been incompatible with such rights to deprive him in particular of the vote. But to award a convicted prisoner damages without showing that European Union law required him, rather than some other prisoner or prisoners, to have the vote would be positively inconsistent with the conditions stated in Francovich and Ex p Factortame. On that basis, I consider that any claim for damages by McGeoch and Chester must on any view fail. McGeoch is still serving the punishment part of his sentence resulting from the combination of his life and consecutive fixed term sentence. There can, in the light of Scoppola, be no question about the United Kingdoms entitlement to deprive a prisoner in his position of the vote. Chester is in his post tariff period of his life sentence, but it is notable that the European Court of Human Rights deliberately refrained from endorsing the original Chamber view or Judge Caflischs concurring minority view (para 40 above) that there is a critical distinction between the tariff and post tariff period. Further, in Scoppola, the Strasbourg court accepted that disenfranchisement could continue for life in the case of sentences of five years or more. This was subject only to the right, three years after release, to apply for rehabilitation, which would be granted upon his displaying consistent and genuine good conduct: see para 22 above. The requirement to display good conduct in order to regain voting rights was thus regarded as not only relevant, but acceptable. The Strasbourg court accepted as a legitimate aim enhancing civic responsibility and respect for the rule of law. Continuing detention for a period lasting so long as necessary for the protection of the public (paras 30 and 40 above) can be no less relevant and acceptable as a criterion for continuing deprivation of the right to vote during that period. The underlying consideration, that the offender is not fully rehabilitated or ready to participate responsibly in the countrys democratic life, is the same in each case. This is underlined by the passage from the Grand Chambers recent decision in Vinter quoted in para 41 above. Conclusions My conclusions on the issues argued on this appeal are summarised in para 4 above. It remains only to consider whether the resolution of this appeal necessitates a reference to the European Court of Justice. This depends upon whether it depends upon the determination of any question of European law which is open to reasonable doubt under the principles stated in Case 283/81 CILFIT Srl v Ministry of Health [1982] ECR 3415 and recently discussed in this Court in X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59, [2013] ICR 249. In my opinion, the conclusions of European law reached in paras 45, 58, 59 and 63 64 are acte clair, and they are by themselves sufficient to resolve the appeals. Were it necessary for the decision of these appeals, I would also regard the conclusions in para 70 as acte clair. The further conclusions (again not necessary for the resolution of these appeals) reached in other paras are matters for this Court to determine, applying established principles of European law where relevant. In the circumstances, I do not consider that any reference to the Court of Justice is called for. It follows that, in my opinion, both appeals should be dismissed. LADY HALE (with whom Lord Hope and Lord Kerr agree) Prisoners voting is an emotive subject. Some people feel very strongly that prisoners should not be allowed to vote. And public opinion polls indicate that most people share that view. A YouGov poll in November 2012 found that 63% of respondents said that no prisoners should be allowed to vote, 15% said that those serving sentences of less than six months should be allowed to vote, 9% said that those serving less than four years should be allowed to vote, and 8% said that all prisoners should be allowed to vote. A YouGov poll in January 2011 which asked the same questions produced respective figures of 69%, 6%, 3% and 8%. This suggests that public opinion may be becoming more sympathetic to the idea, with 32% now favouring some relaxation in the present law, but there is still a substantial majority against it. It is not surprising, therefore, that in February 2011 elected Parliamentarians also voted overwhelmingly against any relaxation of the present law. In such circumstances, it is incumbent upon the courts to tread delicately. As I shall explain, in my view it is now clear that the courts should not entertain a human rights claim on behalf of Mr Chester or, indeed, of Mr McGeoch had he made one. Both are serving sentences of life imprisonment for murder. Mr Chester was sentenced to life imprisonment for the murder of his niece, with a tariff of 20 years which expired in October 1997. The Parole Board has not yet found him suitable for release on licence. Mr McGeoch was also sentenced to life imprisonment for murder, with a tariff of 13 years which expired in October 2011; but he has had further convictions for serious offences committed while in prison and is currently serving seven and a half years for violently escaping from prison in 2008. I do not consider that the human rights of either were violated by the Electoral Registration Officers refusal to register them on the electoral roll. Their claims under European Union law are another story, because they raise novel arguments which require to be resolved. On those claims I have nothing to add to the judgment of Lord Mance, with which I agree. Of course, in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story. Democracy is about more than respecting the views of the majority. It is also about safeguarding the rights of minorities, including unpopular minorities. Democracy values everyone equally even if the majority does not: Ghaidan v Godin Mendoza [2004] 2 AC 557, para 132. It follows that one of the essential roles of the courts in a democracy is to protect those rights. It was for that reason that Lord Bingham took issue with the argument of a previous Attorney General, Lord Goldsmith, in A v Secretary of State for the Home Department [2005] 2 AC 68, para 42: I do not . accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. The present Attorney General has wisely not suggested any such thing. He recognises that it is the courts task to protect the rights of citizens and others within the jurisdiction of the United Kingdom in the ways which Parliament has laid down for us in the Human Rights Act 1998. But insofar as he implied that elected Parliamentarians are uniquely qualified to determine what the franchise should be, he cannot be right. If the current franchise unjustifiably excludes certain people from voting, it is the courts duty to say so and to give them whatever remedy is appropriate. More fundamentally, Parliamentarians derive their authority and legitimacy from those who elected them, in other words from the current franchise, and it is to those electors that they are accountable. They have no such relationship with the disenfranchised. Indeed, in some situations, they may have a vested interest in keeping the franchise as it is. To take an obvious example, we would not regard a Parliament elected by an electorate consisting only of white, heterosexual men as uniquely qualified to decide whether women or African Caribbeans or homosexuals should be allowed to vote. If there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional. Given that, by definition, Parliamentarians do not represent the disenfranchised, the usual respect which the courts accord to a recent and carefully considered balancing of individual rights and community interests (as, for example, in R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] AC 719 and R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] AC 1312, both upheld in Strasbourg for that very reason) may not be appropriate. Of course, the exclusion of prisoners from voting is of a different order from the exclusion of women, African Caribbeans or homosexuals. It is difficult to see how any elected politician would have a vested interest in excluding them (save just possibly from local elections in places where there are very large prisons). The arguments for and against their exclusion are quite finely balanced. On the one hand, unlike women, African Caribbeans and homosexuals, prisoners share a characteristic which many think relevant to whether or not they should be allowed to vote: they have all committed an offence deemed serious enough to justify their removal from society for at least a while and in some cases indefinitely. While clearly this does not mean that all their other rights are forfeited, why should they not for the same time forfeit their right to take part in the machinery of democracy? Hence I see the logic of the Attorney Generals argument, that by deciding that an offence is so serious that it merits a custodial penalty, the court is also deciding that the offence merits exclusion from the franchise for the time being. The custody threshold means that the exclusion, far from being arbitrary and disproportionate, is tailored to the justice of the individual case. One problem with that argument is that it does not explain the purpose of the exclusion. Any restriction of fundamental rights has to be a proportionate means of pursuing a legitimate aim. Is it simply an additional punishment, a further mark of societys disapproval of the criminal offence? Or is it rather to encourage a sense of civic responsibility and respect for democratic institutions? If so, it could well be argued that this is more likely to be achieved by retaining the vote, as a badge of continuing citizenship, to encourage civic responsibility and reintegration in civil society in due course. This is indeed, as Laws LJ observed in the Court of Appeal, a matter on which thoughtful people can hold diametrically opposing views. A more concrete objection to the Attorney Generals argument is that the custody threshold in this country has never been particularly high. As Lord Bingham of Cornhill CJ observed in R v Howells [1999] 1 WLR 307, 310, deciding when an offence is so serious that only a custodial sentence can be justified is one of the most elusive problems of criminal sentencing. Between 1992 and 2002, the custodial sentencing rate rose from 5% to 15% in the magistrates courts and from 44% to 63% in the Crown Court (for an overview of sentencing trends in the last 20 years, see Ministry of Justice, The Story of the Prison Population 1993 2012, 2013). Some of the rise may be accounted for by the greater seriousness of the offences coming before the courts, but this cannot be the whole explanation. There are many people in prison who have not committed very serious crimes, but for whom community punishments are not available, or who have committed minor crimes so frequently that the courts have run out of alternatives. Also, the threshold has varied over time in accordance with changes in penal policy which have nothing to do with electoral policy: what, for example, are we to make of the ups and downs in the legislative popularity of suspended sentences? Exactly the same crime may attract an immediate custodial sentence and disenfranchisement at one time or a suspended sentence without disenfranchisement at another. Moreover, the custody threshold has traditionally varied as between different parts of the United Kingdom, with a significantly greater use of imprisonment in Scotland than in England and Wales (although this is diminishing). The sentencing regimes are different in England and Wales, Scotland and Northern Ireland, but the exclusion from voting is the same. All of this suggests an element of arbitrariness in selecting the custody threshold as a unique indicator of offending so serious as to justify exclusion from the democratic process. To this may be added the random impact of happening to be in prison on polling day and the various reasons why someone who has been sentenced to a period of imprisonment may not in fact be in prison on that day. He may, as Lord Clarke points out, be on bail pending an appeal; or he may be released early under electronic monitoring. Then there is the situation of mental patients. All those who are detained in hospital as a result of an order made in a criminal court, apart from those on remand, are also disenfranchised (Representation of the People Act 1983, section 3A(1),(2)). This includes patients who have been found unfit to plead or not guilty by reason of mental disorder, whose culpability may be very different from that of convicted prisoners. There is no equivalent of the custody threshold (as long as the offence is punishable with imprisonment) and no correlation between the seriousness of the offence and the length of time that the patient will be detained in hospital. I mention these additional matters to explain why, in common with Lord Clarke, I have some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate. But I acknowledge how difficult it would be to devise any alternative scheme which would not also have some element of arbitrariness about it. The Strasbourg court, having stepped back from the suggestion in Frodl v Austria (2010) 52 EHRR 267 that exclusion from the franchise requires a judicial decision in every case and approved the Italian law in Scoppola v Italy (No 3) (2012) 56 EHRR 663, must be taken to have accepted this. However, I have no sympathy at all for either of these appellants. I cannot envisage any law which the United Kingdom Parliament might eventually pass on this subject which would grant either of them the right to vote. In Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, the Strasbourg court declined to conclude that applying the ban to post tariff life prisoners would necessarily be compatible with article 3 of the First Protocol. But it seems clear from the decision in Scoppola v Italy (No 3) that Strasbourg would now uphold a scheme which deprived murderers sentenced to life imprisonment of the right to vote, certainly while they remained in prison, and probably even after they were released on licence, as long as there was then a power of review. Hence I cannot see how Mr Chester can sensibly have a claim to a remedy under the Human Rights Act. It may be, as Lord Mance has concluded, that he qualifies as a victim for the purpose of section 7 of the Human Rights Act. But this is only in the sense that, as the majority of the Grand Chamber in Hirst (No 2) held, he was directly affected by the law in question. This justified that court, in the majority view, examining the compatibility of the law with the Convention, irrespective of whether he might justifiably have been deprived of the vote under some other law. A strong minority, including the then President, Judge Wildhaber, and his successor, Judge Costa, pointed out that this was not the usual practice of the court (para OIII8): The Court has consistently held in its case law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention. It is, in our opinion, difficult to see in what circumstances restrictions on voting rights would be acceptable, if not in the case of persons sentenced to life imprisonment. Generally speaking, the Court's judgment concentrates above all on finding the British legislation incompatible with the Convention in abstracto. We regret that despite this focus it gives the states little or no guidance as to what would be solutions compatible with the Convention. Since restrictions on the right to vote continue to be compatible, it would seem obvious that the deprivation of the right to vote for the most serious offences such as murder or manslaughter, is not excluded in the future. Either the majority are of the view that deprivations for the post tariff period are excluded, or else they think that a judge has to order such deprivations in each individual case. We think that it would have been desirable to indicate the correct answer. In other words, it would have been in accordance with the consistent practice of the court for the majority to indicate in precisely what way Mr Hirsts rights had been violated by the law in question. It seems to me that the courts of this country should adopt that sensible practice when considering the application of the various remedies provided by the Human Rights Act. In this case, there can be no question of Mr Chester having a cause of action under section 6(1) of the Human Rights Act. The Electoral Registration Officer for Wakefield refused his application for inclusion on the electoral roll. But in my view that could not have been incompatible with his Convention rights, because (at least following Scoppola v Italy) the Convention does not give him the right to vote. But even if it was incompatible, the public authority could not have acted differently, because of the provisions of the Representation of the People Act, and so by virtue of section 6(2)(a) the act was not unlawful. Nor is there any question of our reading and giving effect to the Act in a way which is compatible with the Convention rights, in accordance with our duty under section 3(1). No one has suggested that it would be possible to do so in a case such as this. It is obvious that any incompatibility can only be cured by legislation and the courts cannot legislate. But even if we could, we would only seek to read and give effect to the statute in a way which was compatible with the rights of the individual litigant before us. As, in my view at least, the ban on voting is not incompatible with the rights of this particular litigant, a reading which was compatible with the rights of a completely different litigant would do him no good. That leaves the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act. This applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. This does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant. There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims. It is principally for that reason that I would decline to make a declaration of incompatibility on the application of either Mr Chester or (had he made one) Mr McGeoch. Indeed, in my view the courts should not entertain such claims. It is otherwise, of course, in borderline cases. In those circumstances it seems to me unnecessary to express a view on whether we should follow or depart from the substance of the decision in Hirst v LORD CLARKE I agree that these appeals should be disposed of as proposed by Lord Mance and Lord Sumption. I also agree with the reasoning of both Lord Mance and Lord Sumption, subject to this. I would be less critical than Lord Sumption of the decisions of the European Court of Human Rights to which they refer. The reasoning of the Strasbourg Court has very recently been summarised in Anchugov and Gladkov v Russia (Application Nos 11157/04 and 15162/05), 4 July 2013, at paras 93 100. In particular, in para 100 it distinguished between Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663 in this way: 100. The principles set out in the Hirst (No 2) case were later reaffirmed in the Scoppola (No 3) [GC] judgment. The Court reiterated, in particular, that when disenfranchisement affected a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it was not compatible with Article 3 of Protocol No 1 (see Scoppola (No 3) [GC], cited above, para 96). The Court found no violation of that Convention provision in the particular circumstances of this latter case however, having distinguished it from the Hirst (No 2) case. It observed that in Italy disenfranchisement was applied only in respect of certain offences against the State or the judicial system, or offences punishable by a term of imprisonment of three years or more, that is, those which the courts considered to warrant a particularly harsh sentence. The Court thus considered that the legal provisions in Italy defining the circumstances in which individuals may be deprived of the right to vote show[ed] the legislatures concern to adjust the application of the measure to the particular circumstances of [each] case, taking into account such factors as the gravity of the offence committed and the conduct of the offender (ibid, para 106). As a result, the Italian system could not be said to have a general automatic and indiscriminate character, and therefore the Italian authorities had not overstepped the margin of appreciation afforded to them in that sphere (ibid, paras 108 and 110). On the facts the Court held at para 101 that the position in Russia was very similar to that in Hirst (No 2), namely that the applicants were stripped of their right to vote by virtue of a provision of the Russian Constitution which applied to all persons convicted and serving a custodial sentence, irrespective of the length of their sentence and of the nature or gravity of their offence and their individual circumstances. The Court compared Hirst (No 2) at para 82 with Scoppola (No 3) at paras 105 110. The Court said at para 102 that it was prepared to accept that the relevant measure pursued the aims of enhancing civic responsibility and the respect for the rule of law and ensuring the proper functioning and preservation of civil society and the democratic regime and that those aims could not, as such, be excluded as untenable or incompatible with A3P1. The essence of the Courts decision is set out in para 103. It rejected the Governments arguments on the issue of proportionality, reiterating the point made in para 82 of Hirst (No 2), that, although the margin of appreciation is wide, it is not all embracing and added: the right to vote is not a privilege; in the twenty first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the basic principle. In the light of modern day penal policy and of current human rights standards, valid and convincing reasons should be put forward for the continued justification of maintaining such a general restriction on the right of prisoners to vote as that provided for in Article 32(3) of the Russian Constitution (ibid, para 79). Further, at para 105 the Court emphasised the fact that the Russian constitution imposed a blanket ban on all those imprisoned, from two months, which is the minimum period of imprisonment following conviction in Russia, to life and from relatively minor offences to offences of the utmost seriousness. At para 106 it stressed that, as in the United Kingdom, there was no evidence that, when deciding whether to impose a custodial sentence, the court should take into account the fact that the sentence would involve disenfranchisement, so that there was no direct link between the facts of a particular case and the loss of the right to vote. It recognised in para 107 that removal of the right to vote without an ad hoc judicial decision does not of itself give rise to a violation but, in response to an argument that the adoption of the Russian constitution was preceded by extensive public debate, it observed that the Government had submitted no relevant materials to support it. In doing so, it expressly followed an almost identical conclusion in para 79 of Hirst (No 2). As I see it, the thrust of the conclusions in the Strasbourg cases is that a blanket ban is disproportionate and indiscriminate, at any rate without detailed analysis of the problem because, as it is put at para 82 of Hirst (No 2), the ban applies automatically to all prisoners irrespective of the nature and gravity of the relevant offence or the individual circumstances of the particular offender. It thus applies to those sentenced to very short sentences and operates in an arbitrary way for two reasons. First, it applies in the same way to a person sentenced to 28 days or 28 years. Yet there is clearly an enormous gulf in terms of culpability between those sentenced to 28 days for, say, persistent shoplifting and those sentenced to 28 years for a very serious offence. Secondly, whether a person loses the right to vote depends upon the chance that the relevant person happens to be in prison on a particular day, by comparison perhaps with a co defendant who received an identical sentence but is on bail pending appeal. Moreover, it is difficult to see how it can be proportionate to deprive a person of a vote which is relevant to the governance of the state for a period of five years in circumstances where that person may be in prison for no more than 14 days. I appreciate that, wherever the line may be drawn, there may be an element of arbitrariness as to the choice and effect of a particular line. But there seems to me to be much to be said for the Strasbourg Courts approach to a blanket ban, at any rate absent detailed consideration of the pros and cons of such a ban. However that may be, I agree that this Court should follow the now settled jurisprudence in the Strasbourg Court for the reasons given by Lord Mance and Lord Sumption. Since writing the above, I have read the judgment of Baroness Hale in draft and would simply like to add that I agree with it. LORD SUMPTION (with whom Lord Hughes agrees) I agree with the orders proposed by Lord Mance, for all of the reasons that he gives in his judgment as well as those given in the judgment of Lady Hale. I wish to add my own observations on one question only, namely whether we should apply the principles stated by the European Court of Human Rights in Hirst (No 2) and Scoppola. It is an issue which raises in an acute form the potential conflict between the interpretation of the European Convention on Human Rights by the European Court of Human Rights and the processes by which alone laws are made in a democracy. The conflict arises from the requirement of the European Court of Human Rights that the United Kingdom should amend the Representation of the People Act 1983 so as to give at least some convicted prisoners the right to vote in national and local elections, something for which there is at present only negligible support in the House of Commons and very little among the public at large. If democracy is viewed as a system of decision making by those answerable to the electorate (as opposed to a system of values thought to be characteristic of democracies), this is bound to be a matter of real concern. Of course, as Lady Hale has pointed out, it does not follow that a democracy can properly do whatever it likes, simply by virtue of the democratic mandate for its acts. The protection of minorities is a necessary concern of any democratic constitution. But the present issue has nothing whatever to do with the protection of minorities. Prisoners belong to a minority only in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law. In any democracy, the franchise will be determined by domestic laws which will define those entitled to vote in more or less inclusive terms. The right to vote may be based on citizenship or residence, or a combination of the two. There will invariably be a minimum voting age and may be other conditions of eligibility, such as mental capacity. In the United Kingdom, the right to vote at parliamentary and local government elections is enjoyed by Commonwealth citizens and citizens of the Republic of Ireland aged over 18, who are on the electoral roll, and not subject to any legal incapacity to vote. Inclusion on the electoral roll depends on current (or in some cases recent) residence. The only legal incapacity of any significance relates to convicted prisoners. Section 3(1) of the Representation of the People Act 1983 provides that convicted prisoners are legally incapable of voting at any parliamentary or local government election. There are limited exceptions for those committed for contempt of court or detained for default of compliance with another sentence (such as a fine). Section 8(1) and (2) of the European Parliamentary Elections Act 2002 apply the same rules of eligibility to elections for the European Parliament. These provisions are entirely clear. There is no way in which they can be read down so as to allow voting rights to any category of convicted prisoners other than those falling within the specified exceptions. The exclusion of convicted prisoners from the franchise is not a universal principle among mature democracies, but neither is it uncommon. Information provided by the Foreign Office in answer to a parliamentary question (updated to July 2012) indicates that at least 18 European countries including Denmark, Finland, Ireland, Spain, Sweden and Switzerland have no restrictions on voting by prisoners. Bulgaria, Estonia, Georgia, Hungary, Japan, Liechtenstein, Russia and the United States ban all convicted prisoners from voting, as do two of the seven Australian states. In some countries such as France disenfranchisement is reserved for those convicted of certain particularly serious offences, and in others such as Belgium for cases in which the prisoner is sentenced to a period of imprisonment exceeding a given threshold. In France, the Netherlands and Belgium disenfranchisement is an additional penalty imposed as a matter of judicial discretion. In other countries, such as Germany and Italy, it is automatic in specified cases. In Belgium, Italy and some jurisdictions of the United States, the loss of voting rights may continue even after a prisoners release. It is apparent that this is not a question on which there is any consensus. From a prisoners point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty. There are no doubt prisoners whose interest in public affairs or strong views on particular issues are such that their disenfranchisement represents a serious loss, just as there are prisoners (probably more numerous) whose enthusiasm for active sports makes imprisonment a special hardship. The severity of a sentence of imprisonment for the convicted person will always vary with a wide variety of factors whose impact on him or her will inevitably be arbitrary to some degree. It has been said, for example, that disenfranchisement may bear hardly on someone sentenced to, say, a short period of imprisonment which happens to coincide with a general election. For some prisoners, this will no doubt be true. But I decline to regard it as any more significant than the fact that it may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer. Article 3 of the First Protocol to the Human Rights Convention provides that the contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. In 2005, the Grand Chamber of the European Court of Human Rights held in Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 that a blanket restriction on voting by all prisoners violated article 3 of the First Protocol. In Greens and MT v United Kingdom (2010) 53 EHRR 710, the European Court of Human Rights delivered a pilot judgment on a large number of petitions by convicted prisoners which sought damages for the denial of their rights under article 3 of the First Protocol, consequent upon the decision in Hirst. The court refused to make an award of damages, but directed that the United Kingdom should bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a manner which is Convention compliant and effectively stayed further proceedings on pending petitions of the same kind until the expiry of that period. The deadline was subsequently extended by the European Court until six months after the judgment of the Grand Court in another case, Scoppola v Italy (No 3) (2012) 56 EHRR 663, in which the United Kingdom government proposed to intervene to make submissions about the correctness of Hirst. However, the judgment in that case, which was delivered on 22 May 2012, reaffirmed both the reasoning and the decision in Hirst. The deadline imposed by the Strasbourg Court expired in November 2012. In December 2006, in the light of the decision in Hirst, the Government published a consultation paper setting out two alternative proposals for amending section 3 of the Representation of the People Act. One was to enfranchise prisoners sentenced to less than a specified term, which would be low. , such as one year in prison. The other was to allow sentencers a discretion on whether the franchise should be withdrawn in the particular case. A further consultation paper was published in April 2009 summarising responses to the first paper and seeking views on the approach to be adopted. The Government indicated its own preference for an automatic restriction of the franchise based on the seriousness of the offence, as reflected in the length of the sentence. On 20 December 2010, after the decision of the European Court of Human Rights in Greens and MT, the Government announced that it would propose to Parliament that offenders sentenced to a term of imprisonment of less than four years would have the right to vote in parliamentary and European Parliament elections, unless the sentencing judge directed otherwise. Subsequently, the question of prisoners voting rights was debated twice. There was a Westminster Hall adjournment debate on 10 January 2011, at which many members of the House of Commons expressed strong opposition to enfranchising any prisoners. A month later, on 11 February 2011, there was an all day debate on the floor of the House of Commons on a motion put forward jointly by senior backbench MPs from both sides of the House, that legislative decisions of this nature should be a matter for democratically elected lawmakers; and supports the current situation in which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand. This motion was carried by 234 votes to 22, both front benches abstaining. On 22 November 2012 the Government published the Voting Eligibility (Prisoners) Draft Bill (Cm 8499), setting out three options, (a) a ban on voting by prisoners sentenced to four years imprisonment or more, (b) a ban for prisoners sentenced to more than six months imprisonment, or (c) a general ban, i.e. a restatement of the present position. The explanatory memorandum accompanying the draft Bill pointed out that option (c) could not be regarded as compatible with the Convention. The draft Bill is currently being considered by a joint Select Committee of both Houses. For the moment, however, the only reasonable conclusion that can be drawn from this history is that there is no democratic mandate for the enfranchisement of convicted prisoners. It is an international obligation of the United Kingdom under article 46.1 of the Convention to abide by the decisions of the European Court of Human Rights in any case to which it is a party. This obligation is in terms absolute. The remainder of article 46 contains provisions for its collective enforcement by the institutions of the Council of Europe. Many states have written constitutions which give automatic effect in domestic law to treaties to which they are party. Constitutional provisions of this kind are generally accompanied by provisions giving the legislature a role in the ratification of treaties. But the making of treaties in the United Kingdom is an exercise of the royal prerogative. There was no legal requirement for parliamentary scrutiny until the enactment of Part 2 of the Constitutional Reform and Governance Act 2010, although pursuant to an undertaking given to Parliament in April 1924 treaties were in practice laid before Parliament and there was a recognised constitutional convention (the so called Ponsonby Rule) that this should be done. The result of the constitutional status of treaties in the United Kingdom is that they are not a source of rights or obligations in domestic law unless effect is given to them by statute: R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 747 748 (Lord Bridge of Harwich), 762 (Lord Ackner); R v Lyons [2003] 1 AC 976; In re McKerr [2004] 1 WLR 807, para 25 (Lord Nicholls of Birkenhead), para 48 (Lord Steyn), para 63 (Lord Hoffmann), para 80 (Lord Rodger of Earlsferry) and para 90 (Lord Brown of Eaton under Heywood). The Human Rights Act 1998 might have given direct legal effect to interpretations of the Human Rights Convention by the Strasbourg Court, or required the executive to give effect to them by statutory instrument. Both techniques were employed in relation to EU law by the European Communities Act 1972. But, as is well known, its drafting was a compromise designed to make the incorporation of the Convention into English law compatible with the sovereignty of Parliament. Neither of these techniques was therefore adopted. Under section 10 of and Schedule 2 to the Act, the Crown has a power but not a duty to amend legislation by order so as to conform with the Convention where there are compelling reasons for doing so, but this is subject to prior parliamentary approval under the positive resolution procedure (there are special provisions in urgent cases for an order to be made with provisional effect subject to such a resolution being passed). It follows that the interpretation of the Convention by the Strasbourg Court takes effect in English law only by decision of the English courts. Section 2(1) of the Act provides that a United Kingdom court determining a question which has arisen in connection with a Convention right must take into account any judgment, decision or declaration of the European Court of Human Rights. For this purpose Convention rights are those set out in those of its provisions to which effect is given by the Act, i.e. articles 2 to 12 and 14 of the Convention, articles 1 to 3 of the First Protocol and article 1 of the Thirteenth Protocol: see section 1(1) and (2). Whatever may be meant by taking into account a decision of the Strasbourg Court, it is clearly less than an absolute obligation. The international law obligation of the United Kingdom under article 46.1 of the Convention goes further than section 2(1) of the Act, but it is not one of the provisions to which the Act gives effect. In the ordinary use of language, to take into account a decision of the European Court of Human Rights means no more than to consider it, which is consistent with rejecting it as wrong. However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases. The courts have for many years interpreted statutes and developed the common law so as to achieve consistency between the domestic law of the United Kingdom and its international obligations, so far as they are free to do so. In enacting the Human Rights Act 1998, Parliament must be taken to have been aware that effect would be given to the Act in accordance with this long standing principle. A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court. In R v Horncastle [2010] 2 AC 373 at para 11, Lord Phillips of Worth Matravers, with the agreement of the rest of this court, rejected the submission that it should hold itself to be bound by a clear statement of principle of the European Court on the precise issue that was before it: The requirement to take into account the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court. In Manchester City Council v Pinnock (Nos 1 and 2) [2011] 2 AC 104, para 48, Lord Neuberger MR, again with the agreement of the whole court, expanded on this statement: This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see e.g. R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to take into account European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line. It follows that the exceptionally delicate issues presently before the court cannot be resolved by summarily applying the decisions of the European Court of Human Rights in Hirst and Scoppola. It is necessary to consider the basis on which the Strasbourg Court approached the relevant features of our domestic law. What is the rationale of the statutory rule excluding convicted prisoners from the franchise? In his Second Treatise of Government (1690), John Locke considered that because (as he saw it) all social obligations were ultimately founded upon implicit contract, a criminal, having repudiated that contract, had no rights. He had repudiated the collective security which was the purpose of the social contract and returned to the pre existing state of nature in which force was the only law. It followed, Locke thought, that he may be destroyed as a lion or tyger, one of those wild savage beasts, with whom men can have no society nor security. The same view was taken by others who identified the social contract as the foundation of the state, including Thomas Hobbes and Jean Jacques Rousseau. It is tempting to regard the present British rule about prisoners voting rights as a distant reflexion of this view, and plenty of commentators have succumbed to the temptation. But like most rhetoric, this is misleading. The disenfranchisement of convicted prisoners is not and never has been a form of outlawry, or civil death (the phrase sometimes used to describe the current state of the law on prisoners voting rights). On the contrary, until the 1960s, it was mainly the incidental consequence of other rules of law. In the first place, until 1870, convicted felons automatically suffered the confiscation of their real property, as a result of which they could not meet the property qualification which at that time was part of United Kingdom electoral law. The Forfeiture Act 1870 abolished the rule of confiscation. But section 2 partially preserved its effect on the franchise by providing that those sentenced for treason or felony to a period of imprisonment exceeding one year could not vote in parliamentary elections until they had served their sentence. This remained the position until the Criminal Law Act 1967 abolished the distinction between felonies and misdemeanours and amended section 2 of the Act of 1870 so that it applied only to those convicted of treason. Secondly, section 41(5) of the Representation of the People Act 1918 provided that an inmate in any prison, lunatic asylum, workhouse, poorhouse, or any other similar institution was not to be treated as resident there. This had the unintended effect of excluding from registration not only convicted prisoners, but prisoners on remand, an anomaly which was not corrected until the Representation of the People Act 2000 allowed remand prisoners to be treated as residing in the place where they were in custody. Thirdly, even those prisoners who before 1969 were eligible to vote were generally unable in practice to do so because of the absence of the necessary administrative arrangements. Except in the case of servicemen, postal voting was not introduced until the Representation of the People Act 1948, and was not available generally until the Representation of the People Act 2000. The modern law on this subject can be said to date from the Speakers Conference on Electoral Reform, which sat from 1965 to 1968 and issued its final report in February 1968 (Cmnd 3550). The conference was a non partisan body drawn from all parties in the House of Commons and meeting under the chairmanship of the Speaker. It gave systematic consideration to all aspects of electoral law including the franchise and, apparently for the first time, the question of prisoners voting rights. Only its conclusions, not its reasons, were published, but the final report records that it considered evidence and documentation from many sources. It unanimously recommended that all convicted prisoners should be ineligible to vote. This recommendation was accepted, and effect was given to it by section 3 of the Representation of the People Act 1969. The rationale of the exclusion of convicted prisoners from the franchise is as complex as the rationale for imprisonment itself. Section 142(1) of the Criminal Justice Act 2003 provides: Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing (a) (b) (c) (d) the punishment of offenders, the reduction of crime (including its reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons affected by (e) their offences. All of these factors, except in the earlier period for (e), have been features of sentencing policy for very many years. For my part, I doubt whether the disenfranchisement of convicted prisoners can realistically be regarded as an additional punishment or a deterrent, and it may at least arguably be said to work against the reform and rehabilitation of the offender. But in my opinion, it has a more fundamental rationale. All criminal law, and penal policy in particular, has an important demonstrative function, which underlies all five of the statutory sentencing factors. The sentencing of offenders, and imprisonment more than any other sentence, is a reassertion of the rule of law and of the fundamental collective values of society which the convicted person has violated. This does not mean that the offender is disenfranchised because he is unpopular. Nor does it mean that he is regarded as having lost all civil rights or all claims against society, which is why the expression civil death is inappropriate. The present rule simply reflects the fact that imprisonment is more than a mere deprivation of liberty. It is a temporary reclusion of the prisoner from society, which carries with it the loss of the right to participate in societys public, collective processes. Similar principles appear to underlie the exclusion of convicted offenders from the franchise in the many other jurisdictions which practise it, whether on an automatic or a discretionary basis, and in particular those in which the suspension or abrogation of voting rights may be imposed independently of a prison sentence or continue after a term of imprisonment has been served. Fundamental to this approach, and to the automatic character of the exclusion of convicted prisoners from the franchise is the principle that sentences of imprisonment are imposed only for the more serious offences. This has always been a central feature of sentencing policy. Currently, section 152 of the Criminal Justice Act 2003, repeating previous statutory provisions and the long standing practice of the Court of Appeal (Criminal Division) provides: (2) The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. The only exceptions relate either to a very few grave offences where the sentence is prescribed (such as murder, some firearms offences, repeated violence or Class A drug trafficking) or to a separate sentencing regime for dangerous repeat offenders. The section also provides that it does not apply in cases where the offender has refused to accept or comply with the conditions on which some lesser sentence would have been imposed. These principles are broadly reflected in the composition of the prison population. As Lord Mance has pointed out, only 8 per cent of persons convicted of an offence in England and 15 per cent in Scotland are sentenced to imprisonment. A statistical breakdown of the prison population as at 30 September 2010 suggests that 85% of prisoners serving sentences of less than five years were convicted of violent or sexual offences, robbery, burglary, theft, handling, fraud, forgery or drug offences. No doubt the threshold of seriousness for the passing of a sentence of imprisonment will vary in practice from one country to another. Different offences will perfectly properly be regarded as having more serious implications for some societies than for others. The United Kingdom is widely thought to have a relatively low threshold, but I am not aware that any comprehensive comparative study has been carried out which takes account of the underlying patterns of criminality. Although article 3 of the First Protocol is in unqualified terms, the jurisprudence of the Strasbourg Court has acknowledged from the outset that the right to vote may be subject to limitations of a kind which is familiar in the case law governing other Convention rights. The limitations must pursue a legitimate aim by proportionate means and must not be such as to impair the essence of the right: see Mathieu Mohin and Clerfayt v Belgium (1988) 10 EHRR 1, para 52; Matthews v United Kingdom (1999) 28 EHRR 361, para 63. It has generally been held that the essence of the right is not impaired if it does not thwart the free expression of the opinion of the people as a whole: see Holland v Ireland (Application No 24827/94) (unreported) 14 April 1998. It follows that the exclusion of certain categories of person from the franchise may be compatible with the Convention notwithstanding that as far as those persons are concerned the exclusion is total while it lasts. The case law has consistently emphasised that these are matters on which the state enjoys a wide margin of appreciation. In Hirst this was said to reflect the numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (para 61). The United Kingdom government argued before the Strasbourg Court in Hirst that the objective of disenfranchisement was to serve as an additional punishment. The court accepted that that was a possible rationalisation, and regarded it as a legitimate objective, compatible with article 3 of the First Protocol. The rule was nevertheless held to be incompatible because it was disproportionate, essentially as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects and could no longer be said to serve the aim of punishing the applicant once his tariff (that period representing retribution and deterrence) had expired (para 76). The court considered the governments argument that the exclusion affected only those convicted of crimes serious enough to warrant a custodial sentence, and the very similar argument put forward by an intervener that imprisonment was the last resort of criminal justice. They appear to have rejected this argument on the facts, observing that sentences of imprisonment are imposed for a wide range of offenders and for periods from one day to life, and that because disenfranchisement was automatic the sentencer had no opportunity to assess its proportionality in any particular case (paras 77, 80). The court considered that the absolute character of the rule disenfranchising convicted prisoners and its application to all convicted prisoners put it beyond the states margin of appreciation. They were fortified in this conclusion by their view that there was no evidence that Parliament had weighed the proportionality of a general exclusion. The court referred to the Speakers Conference of 1965 1968, and the Home Office working party of 1998 1999, and acknowledged that Parliament might be said implicitly to have endorsed their conclusions: Nonetheless [they concluded] it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote. (para 79). The court concluded as follows, at para 82: Therefore, while the court reiterates that the margin of appreciation is wide, it is not all embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with article 3 of Protocol No 1. Scoppola v Italy (No 3) (2012) 56 EHRR 663 was directly concerned with the automatic lifetime exclusion from the franchise which was the consequence under Italian law of the imposition of a sentence of life imprisonment. However, the United Kingdom rule was indirectly in question, because the Grand Chamber reviewed the decision in Hirst and the British government intervened to make submissions about it. The Chamber had held that the Italian rule violated article 3 of the First Protocol because of its automatic character. The Grand Chamber held that it was compatible with the Convention. It found that the rule pursued the legitimate aim of preventing crime and enhancing civil responsibility and respect for the rule of law (para 90). Turning to proportionality, it held that notwithstanding the statements in Hirst the test of proportionality did not require that disenfranchisement should be discretionary. It could be automatic, provided that the principles governing its imposition were sufficiently related to the gravity of the offence. The provisions of the relevant Italian law were held to be proportionate, unlike the English rule, because they disenfranchised only those convicted of particularly serious offences and those sentenced to the longer terms of imprisonment. Subject to the point about the absence of judicial discretion, the Grand Chamber reaffirmed the decision in Hirst. Accordingly, the Strasbourg Court has arrived at a very curious position. It has held that it is open to a Convention state to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person. It has held that the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence. It has held that disenfranchisement may be automatic, once a sentence above that threshold has been imposed. But it has also held that even with the wide margin of appreciation allowed to Convention states in this area, it is not permissible for the threshold for disenfranchisement to correspond with the threshold for imprisonment. Wherever the threshold for imprisonment is placed, it seems to have been their view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated. It might perhaps have been justified by a careful examination of the principles of sentencing in the United Kingdom, with a view to demonstrating that they involve the imprisonment of some categories of people for offences so trivial that one could not rationally suppose them to warrant disenfranchisement. That would be an indictment not just of the principle of disenfranchisement but of the sentencing principles themselves. However, no such exercise appears to have been carried out. I confess that I also find it surprising that the Strasbourg Court should have concluded in Hirst that the United Kingdom Parliament adopted the present rule per incuriam, so to speak, in 1969, without properly considering the justification for it as a matter of penal policy. The absence of debate to which the court referred reflects the attention which had already been given to the issue by the Speakers Conference, and the complete consensus on the appropriateness of the voting ban. Without the decisions in Hirst and Scoppola, I would have held that the question how serious an offence has to be to warrant temporary disenfranchisement is a classic matter for political and legislative judgment, and that the United Kingdom rule is well within any reasonable assessment of a Convention states margin of appreciation. However, the contrary view has now been upheld twice by the Grand Chamber of the European Court of Human Rights, and is firmly established in the courts case law. It cannot be said that the Grand Chamber overlooked or misunderstood any relevant principle of English law. The problems about the view which the court ultimately came to were fairly pointed out in both cases in the course of argument. Whatever parliamentary consideration may or may not have been given to the issue in 1969, it has undoubtedly received a great deal of parliamentary attention more recently, in debates which were drawn to the Grand Chambers attention in Scoppola but made no difference to its view. There is no realistic prospect that further dialogue with Strasbourg will produce a change of heart. In those circumstances, we would be justified in departing from the case law of the Strasbourg Court only if the disenfranchisement of convicted prisoners could be categorised as a fundamental feature of the law of the United Kingdom. I would regard that as an extreme suggestion, and in agreement with Lord Mance I would reject it. A wider and perhaps more realistic assessment of the margin of appreciation would have avoided the current controversy. But it would be neither wise nor legally defensible for an English court to say that article 3 of the First Protocol has a meaning different from that which represents the settled view of the principal court charged with its interpretation, and different from that which will consequently apply in every other state party to the Convention.

UK-Abs

The appellants in these two appeals are prisoners serving sentences of life imprisonment imposed for murder, combined in the case of McGeogh with a later sentence of seven and a half years for violent escape from lawful custody. Both the appellants claim that their rights have been and are being infringed because they are not entitled to vote. United Kingdom law currently contains a general prohibition on voting by prisoners. In a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (ECtHR) has held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1 (A3P1, the duty to hold free and fair elections) of the European Convention on Human Rights (the Convention) [18 22]. The appellant Peter Chester issued a claim for judicial review in December 2008 in relation to UK and European Parliamentary elections. He relies on A3P1, as incorporated into domestic law by the Human Rights Act (the HRA), and also on European Community or now Union law (EU law). The appellant George McGeochs claim for judicial review was issued in February 2011 in relation to local and Scottish Parliamentary elections. He relies solely on EU law [1 3]. Both claims were dismissed by the courts below. The High Court and Court of Appeal held in Chesters case that it was not their role to sanction the Government for the delay in implementing the decision in Hirst (No 2) or to advise as to how the Government might implement a voting system that would be compatible with A3P1, and that EU law raised no separate issue. The Inner House dismissed McGeoghs claim on the ground that EU law only conferred a right to vote in municipal (i.e. local) elections on EU citizens residing in a Member State of which they were not nationals. The Supreme Court permitted McGeoch to add a complaint that his rights in relation to EU Parliamentary elections were also being infringed [2 3]. The issues before the Supreme Court are: (a) whether it should apply the principles established in Hirst (No 2);(b) whether, if such principles are applied, the current ban on voting is incompatible with Chesters rights under A3P1, and Supreme Court should make a further declaration of incompatibility under the HRA; (c) whether EU law recognises an individual right to vote, in terms paralleling or greater than that arising under A3P1, on which the appellants can rely upon as EU citizens claiming to vote in their own countries; and (d) what consequences would follow if EU law were to recognise an individual right to vote of this nature and, in particular, what if any relief would be available to Chester and McGeogh. The Supreme Court unanimously dismisses both appeals. Lord Mance gives the lead judgment. Lady Hale, Lord Clarke and Lord Sumption give additional judgments. With regard to claims under the Convention, the Supreme Court applies the principles in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declines to make any further declaration of incompatibility in respect of Chester [39 42]. With regard to EU law, this does not provide an individual right to vote paralleling that recognised by the ECtHR in its case law. The resolution of these appeals does not require a reference to the Court of Justice of the European Union (CJEU) [46 47, 58, 59, 63 64 and 68]. Claims under the Human Rights Act Under the HRA, the Supreme Court is required to take into account decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with A3P1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHRs caselaw [25 35]. Accepting that, on the reasoning in Hirst (No 2), Chester was a victim for the purposes of the HRA and the Convention and entitled as such to bring a claim against the respondents, that does not necessarily entitle him to any particular remedy under the HRA. A declaration of incompatibility is a discretionary remedy. The incompatibility of the prohibition on prisoner voting in the UK with the Convention is already the subject of a declaration of incompatibility made in Smith v Scott and is currently under review by Parliament. In these circumstances there is no point in making a further declaration of incompatibility. This is particularly so in the case of Chester. Given that he is serving a sentence of life imprisonment, ECtHR caselaw indicates that he would not himself have a right to benefit from any amendments to the law on prisoner voting necessary to remedy the present incompatibility of UK law with the Convention [36 42]. That is so although his tariff period has expired and he remains in detention because his detention continues to be necessary for the protection of the public. Claims under EU law The provisions on voting contained in the applicable European Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. Eligibility to vote in Member States is basically a matter for national legislatures [58 59]. The CJEU has scrutinised national eligibility criteria for conformity with the EU legal principle of non discrimination in a context where Netherlands law extended the right to vote of its nationals to nationals resident in some, but not all, non EU States. But there is no equivalent link with EU law in the present cases [60 64]. Additional EU analysis For completeness, the Supreme Court has considered the consequences if, contrary to their conclusions, EU law were to regarded as conferring an individual right to vote on which McGeoch and Chester could rely. On that hypothesis, it considers that: The EU legal principle of non discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison [65 68] In any event, the general ban on prisoner voting could not have been disapplied as a whole, and the relevant domestic legislation could not have been interpreted compatibly with EU law. Nor could the Supreme Court itself have devised a scheme compatible with EU law; that would be for Parliament. Therefore, the only relief that might have been appropriate would have been a declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the UK were inconsistent with EU law, although even that would not have appeared appropriate in the instant cases [72 74]. Neither of the appellants could have had any arguable claim for damages in respect of any breach of EU law [82 83].

Indirect taxes have always posed particular problems of enforcement, which account for the wide powers of investigation and seizure conferred by statute on the Commissioners charged with their collection. The exercise of these powers has given rise to dispute ever since Johnsons Dictionary offered its famous definition of excise in 1755 (a hateful tax, levied by wretches), and its author was threatened by the Commissioners with a libel action. The powers of the Commissioners of Customs and Excise were originally contained in a large number of enactments dealing with different aspects of an exceedingly complex legal scheme. The first modern consolidation was the Customs and Excise Act 1952 (the 1952 Act). The system is currently administered by Her Majestys Commissioners of Revenue and Customs under the Customs and Excise Management Act 1979 (the 1979 Act), which re enacts much of the 1952 Act, with substantial amendments. Some significant amendments have been made to the Act by the Finance Act 2013, but these were not in force at the relevant times, and we therefore refer throughout this judgment to the Act as it stood before they were made. These two appeals are about the circumstances and the manner in which customs officers are empowered to detain goods on which duty has not been paid, or may not have been paid. The Eastenders appeal In the Eastenders appeal, customs officers entered Eastenders warehouses and inspected consignments of alcoholic goods found there. They were acting under section 118C(2) of the 1979 Act, which authorises customs officers to enter and inspect business premises which they have reasonable cause to believe are being used in connection with the supply, importation or exportation of goods chargeable with excise duty and to inspect any goods found there. Section 118C(2) was repealed by the Finance (No 3) Act 2010 and replaced by other provisions, but we refer to the Act as it stood at the material time. Under section 118B, the officers may also require the production of documents. Eastenders employees were unable to provide documentary evidence, such as purchase invoices, demonstrating that duty had been paid on the goods. Inspection of such documents as were produced indicated that duty might not have been paid. The officers decided to detain the goods pending the outcome of further enquiries into the question whether the appropriate duties had been paid: in particular, enquiries into the supply chains relating to the goods. The goods remained on Eastenders premises pending the outcome of those enquiries but were subject to a direction given under section 139(5) of the 1979 Act, in terms of which the Commissioners can direct the manner in which any thing detained under the customs and excise Acts must be dealt with pending the determination as to its forfeiture or disposal. In subsequent correspondence, the Commissioners stated that the goods had been detained under section 139, subsection (1) of which empowers the Commissioners or their officers to seize or detain any thing liable to forfeiture under the customs and excise Acts. By virtue of section 49, things liable to forfeiture include any dutiable goods imported without payment of duty. Following their enquiries, the Commissioners seized most of the detained goods and returned the remainder. All of the seized goods were subsequently condemned as forfeited, and no issue arises about those. The present appeal relates to the goods which were detained but were subsequently returned, the officers enquiries having proved inconclusive. Eastenders applied, as the owners of the goods in question, for judicial review of the decision to detain them. The judge, Sales J, found that the officers had reasonable grounds to suspect that duty had not been paid on the goods that were detained. It was also found that the detention of the goods had not exceeded a reasonable period of time. Those findings were not challenged on appeal. In these circumstances, Sales J held that the Commissioners had acted lawfully in detaining the goods, on the basis that they had the power to detain goods for a reasonable time, pending enquiries as to whether duty had been paid, where they had reasonable grounds to suspect that the goods might be liable to forfeiture. Sales J considered that that power was conferred by section 139(1) of the 1979 Act. No other possible source of the power had been suggested. The application for judicial review was therefore dismissed: [2010] EWHC 2797 (Admin); [2011] 1 WLR 488. The Court of Appeal by a majority (Elias and Davis LJJ, Mummery LJ dissenting) reversed that decision. They held that section 139(1) applied only where goods were actually liable to forfeiture, and it had not been established that the goods in question were so liable. A declaration was accordingly granted that the goods not liable to forfeiture were unlawfully detained: [2012] EWCA Civ 15; [2012] 1 WLR 2067. There was again no contention that the power to detain goods on suspicion might be derived from any source other than section 139(1). It was subsequently decided that Eastenders could not be awarded costs, by reason of section 144(2) of the 1979 Act, which provides, in substance, that where a court holds that a seizure or detention was unlawful, no award of damages or costs may be made against the Commissioners if the court is satisfied that they acted on reasonable grounds: [2012] EWCA Civ 689; [2012] 1 WLR 2912. The Commissioners appeal to this court against the first decision. Eastenders were refused permission to appeal against the second decision. The point in relation to costs has however been argued in the First Stop appeal, as we shall explain, and whatever we decide about it must necessarily apply in both appeals. The First Stop appeal In the First Stop appeal, customs officers entered a warehouse and retail premises used by First Stop. They were acting under section 112(1) of the 1979 Act, which authorises customs officers to enter the premises of revenue traders as defined in section 1 of the Act (in substance, persons who deal in goods liable to excise duty) and to search for and examine any goods or materials connected with that trade. Under section 112A, inserted by the Finance (No 3) Act 2010, that power includes the power to examine documents. At the retail premises, the officers seized a small quantity of spirits on the ground that the duty paid stamps on them were defective. They also detained a much larger quantity of alcoholic drinks, whose provenance was unclear, while enquiries were made into the question whether duty had been paid. One of the directors of First Stop was informed by an officer that the goods were being detained pending further enquiries into their duty status. Written notices were provided stating that the goods had been detained pending evidence of duty status (CEMA 1979, section 139). Most of the detained goods were subsequently seized. The remainder were returned to First Stop. Condemnation proceedings in respect of the seized goods remained pending at the time of the hearing of these appeals. First Stop were granted permission to apply for judicial review of the detention of those goods which were still detained, pending the outcome of enquiries, about four months after their initial detention. By the time the application was heard, all of those goods had been seized. The application came before Singh J after the decision of the Court of Appeal in Eastenders. The judge gave a total of three judgments on different issues which arose from the application. In the first, he held that the detention of the goods had been unlawful, since the reason given for the detention was the need for investigation, and it followed in his view from the decision of the Court of Appeal in Eastenders that goods could not lawfully be detained under section 139(1) of the 1979 Act for that purpose. That was so even if the goods might subsequently be found to be liable to forfeiture: in his view, goods could not lawfully be detained under section 139(1) for the purpose of ascertaining whether the power to detain them had been conferred by that provision: [2012] EWHC 1106 (Admin). In a second judgment, Singh J held that section 144(2) did not protect the Commissioners against an award of costs, on the basis that the reason given for detaining the goods, being unlawful, could not amount to reasonable grounds within the meaning of that provision: [2012] EWHC 2191 (Admin). In his third judgment, Singh J was concerned with the seizure notices. The question was whether a statement in the notices that no evidence of UK duty payment has been provided was a sufficient statement of the grounds for seizing the goods as liable to forfeiture. The judge held that it was: [2012] EWHC 2975 (Admin). All three judgments were appealed to the Court of Appeal. They allowed the Commissioners appeal against the first two judgments. Beatson LJ, in a judgment with which Lewison and Jackson LJJ agreed, accepted that the judges view that the power to detain under section 139(1) must not only exist, but must be exercised for the purpose intended by Parliament, gained powerful support from general principles of public law, but concluded that it was inconsistent with the judgments of the majority of the court in the first judgment in the Eastenders case. The court also considered that it followed from the first judgment in the Eastenders case that there was no duty to give reasons for the detention of goods under section 139(1). In their view, the effect of the Eastenders decision was that if the goods were in fact liable to forfeiture, detention for a reasonable time was lawful under section 139(1) irrespective of any reason that might have been given. The appeal against Singh Js second judgment, relating to section 144(2), was allowed on the ground that the judges decision was inconsistent with the decision of the Court of Appeal in its second judgment in the Eastenders case: [2013] EWCA Civ 183. First Stop appeal to this court against both decisions. The Court of Appeal upheld Singh Js third judgment, and no appeal on the adequacy of the notice of seizure is before us. It follows that in this case, as in Eastenders, we are directly concerned only with the power of detention. The statutory scheme We have referred to the provisions of the 1979 Act that were central to the judgments below, namely sections 139(1) and 144(2). Before considering the effect of these provisions, it is necessary to say something more about them, and about the broader statutory scheme of which they are part. The 1979 Act confers extensive powers on the Commissioners. These include the express power to examine goods and documents relating to goods, or to require information about them. This power is conferred by many provisions of the 1979 Act, the relevant provision depending on the location of the goods and sometimes their type. In particular, section 112(1) confers on customs officers a power to enter the premises of revenue traders, such as First Stop, and to inspect the premises and search for, examine and take account of any goods or materials belonging to or in any way connected with that trade. By virtue of section 112A, the power conferred by section 112 includes power to inspect any business documents that are on the premises. Section 118C(2) applies where an officer has reasonable cause to believe that any premises are used in connection with the supply, importation or exportation of dutiable goods and that such goods are on the premises. It confers on the officer the power, exercised in the Eastenders case, to enter and inspect the premises and inspect any goods found on them. A number of the powers conferred by the 1979 Act are expressly exercisable when the relevant officer has reasonable grounds for believing or suspecting something. Section 118C(2) is an example. There are many others. Thus under section 84, which is concerned with unlawful signals to smugglers, an officer may board a ship, aircraft or vehicle or enter a place from which he has reasonable grounds for suspecting that a signal is being or is about to be sent; under section 113, officers are empowered to break open premises where they have reasonable grounds to suspect that secret pipes or other conveyances are being used for goods subject to excise duty; under section 138, a person may be detained if there are reasonable grounds to suspect that he has committed [an] offence under the customs and excise Acts; under section 161, an officer may enter and search any place where there are reasonable grounds to suspect that property liable to forfeiture is being kept or concealed; and under sections 163 and 164 there are corresponding powers to stop and search vehicles, vessels or persons suspected of being involved in breaches of the customs and excise legislation. The 1979 Act contains many sections providing for the forfeiture of property, including property whose importation is prohibited, property in respect of which duty has been evaded, or property (such as vehicles or vessels) which have been used for the purpose of infringements of various kinds. For present purposes, the relevant power of forfeiture is conferred by section 49, which can be treated as the paradigm case. It provides, among other things, that goods chargeable upon their importation with customs or excise duty which are imported without payment of that duty shall, subject to specified exceptions, be liable to forfeiture. Section 139 of the 1979 Act contains provisions relating to the detention and seizure of goods. Section 139(1) provides: Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majestys armed forces or coastguard. It can be seen that section 139(1) confers two distinct powers on the Commissioners, a power of seizure and a power of detention. Neither power is expressly said to be exercisable on the basis of reasonable grounds for suspicion or belief. In this respect they differ from some of the other powers to which we have referred. The effect of seizure is apparent from other provisions of the 1979 Act. It is the first stage of a statutory process leading to forfeiture. The process is governed by Schedule 3, to which effect is given by section 139(6). Paragraph 1 of Schedule 3 requires the Commissioners to give notice of the seizure of any thing as liable to forfeiture, and of the grounds for it, except in cases governed by paragraph 2. The exceptional cases are broadly speaking those in which the seizure was carried out in the presence of the relevant interested party. Under paragraph 3, the owner of the goods has one month from the date of the notice (or the date of seizure in a case within paragraph 2) in which to serve a notice claiming that anything seized as liable to forfeiture is not so liable. If no notice is served within that period, then the seized goods are deemed to have been duly condemned as forfeited (paragraph 5). If, on the other hand, a notice is served, the Commissioners must take proceedings for condemnation in the High Court or a magistrates court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited (paragraph 6). If the court holds that the goods were not liable to forfeiture, paragraph 17 provides for the Commissioners to tender to the owner a sum representing their value. The owner may then accept the tender, in which case he shall not be entitled to maintain any action on account of the seizure, detention, sale or destruction of the thing. Or he may reject it, in which case the assumption is that such a right of action will remain available. There are no corresponding provisions relating to the power to detain goods. Indeed, until the Act was amended in 2013, it contained no provisions at all dealing with the procedure for detaining property or its consequences. There can, however, be little doubt about what detention involved, even before the amendment. Detention is a temporary assertion of control over the goods, which does not necessarily involve any seizure with a view to ultimate forfeiture. What is the purpose of detaining goods without seizing them? The obvious answer is to enable the goods to be examined, or secured pending investigations which might lead to their seizure later. This was the view of the Court of Common Pleas in Jacobsohn v Blake and Compton (1844) 6 Man. & G 919; 13 LJ CP 89, a case to which we shall return, and of the majority of the Court of Appeal in Gora v Customs and Excise Commissioners [2003] EWCA Civ 525; [2004] QB 93. In his judgment in the Eastenders case, at para 30, Sales J said this: It does not require much imagination to see that there may be many cases in which there is uncertainty when HMRC officers inspect goods whether duty has been paid on them or not, and to see that in such cases the effective and fair implementation of the relevant tax and its associated enforcement regime will require that goods are held for a period while investigations are carried out in an effort to remove that uncertainty. In general (and without seeking to level criticism against the claimants in the present cases), Parliament cannot have intended that an owner of goods should be able, just by obfuscating and creating uncertainty at the point of inspection in relation to his supply chain and whether duty has or has not been paid, to avoid the full rigour of the machinery for the enforcement of payment of taxes, including by forfeiture of goods on which duty has not been paid. We agree. We have already pointed out that neither the power of seizure nor the power of detention conferred by section 139(1) is expressly said to be exercisable on the basis of reasonable grounds for suspicion or belief. However, the reasonableness of the exercise of those powers does come into it by virtue of section 144, which provides: 144.(1) Where, in any proceedings for the condemnation of any thing seized as liable to forfeiture under the customs and excise Acts, judgment is given for the claimant, the court may, if it sees fit, certify that there were reasonable grounds for the seizure. (2) Where any proceedings, whether civil or criminal, are brought against the Commissioners, a law officer of the Crown or any person authorised by or under the Customs and Excise Acts 1979 to seize or detain any thing liable to forfeiture under the customs and excise Acts on account of the seizure or detention of any thing, and judgment is given for the plaintiff or prosecutor, then if either (a) a certificate relating to the seizure has been granted under subsection(1) above; or (b) the court is satisfied that there were reasonable grounds for seizing or detaining that thing under the customs and excise Acts, the plaintiff or prosecutor shall not be entitled to recover any damages or costs and the defendant shall not be liable to any punishment. Where an officer detains property under section 139(1) because he reasonably considers that it is liable to forfeiture, section 144(2) assumes that that he may be liable if he turns out to be wrong about that, but protects him against an order for financial relief. Liable to forfeiture The first question on these appeals concerns the condition for the exercise of the power of seizure or detention under section 139(1), that the property should be liable to forfeiture. Does this mean that it must actually be liable to forfeiture? Or is it enough that the relevant officer believed or suspected that it was liable to forfeiture? Or that he wished to investigate whether it was or not? We consider that the answer to this is straightforward. The right to seize or detain property under section 139(1) is dependent on that property actually being liable to forfeiture under one of the various forfeiture provisions of the Act. This turns on the objectively ascertained facts, and not on the beliefs or suspicions of the Commissioners or their officers, however reasonable. Our reasons are as follows: (1) Throughout the 1979 Act, the draftsman has said in terms when statutory powers may be exercised on the basis of suspicion or belief rather than objective fact. A particularly striking example is section 138, which is the power corresponding to section 139 relating to the detention of persons who are liable to be detained under the Customs and Excise Acts. The power of detention is exercisable if there are reasonable grounds to suspect that the person has committed an offence. The omission of any such language from section 139 must have been deliberate. (2) The expression liable to forfeiture is used in no less than thirty sections of the 1979 Act. It would be wearisome to go through them all to make exactly the same point, which is that they are almost all sections providing that property is liable to forfeiture in defined circumstances, or in some cases providing that it is not to be liable to forfeiture in defined circumstances when it otherwise would be. In these sections, the words can only refer to actual liability to forfeiture. In all of the other sections in which the expression is used, with the possible exception of sections 139(1) and 144(2), it is equally clear that the reference is to an actual liability to forfeiture. (3) In section 139(1) it is a precondition for both seizure and detention that the goods should be liable to forfeiture. There is no difference in the way that the precondition applies to the two measures. In relation to seizure, the expression must mean actually liable to forfeiture, since seizure puts in train the procedural provisions of Schedule 3, which is wholly concerned with the condemnation of property as forfeit. On the face of it, therefore, the expression must mean the same when applied to detention. The same point can be made about the use of the expression in relation to both seizure and detention in section 144(2). (4) More generally, if liable to forfeiture does not mean actually liable to forfeiture, it is difficult to discern what it can sensibly be thought to mean. The Commissioners submission is that it refers to goods of a kind legally capable of being forfeited. This would mean that all dutiable goods were liable to forfeiture. While that is a linguistically possible meaning of the words, it is hardly the natural one. Its adoption would have the effect of conferring on customs officers a power to detain any goods which were in law dutiable, subject to no restrictions whatever other than those arising from the general principles of public law. So far as the 1979 Act is concerned, it would not even be necessary for the Commissioners to show that there were reasonable grounds for suspicion or belief. (5) Section 144(2), as we have pointed out, assumes that where property has been detained which turns out not to be actually liable to forfeiture, the Commissioners or their officers may be held liable in an action in tort. It confers an immunity in that event from an award of damages and costs if they acted reasonably. If the Commissioners or their officers were entitled to detain goods under section 139(1) on reasonable suspicion, the situation envisaged in this provision could not arise. The action would fail on liability and no immunity from damages and costs would be required. Some difficulties This interpretation of section 139(1), although in our opinion correct, would nevertheless have troubling implications if the Commissioners and their officers had no other power to detain goods. The resultant difficulties include the following: (1) As we have explained, and as Sales J recognised in the passage which we have cited, it is obviously essential to the effective implementation of the laws governing customs and excise that customs officers should be able to detain goods so as to enable them to be examined and secured pending investigations which might lead to their subsequent seizure. Sales J at first instance and Mummery LJ in the Court of Appeal inferred from that practical necessity (i) that Parliament must have intended that customs officers should have the power to detain goods where they reasonably suspect that the goods may be liable to forfeiture and require to make further inquiries, and (ii) that Parliament must therefore have intended section 139(1) to be construed as conferring such a power. The second proposition must be rejected; but the argument in support of the first proposition remains a powerful one. (2) On the hypothesis that the only power of detention is that conferred by section 139(1), and if that provision is interpreted as we consider it must be, it follows that the detention of goods is unlawful whenever the goods are not in fact liable to forfeiture. If that is so, then the detention of goods on the basis of suspicion is unlawful in all cases where the suspicion turns out to be unfounded. In the nature of things, that will be the position in a proportion of cases, even where reasonable grounds for suspicion exist. The customs officers may then be liable in damages for their interference with rights of property unless they can bring themselves within the scope of section 144(2). Even where section 144(2) applies, it only protects the officers against financial relief. (3) A further difficulty with an approach based upon an acceptance that customs officers will behave unlawfully, but will be protected from liability by section 144(2), concerns its compatibility with EU law and the Human Rights Act 1998. Under EU law, the detention of goods by customs officers may require to be justifiable as an interference with the free movement of goods: something which would scarcely be possible if the interference was unauthorised by law, or if that law failed to comply with the EU principle of legal certainty. (4) In relation to the Human Rights Act, the detention of goods by customs officers is an interference with the peaceful enjoyment of possessions within the meaning of article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms: see for example Islamic Republic of Iran Shipping Lines v Turkey (2007) 47 EHRR 573. As such, it must be in accordance with law, and must therefore be authorised by domestic law. Furthermore, the domestic law must meet the requirement of legal certainty. If customs officers are not authorised to detain goods which are not actually liable to forfeiture, or to detain goods for the purpose of investigation into whether they are liable to forfeiture, it follows that their doing so is unlawful by virtue of the Human Rights Act as well as under the common law. (5) The proposition that the only power of detention possessed by customs officers is that conferred by section 139(1) also raises a further difficulty. As we shall explain, there was no statutory provision in respect of detention, corresponding to section 139(1), until 1952. Can it possibly have been the position, prior to 1952, that the Commissioners and their officers had no power to secure goods, where there were reasonable grounds to suspect that they were liable to forfeiture and investigations had to be carried out, other than by pre empting the outcome of such investigations by seizing the goods and setting condemnation proceedings in train, at the risk of behaving unlawfully and incurring a liability in damages? As we have explained, the contrary was the view of the Court of Common Pleas in Jacobsohn v Blake and Compton. In view of these difficulties, it appears to us to be necessary to consider the legislative background, and some relevant authorities, in greater detail. The background to the 1979 Act Statutory regimes providing for the appointment of customs officers and vesting them with powers have existed for centuries. A thoroughgoing reform of the statute book was carried out in 1825, when almost all the statutes regulating the administration of customs and excise which were then in force, going back to the reign of Richard II, were repealed by the Act 6 Geo IV c 105, and new provisions were enacted in their place by several Acts, including the Acts 6 Geo IV c 107 and c 108. A further consolidation took place in 1833, when the 1825 legislation was repealed and replaced by a number of Acts, including the Acts 3 and 4 Will IV c 52 (An Act for the General Regulation of the Customs) and c 53 (An Act for the Prevention of Smuggling). This legislation, like that of 1825, made provision for the detention of persons: see the Act 3 and 4 Will IV c 53, sections 48 53. It also made provision for the seizure of goods which were liable to forfeiture: see the Act 3 and 4 Will IV c 53, section 32, which is a predecessor of section 139(1) of the 1979 Act. Provision was also made in respect of proceedings brought by the owners of goods which had been seized. In particular, the defendant was protected from liability in damages or costs if there had been probable cause for the seizure: see the Act 3 and 4 Will IV c 53, section 102, which is a predecessor of section 144(2) of the 1979 Act. The only statutory reference to the detention of goods at that time was made in a different context. The Act 3 and 4 Will IV c 52 required importers of goods to deliver a bill of entry of the goods, containing specified information about them. Goods which were not properly described in the bill were forfeited: section 20. Where the duty payable depended on the value of the goods, that also had to be stated. Section 22 provided that if upon examination it shall appear to the officers of the customs that such goods are not valued according to the true value thereof, it shall be lawful for such officers to detain and secure such goods, and to take such goods for the use of the Crown, the importer being paid compensation based upon his own valuation. Section 133 distinguished between goods being seized as forfeited, or detained as under valued. Then as now, the legislation conferred extensive powers upon customs officers, including a plethora of powers of entry, search and examination. The 1833 legislation was in force at the time of the case of Jacobsohn v Blake and Compton (1844) 6 Man & G 919; 13 LJ CP 89, which is one of the few reported decisions in this area of the law, and the only one which contains a detailed consideration of the relevant principles. The case was brought by the owner of a consignment of cutlery against two customs officers. The officers had examined the goods when they were landed in order to determine the duty payable (the precise statutory power under which they did so is not stated in the report: there are a number of possibilities), and had then decided to detain them, because of a suspicion that they contravened a statutory prohibition on the importation of cutlery of foreign manufacture bearing the names of British manufacturers resident in the United Kingdom, and were therefore liable to forfeiture. The officers refused to release the goods until the matter had been considered by the Commissioners. After a period of about five months, the Commissioners agreed to release the goods on payment of the duty, and the goods were duly released. An action for damages was then brought, on the basis that the detention had been unlawful. There was no express statutory basis for the detention of the goods, since they were not detained as under valued. The jury was directed to return a verdict for the defendants, and that direction was upheld by the Court of Common Pleas. Tindal CJ is reported at pp 925 926 of Manning and Grangers report as stating: [T]he defendants merely took possession of the goods, in the execution of their duty as custom house officers, for the purpose of examination. When the goods were examined certain marks were found upon them, which induced the defendants to think they were prohibited; and they said they must detain them; and then, on a subsequent application on the part of the plaintiff for the delivery of the goods, the answer was that they were detained and would be prosecuted as seizures. It appears, therefore, that the defendants originally detained the goods under a real and honest doubt that they were subject to forfeiture: whether that doubt was well grounded, is not now the question. There has been no abuse of authority on their part. The goods remained, during the whole time of the examination, in the same custody in which they were, in the first instance, legally detained. The latter part of that passage is reported slightly differently in the Law Journal report at p 90: There has been no abuse of the process which the defendants had to execute, and things remain in the same position during the whole time the goods were under examination. The implication, in both reports of the judgment, is that the process of examination was not completed until the necessary enquiries had been carried out. His Lordship left open the question whether an action might have been brought if the goods had been detained for an unreasonable time. The other judgments similarly emphasized that the officers had been acting within their authority. Coltman J stated at p 926: The defendants were custom house officers acting under an authority given them by law. It was their duty to examine the goods in question, in order to ascertain to what duty they were liable, or whether or not they were subject to forfeiture. If the goods had been afterwards detained by them for a time more than reasonable for the examination, that might have been an abuse of their authority so as to render them liable in another form of action. But it appears to me there is no ground for saying they did more than detain the goods for a reasonable time, in order that the question as to the liability of the goods to forfeiture might be submitted to the proper authorities. (In relation to the second sentence in that passage, Coltman J is reported in the Law Journal report as saying that the officers were acting under an authority given them by law to examine the goods to see whether they were liable to duty, and that I think they had also a right to examine them, to see whether they were liable to forfeiture or not). Cresswell Js judgment at pp 927 928 was to the same effect: The goods were taken by the plaintiff's agent to the proper place for the examination of them by the defendants in the regular discharge of their duty as custom house officers. Upon their examination, all that the defendants did was, to detain them, till it could be ascertained whether or not they were liable to forfeiture. Here, there was no act of trespass, either actually, or impliedly from any subsequent abuse of authority. In the present appeals, it was argued on behalf of Eastenders and First Stop that the ratio of the Jacobsohn case was confined to the situation where imported goods had been taken to a customs warehouse: the officers were entitled to decline to allow the goods to leave the warehouse until the appropriate duty had been paid. So understood, it was argued, the case had no application to cases such as the present appeals, where goods which were inside the country might be liable to forfeiture. The argument that the plaintiff could not insist upon the delivery of imported goods from a customs warehouse, so long as the duty remained unpaid, was indeed one of the arguments advanced on behalf of the officers at the trial of the case, but it does not appear to have been argued on appeal, and only the judgment of Erskine J at p 927 adverts to the point: The goods were landed and taken possession of by the defendants in the discharge of their duty, for the purpose of their being examined. Upon their being partially examined there appeared to be sufficient ground for the defendants to doubt whether they were authorised to receive the duty upon them. All that the defendants did was merely to decline to receive the duty upon them. The subsequent declaration made by them was not a declaration that what they had done amounted to a seizure, but merely a statement that, the matter being under the consideration of the commissioners, the goods could not be given up to the plaintiff. Erskine Js reference to the goods being partially examined, prior to the making of enquiries of the Commissioners, is consistent with the approach adopted in the other judgments. In any event, in the light of the other judgments, the ratio of the decision cannot be said to have been based on the non payment of duty on imported goods. In a related submission, it was argued on behalf of Eastenders and First Stop that the decision in Jacobsohn was based on a technical aspect of the law of trespass: since the officers had lawful possession of the goods initially for the purpose of examination, their subsequent detention of the goods did not involve any transfer of possession, and therefore could not amount to trespass. This argument also was advanced on behalf of the officers at the trial of the case, but it was not accepted. The court recognised that possession which was initially lawful might be rendered unlawful by an abuse of the authority under which possession had been taken, following the Six Carpenters Case (1610) 8 Co Rep 146. Hence the emphasis laid in the judgments upon the absence of any abuse of authority: as Cresswell J said, there was no trespass, either actually, or impliedly from any subsequent abuse of authority. As is clear from the passages in the judgments which we have cited, the majority of the court accepted that the detention of the goods was lawful because there had been no abuse of authority on the part of the officers; and there had been no such abuse because their authority to examine the goods in order to determine the duty payable, or (by implication) whether the goods were liable to forfeiture, carried with it, by necessary implication, an authority to detain the goods for such time as was reasonably necessary in order to make that determination. Where the determination required the making of enquiries, going beyond an inspection of the goods themselves, it was lawful to detain the goods for such time as was reasonably necessary to make those enquiries. The practical importance, and good sense, of the approach adopted in the Jacobsohn case to the scope of an examination of goods can be illustrated both by the facts of that case and by the facts of the present appeals. In that case, as we have explained, the statutory prohibition was on the importation of cutlery of foreign manufacture bearing the names or marks of British manufacturers resident in the United Kingdom. Some of the cutlery in question was impressed with the words Watson, Barbican, Norton Folgate, and some with the words Daniel Lutter, extra patent silver steel. A visual examination alone could not enable the officers to know where the cutlery had been manufactured, or whether Watson and Lutter were British manufacturers resident in the United Kingdom. In the present appeals, as counsel for Eastenders submitted, the question whether beer or wine is liable to forfeiture as not duty paid will not be resolved by gazing at the goods, for whatever length of time. It will only be resolved by examining the paper trail back to the point of duty payment. As we have explained, the power of detention which was held to exist in Jacobsohn was not expressly conferred by the customs and excise legislation, but arose by necessary implication from the officers statutory power to examine goods for the purpose of determining the duty payable or whether they were liable to forfeiture. It was not conditional upon the goods being liable to forfeiture: as Tindal CJ observed, whether the officers suspicions were well grounded was not the question. It was sufficient, in order for the power of detention to be lawfully exercised, that the officers should have, in the words of Tindal CJ, a real and honest doubt that the goods were liable to forfeiture. The protection from liability in damages or costs which was conferred on customs officers where goods had been mistakenly seized as liable to forfeiture had nothing to do with such detention, and did not feature in the case: since the detention of the cutlery was impliedly authorised by statute, it could not constitute a tort. The approach adopted in the case of Jacobsohn is consistent with the approach to a statutory power of examination which was taken more recently in the case of R v Secretary of State for the Home Department, Ex p Labiche [1991] Imm AR 263, a decision of the Court of Appeal concerned with immigration. The immigration legislation gave immigration officers the power to examine any person entering the United Kingdom, and required that a person examined by an immigration officer should be given notice, granting or refusing leave to enter the United Kingdom, not later than 12 hours after the conclusion of his examination. The appellant had been given a notice refusing leave more than 12 hours after being interviewed by an immigration officer, and argued that the notice was out of time. The Court of Appeal disagreed. Fox LJ, with whom Butler Sloss LJ and Sir Roualeyn Cumming Bruce agreed, said at p 268 that the examination cannot terminate until (a) necessary inquiries by the immigration officer or the Secretary of State have been completed and (b) the immigration officer has received the directions of the Secretary of State. The approach adopted to the concept of examination in this context was the same, mutatis mutandis, as that adopted in Jacobsohn. It is also relevant to note the earlier customs case of Irving v Wilson (1791) 4 Durn & E 485. That action was brought in the Court of Kings Bench for the recovery of money had and received by customs officers. The officers had stopped a cart containing goods which required a permit, without which they were liable to forfeiture. The carrier did not have a permit, but told the officers that the goods formed part of a larger consignment, and that a permit for the entire consignment was with the remainder of the consignment, some miles behind. The officers waited some time, but the remainder of the consignment did not appear. The officers then seized the goods. When the remainder of the consignment eventually arrived, and the permit was produced, those goods also were seized. The officers then refused to restore the goods until a payment had been made by the owner. He succeeded in his action for the recovery of the payment. The significance of the case in the present context arises not from that decision, but from some of the observations made. Ashurst J noted at p 486 that the goods were not liable to seizure, but also stated at pp 486 487 that the defendants acted right in stopping the goods at first; but when the permit came up, there was no pretence to detain them. The implication appears to be that it was lawful to detain the goods while there were reasonable grounds for suspecting that they might be liable to forfeiture. Lord Kenyon CJ similarly distinguished at p 486 between the initial detention and the subsequent seizure, stating that whatever ground of probability there was for stopping the first cart, yet after the matter was cleared up, there was no pretence for making a seizure. Returning to the history of the legislation, following the 1833 consolidation a further consolidation took place in 1845, when generally similar provision was made by the Act 8 and 9 Vict c 86 and the Act 8 and 9 Vict c 87. The next consolidation, in the Customs Consolidation Act 1853, amalgamated in a single Act the provisions formerly contained in separate statutes dealing with the regulation of customs and the prevention of smuggling. It also amalgamated, in section 223, the previously separate provisions in respect of the seizure of goods liable to forfeiture, on the one hand, and the detention of suspected offenders, on the other hand. The consequence was that a reference to detention appeared for the first time in a provision dealing with the seizure of goods. Generally similar provisions were contained in the next consolidation statute, namely the Customs Consolidation Act 1876. Section 202 again dealt in a single provision with the seizure of goods liable to forfeiture and the detention of persons. The provisions dealing with legal proceedings were drafted, as previously, on the basis that claims would be brought by the owners of goods which had been seized as liable to forfeiture; and section 267, protecting officers from liability, applied only where the goods had been seized. The final consolidation prior to the 1979 Act was effected by the Customs and Excise Act 1952. Like the earlier legislation, the 1952 Act conferred on customs officers extensive powers of investigation. The Act reverted to the separate treatment of the detention of persons, in section 274, and the seizure of goods, in section 275. Section 275(1) however retained the reference to detention which had appeared in section 223 of the 1853 Act and section 202 of the 1876 Act, and provided in subsection (1) that any thing liable to forfeiture under the customs or excise Acts may be seized or detained by any officer or constable or any member of Her Majestys armed forces or coastguard. That provision is almost identical to section 139(1) of the 1979 Act. The 1952 Act also extended the scope of the protection from liability given to customs officers, by providing in section 280(2) that there should be no civil or criminal liability on account of the seizure or detention of any thing liable to forfeiture if the court were satisfied that there were reasonable grounds for seizing or detaining that thing. That provision is almost identical to section 144(2) of the 1979 Act. The effect of section 275(1) of the 1952 Act was to create an express statutory power to detain goods which were liable to forfeiture. Such a power is clearly distinct from the power to detain as part of the process of examination, and has a different purpose and different legal consequences. It was and is available only where goods are liable to forfeiture, whereas the power of detention discussed in the case of Jacobsohn is available where there are reasonable grounds for suspecting that goods are so liable. The power of detention conferred by section 275(1) of the 1952 Act, and now contained in section 139(1) of the 1979 Act, is an alternative to the seizure of the goods in question, but differs from seizure in that it is temporary in nature and does not trigger the commencement of proceedings for the condemnation of the goods. As Elias LJ suggested in the Eastenders case, there could be circumstances in which goods were considered to be liable to forfeiture but in which the Commissioners might not wish to embark at once upon a procedure leading to the condemnation of the goods, for example where the breach of the law was capable of correction. Detention under section 139(1), unlike detention for the purpose of investigation, would require, and would attract, the protection afforded by section 144(2). The important question for present purposes is whether, when Parliament created the power to detain goods liable to forfeiture, it by implication abolished the power of detention which had previously been held to arise by necessary implication from statutory powers of examination. In our view no such implication follows, for several reasons. (1) Temporally, the powers are distinct: the process of examination precedes the reaching of a conclusion whether goods are liable to forfeiture. In terms of purpose, the powers are equally distinct. The purpose for which the power to detain, as an incident of examination, may be exercised is to enable the officers to retain control over the goods temporarily until they have arrived at a conclusion as to the duty payable or as to whether the goods are liable to forfeiture. The purpose for which goods may be detained after such a conclusion has been reached is plainly different, and would appear to be as Elias LJ suggested. There is therefore no necessary implication that the enactment of a power to detain goods liable to forfeiture entailed the abrogation of the existing power to detain as part of the process of examination. (2) It is difficult to conceive why Parliament should have conferred upon the Commissioners and their officers a wider range of intrusive investigatory powers than any other public body, but should at the same time have chosen to deprive them of a means of preventing goods from being disposed of until they have completed their examination and decided whether the goods should be seized. Why depart from an approach long approved by the courts? Why, moreover, should Parliament have conferred on the Commissioners more extensive powers to detain persons (in section 138 of the 1979 Act) than to detain goods? (3) The 1952 Act was a consolidation Act with amendments. There is nothing in the report of the Committee reporting on the Bill (Report of the Committee on the Draft Customs and Excise Bill (1951), Cmd 8453), or in the notes on clauses prepared by Parliamentary counsel, included as an appendix to the report, to indicate that Parliament intended the 1952 Act to have the effect of restricting the existing powers of detention possessed by customs officers. We turn now to consider the present appeals in the light of these general observations. The Eastenders case In the Eastenders case, there is no dispute that the officers were entitled to inspect the goods in question in accordance with section 118C(2) of the 1979 Act, and to require the production of documents under section 118B. It is also not in dispute that, as Sales J found, the officers had reasonable grounds to suspect that duty had not been paid on the goods. The officers were unable to fulfil the object of the inspection, by determining whether the appropriate duties had been paid, without making further enquiries into the provenance of the goods. They detained the goods while those enquiries were made. It is not in dispute that the period during which the goods were detained did not exceed a reasonable period of time. In the present appeal, counsel for the Commissioners submitted that section 118C(2) of the 1979 Act authorised the detention of the goods until the statutory inspection had been completed, and further submitted, in the light of the Jacobsohn case, that there was, and had always been, a power to detain goods pending determination of whether or not they were liable to forfeiture. It was however their primary contention that the inspection of the goods came to an end when the goods had been visually examined, and that their subsequent detention must therefore be justified under section 139(1). For the reasons we have explained at paras 35 37, we consider that that approach is based upon an unduly narrow understanding of what may be involved in an inspection in such circumstances. As we have explained at para 23, we consider that the majority of the Court of Appeal were correct in their construction of section 139(1). They were therefore correct to hold that, since the goods were not in fact liable to forfeiture, their detention did not fall within the scope of section 139(1). It does not however follow that the officers had no power to detain the goods for the purpose of investigating their duty status. Since the officers were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that duty had not been paid, they were in our view entitled by virtue of section 118C(2) to detain the goods for a reasonable period in order to complete the enquiries necessary to make their determination. The First Stop Case In the First Stop case, there is no dispute that the officers were entitled to examine the goods in question in accordance with section 112 of the 1979 Act, and to require the production of documents under section 112A. The officers were unable to fulfil the object of the examination, by determining whether the appropriate duties had been paid, without making further enquiries into the provenance of the goods. They detained the goods while those enquiries were made. They appear to have had reasonable grounds for suspicion that duty had not been paid, and the contrary has not been argued. It has not been argued that the period during which the goods were detained exceeded a reasonable period of time. As in the Eastenders appeal, it was submitted on behalf of the Commissioners that the power of examination conferred by section 112 permitted the Commissioners to detain the goods for the purpose of their examination, and that there was a power to detain the goods pending determination of whether or not they were liable to forfeiture. These were again, however, conceived to be distinct powers, on the assumption that the examination of the goods came to an end when they had been visually inspected. It was therefore the Commissioners primary contention that the power to detain the goods after that point must have some other source, section 139(1) being the only candidate. As in the Eastenders appeal, we consider however that the examination was not completed until the necessary enquiries had been made, and that the power of examination impliedly included an ancillary power of detention for a reasonable time while those enquiries were made. Counsel for First Stop submitted that this approach to the case was not open to the Commissioners, since they had expressly referred to section 139(1) as the legal basis of the detention of the goods: see para 8 above. We are unable to accept that submission. The lawfulness of the detention of the goods depends upon whether the Commissioners possessed the power to detain them, not on whether they accurately identified the statutory source of that power. The reasons given to First Stop for the detention of the goods (pending further enquiries into their duty status), although certainly not expansive, were sufficient to enable them to exercise their rights, as indeed they did. As we have explained, section 144(2) of the 1979 Act confers a protection against liability in damages or costs. It applies where any proceedings are brought against the Commissioners, a law officer of the Crown or any person authorised by or under the [1979 Act] to seize or detain any thing liable to forfeiture under the customs and excise Acts on account of the seizure or detention of any thing, and judgment is given for the plaintiff or prosecutor. In the circumstances of the Eastenders and First Stop cases, judgment should not have been given for the claimants: on a proper understanding, the detention of their goods had been lawful, and their applications for judicial review should therefore have been dismissed. Section 144(2) was therefore not applicable. The court should have exercised its ordinary discretion in relation to the costs of the proceedings. It is unnecessary to decide whether, in any event, section 144(2) applies where goods are detained otherwise than under section 139(1). It follows that the points that were raised by First Stop (and which Eastenders also sought to raise) in relation to the compatibility of section 144(2) with Convention rights do not arise. It also follows, however, that the decisions on costs in both cases were made on a mistaken basis. No court has been addressed on the issue of costs in these cases on the basis that the court possessed its ordinary discretion. In the circumstances, it is appropriate that the decisions on costs should be set aside and the matter re considered by this court on the proper basis. Disposition For these reasons, we would allow the Commissioners appeal in the Eastenders case, and dismiss the first of the appeals brought by First Stop. The appeal in relation to costs should be allowed. The decision of the Court of Appeal in relation to costs in the Eastenders case should also be set aside. The parties should be invited to make submissions on the issue of costs in this court and the courts below.

UK-Abs

These appeals concern the question whether customs officers have the power to detain goods which they reasonably suspect may be liable to forfeiture. In Eastenders, customs officers entered Eastenders premises and inspected consignments of alcoholic goods. Eastenders' employees were unable to provide documentary evidence that duty had been paid on the goods. The officers decided to detain the goods pending the outcome of further enquiries. The Commissioners subsequently stated that the goods had been detained under section 139 of the Customs and Excise Management Act 1979, which empowers customs officers to seize or detain "anything liable to forfeiture under the customs and excise Acts." [3 4] Eastenders applied for judicial review of the decision to detain those goods that were subsequently returned when the officers' enquiries proved inconclusive. Mr Justice Sales dismissed the application, holding that, where the Commissioners had reasonable grounds to suspect that goods might be liable to forfeiture, they had the power under section 139(1) to detain them for a reasonable time while they made enquiries. The Court of Appeal reversed that decision, holding that section 139(1) applied only where goods were actually liable to forfeiture. [5 7]. The Commissioners appeal to the Supreme Court. In First Stop, customs officers detained alcoholic goods at First Stop's premises, on suspicion that duty had not been paid, while enquiries were made. Written notices were provided stating that the goods had been detained "pending evidence of duty status (CEMA 1979, section 139)". Most of them were subsequently seized and the remainder returned to First Stop [8]. First Stop successfully applied for judicial review of the decision to detain the goods. Mr Justice Singh held that the detention was unlawful as the reason given for it was the need for investigation. The Court of Appeals judgment in Eastenders meant that goods could not lawfully be detained under section 139(1) for that purpose. However, the Court of Appeal disagreed with his interpretation, and decided that the effect of Eastenders was that if goods were in fact "liable to forfeiture", detention for a reasonable time was lawful under section 139(1) irrespective of the reason given for it [9 12]. Mr Justice Singh also held that the Commissioners were not protected from an order for costs by section 144(2) of the 1979 Act (which applies where officers had reasonable grounds for detaining goods) as the reason they gave for detaining the goods was unlawful. The Court of Appeal held that this was inconsistent with Eastenders. First Stop appeal against both decisions [12]. In a judgment delivered by Lord Sumption and Lord Reed, the court unanimously allows the Commissioners' appeal in Eastenders, dismisses First Stop's first appeal and allows its second appeal. The right to seize or detain property under section 139(1) is dependent on the property actually being liable to forfeiture. This turns on objectively ascertained facts; not on beliefs or suspicions, however reasonable. This is apparent when one looks at section 139(1) in the context of other provisions in the Act. For example, other powers are expressly stated to be exercisable on the basis of suspicion or belief [23], whereas the section 139(1) power is not. However, this interpretation would have troubling implications were there no other power to detain goods. It is essential in practice that customs officers should be able to secure goods where, following an examination, it is necessary to carry out further enquiries investigations that might lead to their seizure. If there were no other power of detention, then detention on the basis of suspicion would be unlawful in all cases where the suspicion turned out to be unfounded, and this would be problematic in terms of compliance with EU law and Convention standards on legal certainty [24]. In neither case however had it been argued that the power to detain could have a source other than section 139(1). But customs officers have long had a statutory power to examine goods in order to determine the duty payable or whether the goods are liable to forfeiture. Prior to the enactment in the Customs and Excise Act 1952 of the power to detain goods liable to forfeiture, the courts interpreted customs officers' statutory powers of examination as including, by necessary implication, an authority to detain goods on reasonable suspicion for such time as was reasonably necessary in order to make enquiries allowing officers to make their determination [26 35]. When enacting the 1952 Act, Parliament did not impliedly abolish that power of detention, which is not conditional upon the goods being liable to forfeiture [37; 52]. In Eastenders, the officers were entitled to detain the goods for a reasonable period in order to complete their enquiries; they were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that they had not been [49]. In First Stop, the officers' examination was not completed until the necessary enquiries had been made, and the power of examination impliedly included an ancillary power of detention for a reasonable time while these enquiries were undertaken [50 51]. Detention in both cases was therefore lawful. The section 144(2) costs protection did not apply as both judicial review applications ought to have been dismissed. The parties are invited to make submissions on costs on the basis that the court possessed its ordinary costs discretion [52 55].

The appellant, VTB Capital plc (VTB), is incorporated and registered, and authorised and regulated as a bank, in England. It is majority owned by JSC VTB Bank (VTB Moscow), a state owned bank based in Moscow. The first, second and fourth respondents are, respectively, Nutritek International Corp (Nutritek), Marshall Capital Holdings Ltd (Marcap BVI), both British Virgin Islands companies, and Mr Konstantin Malofeev, a Russian businessman resident in Moscow said to be the ultimate owner and controller of both, as well as of the third respondent, Marshall Capital LLC (Marcap Moscow), a Russian company which has not been served. The present case arises from a Facility Agreement dated 23 November 2007 (the Facility Agreement) entered into between VTB and a Russian company, Russagroprom LLC (RAP), under which VTB advanced some US$225,050,000 to RAP. The advance was primarily to enable RAP to buy six Russian dairy companies and three associated companies (the dairy companies) from Nutritek. After making three interest payments (and no payments of capital), RAP defaulted on the loan in November 2008. VTB believes the security provided for the loan to be worth only in the region of US$32m to US$40m. VTBs case is that it was induced in London to enter into the Facility Agreement, and an accompanying interest rate swap agreement, by misrepresentations made by Nutritek, for which the other respondents are jointly and severally liable. The misrepresentations alleged are, first, that RAP and Nutritek were not under common control, and second, that the value of the dairy companies was much greater than they were in fact worth. VTBs case is that the misrepresentations were fraudulent. In order to bring proceedings in tort in England against any of the respondents, VTB required permission to effect service on them out of the jurisdiction. Permission was obtained from Master Winegarten on 11 May 2011. The first, second and fourth respondents were served, and applied to set aside the service. In response, VTB applied for leave to amend its particulars of claim to add a contractual claim, seeking to hold the respondents liable for breach of the Facility Agreement and interest rate swap, on the basis that RAPs corporate veil could in the circumstances be pierced and the respondents held liable as persons behind the borrowing. The respondents application to set aside succeeded and VTBs application to amend failed before Arnold J, and the Court of Appeal upheld his decision on both points, albeit by reasoning in some respects different. As to service out, it is common ground, in the light of the decisions below, that VTB has a serious issue to be tried in tort against each of the respondents, and a good arguable case that its tort claims fall within CPR Part 6, PD 6B, para 3.1(9)(a), on the basis that they led to VTB sustaining damage within the jurisdiction. But both courts below held that VTB failed to show that England was clearly or distinctly the appropriate forum for resolution of VTBs tort claims. As to piercing the corporate veil, both courts have held that, although such a principle exists, no basis exists in the present circumstances for applying it to hold the respondents liable on a Facility Agreement or interest rate swap, into which they are alleged to have induced VTB to enter by deceit. VTB now appeals by permission of the Supreme Court on both points, which I will consider in turn. Appropriate forum the basis of the claims Both the alleged misrepresentations on which VTB relies originated in Russia, but they reached VTB in London (very probably via VTB Moscow), and were relied upon by VTB there when it gave formal agreement to the Facility Agreement and interest rate swap there. Further, VTB sustained its loss by disbursing money in and from London, although, as will appear, it was in fact covered by VTB Moscow against any loss which it might otherwise make on the loan. In these circumstances, I address the question of the appropriate forum on the basis that, contrary to the conclusion of the judge and Court of Appeal, the law governing the alleged tort of deceit is English rather than Russian law. In summary, this is because England is the place where the events constituting the tort occurred, within the meaning of section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 and the respondents have not shown under section 12 that the significance of the factors connecting the tort with Russia is such that it is substantially more appropriate for Russian rather than English law to apply to determine the issues arising in this case. Whether the same applies to the alleged tort of conspiracy was not the focus of detailed submissions on this appeal and appears to me more doubtful. The conspiracy was to commit the deceit, but since both are based on a common design allegedly formed in Russia, that is a point that cuts both ways. I am however content to proceed on the basis that the conspiracy was, like the deceit, governed by English law, since ultimately in my view it makes no difference to the result. It is relevant in the light of the above to examine the pleaded basis for the allegations of deceit and conspiracy. Each of these alleged torts depends upon an allegation that the first respondent, Nutritek, made false representations as part of a common design and conspiracy with the other respondents to defraud VTB: amended particulars of claim, paras 27(f) and (g). They acted in concert pursuant to a common design: amended particulars of claim, para 67(a). The nominal owner of Nutritek was the second respondent, Marcap BVI. Marcap BVI through another company owned and controlled Marshall Capital LLC (Marcap Moscow), and it is pleaded that Marcap through Marcap BVI had de facto control of and beneficially owned in part Nutritek (amended particulars of claim, para 68(a); see also para 55) and that The whole transaction under which VTB was defrauded was co ordinated by Marcap (para 68(d)). Marcap is defined as the Marshall Capital group of companies (para 3). These pleaded formulations no doubt point to the reality that the affairs of Nutritek were controlled in Moscow, by Marcap Moscow through Marcap BVI, and, consistently with this, Marcap Moscows offices and personnel feature prominently in the history of the transaction: see e.g. amended particulars of claim, paras 30 and 69 and para 19 below. It follows that, even though the tort of deceit was itself committed in England, the alleged tortious responsibility of all the respondents depends upon its being established that they were party to a common design. On the facts of this case, it is also clear that any common design is alleged to have been and must have been formed in Russia. That is where Mr Malofeev and Marcap Moscow are based and it is Marcap who co ordinated the transaction under which the fraud allegedly occurred and through Mr Malofeev as Marcap BVIs agent that the Court of Appeal held that there was a good arguable case against Marcap BVI: see judgment, para 127. As to Nutritek that was, like Marcap BVI, a British Virgin Islands company, but it was principally owned by two Russian companies (see amended particulars of claim, para 2(a)), it was managed in Russia, no doubt through Marcap Moscow, and the approach relating to the proposed sale and facility agreement was made on its behalf to VTB Moscow by Mr Malofeev. The principal witnesses from all three respondents who have been served in relation to the alleged torts will come from Russia. The conclusion that the alleged tort of deceit is governed by English law is very relevant to the question of the appropriate forum, and I am prepared to assume that the alleged tort of conspiracy is also governed by English law. However, assuming English law to govern both alleged torts, no one suggests that this is decisive of the appropriate forum. For reasons I have already indicated, the common design on which VTBs tortious claims depend is thoroughly Russian. The legal principles regarding appropriate forum The appeal was originally presented to the Supreme Court as raising a significant issue regarding the nature and extent of the relevance of the governing law and the way in which this should be expressed. The suggestion was that a conclusion that the tort was committed in England gave rise to a strong presumption in favour of an English forum. It was submitted that the Court of Appeal had unjustifiably diluted this. It appears clear that it was only before the Court of Appeal that the suggestion was evidently first advanced. The judges judgment makes no reference at all to the line of authority represented by Cordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth) [1984] 2 Lloyds Rep 91, to which so much significance is now attached. The appellants skeleton argument before the Court of Appeal raises the point, but does not in any way criticise the judge for not mentioning it again indicating that the different counsel representing the appellant at that stage had not relied upon it. The locus classicus in relation to issues of appropriate forum at common law is Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, where Lord Goff of Chieveley gave the leading speech. He identified as the underlying aim in all cases of disputed forum, to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice (p 480G). But he also identified the important distinction in the starting point and onus of proof between cases where permission is required to serve proceedings out of the jurisdiction and situations where service is possible without permission: p 480G H. The present case falls into the former category. In cases within that category, permission was not to be granted under the former rules of court unless it shall be made sufficiently to appear to the court that the case is a proper one for service out (RSC Ord 11, r 4(2)), and, as Lord Goff noted, the jurisdiction being exercised may be exorbitant (p 481A D). On this basis, Lord Goff concluded that: The effect is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so (p 481E). Lord Goff went on to explain that caution was necessary in respect of the word exorbitant caution that explains his statement that the jurisdiction to serve out may be exorbitant. He noted (p 481F 482B) that the circumstances in which permission to serve out may be granted: are of great variety, ranging from cases where, one would have thought, the discretion would normally be exercised in favour of granting leave (e.g., where the relief sought is an injunction ordering the defendant to do or refrain from doing something within the jurisdiction) to cases where the grant of leave is far more problematical. In addition, the importance to be attached to any particular ground invoked by the plaintiff may vary from case to case. For example, the fact that English law is the putative proper law of the contract may be of very great importance .; or it may be of little importance as seen in the context of the whole case. In these circumstances, it is, in my judgment, necessary to include both the residence or place of business of the defendant and the relevant ground invoked by the plaintiff as factors to be considered by the court when deciding whether to exercise its discretion to grant leave; but, in so doing, the court should give to such factors the weight which, in all the circumstances of the case, it considers to be appropriate. The modern rules reflect more precisely Lord Goffs statement of general principle, in providing that permission is not to be given unless the court is satisfied that England and Wales is the proper place in which to bring the claim: CPR, rule 6.37(3). In the present case, the appellants rely upon words of Robert Goff LJ, as he was, in an earlier Court of Appeal case: Cordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth) [1984] 2 Lloyds Rep 91, and the acceptance of that case as consistent with The Spiliada by the House of Lords in the later case of Berezovsky v Michaels [2000] 1 WLR 1004. In The Albaforth Robert Goff LJ deduced from earlier case law that (p 96): where it is held that a Court has jurisdiction on the basis that an alleged tort has been committed within the jurisdiction of the Court, the test which has been satisfied in order to reach that conclusion is one founded on the basis that the Court, so having jurisdiction, is the most appropriate Court to try the claim, where it is manifestly just and reasonable that the defendant should answer for his wrongdoing. This being so, it must usually be difficult in any particular case to resist the conclusion that a Court which has jurisdiction on that basis must also be the natural forum for the trial of the action. If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the Courts of that jurisdiction are the natural forum. Certainly, in the present case, I can see no factors which could displace that conclusion. In Berezovsky v Michaels a challenge to the consistency of this approach with The Spiliada was rejected by Lord Steyn in a speech with which the other two members of the majority agreed: speaking of a line of authority in which the approach taken in The Albaforth had been followed, he said (p 1014A F): The express or implied supposition in all these decided cases is that the substance of the tort arose within the jurisdiction. In other words the test of substantiality as required by Kroch v Rossell [1937] 1 Al1 ER 725 was in each case satisfied. Counsel for Forbes argued that a prima facie rule that the appropriate jurisdiction is where the tort was committed is inconsistent with the Spiliada case [1987] AC 460. He said that Spiliada admits of no presumptions. The context of the two lines of authority must be borne in mind. In Spiliada the House examined the relevant questions at a high level of generality. The leading judgment of Lord Goff of Chieveley is an essay in synthesis; he explored and explained the coherence of legal principles and provided guidance. Lord Goff of Chieveley did not attempt to examine exhaustively the classes of cases which may arise in practice, notably he did not consider the practical problems associated with libels which cross national borders. On the other hand, the line of authority of which The Albaforth is an example was concerned with practical problems at a much lower level of generality. Those decisions were concerned with the bread and butter issue of the weight of evidence. There is therefore no conflict. Counsel accepted that he could not object to a proposition that the place where in substance the tort arises is a weighty factor pointing to that jurisdiction being the appropriate one. This illustrates the weakness of the argument. The distinction between a prima facie position and treating the same factor as a weighty circumstance pointing in the same direction is a rather fine one. For my part the Albaforth line of authority is well established, tried and tested, and unobjectionable in principle. Kroch v Rossell [1937] 1 All ER 725 was a case in which a foreigner describing himself as a gentlemen of no occupation claimed that he had been libelled in Le Soir, a publication with a daily circulation in Paris of about a million and a half, and in London of well under 50. He failed to establish any English reputation or connection, save temporary presence here to start the proceedings. Not surprisingly, the Court of Appeal thought that any breach here was technical and of no substance. It described the principles governing permission as requiring an examination of the circumstances to identify where the action should be better tried, in terms which foreshadowed Lord Goffs approach in The Spiliada. Berezovsky v Michaels was concerned with an alleged libel of a Russian businessman in a magazine with sales of 785,000 in the USA, 1,900 in England and 13 in Russia. But, in contrast with the position in Kroch v Rossell, the claimant had significant connections with and reputation to protect in England. On the basis that the English tort was a separate one, for the pursuit of which England was prima facie the appropriate forum on the approach taken in The Albaforth, the majority in the House upheld the Court of Appeals conclusion that England was the appropriate forum for its pursuit. The Albaforth line of authority is no doubt a useful rule of thumb or a prima facie starting point, which may in many cases also prove to give a final answer on the question whether jurisdiction should appropriately be exercised. But the variety of circumstances is infinite, and the Albaforth principle cannot obviate the need to have regard to all of them in any particular case. The ultimate over arching principle is that stated in The Spiliada, and, if a court is not satisfied at the end of the day that England is clearly the appropriate forum, then permission to serve out must be refused or set aside. The history of the transaction In the present case, there are two elements of the deceit by which VTB claims that it was deceived into entering into the facility agreement: the first goes to the ownership of the buyers, RAP; the second goes to the financial position of the dairy enterprises being sold to RAP. A large part of the evidence on these aspects by which VTB obtained permission to serve out of the jurisdiction on 11 May 2011 consisted of statements from Mr Konstantin Tulupov and Mr Vadim Muraviev, both of Moscow. There was further evidence in support of the application for permission to serve out, all from other Russian witnesses: see para 191 of Arnold Js judgment, quoted in para 41 below. Mr Tulupov was until October 2008 employed at JSC, VTB Moscow as a director within the Investment Business Acquisition and Leverage Finance Team in Moscow. Mr Muraviev had no personal involvement in events but was when he made his statement in April 2011 the Head of the Division of Distressed Debt Settlement at VTB Moscow and made his statement on the basis of a series of interviews had on 1 February 2011 with various staff members of VTB, namely Colin Magee, VTBs then general counsel, Julia Ferris, director at VTBs legal counsel department, Peter Yates, VTBs head of credit portfolio management and administration and Martin Pasek, managing director of structuring at VTB. Mr Tulupov explains that he was the project manager in respect of the facility agreement between VTB and RAP, a transaction that was both high risk but offered potentially significant benefits for VTB and VTB Moscow (para 8). As such he would (para 70) attend meetings with and obtain information from potential borrowers, draft proposed terms of any loan to submit to VTB Moscows credit committee, liaise with VTB where it was to be the lender of record, deal with any matters raised by VTB Moscows credit committee, have the conduct of matters arising after any loan was made, although where VTB was the lender of record the performance of the loan was also monitored by it and in all these matters report to his managing director, Mr Konstantin Ryzhkov, and at times also to his superior, one of two senior vice presidents, Mr Vassily Kirpichev and Mr Alexander Yastrib, who in turn reported to the deputy president, Mr Levin. During the course of the present transaction, Mr Ryzhkov also became head of the investment business acquisition and leverage finance team of VTB in London (according to Mr Muraviev from 1 September 2007). Mr Tulupov in para 8 deals with the two bases of the present claim. He states that the value of the shareholding and cash flow of the dairy companies was of considerable importance to VTB and VTB Moscow, since it represented the only real security of value, and for this reason they wanted an independent valuation and relied upon that provided by Ernst & Young dated September 2007. As to the alleged representation regarding ownership of RAP, he said: G. Whilst it was entirely a matter for the Credit Committee of VTB Moscow, if VTB Moscow had known that the proposal for the sale by Nutritek was to a company under common control, it is likely VTB Moscow would have approached the proposal differently. In particular, I believe that it is likely to have viewed the proposal as one seeking asset finance rather than acquisition finance. Amongst one of the many additional matters that would have been considered (and to which I will briefly refer later in this statement) would be the provision of additional security; H. Given that it was disclosed to VTB Moscow at the outset that Nutritek was controlled by Marcap, which I understood was a family of funds controlled by Mr Konstantin Malofeev . then Marcap was the obvious target to provide that security. This was particularly the case, when it was known to VTB Moscow that Nutritek urgently needed to raise funds to pay certain credit linked notes (CLN) and that some of the monies raised by the sale of the Dairy Companies were being used to pay them. It would have been noteworthy if Marcap refused to provide security for the risk that VTB and VTB Moscow were taking. Mr Tulupov proceeds at some length to set out the history of the transaction, starting with a meeting in Moscow where the proposed transaction was explained to Mr Ryzhkov and Mr Tulupov by Mr Malofeev and a Mr Provotorov, following which Mr Tulupov on about 18 July 2007 engaged Mr Johnston of Dewey & LeBoeuf, London to draw up finance documentation for a loan to an unknown borrower who Mr Malofeev and Mr Provotorov said they had in mind to approach to buy the dairy companies. VTBs director, Ms Bragina, responsible for investment business acquisition and leverage finance at VTB, was copied into the email and a party to the conference call by which Mr Tulupov instructed Mr Johnston. A subsequent enquiry by Mr Johnston of Mr Tulupov as to the identity of any borrower led to the answer, that the potential purchaser is controlled by a group of individuals with whom, Marcap assures, you cant have any conflict of interest. Mr Johnston described this as evasive and said that VTB would need to do a KYC (know your customer) clearance on the borrower. Arnold Js judgment records (para 14) that Mr Tulupov had a further meeting with Mr Provotorov and Mr Leonov in Moscow in late July, after which he emailed them with two versions of a term sheet, copying in Mr Malofeev, Mr Ryzhkov and Ms Bragina. A third Moscow meeting involving Mr Tulupov, Mr Malofeev, accompanied by Mr Provotorov and probably also by Mr Yuri Leonov, took place at Marcap Moscows offices in early October, when Mr Malofeev identified RAP as the potential buyer and borrower. But, according to Mr Tulupov, nothing was said to suggest that the sale would be to anything other than an independent third party, and that it would have been apparent to Mr Malofeev and his colleagues that what was being discussed was acquisition finance, rather than a balance sheet loan. A third term sheet was emailed by Mr Tulupov to the previous recipients, but not on this occasion copied to Ms Bragina. It identified VTB as the lender and recorded that additional commission was to be earned through a derivative tied to the shares and there was to be an interest rate swap to hedge interest and currency risks. VTB was commonly lender of record on such transactions, because it could offer more sophisticated lending structures and because English law offers greater protection in the event of default, but in such cases VTB Moscow would lend the relevant monies to VTB, as here, under a 100% participation agreement, although, in addition VTB was in this case itself involved in providing the interest rate swap agreement. In these circumstances, from an early stage, Mr Tulupov also worked with his counterpart at VTB, Ms Bragina, copying her into emails. Mr Tulupovs role was thereafter to obtain, check and distribute the information required by the various departments of VTB Moscow, to obtain their reports and opinions, to draw these together in a Deal Description and Draft Credit Committee Decision, to have these documents signed and approved by Mr Ryzhkov and then submitted to the Credit Committee of VTB Moscow, after approval by which the decision would still need to be reviewed by both the Managing Board of VTB Moscow given the size of the loan and VTB as both the Lender of Record and the party entering into the Interest Rate Swap Agreement (para 34). In performing his role, Mr Tulupov liaised principally with Mr Leonov, but also with Mr Provotorov and Ms Tyurina and in relation to Nutritek with Mr Skuratov, all in Moscow. One of the documents obtained in this process was the Ernst & Young report of 2007 on the dairy companies. A draft Deal Description and draft Credit Committee Decision were prepared with the assistance of Dewey & LeBoeuf for VTB/VTB Moscow and of Clifford Chance for RAP and were then signed off by Mr Yastrib, Mr Ryzhkov and Mr Tulupov, before being reviewed and approved on 31 October 2007 at a meeting of VTB Moscows credit committee, attended by Mr Novikov, Mr Yu, Mr Belov, Mr Kuzmenko, Mr Yastrib, Mr Shipilov, Mr Krasnoselsky and Mrs Bozhaeva. The approval recorded that the committee had, after taking into consideration a good financial situation of the Borrower classified the debt as Quality Category 1. The approval was subject to conditions. These included the provision of a report for the assessment of the market value of the Shares and Stakes, a reference to the Ernst & Young report already provided, a further copy of which was provided by RAP and Mr Leonov on 7 November 2007 (and circulated by Mr Tulupov to Ms Bragina and Mr Magee, albeit in Russian, on 12 November). They also included further approval of the proposal by VTB Moscows management board and VTB. Mr Tulupov recites that these approvals were obtained, the former by a formal board resolution, and that he was not involved in the latter, although he says that it was apparent from his discussions with Mr Ryzhkov and Ms Bragina that they relied upon the false representations when approving the loan. This refers to the Ernst & Young report of 2007, but it can hardly refer to any representation relating to the ownership of RAP, since Mr Tulupov goes on to say that, once approval to the credit line had been obtained from VTB and VTB Moscow, steps were taken to implement the conditions precedent which clearly included confirming the beneficial ownership of RAP as is apparent from the emails of 6 and 8 November which are exhibited to his statement. None of the conditions precedent is, however, explicitly directed to obtaining such confirmation (even though one of them required the provision to VTB and VTB Moscow of the decisions of the authorised management bodies of RAP approving the acquisition). As to the emails to which Mr Tulupov refers, these are from Ms Bragina, reporting to various colleagues in VTB (including Mr Yates) and copying to Mr Ryzhkov and Mr Tulupov, information that RAPs beneficiary and 90% shareholder (with the other 10% being owned by his management team) was a Mr Vladmir Alginin, and giving some details of his recent business career. These emails are also relied upon by Mr Tulupov as an example of the involvement of Ms Bragina, who has left VTB and whose whereabouts cannot now apparently be ascertained. However, it seems clear that all they show is that Ms Bragina was passing on internally information which she had herself received from another unidentified source. VTBs very unspecific plea is that this was information provided to VTB and VTB Moscow by the management of Nutritek: amended particulars of claim, para 51. There is no indication that Ms Bragina had any direct contact with the management of Nutritek, and the substantial likelihood must be that any information which reached her came from VTB Moscow. VTB Moscows management board approved the transaction on 13 November, and an application was signed by Ms Bragina and Mr Thunem on behalf of VTB for credit facilities. The application recorded that RAP had approached VTB Moscow for the debt financing of its proposed acquisition of the dairy companies, and that under the proposed structure VTB was to act as lender of record, but VTB Moscow was to fully fund the transaction and fully undertake the credit risk under the transaction in accordance with the participation agreement. It also recorded that the market value of the dairy company shares had been determined by Ernst & Young. On 19 November a similar application was signed off by Ms Wooi, Mr Yates and Mr Manning on behalf of VTB in respect of the interest rate swap. It however recorded the structure risk as potentially high, but acceptable, on the basis that the transaction was considered unsecured, and the security package (RAPs shares in the dairy companies) of little tangible value, the financial risk as high, on the basis that, according to the historical balance sheets the price being paid for the companies appeared to be significantly above the book value of the assets. As to ownership risk, it recorded that no formal information could be found confirming that Mr Alginin was RAPs beneficial owner as IB [investment banking] have advised, that they were requesting formal proof as a condition precedent to drawdown, and to make the ownership risk medium. There is no indication that this point was followed up, even in relation to the interest rate swap, and it is not part of VTBs case in respect of the loan that it relied upon any later representation regarding RAPs ownership or Mr Alginin. Mr Tulupov continued to be the means by which the transaction was progressed, and sent VTBs mandate letter, updated term sheet and fee letter to RAP for signature on 16 November. On 23 November 2007, the facility agreement was completed, being signed for VTB by Mr Ryzhkov as managing director, head of acquisition and leveraged finance and by Ms Bragina as director, acquisition and leveraged finance. The interest rate swap agreement was completed on 28 November, being signed for VTB by Mr Ryzhkov as managing director and by Mr Steve Humphries as senior manager operations. The 100% funded participation agreement between VTB and VTB Moscow was completed on the same date. Mr Thunem, then head of global markets at, but no longer with, VTB and Mr Ianovski signed for VTB. Under it, VTBs liability to repay any sum funded by VTB Moscow was limited to any amount that it received from RAP (or any other obligor under the loan facility). All these agreements were subject to English law, and included provisions recognising England as an appropriate forum in the event of any dispute. Mr Muravievs second hand account of the history in his statement is understandably shorter. But, having spoken to Mr Yates, because both Ms Bragina and Mr Thunem had left, he understood that: A. Once the decision had been taken by VTB Moscow to enter into the Participation Agreement, there was no need for the matter to be decided by the Credit Committee of [VTB]; B. Instead, it was sufficient for the loan to proceed if the proposed transaction had been approved by Mr Ryzhkov, given his senior position within both [VTB] and JSC VTB, and the ACF [Advance Credit Facility] dated 13 November 2007 was signed off by the appropriate authorised signatories; C. Mr Ryzhkov approved the transaction and indeed he signed the Facility Agreement together with Ms Bragina on behalf of [VTB]; . Notwithstanding the position taken by Credit Risk in the ACF dated 15 November 2007 that Credit Risk consider this transaction as unsecured as the security package has little tangible value, in granting the loan and approving the ISA, [VTB] did rely heavily on the representations that had been made as to: i. the past financial performance of the Dairy Companies and the forecast performance; ii. the 2007 E&Y 2007 Valuation of the Dairy Companies based upon those figures, and iii. The SPA representing a commercial transaction between two separate entities, namely RAP and Nutritek. It was entirely unaware that they were under the common control of Marshall Capital Group of Companies and believed them to be under separate control based on the information that had been provided by Nutritek. Mr Muraviev concluded by saying: 11. Having spoken to Mr Yates, Colin Magee, Julia Ferris and Martin Pasek I am informed that and believe that if [VTB] had known that RAP and Nutritek were under the common control of Marshall BVI or that the representations identified above and contained in the 2007 E&Y Valuation were false then it would not have entered into the Facility Agreement or the ISA or permitted the draw down of the Tranche A monies. The issues Numerous judicial statements establish that it is incumbent on a defendant challenging the jurisdiction so far as possible to identify the issues concerned and to state as clearly as possible how they arise or may arise in the proceedings: see e.g. Limit (No 3) Ltd v PDV Insurance Co [2005] EWCA Civ 383, [2005] 2 All ER (Comm) 347, 366, para 72, per Clarke LJ; Dicey, Morris & Collins, The Conflict of Laws (15th ed), para 11 143. In the present case, the basic issues were in my view established by the evidence and submissions adduced below. The respondents deny that false representations were made, deny that they were party to any that were made, deny that any reliance was placed on any that were made and, for good measure, rely upon the participation agreement as showing that VTB, as opposed to VTB Moscow, did not suffer any loss. The last point was strongly argued in the courts below, as showing that VTB had no good arguable case in respect of which it could properly seek permission to serve out of the jurisdiction, but the Supreme Court refused permission to re argue the point before it. The case must therefore be considered on the basis that the claim is properly arguable, but that this defence is among those that the respondents will advance to it. It is however essentially a point of law, in relation to which there is no reason to think that the answer would be any different in Russia to here. All the points mentioned in the previous paragraph were treated as issues in the courts below. In relation to one respondent, Marcap BVI, Arnold J concluded that there was no serious issue to be tried. But in relation to Nutritek and Mr Malofeev he concluded that VTB had a real prospect of establishing deceit, despite issues argued before him as to the incurring of any loss, the making of any false representations and reliance. The Court of Appeal considered that, even in respect of Marcap BVI, a serious issue to be tried existed, while setting aside service on all three respondents on the ground that England was not the appropriate forum. A suggestion that the respondents should have advanced a positive case to support their denial of any involvement in the alleged deceit appears to me to go too far. Even where jurisdiction is established, a defendant is entitled to deny involvement in or liability for an alleged deceit, without advancing a positive explanation as to why he was not party to an alleged lie or conspiracy or as to how assets acquired proved, without any prior knowledge on his part, to be worth so much less than independent accountants had valued them as being. Further, no suggestion or objection appears to have been made below to the case being argued, as it was, on the basis that all the issues were properly raised by the respondents general denials. On the other hand, there may be particular points, in relation to which, in the absence of any positive case from a defendants side, it is not possible to conclude that any evidence will be called by the defence. That may in turn preclude bringing into account the convenience or otherwise of adducing in England or Russia any such evidence from the defence side as might be supposed to exist on such points, had any positive case been raised on them. It is also clear, from such material as the Court has before it in relation to the issue regarding the worldwide freezing order, that VTB has been given a considerable understanding by Mr Malofeev himself of the nature of his case regarding the discrepancy between the position indicated by the Ernst & Young report of 2007 and the position as it materialised not very long after the completion of the transaction. Mr Michaelson, partner at SJ Berwin acting for Mr Malofeev recorded in his tenth statement of 18 October 2011 (paras 38 to 42) that Nutrinvestholding (Nutriteks parent) had at Mr Malofeevs instance instructed Ernst & Young to prepare a further report dated 26 February 2010, to determine precisely what accounting practices and transactions were taking place within the Nutritek business and that the report does not implicate Mr Malofeev. Mr Michaelson went on to refer to the obvious inconsistency between Mr Malofeev commissioning the Report and at the same time being responsible for any wrongdoing identified (para 43). The judgments below Arnold J addressed the question of the appropriate forum in paras 186 to 195: 186. Stage I. The factors that may be taken into account in determining which is the natural forum for the action include: (a) the personal connections which the parties have to the countries in question; (b) the factual connections which the events relevant to the claim have with those countries; (c) factors affecting convenience or expense such as the location of the witnesses or documents; and (d) the applicable law. 187. Counsel for VTB submitted that England was the natural forum because (i)VTB is English, (ii) the misrepresentations were relied upon in England, (iii) the money was lent and the loss sustained in England, (iv) the Facility Agreement, ISA, the Participation Agreement and the SPA contain English law and English jurisdiction or arbitration clauses and (v) the applicable law is English law. I do not consider that any of these factors points strongly to England being the natural forum in the present case. So far as (i) is concerned, VTB is controlled by VTB Moscow. As to (ii), as explained above, it seems to me that VTB's reliance was wholly secondary to that of VTB Moscow. In relation to factor (iii), the loss was sustained because Russian assets provided inadequate security. As to (iv) and (v), the English law clauses are immaterial once it is concluded, as I have, that the law applicable to the tort is Russian law. The English jurisdiction and arbitration clauses are a pointer to England, but not a strong one given that the claim is a tort claim not a contract claim. 188. Counsel for the defendants submitted that the following factors pointed to Russia being the natural forum. First, the connections of the parties to Russia. VTB is controlled by VTB Moscow, which is Russian. Furthermore, the litigation is being managed by VTBDC, which is also Russian. MarCap Moscow and Mr Malofeev are Russian. It is common ground that Nutritek was managed from Russia, and VTB's case is that Mr Malofeev controls both Nutritek and MarCap BVI. Furthermore, it is VTB's case that Mr Malofeev orchestrated the fraud, primarily through MarCap Moscow. 189. Secondly, the connections of the events constituting the torts to Russia. The transaction was introduced to VTB Moscow at meetings between Russian individuals in Russia. The negotiations mainly took place in Russia. The misrepresentations were made and mainly received in Russia. The more important misrepresentation concerned the performance of the Dairy Companies, which are Russian companies. The 2007 E&Y Valuation was a valuation by Ernst & Young's Moscow office and was based on information provided by Nutriteks Russian management. The misrepresentations were primarily relied upon by VTB Moscow acting through its Credit Committee and Management Board in Russia. It was VTB Moscow and VTBDC which primarily dealt with RAPs default and enforcing the security. The secured assets were in Russia. The discovery of the fraud took place in Russia. Although the loss was sustained by VTB in England, as discussed above the ultimate economic impact is in Russia. 190. Thirdly, most of the witnesses are Russian and many of the documents are in Russian and located in Russia. So far as the witnesses are concerned, there are a considerable number of relevant Russian witnesses from VTB Moscow, VTBDC, Ernst & Young, Nutritek (Mr Skuratov and the managers of the Dairy Companies), MarCap Moscow (Mr Leonov, Mr Provotorov, Ms Tyurina and Mr Popov as well as Mr Malofeev) and RAP (Ms Kremneva and Mr Pankov). Other potential Russian witnesses include Mr Sazhinov and Mr Alginin. By contrast, there are relatively few material witnesses from VTB. The two most important ones appear to be Ms Bragina and Mr Ryzhkov. Both have left VTB (as has Mr Thunem). It appears that Mr Ryzhkov is in Russia, while VTB's evidence is that Ms Bragina is believed to be in England. Although Mr Ryzhkov has been contacted about the matter, it does not appear that Ms Bragina had been. 191. As counsel for the defendants pointed out, it is striking that all of VTB's witness statements in support of its application for permission to serve out, other than one from its solicitor, were made by Russian witnesses. In addition to the statements of Mr Tulupov and Mr Chernenko, these consisted of: i) a statement made by Andrey Puchkov, Deputy Chairman of VTB Moscow, which among other matters dealt with VTB Moscow's reliance on the misrepresentations alleged, Mr Puchkov having been present at the Management Board meeting on 13 November 2007 at which the transaction was approved; ii) a statement made by Vadim Muraviev, Head of the Division of Distressed Debt Settlements at VTB Moscow, who gave evidence as to VTB's reliance on the misrepresentations alleged based on interviews with four English employees of VTB including Mr Magee and Mr Pasek; and iii) a statement made by Denis Zemlyakov, General Director of VTBDC, who gave evidence concerning RAP's default and the enforcement of the security. 192. In addition, VTB relied on two draft statements from Alexander Buryan and Irina Leonova, who were employed by RAP as Vice President and Chief Accountant. Furthermore, since then a number of statements have been made by Arthur Klaos of VTBDC, in the most recent of which Mr Klaos relays information provided to him by (among others) Mr Ryzhkov and Alexander Yastrib (at the time Senior Vice President of VTB Moscow and now a board member of the Bank of Moscow). 193. While the four VTB employees interviewed by Mr Muraviev are evidently material witnesses to VTB's claim (although Mr Magee and Mr Yates appear to have had more involvement in the transaction than Mr Pasek or the fourth employee Julia Ferris), it is clear that they are of secondary importance compared to Ms Bragina and Mr Ryzhkov, let alone Mr Tulupov and his colleagues in Moscow. If the claim is tried in England, witnesses located in Russia will not be compellable except by means of letters rogatory. Even if they are prepared to give evidence voluntarily, they may not be prepared to come in person, necessitating evidence being given by videolink. Even if they are prepared to come in person, they are likely to require interpreters. As for the documents, many of these have required or will require translation. It is true that the agreements are mainly in English, and that these are important documents, but these and other documents in English form a relatively small proportion of the relevant documents even at this stage of the proceedings. 194. Fourthly, counsel for the defendants submitted that the applicable law was not a strong factor in favour of England even if it was English law. It is clear from the expert evidence before the court (as to which, see below) that the Russian courts can receive expert evidence as to English law. Furthermore, the key issues in the case are likely to be factual rather than legal. In the event, of course, I have concluded that the applicable law is Russian law, which supports the conclusion that Russia is the natural forum. 195. In my judgment, taking all the factors considered above into account, the natural forum is Russia. The Court of Appeal before which reliance was, for the first time, placed on the suggested presumption arising from The Albaforth (see para 14 above) dealt with the issue of appropriate forum as follows: 164. We have already commented that the judge may have erred in his interpretation of the test adumbrated in the Spiliada case. Instead of asking first whether England was the natural forum and then, even if it is not, asking whether England is nevertheless the appropriate forum for other reasons, there is only one overall question to be answered: has VTB established that England is clearly or distinctly the appropriate forum? 165. In our view the judge was correct to conclude that VTB has failed to do so. The steps leading to our conclusions are as follows: first, we will assume (based on our discussion above) that the fact that VTB has sustained its loss resulting from the torts in England raises a prima facie case that England is the appropriate forum in which to try the disputes. Secondly, however, we have to take account of all the other factors identified by both sides in order to determine whether VTB has satisfied the court that England is clearly or distinctly the appropriate forum. 166. Thirdly, in that regard, we have concluded, on the basis of the material presently before us, that the applicable law of the torts is Russian law. That cannot be a concluded view. Wherever a trial takes place, it can be challenged. But that point works both ways. Even if we had concluded that the applicable law of the torts was English law, this would not have been a factor that would weigh heavily in making England the appropriate forum, precisely because if the defendants wished to allege and plead that the applicable law was Russian law, both sides would have had to prepare for a trial on that basis. If the case were to be heard in England, both sides would have to prepare expert evidence on Russian law; and, doubtless, the obverse would be so if the case were to be heard in Russia. This is not a case, such as we think Lord Goff of Chieveley contemplated in Spiliada at 481G, where the law of the contract is a known certainty. In this case the applicable law of the torts remains very much in issue. Moreover, there was no serious challenge to the judge's view (at para 194) that the key issues in the case are likely to be factual rather than legal. 167. Fourthly, we have to give due weight to all the other factors (apart from those where we have found the judge erred) which the judge took into account and which have not been challenged on appeal. These are set out at paras 188 and 189 of the judgment and, as we have indicated in relation to the applicable law point, we think that these indicate that the centre of gravity of these disputes is in Russia, not England. Fifthly, VTB has not challenged the judges conclusion that VTB had failed to show that there was a real risk that it would not obtain substantial justice in Russia for any of the reasons it advanced before him. 168. Accordingly, the judge was correct to set aside Chief Master Winegarten's order granting VTB permission to serve the proceedings on Nutritek, Marcap BVI and Mr Malofeev out of the jurisdiction. The factors relevant to the appropriate forum I turn therefore to consider the appropriate forum and the relevant factors. The first question is whether there is any basis for regarding the judges or the Court of Appeals conclusion as flawed in any way which would require this Court as a second appellate court to revisit the exercise of the discretion to give permission for service out of the jurisdiction. The second question, if there is any such basis, is what conclusion this Court should reach on the issue as to the appropriate forum. The Court of Appeal re exercised the discretion, because it believed that Arnold J had erred in his interpretation of Lord Goffs speech in The Spiliada. It said that he had adopted a two stage approach instead of recognising that, in a service out case, there was a single burden on a claimant to show that England was clearly or distinctly the appropriate forum (paras 128 131 and 164; and see The Spiliada, p 481D E). But the two part approach was the one which Lord Goff identified as appropriate in cases where service is effected within the jurisdiction, so that the claimant starts with the advantage of having achieved a legitimate basis for jurisdiction without leave, and it is for the defendant to show that some other country is the appropriate forum: see The Spiliada, pp.476F. Any error therefore favoured VTB as claimant. Any error, if error there was, does not in any event impact on the force and weight of the judges analysis in the paragraphs quoted above. Further, the way the judge answered his two part test shows that he could not conceivably have come to any conclusion other than that the claimant had failed to show (clearly or at all) that England was the appropriate forum. He expressed his conclusion, at stage 1 of the two part test which he (wrongly) adopted, as being that Russia was the natural forum (para 195) before going on at stage 2 to reject any suggestion that substantial justice could not be obtained in Russia (para 196 to the conclusion at para 222). Once one concludes that Russia is the natural forum, where there is no risk that substantial justice cannot be obtained, it is really impossible to conclude that England is clearly the appropriate forum. The Court of Appeal itself held that the judge was correct to conclude that VTB had failed to establish that England was clearly or distinctly the appropriate forum (para 165). However, it itself fell into error in my view in its treatment of the governing law. (a) Governing law The Court of Appeal was wrong to regard Russian law as governing the alleged torts, but it acknowledged that possibility and it dealt with the alternative, that English law governed them. However, in relation to this alternative, it was in my opinion also wrong to approach the matter on the basis that it made no difference which law governed, because each side would have in any event to prepare evidence on both legal systems in whichever country the case was tried. The governing law, which is here English, is in general terms a positive factor in favour of trial in England, because it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum. Neither of these considerations here applies. VTBs claims are for deceit and for conspiracy. The conspiracy alleged is to obtain finance by the deceit. Accepting that the governing law of both alleged torts is, to English legal eyes, English, there is nothing to show that Russian law would reach any different conclusion. Parties are able to plead and rely on English law in Russian courts. But, even if there were reason to think that a Russian court would regard Russian law as governing the alleged torts, there is nothing to suggest that Russian law does not recognise and impose tortious liability for deceit, and for conspiracy to commit a deceit, on bases for material purposes equivalent to those which would be recognised under English law. It is unlikely that it does not, and no evidence has been adduced that it does not. It would have been for VTB to adduce evidence on all these points, if it could, in support of its case that England was the appropriate forum. Although Arnold J wrongly concluded Russian law governed the alleged torts, he also considered the exercise of his discretion on an opposite basis, namely that English law applied, and, as I understand him, accepted the submission that this would not be a strong factor in favour of England, as well as saying that it was clear that the Russian courts could if necessary hear evidence of English law: see judgment, para 194 quoted above. His judgment therefore addresses the position on a correct hypothesis. Even if, contrary to my view, the judges conclusion as to the appropriate forum was limited by an assumption that Russian law governed the alleged torts, I cannot conceive, in the light of what he said in para 194, that it would have made any difference to his conclusion if he had concluded that English law governed. The key issues in this litigation will on the face of it be factual not legal. (b) Place of commission of tort For reasons already given, I proceed on the basis that this was London in relation to the claim in deceit, and that the conspiracy, being to commit the same deceit, should be regarded as effectively ancillary. But I also note that, Mr Ryzhkov as managing director of VTBs acquisition department was the first signatory of the Facility Agreement for VTB, and he was based in Moscow. It may well be that his signature was sent or collected electronically from Moscow. Even if that were so, he is in Russia, and on any view an important potential witness. The place of commission is a relevant starting point when considering the appropriate forum for a tort claim. References to a presumption are in my view unhelpful. The preferable analysis is that, viewed by itself and in isolation, the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction. But, especially in the context of an international transaction like the present, it is likely to be over simplistic to view the place of commission in isolation or by itself, when considering where the appropriate forum for the resolution of any dispute is. The significance attaching to the place of commission may be dwarfed by other countervailing factors. Here the common design on which the respondents tortious responsibility is based was formed in Russia. Further, both the alleged representations emanated from Russia, in the form of the Ernst & Young 2007 report and the information that Mr Alginin was the effective beneficial owner of RAP. The history of the transaction which I have set out indicates that the transaction was introduced, pursued and approved predominantly in Moscow. It is difficult to avoid the conclusion that VTB was effectively following suit on decisions taken there. Further, significant aspects of the facts which are said to have rendered the representations untrue existed in Russia: particularly, the dairy companies businesses and financial positions, but also, presumably, the factual control which Mr Malofeev is said to have exercised directly or through Marcap Moscow over RAP. VTB, as a London based bank, must have had to go through some formal decision making processes, or it would not have been party to the facility agreement at all. However, it did not need to put the loan proposal through its own credit committee, once it had been through VTB Moscows credit committee (para 34 above). Further, the main documents emanating from VTB, the two credit applications of 13 and 15 November, date from well after the matter was approved by VTB Moscows credit committee on 31 October and are contemporaneous with the approval of 13 November by VTB Moscows management board. Finally, no formal record of any decision making or approval by VTB itself exists, save in the form of Mr Ryzhkovs and Ms Braginas signatures on the facility agreement. All this is however unsurprising when the transaction was effectively negotiated and decided upon in Moscow, and the funding and credit risk in respect of the loan was being fully assumed by VTB Moscow. Arnold J was not referred to The Albaforth, but in my view his approach in paras 186 to 195, cited above, was consistent with the proper application of the overriding principles of The Spiliada by which he correctly directed himself. It is true that at an earlier point in his judgment, when determining the governing law of the alleged torts to be Russian, he wrongly identified Russia as their place of commission (paras 134 to 135). But, as I have already said, in para 187 he also considered the exercise of the discretion to serve out on the opposite hypothesis, namely that English law governed the torts. Had he had cited to him The Albaforth, I do not see how it could or should, in the light of the other factors that he correctly identified, have led him to any different result than that to which he in fact came. It is clear that in his view the other factors pointed very powerfully towards Russia as the natural forum for resolution of the issues. Further, the Court of Appeal, before which The Albaforth was relied upon, did not regard it decisive in the circumstances of this case (para 166 et seq). It erred in treating Russian law as governing the alleged torts, but went on largely to eliminate the significance of this error by treating it as irrelevant which law governed. It should have treated English law as governing the torts and have recognised this as one factor generally tending to favour English jurisdiction. But, for reasons explained in paras 46 to 49 above, it was in this case a factor of very little if any real potency. Had the Court of Appeal approached the potential relevance of the governing law on a correct basis, it is in my view clear that it would in this case also have made no difference to its ultimate conclusion. The Supreme Court is, in these circumstances, being asked to re exercise the discretion exercised at two stages below in the light of points made about their reasoning of no real significance, which it is clear would not have altered the decision in either court. (c) The factual focus VTBs case is that deceitful representations emanated from the respondents in Russia, but were communicated to VTB, and relied upon by VTB, in London where VTB also suffered its loss. This analysis is important when considering where the tort was committed and what law governs it. But a wider view is necessary when considering the appropriate forum. The respondents denials of any liability raise as issues whether the representations were inaccurate, whether, if so, any or all of the respondents knew of their inaccuracy and whether they joined together by common design to make the alleged representations and what impact any inaccuracy of such representations had. Taking the Ernst & Young 2007 report, the factual focus will be on the dairy companies and on the respondents understanding of their affairs and financial position, matters which are clearly likely to be more appropriately examined in Russia, where the companies, their records and any relevant company witnesses are. Ernst & Young examined the companies through their Moscow office, and the same is probably true of VTBs expert accountants, Deloittes. It is clear (para 40 above) that Mr Malofeevs case is that he was as unaware as Ernst & Young of the financial inaccuracy of their report. Secondly, relevance may attach to the impact which the Ernst & Young report had on those to whom it was first presented in Moscow. As to the ownership of RAP, the plan, which VTB has produced showing Mr Malofeevs alleged connection with and/or control of RAP, shows an international picture. On many aspects of the plan, evidence about the alleged corporate and personal links could be adduced as easily in England as in Russia. But any evidence from Mr Malofeev, who is said to have been in control of a web of interlinking companies as shown on the plan, would more conveniently be heard in Russia. The judge noted, however, the respondents did not adduce before him any positive case challenging VTBs contention that Mr Malofeev ultimately controlled RAP as well as Nutritek. That does not mean that this is not in issue. But it does mean that, in the absence of any positive challenge, the convenience or otherwise of Mr Malofeev giving evidence on it in England or Russia can be put on one side. On the other hand, the issue relating to reliance is one on which VTB will clearly have to adduce the relevant evidence from its side. Again, it is likely that the relevant evidence will come in large measure from Russia and Russian witnesses. The informality of the alleged representation regarding RAPs ownership and regarding Mr Alginin, and the apparent failures to follow it up by obtaining more formal confirmation, is striking. It is likely to lead to questions as to how much, if any, weight was placed upon any such representation by VTB or VTB Moscow. Ms Bragina cannot now be located and is not shown to have remained in England, and the representations said to be evidenced by her two emails in November 2007 seem, as already stated, likely to have come to her via VTB Moscow: see amended particulars of claim, para 51 and para 31 above, by a process which is obscure. The impact or lack of impact which it had on those to whom it was first presented in Moscow is thus likely to be a very relevant subject of examination in the litigation, on the basis that the substantial decision making process took place in Moscow, with VTB following in very large measure suit. (d) Witnesses This is a factor at the core of the question of appropriate forum. It was covered fully and helpfully by Arnold J in the course of considering the natural forum in paras 188 to 195 of his judgment, set out in full above. In summary, it is clear that the issues and evidence will be focused overwhelmingly on matters which happened in and concern Russia, and that the oral and documentary evidence, on both factual and expert matters, is likewise likely to be overwhelmingly Russian and to be found in Russia, where it could be heard in Russian without translators. (e) Aim of the alleged torts The alleged torts were designed to induce VTB to enter into a facility agreement with RAP which was subject to English law and an agreement (for the benefit of VTB only) that the courts of England should have non exclusive jurisdiction and be the most appropriate and convenient forum: clause 35.1. The purpose of the facility agreement was in turn to fund RAPs purchase of the dairy companies from the first respondent, Nutritek International Corpn. I am inclined to agree with Arnold J (para 187) that the fact that the facility agreement was subject to English law is not relevant. He discounted it because of his view, erroneous on the basis on which I approach the case, that the tort claims were subject to Russian law. But, in my view, even though the tort claims are subject to English law, it bears scarcely if at all on the appropriateness of the forum for their resolution that they were designed to induce another English law contract. No issue arises about the interpretation of the facility agreement. On the other hand, the fact that the alleged torts were designed to induce the making of a loan facility agreement, under which England was accepted as the most appropriate and convenient forum is a potentially relevant factor. It links with and reinforces the fact that, if there was any such deceit and/or conspiracy as alleged, the same were directed at VTB in London. But it is a factor which Arnold J did take into account (para 187). He saw it as a pointer to England, but not a strong one given that the claim is a tort claim not a contract claim. I agree with this balanced view. But, even if it understates the significance of the pointer, it does so only slightly and not in a way which can, in my view, possibly justify this Court in interfering with the judges conclusion. There is certainly general attraction in a conclusion that persons committing deceit should answer in the jurisdiction which is not merely that where their deceitfulness manifested itself, but also a jurisdiction agreed to be appropriate under the contract which they are by such deceit inducing. But that formulation, by omitting the word allegedly, begs the question where the issue whether any such deceit occurred and induced the loan should most appropriately be determined. All that has been established at this stage is that there is a serious issue to be tried in other words, that VTB has a reasonable prospect of success in respect of VTBs tort claims. The question where such claims are appropriately to be tried has to be answered in the light of all the circumstances, including the nature of the issues to be tried and the evidence which would be involved. The alleged torts were committed in England under English law, but the fundamental matters in dispute whether there was any such deceit, whether the respondents were party to it, and what, if any impact, any falsely made representations had on VTB are, as I have shown, heavily focused in this case on Russia and Russian witnesses. (f) Fair trial? There is, as the Court of Appeal mentioned in para 167, no suggestion that this matter could not or would not receive a fair and proper trial in Moscow. Conclusions On the issues relating to the appropriate forum which the courts below addressed, the reasoning of Arnold J and the Court of Appeal was, subject to differences which I have identified, largely concurrent. The Court of Appeal erred in its approach to the significance of the law governing the alleged torts, but Arnold J, although he erred in regarding the governing law as Russian, also, as I read para 194 of his judgment, expressed his view as to the appropriate exercise of his discretion on the assumed opposite basis, that English law applied. For reasons which I have set out in paras 54 and 55 above, neither Arnold Js error as to the governing law of the alleged torts, nor the Court of Appeals failure to recognise the potential significance of the governing law of such torts, can have been decisive in relation to the concurrent conclusions which they both reached. In short, Arnold Js analysis and exercise of his discretion cannot in my view be faulted in any substantial respect, and I see no basis on which this Court would be justified in setting aside his exercise of his discretion and re exercising the discretion for ourselves, still less in arriving at a different conclusion from his. The case is one in which an appellate court should refrain from interfering, unless satisfied that the judge made a significant error of principle, or a significant error in the considerations taken or not taken into account. However, if it were incumbent on us to re exercise the discretion regarding service out, I would myself arrive at the same conclusion as the judge and the Court of Appeal. Once again in summary, the major part of the factual subject matter involves Russia, and it is clear that the great bulk of evidence on both sides will have to come from Russian witnesses. The location in law of the alleged torts is of much diminished relevance, on examination of their circumstances and place in which they are said to have originated, the process by which they are said to have reached and impacted on VTB and the evidence which would be involved in undertaking such examination. The fact that any deceit was intended to induce an English law contract which provided for English jurisdiction is relevant, but cannot determine the appropriate forum in which to decide whether there was in fact any such deceit or conspiracy. In my opinion, the Russian connection is of such strength and importance in this case that, despite the existence of some factors favouring England, the appellant is quite unable to discharge the onus on it of showing that England is clearly or distinctly the appropriate forum for determination of the issues in this case. The proposed contractual claim based on piercing the corporate veil I agree with Lord Neubergers judgment on this aspect and would accordingly uphold the Court of Appeals decision to refuse VTB permission to amend to raise a contractual claim based on piercing the corporate veil and treating the defendants liable for breach of the Facility Agreement and/or associated interest rate swap. The Freezing Order Like Lord Wilson (paras 159 to 160), I am concerned that a freezing order should have been in force for some 14 months despite concurrent decisions below concluding that jurisdiction should not be exercised and, at least in the view of the judge, that, irrespective of whether jurisdiction should be exercised, the freezing order originally granted should not be continued. On any view, this position reinforces Lord Neubergers comments in paras 81 to 93 with which I would associate myself. Conclusion I would in the light of my above conclusions dismiss this appeal on both the issues of jurisdiction and amendment and order that the freezing order be discharged. LORD NEUBERGER Introductory This appeal raises two main questions which arise out of a claim brought in the High Court by VTB Capital PLC (VTB) against (i) Nutritek International Corp (Nutritek), (ii) Marshall Capital Holdings Ltd, (iii) Marshall Capital LLC, and (iv) Konstantin Malofeev (together the defendants), based on the torts of deceit and conspiracy. The first main question is whether the permission granted ex parte to VTB to serve the proceedings out of the jurisdiction on the defendants should be set aside. The second main question is whether VTB should be allowed to raise an additional claim, by way of amendment to its statement of case, based on piercing the corporate veil. Arnold J and the Court of Appeal each concluded that the answer to the first question was yes, and to the second question was no see, respectively [2011] EWHC 3107 (Ch), and [2012] EWCA Civ 808. VTB appeals against both conclusions. The first question turns on whether the English court is the appropriate forum for the hearing of VTBs claim. The second question turns on whether VTB has an arguable case on piercing the corporate veil. The background facts have been fully set out in paras 165 to 180 of Lord Clarkes judgment, in paras 19 to 40 of Lord Mances judgment, (as well as in paras 9 to 37 in the judgment of Lloyd LJ in the Court of Appeal, and in paras 4 to 56 of Arnold Js judgment). I shall discuss both questions on the basis that they arise between VTB and Mr Malofeev, because (subject to the point that Marcap Capital LLC has not been served), it appears to be common ground that (i) the position of the other three defendants in relation to the first question is no different from his, (ii) the position of Marshall Capital Holdings Ltd and Marshall Capital LLC (together Marcap) in relation to the second question is no different from his. The first question: the appropriate forum: three general points In very summary terms: (i) VTBs substantive case is that it was induced by deceitful misrepresentations, for which the defendants were responsible, to enter into certain agreements (the agreements) with various parties, in particular Russagropom LLC (RAP), under which VTB agreed to lend, and thereafter did lend, money to RAP; (ii) VTB obtained permission ex parte to effect service of proceedings, claiming damages for deceit and conspiracy, on the defendants out of the jurisdiction, and the defendants then applied to set aside service on the ground that Russia, rather than England, was the appropriate forum for the issues to be determined. In a case such as this, permission to serve out of the jurisdiction should only be granted if the court is satisfied that England and Wales is the proper place in which to bring the claim see CPR 6.37(3). It was common ground that this means that VTB could only succeed on the first question if it was able to establish that, in the words of Lord Goff of Chieveley in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 481, the courts of England and Wales (hereafter England) are clearly the appropriate forum for the trial of the action. When a court is called upon to decide whether an action should proceed in this, as opposed to another, jurisdiction, it is being asked to decide a procedural issue at a very early stage. Where, as is now the position in this case, it is common ground that the parties would have a fair trial in the competing jurisdiction, the exercise will normally involve the court weighing up a number of different factors, and deciding where the balance lies. Whilst the same considerations will not always apply to applications for permission to serve out and applications for stays of proceedings, the argument on this appeal has highlighted three general points in relation to each type of exercise. The first point is that hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost. There is also a real danger that, if the hearing is an expensive and time consuming exercise, it will be used by a richer party to wear down a poorer party, or by a party with a weak case to prevent, or at least to discourage, a party with a strong case from enforcing its rights. Quite apart from this, it is simply disproportionate for parties to incur costs, often running to hundreds of thousands of pounds each, and to spend many days in court, on such a hearing. The essentially relevant factors should, in the main at any rate, be capable of being identified relatively simply and, in many respects, uncontroversially. There is little point in going into much detail: when determining such applications, the court can only form preliminary views on most of the relevant legal issues and cannot be anything like certain about which issues and what evidence will eventuate if the matter proceeds to trial. This concern is not new. In Cherney v Deripaska [2009] EWCA Civ 849, paras 6 and 7, Waller LJ said that whilst he appreciate[d] that litigants do often feel strongly about the place where cases should be tried disputes as to forum should not become state trials. He also lamented the mountain of material the Court faced in that case, and suggested that it would have been better for both parties and better use of court time if they had expended their money and their energy on fighting the merits of the claim. In Friis v Colburn [2009] EWHC 903 (Ch), paras 3 and 5, having set aside an order for service out of the jurisdiction, Peter Smith J referred to the fact that the claimants costs schedule was 215,280.50, following a hearing which, he said, had been strung out by unrealistic stances and unnecessarily prolonged and complicated submissions which seem[ed] to achieve nothing other than create fogs of irrelevancy. In that connection, the present case is striking, as Arnold J explained in para 3 of his judgment. The hearing before him lasted six days, after two days pre reading. He was faced with more than 27 bundles of documents, written evidence, and exhibits, and 14 bundles of authorities. One of the witnesses had made twelve witness statements, and further materials were added on a daily basis. (The hearing was not limited to the application to set aside permission to serve out: it included an application to amend, and applications to continue and to discharge a freezing order; however, no more than half the material and time can have been devoted to those aspects.) Since the hearing of this appeal, the Court of Appeal has given judgment in Alliance Bank JSC v Aquanta Corporation [2012] EWCA Civ 1588, a case involving similar issues to those in this appeal. At para 4 of Tomlinson LJs judgment in that case, he referred to the fact that the first instance hearing of the application to set aside permission to serve out, on the grounds that England was an inappropriate forum (as well as raising some other points), lasted eleven days, and the hearing in the Court of Appeal appears to have lasted four days. In Spiliada [1987] AC 460, 465, Lord Templeman expressed the hope that in a dispute over jurisdiction, the judge will be allowed to study the evidence and refresh his memory of [the principles] in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. That was a rather optimistic aspiration, not least when one bears in mind the understandable desire of lawyers to do, and to be seen by their clients to be doing, everything they can to advance their clients case, especially where the dispute over jurisdiction may well be determinative of the outcome. However, particularly with the benefit of procedural reforms, which have been introduced, or are in the process of being introduced, following reports from Lord Woolf and Lord Justice Jackson, the judiciary is now encouraged to exercise far greater case management powers than 25 years ago. Accordingly, judges should invoke those powers to ensure that the evidence and argument on service out and stay applications are kept within proportionate bounds and do not get out of hand. The second point is, in a sense, a sub set of the first point, and concerns the extent to which a defendant who is challenging the jurisdiction of the English court should identify the nature of his case. In my view, the position is reasonably clear. As a matter of principle, a defendant is entitled to keep his powder dry: he can simply put the claimant to proof of its case. In general at least, that is true at any point of the proceedings. The mere fact that the defendant is challenging jurisdiction does not somehow impose a duty on him to specify his case. The onus is on the claimant to satisfy the court that there is a serious issue to be tried on the merits of the claim, and not on the defendant to satisfy the court that he has a real prospect of successfully defending it. However, if the defendant chooses to say nothing, then it would be quite appropriate for the court to proceed on the basis that there is no more (and no less) to the proceedings than will be involved in the claimant making, or trying to make, out its case. Of course, in many instances, the defendant will be able to say that, although he has not submitted a draft statement of case, or produced a witness statement, setting out the details of his case, its nature is clear from correspondence, common sense, or even submissions. Consistent with my observations on the first point, I would not want to encourage a defendant to go into great detail as to his case in a long document with many exhibits, but if he is wholly reticent about his case, he can have no complaint if the court does not take into account what points he may make, or evidence he may call, at any trial. I agree with Lord Clarke that a defendant could exhibit draft points of defence, but in many cases, it may be disproportionate to expect him to incur the costs of doing so before it has been decided whether the claim is to proceed at all. The third point was expressed by Lord Bingham in Lubbe v Cape plc [2000] 1 WLR 1545, 1556. He said, in the context of an application for a stay of proceedings on grounds of forum non conveniens, that [t]his is a field in which differing conclusions can be reached by different tribunals without either being susceptible to legal challenge. The jurisdiction to stay is liable to be perverted if parties litigate the issue at different levels of the judicial hierarchy in the hope of persuading a higher court to strike a different balance in the factors pointing for and against a foreign forum. Precisely the same applies in many cases involving permission to serve out. As Mr Mark Hapgood QC, who appeared for Mr Malofeev, said, appellate courts should be vigilant in discouraging appellants from arguing the merits of an evaluative interlocutory decision reached by a judge, who had to balance the various factors relevant to the appropriate forum, when the complaint is, in reality, that the balance should have been struck differently. Lord Templeman in Spiliada, at 465 said that the determination of the appropriate forum is pre eminently a matter for the trial judge, because Commercial Court judges are very experienced in these matters, and [a]n appeal should be rare and the appellate court should be slow to interfere. This case was in the Chancery Division, whose judges entertain such issues less commonly than their Commercial Court colleagues, but their experience and expertise are such that the same conclusion applies. As Tomlinson LJ said at para 117 of his judgment in Alliance Bank, an appellate court should hesitate long before interfering with the judges assessment on such an issue. The first question: the appropriate forum: the instant appeal Lord Mance and Lord Clarke have each fully considered the first question in their respective judgments, and have come to different conclusions. Given that the first question is so fact specific, and is the subject of two full judgments in this court (not to mention two full judgments below), it would not be appropriate for me to go into the facts and issues canvassed between the parties. Lord Mance in paras 41 and 42 of his judgment has set out the passages in the judgments of Arnold J and the Court of Appeal respectively, which contain the centrally relevant reasoning of those tribunals on the first question which we have to decide. At least on the face of it, those passages each involve a classical interlocutory weighing up exercise with which an appellate court should be slow to interfere. Of course, that does not detract from the point that the Court of Appeal will consider any argument that the judge took into account any irrelevant or mistaken material, or omitted some relevant material, which could well have influenced the conclusion reached, or that the case is one of those even more unusual cases where the judges conclusion was one that no reasonable judge could have reached. It is worth emphasising that, as Lord Wilson says, the exercise carried out by the judge and by the Court of Appeal on the first question was not the exercise of a discretion but an evaluative, or a balancing, exercise, with which, as Lord Goff said in Spiliada at 465 an appellate court should be slow to interfere (also reflected in Lord Binghams observation in Lubbe quoted in para 92 above). In my view, there are no good grounds upon which this court should interfere with the decision of the Court of Appeal on the first question, and I also consider that there were no good grounds upon which the Court of Appeal could have interfered with the decision of Arnold J on that question. In that connection, there are one or two points worth mentioning. First, were the Court of Appeal correct to hold that Arnold J went wrong in a way which justified them reconsidering his conclusion? In my view, they were right to say in paras 131 and 129 of their judgment that he should have asked himself the single question identified in para 80 above, whereas he approached the issue through two slightly different questions. However, I am unconvinced that this represented an error of significance. The nub of Arnold Js reasoning, quoted by Lord Mance in para 41 above, shows, to my mind, that the judge ultimately adopted the right approach to the question which he had to resolve. Secondly, there is the governing law. For the reasons given by Lord Clarke and Lord Mance, I agree that the law governing the alleged tort of deceit is English law. As for the alleged tort of conspiracy, this is less clear, because the conspiracy to commit the deceit was based on a common design allegedly formed in Russia. However, like Lord Mance, I am content to proceed on the basis that English law applies. In connection with the relevant governing law, therefore, it is clear that Arnold J and the Court of Appeal went wrong in holding that Russian law was the governing law. It seems to me, however, that that error cannot, at least of itself, justify this court interfering with the Court of Appeals decision, or, indeed, with Arnold Js decision, on the first question. That is because the Court of Appeal said in terms in para 166 of its judgment that it would have reached the same decision even if the law governing the deceit and conspiracy claims was English law, and Arnold J in his judgment appears to me to have taken the same view at his para 194. Thirdly, there is an argument based on the jurisdiction clauses contained in the agreements, which VTB contends it entered into as a result of the alleged deceits and conspiracy. Clause 35 of the Facility Agreement (clause 35) provided, in clause 35.1, that the courts of England have nonexclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement, that no Party would argue that the courts of England [were not] the most appropriate and convenient courts to settle such disputes, but that clause 35.1 was for the benefit of [VTB] only. Clause 35.3 entitled VTB to refer any dispute which may arise out of or in connection with this Agreement to final and binding arbitration in London. The accompanying related agreements also contained jurisdiction clauses in favour of the English courts, and although their terms were not identical to clause 35, the differences are not significant for present purposes, so I shall confine my remarks to clause 35. On behalf of VTB, Mr Mark Howard QC argued that the fact that the defendants had procured, by fraudulent misrepresentations, the entry of VTB into a contract containing a provision such as clause 35, was a powerful pointer to England being the proper place to bring [a] claim that it was induced by deceit to do so, particularly as the individual alleged to be responsible for the deceit was also involved in negotiating the contract. At the end of para 187 of his judgment, Arnold J described clause 35 as a pointer to England, but not a strong one given that the claim is a tort claim not a contract claim. The Court of Appeal did not in terms address this point, as the approval in their para 167 of Arnold Js balancing exercise only refers to his paras 188 and 189. However, by expressly agreeing with his approach, it seems unlikely that they did not take into account the point which he made at the end of his para 187. In my view, Arnold J was right in his view that clause 35 was a factor in favour of VTBs case on the first question, but he was also right to say that it was not a particularly strong factor. As Rix J said in relation to a similar point in Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 All ER (Comm) 237, 252, it would be far fetched to suggest that a provision such as clause 35 could be invoked by VTB to require a claim it brings solely against non parties to be heard in London, even if the claim relates to the agreement containing the clause. However, that is not a reason for concluding that clause 35 cannot be a factor, or, to use Arnold Js word, a pointer, in connection with the first question. There may well be circumstances in which such a factor is a powerful one. An example is to be found in the decision of the New South Wales Court of Appeal in Global Partners Fund Ltd v Babcock & Brown Ltd (in liquidation) [2010] NSWCA 196 see especially at paras 71 to 80. I do not consider that that decision helps VTB: for a number of reasons, it was a very different case. In this case, it is true that, at least on the unchallenged evidence on behalf of VTB, Mr Malofeev was involved, and may have been instrumental in, negotiating the agreements in question, and he can therefore be said to have approved, or at least have had knowledge of, their terms, including clause 35. It is also true, again on VTBs case, that Mr Malofeev can be said to have encouraged VTB to enter into those agreements, which include clause 35. To that extent, it can come as no surprise to him that VTB wish to litigate a claim which, at least on its case, arises out of those agreements, in London. However, clause 35 is not an exclusive jurisdiction provision: it merely gives VTB what is in effect an option to sue the other parties to the agreements in England in respect of any claim arising out of or in connection with those agreements. The present proceedings do not involve VTB suing any party to the agreements, although it may be that they could fairly be said to include any claim arising under the agreements. The fact that RAP was content to be sued under the agreements in England does not mean that Mr Malofeev would have been content to have been sued in tort here. The fact that VTB apparently wanted to have the right to sue RAP here does not mean that it would have wanted to have the same right against Mr Malofeev (e.g. RAP may have been believed to have assets here). I accept that it would be different if VTB had a claim under the agreements against RAP to which its claim against Mr Malofeev was somehow connected. There is obvious force in Mr Hapgood QCs point that, if Mr Malofeev is to be treated as having had notice of clause 35 and its implications, it goes no further than helping VTB in suing him in this jurisdiction in proceedings which include a claim brought under the agreements against one or more of the parties to the agreements. However, I do not consider that the fact there are no such claims destroys VTBs reliance on clause 35 of any validity, but it severely weakens it. I acknowledge the authority of Professor Briggs and the force of his views, as described by Lord Clarke at paras 221 and 222. However, I do not accept that Mr Malofeev engineered VTB entering into clause 35. There is no evidence that he even knew of its existence, and, anyway, it is plain from its terms that the clause was wanted by VTB and is purely for its benefit. In so far as it is said that Mr Malofeev engineered VTB entering into the agreement which happened to include clause 35, it seems to me unsafe to proceed on the assumption that Mr Malofeev was guilty of deceit: that would be the central substantive issue in these proceedings. What I do accept is that the existence of the clause in an agreement, in which Mr Malofeev was in some respects involved (to use a neutral word) in negotiating, renders it hard for him to contend that England is an inappropriate forum for the proceedings which are connected with the agreement, but I do not see it going much further than that on its own. To hold otherwise would, I think, involve effectively treating Mr Malofeev as bound by the clause. Finally, is this a case where the conclusion reached below on the first question was outside the ambit of permissible decisions as canvassed by Lord Bingham in Lubbe and quoted in para 92 above? In my view, it is not. While there is a powerful case for saying that England is the appropriate forum, as Lord Clarkes judgment shows, I think that it is also clear there is a powerful argument to the contrary, as is demonstrated by Lord Mances judgment (supported by the reasoning of Arnold J and the Court of Appeal). It is unnecessary to spend time on what is a hypothetical question, namely what decision I would have reached on this issue if I had been the appropriate decision maker. It is sufficient for me to conclude, as I do, essentially for the reasons given more fully by Lord Mance and Lord Wilson, that Arnold J and the Court of Appeal each reached a conclusion on the first question which (i) they were respectively entitled to reach on the basis of applying the relevant principles to the facts of this case, and (ii) was not vitiated by any error, because, to the extent that there was any error, it did not invalidate the conclusion, both because the error would not have caused them to change their conclusions and because that would have been a reasonable view to take. The second issue: piercing the corporate veil: VTBs case VTB seeks to amend its pleaded case to contend that Mr Malofeev and Marcap should be treated as being jointly and severally liable with RAP for breaches of two of the agreements, namely the Facility Agreement and the associated ISA (the two agreements) and/or otherwise subject to remedies to enforce the two agreements. On the documents, the parties to the two agreements were (i) RAP, (ii) the original guarantors, namely, Migifa, owner of all the shares in RAP, and Brentville, owner of all the shares in Migifa, and (iii) VTB. It is (unsurprisingly) therefore common ground that Mr Malofeev was not party to either of the two agreements. However, VTBs contention is that it is entitled to pierce the veil of incorporation of RAP, as a result of which Mr Malofeev (and Marcap) should be held liable under the two agreements together with RAP and/or otherwise subject to remedies to enforce the two agreements. According to VTBs proposed amended particulars of claim, as expanded in the written and oral argument before us, its case on this issue may be summarised as follows: to (iii) The two agreements appeared (i) Mr Malofeev controlled RAP and Nutritek; (ii) RAP was specifically formed for the purpose of entering into the two agreements, which it duly did and thereby obtained the benefit of the loans of over US$225,050,000 made available to RAP by VTB thereunder; involve, and were misrepresented to VTB to involve, a loan to RAP to enable it to purchase the shares in certain Dairy Companies owned by Nutritek, whereas their true purpose, as Mr Malofeev knew, was to transfer those shares between the two companies at an inflated price; In particular, Mr Malofeev was responsible for inducing VTB to enter into the two agreements by virtue of Nutriteks misrepresentations as to the control, trading performance, and value of the Dairy Companies, and, in particular, representing that they were not controlled by Mr Malofeev or Marcap; (v) Mr Malofeev accordingly improperly used RAP as the corporate vehicle to enter into the two agreements, and (iv) (vi) obtain[ed] thereby the loans, which involved the fraudulent misuse of the company structure; In particular, Mr Malofeev used RAPs separate legal status to disguise the ownership and control ultimately exercised over RAP by [Mr Malofeev and Marcap], which disguise duly misled VTB into believing that there was a genuine arms length transaction at a genuinely negotiated price; (vii) In these circumstances, the corporate veil of RAP should be lifted, exposing Mr Malofeev as the puppeteer behind it to remedies to enforce the terms of the [two agreements], so that Mr Malofeev is jointly and severally liable with RAP under the two agreements in respect of VTBs losses. For Mr Malofeev, it was contended that this line of argument is bound to fail on two alternative grounds. The first is that we should hold that, whatever has been said about it in previous cases, the court cannot in fact pierce the corporate veil, and that the cases which suggest it can are wrong, although the decisions in those cases may often be justified on another basis. The second argument is that, even if the court can in principle pierce the veil, it cannot do so in this case, because VTBs argument represents an illegitimate and unprincipled extension of the circumstances in which the veil can be pierced. The second issue: piercing the corporate veil: the principle of piercing the veil I turn first to consider the argument that there are no circumstances in which the court should pierce, or lift, the corporate veil. The terms piercing and lifting appear throughout the authorities, sometimes interchangeably. As Toulson J observed in Yukong Line Ltd of Korea v Rendsburg Investments Corpn of Liberia (No 2) [1998] 1 WLR 294, 305, it may not matter what language is used as long as the principle is clear; but there lies the rub. Staughton LJ in Atlas Maritime Co SA v Avalon Maritime Ltd (No 1) [1991] 4 All ER 769, 779G, expressly separated the two, on the basis that pierc[ing]is reserve[d] for treating the rights or liabilities or activities of a company as the rights or liabilities or activities of its shareholders, whereas lift[ing] [is] to have regard to the shareholding in a company for some legal purpose. In Ben Hashem v Al Shayif [2008] EWHC 2380 (Fam) [2009] 1 FLR 115, a case which included a claim that a company was no more than one mans alter ego, Munby J said, at para 150, that in this context the expressions are synonymous. For present purposes, I shall use the phrase piercing in preference to lifting. It is the more familiar expression and it is the expression which all counsel have used. It is unnecessary to decide whether, in truth, there is a difference in this context between piercing and lifting the corporate veil. We were referred to a number of cases where courts have either granted relief on the basis of piercing the corporate veil, or where courts have proceeded on the assumption, or concluded, that there is power to do so. The only case in that connection in the House of Lords, or Supreme Court, to which we were referred, was Woolfson v Strathclyde Regional Council 1978 SLT 159, a case where, on the facts, the House of Lords had no difficulty in rejecting an argument that the corporate veil could be pierced. At 1978 SLT 159, 161, Lord Keith suggested that the court could only take such a course where special circumstances exist indicating that [the involvement of the company] is a mere faade concealing the true facts. There is obvious attraction in the proposition that the court can pierce the veil of incorporation on appropriate facts, in order to achieve a just result. However, the spirited and sustained attack mounted against the proposition by Mr Michael Lazarus, who appeared for Marshall Capital Holdings Ltd, is worthy of serious consideration. The brief discussion of the principle in Woolfson does not justify the contention that it was somehow affirmed or approved by the House: Lord Keiths remarks were obiter, and the power of the court to pierce the corporate veil does not appear to have been in issue in that case. The most that can be said about Woolfson from the perspective of VTB is that the House was prepared to assume that the power existed. The starting point for the argument that the principle does not exist is the well known decision in Salomon v A Salomon & Co Ltd [1897] AC 22. There is great force in the argument that that case represented an early attempt to pierce the veil of incorporation, and it failed, pursuant to a unanimous decision of the House of Lords, not on the facts, but as a matter of principle. Thus, at 30 31, Lord Halsbury LC said that a legally incorporated company must be treated like any other independent person with its rights and liabilities appropriate to itself , whatever may have been the ideas or schemes of those who brought it into existence. He added that it was impossible to say at the same time that there is a company and there is not. The notion that there is no principled basis upon which it can be said that one can pierce the veil of incorporation receives some support from the fact that the precise nature, basis and meaning of the principle are all somewhat obscure, as are the precise nature of circumstances in which the principle can apply. Clarke J in The Tjaskemolen [1997] 2 Lloyds Rep 465, 471 rightly said that [t]he cases have not worked out what is meant by piercing the corporate veil. It may not always mean the same thing (and to the same effect, see Palmers Company Law, para 2.1533). Munby J in Ben Hashem seems to have seen the principle as a remedial one, whereas Sir Andrew Morritt V C in Trustor AB v Smallbone (No 2) [2001] 1 WLR 1177 appears to have treated the principle as triggered by the finding of a faade. The faade mentioned by Lord Keith is often regarded as something of a touchstone in the cases e.g. per Munby J in Ben Hashem, para 164, and per Sir Andrew Morritt V C in Trustor, para 23. Words such as faade, and other expressions found in the cases, such as the true facts, sham, mask, cloak, device, or puppet may be useful metaphors. However, such pejorative expressions are often dangerous, as they risk assisting moral indignation to triumph over legal principle, and, while they may enable the court to arrive at a result which seems fair in the case in question, they can also risk causing confusion and uncertainty in the law. The difficulty which Diplock LJ expressed in Snook v London and West Riding Investments Ltd [1967] 2 QB 786, 802, as to the precise meaning of sham in connection with contracts, may be equally applicable to an expression such as faade. Mr Lazarus argued that in all, or at least almost all, the cases where the principle was actually applied, it was either common ground that the principle existed (Gilford Motor Co Ltd v Horne [1933] Ch 935, Re H (restraint order: realisable property) [1996] 2 BCLC 500, and Trustor) and/or the result achieved by piercing the veil of incorporation could have been achieved by a less controversial route for instance, through the law of agency (In re Darby, Ex p Brougham [1911] 1 KB 95, Gilford, and Jones v Lipman [1962] 1 WLR 832), through statutory interpretation (Daimler Company Ltd v Continental Tyre and Rubber Company (Great Britain) Ltd [1916] 2 AC 307, Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173, Wood Preservation Ltd v Prior [1969] 1 WLR 1077, and Re A Company [1985] BCLC 333), or on the basis that, as stated by Lord Goff in Goss v Chilcott [1996] AC 788, 798, money due to an individual which he directs to his company is treated as received by him (Gencor ACP Ltd v Dalby [2000] 2 BCLC 734, and Trustor). In summary, therefore, the case for Mr Malofeev is that piercing the corporate veil is contrary to high authority, inconsistent with principle, and unnecessary to achieve justice. I see the force of this argument, but there are points the other way. I am not convinced that all the cases where the court has pierced the veil can be explained on the basis advanced by Mr Lazarus. Further, as Mr Howard QC said, the fact is that those cases were decided on the basis of piercing the veil. More generally, it may be right for the law to permit the veil to be pierced in certain circumstances in order to defeat injustice. In addition, there are other cases, notably Adams v Cape Industries plc [1990] Ch 433, where the principle was held to exist (albeit that they include obiter observations and are anyway not binding in this court). It is also difficult to explain the first instance decision in Kensington International Ltd v Republic of the Congo [2005] EWHC 2684 (Comm), [2006] 2 BCLC 296 on any basis other than the principle (but I am not at all sure that the case was rightly decided see Continental Transfert Technique Ltd v Federal Government of Nigeria [2009] EWHC 2898 (Comm), paras 27 29). Further, the existence of the principle is accepted by all the leading textbooks see Palmer op. cit, Gore Browne on Companies at paras 7[3] to 7[6], Gower and Davies on Principles of Modern Company Law (8th ed) at paras 8 5 to 8 14, and Farrars Company Law (4th ed), pp 69 78. In answer to the contention that the approach of the courts to the issue of piercing the veil is unprincipled, there is real force, at least on the face of it, in the fact that it cannot be invoked merely where there has been impropriety. As Munby J put it in Ben Hashem, paras 163 164, it is necessary to show both control of the company by the wrongdoer(s) and impropriety, that is, (mis)use of the company by them as a device or faade to conceal their wrongdoing at the time of the relevant transaction(s). In its recent decision in La Gnrale des Carrires et des Mines v F G Hemisphere Associates LLC [2012] UKPC 27, para 24, the Judicial Committee of the Privy Council, in a judgment given by Lord Mance, was prepared to assume that the appellant was right in contending that it was open to a court in this jurisdiction to pierce the corporate veil, but it is to be noted that this was not challenged by the respondent. In para 27, reference was made to Case concerning Barcelona Traction, Light and Power Company, Ltd [1970] ICJ 3, in which, it was said, [T]he International Court of Justice referred (para 56) to municipal law practice to lift the corporate veil for instance, to prevent the misuse of the privileges of legal personality, as in certain cases of fraud or malfeasance, to protect third persons such as a creditor or purchaser, or to prevent the evasion of legal requirements or of obligations. However, at para 27, Lord Mance pointed out that Barcelona Traction concerned international legal considerations, indicating that there may not always be a precise equation between factors relevant to the lifting of the corporate veil under domestic and international law. In my view, it is unnecessary and inappropriate to resolve the issue of whether we should decide that, unless any statute relied on in the particular case expressly or impliedly provides otherwise, the court cannot pierce the veil of incorporation. It is unnecessary, because the second argument raised on behalf of Mr Malofeev, to which I shall shortly turn, persuades me that VTB cannot succeed on this issue. It is inappropriate because this is an interlocutory appeal, and it would therefore be wrong (absent special circumstances) to decide an issue of such general importance if it is unnecessary to do so. The second issue: piercing the corporate veil: why it cannot succeed in this case I therefore approach this question in the same way as the Court of Appeal, namely by considering whether, assuming in VTBs favour that the court can pierce the veil of incorporation on appropriate facts, the basis on which VTB seeks to pierce the veil can be justified in the present case. I do so on the basis that this issue is to be resolved by reference to English law. It seems to me, however, that there may be a choice of law question to be addressed in cases which concern the piercing of the veil of a foreign incorporated company. That question is whether the proper law governing the piercing of the corporate veil is the lex incorporationis, the lex fori, or some other law (for example, the lex contractus, where the issue concerns who is considered to be party to a contract entered into by the company in question). The ultimate conclusion may be that there is no room for a single choice of law rule to govern the issue: see Tham Piercing the corporate veil: searching for appropriate choice of law rules [2007] LMCLQ 22, 27. However, given that it has been common ground throughout these proceedings that the issue is to be resolved pursuant to English law, it is inappropriate to say more about this issue. In so far as VTB invokes the principle of piercing the veil of incorporation, its case involves what, at best for its point of view, may be characterised as an extension to the circumstances where it has traditionally been held that the corporate veil can be pierced. It is an extension because it would lead to the person controlling the company being held liable as if he had been a co contracting party with the company concerned to a contract where the company was a party and he was not. In other words, unlike virtually all the cases where the court has pierced the corporate veil, VTB is claiming that Mr Malofeev should be treated as if he were, or had been, a co contracting party with RAP under the two agreements, even though neither Mr Malofeev nor any of the contracting parties (including VTB) intended Mr Malofeev to be a party. The notion that the principle can be extended to such a case receives no support from any case save for a very recent decision of Burton J, Antonio Gramsci Shipping Corporation v Stepanovs [2011] EWHC 333 (Comm), [2011] 1 Lloyds Rep 647 (which he followed in his later decision in Alliance Bank JSC v Aquanta Corporation [2011] EWHC 3281 (Comm) [2012] 1 Lloyds Rep 181, which was considered by the Court of Appeal at [2012] EWCA Civ 1588). None of the other decisions relied on by VTB in this connection is, on analysis, of assistance to its case. In Gilford, Mr Horne had undertaken not to compete with his former employer, and a company, in which only he and his wife were shareholders, and which he formed after leaving his employment, was enjoined from competing. He effectively broke his undertaking by trading through the company, in the same way as if it had been carrying on the competing business through his wife as indeed had happened in Smith v Hancock [1894] 2 Ch 377, 385, a case relied on by the Court of Appeal in Gilford. Thus, the decision in Gilford had nothing to do with the fact that a company was involved, and therefore, as a matter of logic, the decision cannot have been based on piercing the corporate veil a point made by Toulson J in Yukong Line at 308, and rightly accepted by Arnold J and the Court of Appeal in this case. The same point (as was said in Yukong Line) applies to Jones v Lipman, which I do not find an entirely easy case. After agreeing to sell a property to a purchaser, the vendor sold the same property to a company owned by him and his wife, and the purchaser obtained an order for specific performance against the company. On the judges reasoning, it would have equally been entitled to do so if, instead of the company, the property had been transferred to the vendors wife. Another view of Jones is that the sale by the vendor to the company was treated as a sham transaction. In both Gencor and Trustor, the court pierced the corporate veil in order to impose liability on a company, effectively owned and controlled by the wrongdoer, for money which he had misappropriated from the claimant and diverted to the company. There was no question of the wrongdoer being treated as contractually liable under a contract to which the company, rather than he, was a party. Even the doubtful decision in Kensington did not involve going so far as to hold that the person sheltering behind the veil was liable as if he was a contracting party under a contract entered into by the company. The fact that there has been no case (until Gramsci) where the power to pierce the corporate veil has been extended in the way for which VTB contends in these proceedings does not necessarily mean that VTBs case, in so far as it is based on piercing the veil, must fail. However, given that the principle is subject to the criticisms discussed above, it seems to me that strong justification would be required before the court would be prepared to extend it. Once one subjects the proposed extension to analysis, I consider that it is plain that it cannot be sustained: far from there being a strong case for the proposed extension, there is an overwhelming case against it. First, it is not suggested by VTB that any of the other contracting parties under the two agreements is not liable. Indeed, as mentioned above, VTBs proposed pleaded case is that Mr Malofeev is jointly and severally liable with RAP. Even accepting that the court can pierce the corporate veil in some circumstances, the notion of such joint and several liability is inconsistent with the reasoning and decision in Salomon. A company should be treated as being a person by the law in the same way as a human being. The fact that a company can only act or think through humans does not call that point into question: it just means that the law of agency will always potentially be in play, but, it will, at least normally, be the company which is the principal, not an agent. On VTBs case, if the agency analogy is relevant, the company, as the contracting party, is the quasi agent, not the quasi principal. Subject to some other rule (such as that of undisclosed principal), where B and C are the contracting parties and A is not, there is simply no justification for holding A responsible for Bs contractual liabilities to C simply because A controls B and has made misrepresentations about B to induce C to enter into the contract. This could not be said to result in unfairness to C: the law provides redress for C against A, in the form of a cause of action in negligent or fraudulent misrepresentation. In any event, it would be wrong to hold that Mr Malofeev should be treated as if he was a party to an agreement, in circumstances where (i) at the time the agreement was entered into, none of the actual parties to the agreement intended to contract with him, and he did not intend to contract with them, and (ii) thereafter, Mr Malofeev never conducted himself as if, or led any other party to believe, he was liable under the agreement. That that is the right approach seems to me to follow from one of the most fundamental principles on which contractual liabilities and rights are based, namely what an objective reasonable observer would believe was the effect of what the parties to the contract, or alleged contract, communicated to each other by words and actions, as assessed in their context see e.g. Smith v Hughes (1871) LR 6 QB 597, 607. In his argument, Mr Howard QC relied by analogy with the law relating to undisclosed principals. In my view, the analogy tells against VTBs argument. The existence of the undisclosed principal rule has long been regarded as an anomaly, as discussed in Bowstead & Reynolds on Agency, 19th ed (2010), para 8 070, and as observed by Dillon LJ in Welsh Development Agency v Export Finance Co Ltd [1992] BCLC 148, 173. As the Court of Appeal said in this case at para 89, it would be inappropriate to extend an anomaly save where it would be unjust and unprincipled not to do so. To adapt what Lord Hoffmann said in OBG Ltd v Allan [2007] UKHL 21, [2008] AC 1, paras 103 and 106, an anomaly created by the judges to solve a particular problem is an insecure base on which to justify an extension to a principle, especially when that principle can itself be said to be anomalous. Quite apart from this, it seems to me that the facts relied on by VTB to justify piercing the veil of incorporation in this case do not involve RAP being used as a faade concealing the true facts. In my view, if the corporate veil is to be pierced, the true facts must mean that, in reality, it is the person behind the company, rather than the company, which is the relevant actor or recipient (as the case may be). Here, on VTBs case, the true facts relate to the control, trading performance, and value of the Dairy Companies (if one considers the specific allegations against Mr Malofeev), or to the genuineness of the nature of the underlying arrangement (which involves a transfer of assets between companies in common ownership). Neither of these features can be said to involve RAP being used as a faade to conceal the true facts. It was suggested, however, by Mr Howard QC that the case against Mr Malofeev involves him abusing the corporate structure, and that that is sufficient to justify piercing the corporate veil. However, in my view, abuse of the corporate structure (whatever that expression means) adds nothing to the debate, at least in this case. It may be another way of describing use of the company as a faade to conceal the true facts (in which case it adds nothing to Lord Keiths characterisation in Woolfson), or it may be an additional requirement before the corporate veil will be pierced: otherwise, it seems to me that it would be an illegitimate extension of the circumstances in which the veil can be pierced. It is true that in many civil law systems, abuse of rights is a well recognised concept, and it may be appropriate for a domestic court to apply such a principle in relation to some areas of EU law. However, it was not suggested to us that it should be applied as a new or separate ground in domestic law for treating Mr Malofeev as contractually liable to VTB, or that it would assist VTB in this case. Accordingly, in agreement with the Court of Appeal and for substantially the same reasons, I consider that VTBs contention represents an extension to the circumstances in which the court will pierce the corporate veil, and on analysis it is an extension which is contrary to authority and contrary to principle. The proposed extension is all the more difficult to justify given that it is not needed to enable VTB to seek redress from Mr Malofeev. It is clear that, if VTB establishes that it was induced to enter into the agreements by the fraudulent statements which he is alleged to have made, then Mr Malofeev will be liable to compensate VTB. The measure of damages may be different, but that is not a particularly attractive reason for extending the principle in a new and unprincipled way. And I am not at all attracted by the notion that the principle should be invoked simply to enable VTB to justify the proceedings being heard in this jurisdiction, if they otherwise could not be. That would be precious close to its application being permitted to pull itself up by its own bootstraps. It follows from this analysis that I doubt that the decision in Gramsci can be justified, at least on the basis of piercing the corporate veil. In agreement with the Court of Appeal and Arnold J, I think that the reasoning in that case involved a misinterpretation of the basis of the decisions in Gilford and Jones. It seems to me that the conclusion in Gramsci was driven by an understandable desire to ensure that an individual who appears to have been the moving spirit behind a dishonourable (or worse) transaction, action, or receipt, should not be able to avoid liability by relying on the fact that the transaction, action, or receipt was effected through the medium (but not the agency) of a company. But that is not, on any view, enough to justify piercing the corporate veil for the purpose of holding the individual liable for the transaction, action, or receipt, especially where the action is entering into a contract. For these reasons, I agree with the Court of Appeal in concluding that, assuming that there is jurisdiction to pierce the corporate veil on appropriate facts, VTBs proposed pleaded case does not give rise to arguable grounds for contending that this jurisdiction could be invoked in the present case. I would therefore refuse VTB permission to amend its pleaded case to raise such a claim. Conclusion I would therefore dismiss VTBs appeal on both main issues. I have referred to the issues I have been discussing as the main issues, because there is another series of issues relating to a freezing order which VTB obtained. Following its discharge by Arnold J, VTB wishes this freezing order to be reinstated. There is also a temporary freezing order, which VTB obtained pending the determination of this appeal. In the light of the fact that this appeal is being dismissed, it seems to me clear that the discharged freezing order must remain discharged and the temporary freezing order must now be discharged as well. I should add that I agree with what Lord Wilson says about the freezing orders. LORD WILSON I agree with Lord Mance and Lord Neuberger that the appeal should be dismissed. As their judgments, and, on the other hand, those of Lord Clarke and Lord Reed, well demonstrate, the rival arguments in relation to forum are evenly balanced. VTB has three main points: (a) The location of the alleged torts in England. It is worthwhile to remember, however, that, in one sense, the bringing of the transactions into England was pure chance. In July 2007 VTB Moscow informed Mr Malofeev and MarCap that the proposed lender would be either itself or VTB; and in October 2007 it informed them that it would be VTB. They had no objection; but the placement of the lending into the hands of its English subsidiary was effected entirely at the election of, and for the convenience of, VTB Moscow. (b) The English jurisdiction clause in the facility agreement and indeed also in the interest rate swap agreement. If Mr Malofeev controlled the borrowing party to the agreements, namely RAP, and so can be considered responsible for its contractual concession that VTB should have the right to demand that disputes arising out of them be resolved in the courts of England, he can hardly complain if allegations of his and his companies fraudulent inducement of VTB to enter into them are also resolved here. But two riders fall to be attached. The first is whether the court can at this stage proceed on the basis that Mr Malofeev controlled RAP. The court must not for this purpose assume what VTB needs to prove; yet the fact is that, while not admitting control of RAP, Mr Malofeev has, to date, not actively challenged it. The second is that the test to be applied pursuant to the decision in the Spiliada case, [1987] AC 460, mandates a much wider inquiry than into whether Mr Malofeev would have no ground for complaint about the continuation of the proceedings in England. (c) The government by English law of VTBs claims in tort, as held unanimously by this court and as explained in judgments above with which I agree. A spectre of considerable practical inconvenience is raised around the receipt by a Russian judge of evidence of English law and around his application of it to such facts as he were to find. On the other hand the legal framework of VTBs case does not appear to be complex or controversial and Arnold J was entitled to conclude that the key issues in the case were likely to be factual rather than legal. Although, therefore, I discern a practical element in the third of VTBs main points, I have no doubt that, over all, considerations of practicality militate strongly in favour of a Russian forum. The apparently relevant witnesses are Russian, speak Russian and seem almost entirely to be resident in Russia and so beyond the reach of an English witness summons; and the relevant documentation, in particular relating to both the actual and the represented profitability of the dairy companies, was written in Russian. On the one hand, therefore, there are VTBs points, which primarily go to theory, to policy and, yes, perhaps to a limited extent to justice. On the other hand there are the defendants points, which primarily go to practicality. The forum issue required Arnold J not (in my view) to exercise a discretion but, rather, to reach an evaluative judgment upon whether, in the light of these and the many other points pressed upon him by each side, England was clearly the more appropriate forum. [T]he appellate court should be slow to interfere (Lord Goff in the Spiliada case, at p 465); and I agree with Lord Mance at para 68 and with Lord Neuberger at para 96 that the errors which the Court of Appeal identified in the judgment of Arnold J (in particular his adoption of the two part test apt to an application for stay) were, on analysis, of materiality insufficient to justify a re evaluation of its own. Furthermore, notwithstanding its own error about the governing law of the torts, alongside which, however, one must weigh its assertion that an English governing law would not have led it to a different conclusion, I agree with Lord Neubergers alternative conclusion at para 98 that there are no grounds for interfering with the Court of Appeals own evaluative conclusion. To be honest, a disposal of the forum part of the appeal on the above basis is, in the light of this courts intended function in the resolution of controversial and important issues of law, a banal disposal; and, in retrospect, a question arises whether it is appropriate for there to have been a massive second appeal to this court on the forum issue. In its notice of appeal VTB identified the requisite issue of general public importance relative to the issue in one sentence: the appellant says that if a defendant has committed a wrong in England, there is a presumption, and a strong one, that he ought to answer for that wrong in England. But, while he was careful not entirely to abandon his preference for the language of presumption, Mr Howard conceded, early in his opening address, that it was irrelevant whether such was a presumptive position, a starting point or a prima facie conclusion; a little later in his address, he added that the issue was not really about a label, such as that of presumption, but about approach; and he scarcely pressed the difficult suggestion that there was anything in the jurisprudence even in The Albaforth, [1984] 2 Lloyds Rep 91 to raise a formal, legal presumption that the forum should follow the location of the tort. I am doubtful whether the committee would have granted permission to appeal on the forum issue if it had realised that VTBs case would develop into little more than an invitation to re evaluate all the relevant factors for and against the English forum. VTBs application for permission to amend its particulars of claim so as to include claims against Mr Malofeev and the two MarCap companies as additional parties to the facility and interest rate swap agreements logically falls for consideration before that of the forum issue. For, had it been granted, the jurisdiction clauses in the agreements would have been directly in play. VTB frankly concedes that its primary purpose in making the proposed claims in contract was, by reference to such clauses, to establish the English jurisdiction pursuant to article 23(1) of Council Regulation EC 44/2001 (the Judgments Regulation); and that its secondary purpose was thereby to be enabled to claim more substantial sums, particularly by way of interest, than would be payable as damages in tort. In the event, however, for the reasons given by Lord Neuberger in paras 126 to 148, the Court of Appeal was right to dismiss VTBs appeal against the refusal of Arnold J to permit the amendment: for there was no good arguable case that the three specified defendants could be unveiled as additional parties to the agreements with VTB. In that this court welcomes blue sky thinking, I do not criticise Mr Lazarus for his over arching attempt to persuade it that English law recognises no principle that the corporate veil may ever be lifted. In my view, however, and notwithstanding the difficulty of being able to define within one sentence the circumstances in which the law will perhaps lift the corporate veil, such was a highly ambitious submission. But this is not the place at which to embark on an attempted subjection of it to critical examination. In that, by a majority, VTBs appeal is to be dismissed, the worldwide freezing order against Mr Malofeev must fall to be discharged. But the continuation of the order to date represents a highly unsatisfactory state of affairs. The order was first made, without notice, in August 2011 and was continued, on notice, in September 2011. On 29 November 2011, in the light of his conclusion in favour of the Russian forum, Arnold J declined further to continue the order, save for one week in order to enable VTB to approach the Court of Appeal. But importantly, as Lord Clarke has explained in para 163, Arnold J also ruled that, even had he allowed the English proceedings to continue by declining to set aside the order for service out of the jurisdiction, it would have been wrong, for each of two reasons, for the freezing order to continue. VTB, to whom Arnold J had granted permission to appeal against his refusal to permit the amendment, secured permission from the Court of Appeal also to appeal against his decision in relation to forum and his independent refusal to continue the freezing order; and, on a holding basis, the court continued that order until determination of the appeal. In the light of its dismissal of VTBs appeal in relation to forum, the Court of Appeal concluded that there was no basis on which the freezing order could continue in any event; and, although it expressed doubts about the first reason given by Arnold J for his independent refusal to continue the freezing order, it did not address his second reason and made no order on that part of VTBs appeal. It continued the freezing order for ten days only in order to enable VTB to approach this court, which further continued it until its determination of this appeal. In the light of this courts dismissal, by a majority, of the appeal in relation to forum, it can now be seen that Mr Malofeev has continued to be subject to a worldwide freezing order for some 14 months beyond the time when it was proper for such an order to have continued. For in November 2011 Arnold J rightly decided that the proceedings should take place in Russia; and the freezing order should then have expired. It was extended only because of the pendency of two successive appeals which can now be seen both to have failed. Such a state of affairs is bad enough. But what makes it worse is that, as I have explained, Arnold J also ruled as long ago as November 2011 that, irrespective of its dependence on the continuation of the English proceedings, the freezing order should not be continued; and his ruling has not been set aside by the Court of Appeal. In retrospect the Court of Appeal should have determined VTBs appeal against that ruling. Had it, for example, dismissed its appeal, this court would be unlikely to have permitted it to appeal against the dismissal and so the freezing order would no doubt at last have come to an end. One cannot quarrel with the logic behind the conventional continuation of a freezing order pending an appeal against a refusal to make an order upon its continued existence depends. But what turns out to have been the protracted wrongful continuation of the freezing order is another indication of the inappropriateness of a further appeal to this court in circumstances such as the present. The degree of economic inhibition caused to a person in the position of Mr Malofeev by a worldwide freezing order made in England remains to be seen. At first sight, however, he is entitled to complain that it was an oppressive restraint on his economic activities. Whether he is correct to say that it has caused considerable prejudice to him will no doubt be the subject of inquiry in his application, already issued but so far stayed, for VTB to be ordered to compensate him for his losses pursuant to its cross undertaking attached to the freezing order. LORD CLARKE (dissenting) Introduction In this action the appellant claimant, VTB Capital plc (VTB), which was formerly called VTB Bank Europe plc, sought and obtained permission to serve proceedings out of the jurisdiction on the defendant respondents on the ground that the defendants had committed the torts of deceit and conspiracy in England. Save for the third defendant, which has not been served with the proceedings, the defendants applied to have that permission set aside on the ground that VTB had failed to show that England was in all the circumstances clearly and distinctly the appropriate forum to determine the dispute. That application succeeded before Arnold J (the judge): [2011] EWHC 3107 (Ch). VTBs appeal to the Court of Appeal failed: [2012] EWCA Civ 808. The Supreme Court subsequently gave permission to appeal on that issue, which has (not entirely correctly) been described in argument as the jurisdiction issue. That is the first issue in this appeal. The second issue arises out of an application made by VTB to amend its particulars of claim to add a claim for breach of contract. Its case involves a consideration of the principles relevant to what is sometimes called piercing the corporate veil. Both the judge and the Court of Appeal refused that application. Although both courts accepted that it is possible in some circumstances to pierce the corporate veil, they both held that VTB had no arguable case that this is such a case. Under this head the defendants seek to uphold the decision of the Court of Appeal, not only on the particular facts, but also on the basis that there are no circumstances in which the court can pierce the corporate veil. The third issue arises out of a world wide freezing order (WFO) granted to VTB against Mr Malofeev on 5 August 2011 by Roth J. Mr Malofeev applied to discharge the order on the grounds (a) that there was no risk of dissipation of assets and (b) that there had been material non disclosure before Roth J. Arnold J subsequently declared that the WFO should be discharged on the ground that the court had refused to exercise jurisdiction over the claim. He also said that he would in any event have discharged and refused to re grant the WFO on the grounds relied upon by Mr Malofeev. The WTO was however renewed pending an appeal to the Court of Appeal and subsequently to this court. Jurisdiction Service out of the jurisdiction the principles The relevant principles are not in dispute. They have been stated and restated many times. They were correctly stated in the Court of Appeal in this case by Lloyd LJ, with whom Rimer and Aikens LJJ agreed, at paras 98 to 101. Lloyd LJ put them thus in paras 99 and 100: 99. The three basic principles were recently restated by Lord Collins of Mapesbury in giving the advice of the Privy Council in AK Investment CJSC v Kyrgyz Mobile Tel Ltd [2011] UKPC 7, 1 CLC 205 at paragraphs 71, 81 and 88. They can be summarised as follows: first, the claimant must satisfy the court that, in relation to the foreign defendant to be served with the proceedings, there is a serious issue to be tried on the merits of the claim, i.e. a substantial question of fact or law or both. This means that there has to be a real, as opposed to a fanciful, prospect of success on the claim. Secondly, the claimant must satisfy the court that there is a good arguable case that the claim against the foreign defendant falls within one or more of the classes of case for which leave to serve out of the jurisdiction may be given. These are now set out in paragraph 3.1 of Practice Direction 6B. Good arguable case in this context means that the claimant has a much better argument than the foreign defendant. Further, where a question of law arises in connection with a dispute about service out of the jurisdiction and that question of law goes to the existence of the jurisdiction (eg whether a claim falls within one of the classes set out in paragraph 3.1 of Practice Direction 6B), then the court will normally decide the question of law, as opposed to seeing whether there is a good arguable case on that issue of law. 100. Thirdly, the claimant must satisfy the court that in all the circumstances England is clearly or distinctly the appropriate forum for the trial of the dispute and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction. This requirement is reflected in rule 6.37(3) of the CPR, which provides that The court will not give permission [to serve a claim form out of the jurisdiction on any of the grounds set out in paragraph 3.1 of Practice Direction 6B] unless satisfied that England and Wales is the proper place in which to bring the claim. The facts The underlying facts and issues under this head are set out in the agreed statement of facts and issues (the SFI), from which I can take the salient events. VTBs case is that the key step in the fraud was VTBs advancing a sum of US$195,000,000 in London to the account of a borrower in London, which was in turn paid to a seller of a business to its account in London, all done subject to a loan agreement and other related agreements governed by English law and containing English jurisdiction clauses. VTB claims that it has suffered a loss in excess of US$185,000,000. The judge and the Court of Appeal both held that VTB has a good arguable case that its claims are claims in tort within paragraph 3.1(9)(a) of CPR Part 6, Practice Direction 6B, on the ground that damage was sustained within the jurisdiction and that VTB has a good arguable case in tort against Mr Malofeev. However they held that permission to serve out of the jurisdiction should be set aside because VTB has failed to show that England was clearly or distinctly the appropriate forum to determine the disputes. The first issue in this appeal is whether they were entitled so to hold. VTBs case on the facts may be summarised in this way. VTB is a bank incorporated and registered in England. It is a member of the London Stock Exchange, and it is authorised and regulated by the Financial Services Authority for the conduct of investment business in the United Kingdom. It is majority owned by JSC VTB Bank (VTB Moscow), which is a state owned bank. It is one of three strategic business arms of the VTB Group, the others being the corporate and retail businesses. It entered into a facility agreement, dated 23 November 2007 (the facility agreement), with a Russian company, Russagroprom LLC (RAP). Pursuant to the facility agreement, sums totalling US$225,050,000 were advanced to RAP, primarily to enable RAP to buy six Russian dairy companies and three associated companies (the dairy companies) from the first respondent (Nutritek), a company registered in the British Virgin Islands (BVI). After making three interest payments (and no payments of capital), RAP defaulted on the loan in November 2008. VTBs case is that the value of the security provided for the loan was no more than a figure in the region of US$32m to US$40m. VTBs case is that it was induced in London to enter into the facility agreement and an accompanying interest rate swap agreement, by misrepresentations made by Nutritek, for which the other respondents are jointly and severally liable. The two alleged misrepresentations were: first, that RAP and Nutritek were not under common control, and second, that the value of the dairy companies was much greater than their true worth. It is VTBs case that the misrepresentations were fraudulent. The ostensible primary purpose of the facility agreement was to fund the acquisition of the dairy companies from Nutritek by RAP. RAP entered into a Share Purchase Agreement (SPA) with Nutritek dated 27 November 2007, whereby RAP purchased shares in a newly incorporated BVI company, Newblade Ltd (Newblade), which in turn owned the dairy companies. VTB put before the judge a structure chart, setting out in a diagram the complex web of offshore companies through which, on VTBs case, Mr Malofeev ultimately controlled each of Nutritek, the second respondent (Marcap BVI), the third defendant (Marcap Moscow), and RAP. Marcap Moscow has not been served with the proceedings, and has not taken part in any of the hearings to date. Mr Malofeev is an international businessman who resides in Moscow. The Court of Appeal found that there was a good arguable case that Mr Malofeev operated a complex web of companies in a number of jurisdictions. It is VTBs case that he was at all material times the controller and a principal beneficial owner of the BVI companies, Nutritek and Marcap BVI, as well as Marcap Moscow and RAP. RAP was incorporated in Russia on 21 May 2007 as a special purpose vehicle. In November 2007 its immediate parent company was Migifa Holdings Ltd (Migifa), a company incorporated in Cyprus. Migifas parent company was Brentville Ltd (Brentville), a company incorporated in the BVI. It is VTBs case that RAP was ultimately owned and controlled by Mr Malofeev, through a web of offshore companies. As the judge found at para 59, this has not been the subject of challenge by Mr Malofeev, who has advanced no positive case on the issue of the ultimate ownership and control of RAP. See also the Court of Appeal, at para 34. It is VTBs case that, in July 2007 in Moscow, Mr Malofeev personally introduced the VTB Group to the scheme, whereby Nutritek sold its interests in the dairy companies to RAP under the SPA. He stated that a decision had been taken to sell Nutriteks interest in the dairy business and that a purchaser had been identified. He said that a purchaser would have to find banking facilities in order to make the purchase. Mr Tulupov of VTB Moscow was the project manager in respect of the proposed transaction, where his role included liaising with VTB in respect of the project. At an early stage, it was contemplated that either VTB Moscow or VTB would become the lender in connection with the intended transaction. On 18 July 2007, he instructed the London office of Dewey LeBoeuf, Greene & Macrae (DLGM) in relation to the proposed transaction. On the next day, a conference call took place between representatives of VTB Moscow, VTB (Marina Bragina, in London) and Marcap Moscow (Mr Alexander Provotorov and Mr Yury Leonov). It is apparent from a draft term sheet of 8 October 2007 that by early October that year, the proposed structure of the transaction was that the lender was to be VTB (funded by a participation agreement with VTB Moscow) and the borrower was to be RAP. It is VTBs case that, from about this time it was VTB which was to be the particular target for the fraud. The loan amount was to be in excess of US$220m towards an acquisition cost of US$250m. Work started to prepare the documentation for the transaction. The facility agreement was to be governed by English law and VTB was to be the lender in the transaction. Mr Tulupov explains in his statement that the attraction of the lender being VTB was that (i) VTB in the London market was able to provide more sophisticated lending structures than VTB Moscow (owing to internal Russian banking requirements) and (ii) English law offered more protection in the case of default. On 31 October 2007, VTB Moscows Credit Committee approved the proposed transaction. It is VTBs case that, separately from this, and in connection specifically with the ability of VTB to decide to enter into the facility agreement, VTB, as an FSA regulated entity, had its own processes and procedures before lending moneys. The key figures at VTB in this process included (1) Konstantin Ryzhkov, who was VTBs Head of Acquisition and Leverage Finance from 1 September 2007 to 27 October 2008 and who was also a managing director at VTB Moscow, (2) Marina Bragina, who held the equivalent post in VTB to that held by Mr Tulupov in VTB Moscow, (3) Steve Thunem, Head of Debt Capital Markets, (4) Juliet Wooi, a credit risk analyst, (5) Peter Yates, Head of Credit Risk, (6) Peter Manning, Chief Risk Officer, as per Board Approved Delegated Credit Approval Authorities and (7) K Ianovski, Head of Structured Finance and Syndication. As regards the ownership of RAP, VTB relies upon two emails dated 6 and 8 November 2007 by Ms Bragina of VTB to others within VTB and VTB Moscow which recorded information from Nutritek or from Marcap Moscow. The first email states that RAP was incorporated on 21 May 2007 (in error written as 2002) as an SPV for a Nutritek dairy division acquisition and further states that RAP has no other operations and that RAPs beneficiary is a Mr Vladimir Alginin. The second email was in response to a list of questions put to Ms Bragina previously. The key passage states as follows, in the form of the question followed by the answer: Confirm that [RAP] is 100% owned by Alginin. As per the info just received from Nutritek management, Mr Alginin has a 90% share [RAP], the remaining 10% share belongs to the management team. As to the dairy companies, there was a valuation report produced by the Moscow office of Ernst & Young Valuation LLC (E&Y), valuing the dairy companies at US$366m. This report, which is dated 5 September 2007 and is in Russian, was received by Mr Tulupov on 8 November 2007 and was discussed in several conversations with Ms Bragina and Mr Ryzhkov. Based on Mr Tulupovs evidence, VTBs case is that it attached considerable importance to the report, as did VTB Moscow. By a document headed Application for Credit Facilities, dated 13 November 2007, VTB approved the proposed transaction. It was signed on 16 November 2007 by Ms Bragina and Mr Thunem, both of VTB. VTB took the decision to enter into a separate interest swap agreement (the ISA), by a further application for credit facilities, dated 15 November 2007, and signed by Juliet Wooi, Mr Yates and Mr Manning on 19 November 2007. Further particulars relating to VTBs case as to reliance on the information provided by Nutritek concerning the ostensibly arms length relationship between Nutritek and RAP, and concerning the value of the dairy companies, are found in the witness statement of Mr Muraviev. The transaction was completed over the period 23 to 28 November 2007, during which period a number of agreements were entered into by the various parties. The principal agreements entered into as part of the overall transaction were thus as follows: the facility agreement, between VTB and RAP, the SPA between RAP, Nutritek and Newblade dated 27 November 2007, the ISA between VTB and RAP dated 28 November 2007 and the participation agreement between VTB and VTB Moscow dated 28 November 2007 (the participation agreement). The key provisions of the facility agreement are set out by the Court of Appeal at Appendix 1 of its judgment. They included that its governing law is English law (clause 34) and that the courts of England and Wales have non exclusive jurisdiction to settle any dispute arising out of, or in connection with the facility agreement, or, at VTBs option, arbitration in London (clauses 35.1.1 and 35.3). It was further expressly agreed in clause 35.1.2 that the courts of England and Wales were the most appropriate convenient courts to settle such disputes and that no party would argue otherwise (clause 35.1.2). The other agreements referred to above also contain both a choice of law clause in favour of English law, and a jurisdiction agreement in favour of the courts of England and Wales. As stated above, both the judge and the Court of Appeal held that VTB had a good arguable case that it entered into the facility agreement in reliance on the two misrepresentations, the first relating to the representation that RAP and Nutritek were not under common control, and the second as to the value of the dairy companies. On 28 November 2007, RAPs account with VTB in London was credited with US$208,700,000.00. This sum represented the Tranche A payment under the facility agreement. On the same day, US$195,000,000 of those monies were transferred to Nutriteks account with VTB in London, at RAPs direction. The monies were thereafter removed from Nutriteks account, so that by 7 December 2007 no funds remained in Nutriteks account with VTB in London. Some of the monies were transferred to various creditors of Nutritek, while at least US$62 million went to a Nutritek bank account in Switzerland. VTB says that it does not know where the funds went after that, and none of the respondents has put forward evidence as to where the funds went thereafter. As noted by the judge at para 54, some further moneys lent by VTB as part of Tranche B under the facility agreement were utilised to pay interest due under it. This involved the use of another BVI company Madinter Associates Ltd (Madinter), which enabled interest to be paid in respect of the principal loan until but not including the payment due in November 2008, since when no payment of interest or principal due under the facility agreement has been made. VTB sent a first notice of default from its London office to RAP on 15 December 2008 and a second notice of default on 14 January 2009. From August 2009, VTB began to enforce its security. In due course, VTB took control over Newblade, Migifa and eventually RAP. VTB currently estimates the value of the assets of the dairy companies as less than US$40m, and probably no more than US$32m. VTBs claims VTBs claims are concisely described by the judge at paras 57 to 63. It says that it was induced to enter into the facility agreement and the ISA, and to advance sums totalling US$225,050,000 to RAP, by two fraudulent misrepresentations. First, it claims that (together with VTB Moscow) it relied on representations made primarily by Nutritek to the effect that the SPA was a sale between companies that were under separate control. It contends that these representations were false and must have been known by Nutritek to be false when made. VTB knew at the time that Mr Malofeev through MarCap Moscow had de facto control of Nutritek. As the judge put it, what it says it did not know at the time, but has since discovered, is that Mr Malofeev through MarCap BVI also controlled RAP. Thus RAP and Nutritek were under common control at the date of the facility agreement and of the SPA and it was not therefore a commercial transaction carried on at arm's length. The judge held at para 59 that it was not necessary to go into detail concerning the basis of VTBs contention that Mr Malofeev ultimately controlled RAP as well as Nutritek, since it had not been the subject of challenge before him. Secondly, VTB claims that both it and VTB Moscow relied upon the 2007 E&Y valuation of the dairy companies and that that valuation was based on false financial figures and unsupportable forecasts provided to E&Y by Nutritek. In this regard, VTB relies upon an opinion obtained from Deloitte LLP dated 11 April 2011, which analysed the figures provided by Nutritek to E&Y and compared them with the financial information provided by the dairy companies from their own accounting records, which represents the true trading position, as well as information from other sources. It is said that it is apparent from Deloitte's opinion that Nutritek very substantially overstated the true performance figures for the dairy companies. It is VTBs case that the extent of the overstatement is such that it could only have been deliberate. The judge summarised the position in paras 61 and 62. The false representations are alleged to have been made principally by Nutritek. It is VTBs case that they were made pursuant to a conspiracy between a number of persons including MarCap BVI, MarCap Moscow and Mr Malofeev. Given the significant role they played in introducing the business opportunity to VTB and the conduct of the negotiations, VTB says that Mr Malofeev and MarCap Moscow were the prime movers in the conspiracy to deceive VTB. In this part of the case VTB pleaded causes of action against the defendants in deceit and unlawful means conspiracy, the unlawful means being the fraudulent misrepresentations. In deceit, VTBs case against MarCap BVI, MarCap Moscow and Mr Malofeev is that they are jointly liable with Nutritek on the basis that the misrepresentations were made pursuant to a common design between them. As stated in his judgment at para 144, before the judge the respondents accepted that, if English law is the applicable law, VTB has established that VTB has a real prospect of success in its claims for deceit and conspiracy and thus that there is a serious issue to be tried save in three specific respects as follows. The first, the no loss point, was that VTB had no real prospect of establishing that it had suffered loss as a result. The judge discussed the no loss point in considerable detail between paras 145 and 169. He rejected the respondents case. The respondents reargued the no loss point in the Court of Appeal, again on the basis of English law. They again failed, for the reasons given in the judgment of the Court of Appeal at paras 107 to 121. The second point was that VTB has no real prospect of establishing either that Marcap BVI was jointly liable in deceit or that it participated in the alleged conspiracy. The judge considered that submission between paras 170 and 176 and accepted it. However, the Court of Appeal held that he was wrong to do so for the reasons they gave at paras 122 to 127. The third point was that VTB has no real prospect of establishing either that Mr Malofeev is jointly liable in respect of the deceit alleged or that he participated in the alleged conspiracy. The judge rejected that submission between paras 177 and 183. He therefore concluded that there was a serious issue to be tried between VTB and Mr Malofeev. The respondents did not reargue this point in the Court of Appeal. In this court the respondents did not seek to reopen these issues. It follows that, if English law is the relevant law, VTB has a real prospect of succeeding against the respondents on the merits. As summarised thus far, the position is that, at any rate on the basis that English law is the applicable law, VTB has established the first and second of the principles set out in para 164 above. There is a serious issue to be tried on the merits in the case of each of VTBs claims in tort and VTB has a good arguable case that it sustained damage within the jurisdiction within the meaning of paragraph 3.1(9)(a) of Practice Direction 6B, which is the relevant provision by reason of CPR 6.36. It follows that the remaining question is whether the third principle is satisfied. I will consider that question under the heading forum conveniens. Forum conveniens As stated above, the question is whether VTB has satisfied the court that England is clearly or distinctly the appropriate forum for the trial of the dispute and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction on the basis that England is the proper place in which to bring the claim. As the Court of Appeal noted at para 101, on the basis of Lord Goffs classic speech in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 475 484, the underlying principle is that, the task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: Sim v Robinow (1892) 19 R 665, 668. Only two fora have been canvassed in this case; they are England and Russia. Both the judge and the Court of Appeal held that VTB had failed to discharge the onus of proof and that the centre of gravity of the case was Russia and not England. I recognise of course that this is an interlocutory appeal, that a comparison between England and Russia involves a number of different considerations and that, in these circumstances, an appellate court should not interfere with a decision of a lower court unless satisfied that it has erred in principle. However, as appears below, it is my view that the Court of Appeal did make a number of errors of principle, which entitles, indeed requires, this court to reach its own independent conclusions. There are a number of points that seem to me to be relevant on this part of the case. First, it appears to me that it is important for the court to know what issues are likely to arise at the trial of the action on the merits. Only when the issues are identified will it be possible to compare the two jurisdictions. This principle is now stated in Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), para 11 143, in which, having stated the general principles much as above, the editors say that, in practice, the defendant should identify the issues which are appropriate to be tried in the foreign court. In the footnote to that sentence the editors referred to Limit (No 3) Ltd v PDV Insurance Co [2005] EWCA Civ 383, at para 73 and Sawyer v Atari Interactive Inc [2005] EWHC 2351 (Ch), [2006] ILPr 129, at para 54. See also Islamic Republic of Pakistan v Zadari [2006] EWHC 2411 (Comm), at para 138 and Novus Aviation Ltd v Onur Air Tasimacilik AS [2009] EWCA Civ 122. Lawrence Collins J or Lawrence Collins LJ is the author of the relevant passage in each of those cases except the Limit (No 3) case, in which I admit to being the author. I adhere to the view I expressed in that case, now supported by Dicey. As Eder J put it in Mujur Bakat Sdn Bhd v Uni Asia General Insurance Berhad [2011] EWHC 643 (Comm), at para 9 , in considering whether or not England is the most appropriate forum, it is necessary to have in mind the overall shape of any trial and, in particular what are, or what are at least likely to be, the issues between the parties and which will ultimately be required to be determined at any trial. These were originally set out in two letters I stress that I do not mean that a defendant must set out his evidence in great detail, whether of foreign law or of fact. The purpose of the exercise is simply to state what the issues of fact are likely to be, so that the court can gauge whether England is clearly or distinctly the appropriate forum for the trial of the issues. This is of some importance in this case because no evidence was put before the court on the merits of the claims by or on behalf of Mr Malofeev. Moreover, Mr Hapgood QC submitted to the court in the course of the argument that Mr Malofeev was perfectly entitled to say and he does say to VTB, You are accusing me of being a swindler, you get on and prove it. Mr Hapgood added that the matter proceeded in both courts below on the clear understanding that VTB will have to prove its case. As he put it, they will have to prove all five ingredients of a claim for fraudulent misrepresentation and a sixth ingredient in the case of conspiracy. It appears from what Mr Hapgood said that, at any rate at present, he has no positive case. It is of course true that a defendant in the position of Mr Malofeev is not bound to advance a positive case but, in the absence of a positive case, the focus of the court can only be on the ingredients of the claim. It should not speculate about the nature of any positive case that might be advanced in the future. It was suggested in the course of the argument that the defendants could not plead a case or put forward a positive case because of the risk that they would submit to the jurisdiction. There is, in my opinion, no such risk. There is no reason why defendants should not put in a draft defence or evidence on the express basis that they are doing so without prejudice to their case on jurisdiction. I note in passing that it is the duty of the parties under CPR 1.3 to help the court to further the overriding objective, which is to deal with cases justly. The second point is the question whether English law is the applicable law. It is common ground that the applicable law falls to be determined by the provisions of the Private International Law (Miscellaneous Provisions) Act 1995 (the 1995 Act) and not by the European Parliament and Council Regulation 864/2007/EC on the law applicable to non contractual regulations, known as the Rome II Regulation. This is because the claims relate to damage which occurred after 20 August 2007 and before 11 January 2009. Sections 11 and 12 of the 1995 Act provide, so far as relevant, as follows: Choice of applicable law: the general rule. 11(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur. (2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being (c) , the law of the country in which the most significant element or elements of those events occurred. (b) (a) Choice of applicable law: displacement of general rule. 12(1) If it appears, in all the circumstances, from a comparison of the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and the significance of any factors connecting the tort or delict with another country, that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country. (2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events. The judge discussed the question of applicable law between paras 119 and 143 and concluded that the applicable law was Russian law. He did so by reference to both section 11(2)(c) and section 12. In para 158 the Court of Appeal expressed the tentative conclusion that, under section 11(2)(c), the applicable law was English law but also said that they were not convinced that VTB had by far the better of the argument. They held however that, under section 12, it was substantially more appropriate for the applicable law for determining the issues concerned to be that of Russia. VTB says that both the judge and the Court of Appeal were wrong and that the applicable law is English law. The question under section 11(2)(c) is in which country did the events constituting the tort occur. In para 148 the Court of Appeal set out six principles as reflecting the correct approach to section 11(2)(c) as follows: (l) Section 11 of the I995 Act sets out the general rule for ascertaining the applicable law of a tort. It adopts a geographical approach to that question. (2) Where the elements of the events constituting the tort or delict occur in different countries and the cause of action relates to something other than personal injury or damage to property, then section 11(2)(c) requires an analysis of all the elements of the events constituting the tort in question. (3) In carrying out that exercise, it is the English law constituents of the tort that matter. (4) The analysis requires examination of the intrinsic nature of the elements of the events constituting the tort. It does not, at this stage, involve an examination of the nature or closeness of any tie between the element and the country where that element was involved or took place. This latter exercise is only relevant if section 12 is invoked. (5) Once the different elements of the events and the country in which they occurred have been identified, the court has to make a value judgment regarding the significance of each of those elements. Significance means the significance of the element in relation to the tort in question, rather than trying to judge which involves the most elaborate factual investigation. (6) Under section 11(2)(c), (ie in relation to causes of action other than in respect of personal injury or damage to property where the elements of the events constituting the tort occur in different countries) the applicable law of the tort in question will be that of the country where the significance of one element or several elements of events outweighs or outweigh the significance of any element or elements found in any other country. Those principles were derived from four cases: Morin v Bonhams & Brooks Ltd [2004] 1 Lloyds Rep 702 (CA); Dornoch Ltd v Mauritius Union Assurance Co Ltd [2006] Lloyds Rep IR 127 (Aikens J) and [2006] 2 Lloyds Rep 475 (CA); Trafigura Beheer BV v Kookmin Bank Co [2006] 2 Lloyds Rep 455 (Aikens J); and Fiona Trust & Holding Corpn v Privalov [2010] EWHC 3199 (Comm) (Andrew Smith J). In this court those propositions were rightly accepted as correct. The Court of Appeal added at para 150, in relation both to section 11(2)(c) and to section 12, that two further and important points emerged from Dornoch. The first was that, if, as here, the exercise is being carried out at an interlocutory stage as part of an overall exercise to determine whether the English court should have jurisdiction to determine the claim in tort in question, the court cannot finally determine the applicable law of the tort. The second was that it is quintessentially for the judge to make an assessment of the significance of the elements of the events constituting the tort for the purposes of section 11(2)(c) and that the Court of Appeal would not interfere with that assessment unless it was satisfied that the judge made such an error in his assessment as to require the Court of Appeal to make its own assessment. It referred to the judgment of Tuckey LJ at paras 46 and 47, with which Sir Mark Potter P and May LJ agreed. The Court of Appeal held at paras 154 to 157 that the judge had made such an error in the case of section 11(2)(c) and reached a different conclusion. In my opinion, if the principles set out above are applied, the Court of Appeal was entitled to interfere with the conclusion reached by the judge. As Mance LJ put it in Morin at para 21, section 11 directs attention to the intrinsic nature of the element(s) of the tort. The Court of Appeal said at para 157 that they judged that the most important elements of the facts constituting the tort of deceit are, by their intrinsic nature, the reliance on the misrepresentations by VTB and the loss suffered by VTB. I agree. The events constituting the tort of deceit are indeed the making of the misrepresentations which were known to be untrue, reliance on the misrepresentations and the loss sustained as a result. All those occurred in England. The misrepresentations were made to VTB in England, VTB relied upon them in England and incurred its loss in England. In my opinion that is plain. It is true in the case of both misrepresentations: even though the dairy representations were initially made in Russia, the critical representations which induced VTB to enter into the facility agreement were made in London and relied upon in London. As to the alleged conspiracy, the essence of the case is that the representations were made as part of a common design. To my mind, it does not matter for the purposes of section 11(2)(c) because the essence of VTBs case remains based upon the representations made to it in London and relied upon in London by VTB entering into the facility agreement, together with the loss sustained in London. In Dornoch Aikens J was concerned with alleged misrepresentations in a proposal form. The proposal form was completed in Mauritius and given to brokers in Mauritius and then sent to London, where it was presented to reinsurers. Aikens J held that the representation contained in the proposal form was made in Mauritius and London. The presentation to the reinsurers was made and relied upon in London. Aikens J held at para 106 that the intention that the reinsurers should rely upon the proposal form continued to operate in London and the reliance, which he regarded as the most significant element, took place in London. The position is the same here. The reliance by entering into the facility agreement took place in London. Para 107 is also of some assistance. Aikens J said: The antecedent facts concerning the true situation in MCB are important, but it is what is done with those facts that really matters so far as the tort of fraudulent misrepresentation or deceit is concerned. In short, it is (on the assumptions I have made) MCBs decision not to tell the facts as they are and to continue to mislead that matters most, not the true facts themselves. In these circumstances there was in my opinion no room for a tentative conclusion that English law is the applicable law under the general rule set out in section 11. It is plainly the applicable law under the general rule. I turn to section 12. At para 149 the Court of Appeal identified these further four principles: (7) The exercise to be conducted under section 12 is carried out after the court has determined the significance of the factors which connect a tort or delict to the country whose law would therefore be the applicable law under the general rule. (8) At this stage there has to be a comparison between the significance of those factors with the significance of any factors connecting the tort or delict with any other country. The question is whether, on that comparison, it is substantially more appropriate for the applicable law to be the law of the other country so as to displace the applicable law as determined under the general rule. (9) The factors which may be taken into account as connecting a tort or delict with a country other than that determined as being the country of the applicable law under the general rule are potentially much wider than the elements of the events constituting the tort in section 11. They can include factors relating to the parties connections with another country, the connections with another country of any of the events which constitute the tort or delict in question or the connection with another country of any of the circumstances or consequences of those events which constitute the tort or delict. (10) In particular the factors can include (a) a pre existing relationship of the parties, whether contractual or otherwise; (b) any applicable law expressly or impliedly chosen by the parties to apply to that relationship, and (c) whether the pre existing relationship is connected with the events which constitute the relevant tort or delict. In every case to which the 1995 Act applies in which the court has considered the general rule under section 11, the court must consider whether the general rule is displaced under section 12. There is an illuminating discussion of the general approach in para 35 148 of the 15th edition of Dicey. The editors say that the application of the displacement rule in section 12 first requires, taking account of all the circumstances, a comparison of the significance of the factors which connect the tort with the country the law of which would be applicable under the general rule (in this case English law) and the significance of any factors connecting the tort with another country (here Russia). The word tort is italicised in the text in Dicey. The editors say that secondly, it then has to be asked, in the light of the comparison, whether it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of that other country. The editors note that the general rule has been displaced on very few occasions. They further observe that, although section 12 applies in all cases to which section 11 applies, it would seem that the case for displacement is likely to be most difficult to establish in the case of section 11(2)(c) because the application of that provision itself requires the court to identify the country in which the most significant element or elements of the tort are located. Importantly they stress the use of the word substantially, which they describe as the key word, and conclude that the general rule should not be dislodged easily, lest it be emasculated. The party seeking to displace the law which applies under section 11 must show a clear preponderance of factors declared relevant by section 12(2) which point to the law of the other country. That approach is borne out by the cases. The idea that substantially was the key word was derived from the judgment of Waller LJ in Roerig v Valiant Trawlers Ltd [2002] EWCA Civ 21, [2002] 1 WLR 2304, at para 12(v). The principles were considered in more detail by Brooke LJ in R (Al Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, [2007] QB 621 at paras 103 and 104, where he noted that the 1995 Act derived from a report of the Law Commission, from which he quoted. He added that Lord Wilberforce, who was a member of the House of Lords Committee which considered the Bill, had expressed the view that it would be a very rare case in which the general rule under section 11 would be displaced: Prima facie there has to be a strong case. In para 163 the Court of Appeal concluded that, if the applicable law was English law under the general rule in section 11(2)(c), the factors relied upon by the judge in his paras 188 and 189 led them to the conclusion that English law was displaced by Russian law by section 12. In paras 188 and 189, the judge had said this: 188. Counsel for the defendants submitted that the following factors pointed to Russia being the natural forum. First, the connections of the parties to Russia. VTB is controlled by VTB Moscow, which is Russian. Furthermore, the litigation is being managed by VTBDC, which is also Russian. MarCap Moscow and Mr Malofeev are Russian. It is common ground that Nutritek was managed from Russia, and VTBs case is that Mr Malofeev controls both Nutritek and MarCap BVI. Furthermore, it is VTB's case that Mr Malofeev orchestrated the fraud, primarily through MarCap Moscow. 189. Secondly, the connections of the events constituting the torts to Russia. The transaction was introduced to VTB Moscow at meetings between Russian individuals in Russia. The in Russia. The negotiations mainly misrepresentations were made and mainly received in Russia. The more important misrepresentation concerned the performance of the Dairy Companies, which are Russian companies. The 2007 E&Y Valuation was a valuation by Ernst & Youngs Moscow office and was based on information provided by Nutritek's Russian management. The misrepresentations were primarily relied upon by VTB its Credit Committee and Moscow acting Management Board in Russia. It was VTB Moscow and VTBDC which primarily dealt with RAP's default and enforcing the security. The secured assets were in Russia. The discovery of the fraud took place in Russia. Although the loss was sustained by VTB in England, as discussed above the ultimate economic impact is in Russia. took place through The Court of Appeal recognised in para 163 that they had concluded at para 154 that the judge did not appear to have taken account of the fact that the representations were passed on to or confirmed to VTB in London, that VTB had its own procedures that had to be completed satisfactorily before it could enter into the facility agreement and that, although there was an economic impact on VTB Moscow, VTB suffered loss as soon as the transfer of funds by it to RAP was made in London. Notwithstanding those conclusions, the Court of Appeal reached these conclusions at para 163: in our view the factors identified in the judgment at paras 188 and 189, even after discounting the point about primary reliance on the representations in Russia and the securities being in Russia, are of considerable significance. On the material that is before us, taking all those factors into account we have concluded that the centre of gravity of these torts lies in Russia. Therefore, for present purposes, we have decided that a comparison of the significance of the section 11(2)(c) factors, assuming that they would lead to the applicable law being English, with the significance of the other factors connecting the torts with Russia, leads to the conclusion that it is substantially more appropriate for the applicable law for determining the issues concerning the torts to be that of Russia. It seems to me that in that paragraph the Court of Appeal did not pay sufficient regard to the fact that in his paras 188 and 189 the judge was not considering section 12 of the 1995 Act but the broader question of forum conveniens. Further, the Court of Appeal focused, not upon the particular tort or torts but upon much wider considerations. As Dicey observes, section 12(1) expressly focuses upon the particular torts. Here the tort or torts as a result of which VTB suffered loss in London were committed as a result of VTB entering into a contract or contracts in London in reliance upon representations made to it in London. I entirely accept that some of the other considerations were capable of being relevant under section 12(2), but I can see no basis upon which it can properly be held that the general rule, under which English law was plainly the applicable law, should be displaced by Russian law on the basis that it is substantially more appropriate for the applicable law for determining the issues to be the law of Russia. In short, the claimant here is an English entity which was induced to enter into the facility agreement in England and suffered loss in England when it discharged its obligations under it. The position would no doubt have been entirely different if the claimant had been VTB Moscow. For these reasons, I would hold that the Court of Appeal erred in principle in concluding that the applicable law was Russian law, that under the general rule in section 11(2)(c) of the 1995 Act the applicable law was English law and that the general rule was not displaced in favour of Russian law by section 12. I turn to consider what significance the conclusions that (a) the torts were committed in England and (b) the applicable law is English law have on the question whether England is the proper place in which to bring the claim. As stated above, this involves asking whether England is clearly or distinctly the appropriate forum for the trial of the dispute or (which amounts to the same thing) the forum in which the case can be most suitably tried for the interests of all the parties and for the ends of justice. In my opinion neither consideration is conclusive but, together with the terms of the facility agreement, they afford strong grounds for concluding that the answer to those questions is in the affirmative. It was submitted by Mr Howard QC on behalf of VTB that there is a presumption that that is the case where, in a tort case, the tort is committed within the jurisdiction. In my opinion, that is to put it too high. It is undoubtedly a relevant factor but how strong a factor will depend upon the circumstances. It is true that courts have sometimes used the expression presumption. On the other hand they sometimes talk in terms of a prima facie case. Yet other expressions have been used. For example, in Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 the alleged tort was a negligent failure to warn a pregnant woman of the dangers of taking a drug which contained thalidomide. The tort was committed in New South Wales, where the plaintiff had bought the drug. In the Privy Council, Lord Pearson said at p 468 that it was manifestly just and reasonable that a defendant should have to answer for his wrongdoing in the country where he did the wrong. As in all the cases, the particular phrase chosen depended upon all the circumstances of the case. In The Albaforth [1984] 2 Lloyds Rep 91, which was much discussed in the course of the argument, the claim was for damages for negligent misrepresentation contained in a telex received and acted upon in England. Ackner LJ said that the jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute. The other member of the Court of Appeal was Robert Goff LJ. It is of some significance in the present case that he quoted with approval a statement by Lord Denning MR in Diamond v Bank of London and Montreal [1979] QB 333 at 346 to the effect that the tort of negligent misrepresentation was committed at the place where the representation was received and acted upon. Robert Goff LJ did not then use the expression prima facie forum but said at p 96 that the cases showed that, where the jurisdiction of the court is based on the fact that the tort was committed within the jurisdiction, that court, having jurisdiction, is the most appropriate court to try the claim, where it is manifestly just and reasonable that the defendant should answer for his wrongdoing. He added that, that being so, it was not easy to see what other facts could displace the conclusion that the courts of that jurisdiction are the natural forum. That is to my mind so even if significant parts of the evidence derive from elsewhere. Berezovsky v Michaels [2000] 1 WLR 1004 was a libel case in which an internationally disseminated libel had been published in England. Lord Steyn, giving the principal judgment for the majority in the House of Lords, who were himself, Lord Nolan and Lord Hobhouse, quoted (at p 1013) the two passages from The Albaforth set out above and referred to Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458, 468E per Lord Pearson, Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 in the Court of Appeal (subsequently overruled in Lonrho plc v Fayed [1992] 1 AC 448 on other aspects of the case) and Schapira v Ahronson [1999] EMLR 735. Lord Steyn added that the implied supposition in these cases was that the substance of the tort arose within the jurisdiction. He added at p 1014D E: Counsel accepted that he could not object to a proposition that the place where in substance the tort arises is a weighty factor pointing to that jurisdiction being the appropriate one. This illustrates the weakness of the argument. The distinction between a prima facie position and treating the same factor as a weighty circumstance pointing in the same direction is a rather fine one. For my part the Albaforth line of authority is well established, tried and tested, and unobjectionable in principle. I would hold that Hirst LJ correctly relied on these decisions. The Court of Appeal considered this issue at paras 140 to 144. They expressly referred to the statements of principle in The Albaforth, noting that neither Ackner nor Robert Goff LJJ referred to a presumption. They then referred to the statements of Lord Steyn in Berezovsky v Michaels noted above, adding that, although Lord Hope dissented (as did Lord Hoffmann), he agreed with the reasons given by Lord Steyn for accepting that Hirst LJ was right to rely on The Albaforth line of authority. They further noted that Lord Hope said at p 103 that he would reject the argument that the application of the Spiliada test did not admit of the application in that case of the principle that the jurisdiction in which the tort is committed is prima facie the natural forum for the dispute. The Court of Appeal concluded at para 144 that the most that could be extracted from the House of Lords decision in Berezovsky was that, where a tort is committed within the jurisdiction, that jurisdiction is prima facie the natural forum for the resolution of claims arising from it. However they added two points to which they attached importance. The first was that it had not been stated that this principle applies where the loss is sustained in the jurisdiction but other elements of the tort occur elsewhere. The second was that the statements made in the Berezovsky case can only describe, at best, a prima facie position, and that they cannot detract from the overall test which has to be applied, namely that permission to serve out of the jurisdiction will only be granted if the claimant demonstrates that England is clearly or distinctly the appropriate forum for the resolution of the dispute. They concluded that there is no presumption in favour of England being either the natural or the appropriate forum in this case. I agree with the Court of Appeal that the cases do not go so far as to say that there is such a presumption but they do recognise that it is likely to be a strong or weighty factor: see further paras 231 to 232 below. While it is true that the principle in The Albaforth has not been expressly stated to apply where the loss is sustained in the jurisdiction but other elements of the tort occur elsewhere, the application of the principle in that very case was in respect of the tort of negligent misrepresentation which was held to be committed in England as the place where the representation was received and acted upon. The same is true of the alleged fraudulent representations here. The second factor which seems to me to be of real significance is that, for the reasons set out above, the applicable law under the 1995 Act is English law. It is not in dispute that it is a potentially relevant factor. The correct approach was, as ever, encapsulated by Lord Goff in Spiliada at p 481H: the importance to be attached to any particular ground [of RSC Ord 11, r 1(1)] invoked by the plaintiff may vary from case to case. For example, the fact that English law is the putative proper law of the contract may be of very great importance (as in BP Exploration Co (Libya) Ltd v Hunt [1976] 1 WLR 788, where, in my opinion, Kerr J rightly granted leave to serve proceedings on the defendant out of the jurisdiction); or it may be of little importance as seen in the context of the whole case. See also Dicey, 15th ed, para 12 034. The significance of the conclusion that English law is the applicable law is that it is generally appropriate for a claim in tort governed by English law to be adjudicated upon by an English court. The same would of course be true mutatis mutandis if the claim in tort were governed by Russian law. In that case the natural court to determine liability would be a Russian court. It was no doubt for that reason that the defendants have throughout persisted in arguing that the applicable law is Russian law. In the instant case, it is not clear what, if any, role Russian law might play at a trial. It seems most unlikely to play a role if the action proceeds in England. Although I recognise that it would be open to the defendants to reopen the issue of applicable law for determination at trial, it is difficult to imagine circumstances in which they would have a real prospect of persuading a judge to reach a different conclusion from that arrived at in this court. If the action proceeds in Russia it is possible that Russian law will play a role because the respondents have reserved their right to rely upon Russian law but, since they have given no indication as to the nature of the case they might wish to run, it is not possible to express a view as to its possible effect on a trial in Russia. In these circumstances it seems to me that, given that VTB has shown that the applicable law of the tort is English law and that the respondents have asserted no positive case to the contrary even if the action were to proceed in Russia, this is a strong factor in favour of England as the natural forum. A further important factor is, as I see it, the fact that the facility agreement which, on VTBs case, it was induced to enter into, contained, not only clause 34, which provided that the agreement was governed by English law, but also clause 35.1, which provided that the courts of England had non exclusive jurisdiction to settle any dispute arising out of the agreement, that the English courts were the most appropriate and convenient to settle the disputes, that no party would argue to the contrary and that the clause was for the benefit of VTB alone. Clause 35.3 also gave VTB the right to refer a dispute to arbitration in London. The fact that those clauses were included in the agreement which, on VTBs case, it was fraudulently induced to enter into, seems to me to be a strong pointer to the conclusion that the natural forum for the resolution of the dispute is England. If VTB had not enforced its security by acquiring RAP, it would have been able to sue RAP in England and to add the present respondents as necessary or proper parties to the action against RAP. I appreciate that the respondents are not parties to the facility agreement and that it is therefore said that these clauses are irrelevant. However, VTBs submission derives support from Professor Briggs recent article entitled The subtle variety of jurisdiction agreements, [2012] LMCLQ 364, in which he discusses the Court of Appeal decision in the present case (at pp 370 371): In VTB Capital plc v Nutritek International Corpn it appears to have been accepted without substantial argument that if the hidden person were not a party to the substantive contract containing the jurisdiction clause he could not be affected by a jurisdiction agreement contained in that contract. This conclusion, with respect, should not be accepted without further reflection. For even if the lifting of the veil does not allow a contractual claim, otherwise lying against the company, to be made against the veiled person, there may be other bases for seeking to establish his personal liability. Fraud will be the most likely one That being so, the question becomes whether the jurisdiction clause in the companys contract may be utilised to establish or sustain jurisdiction against the alleged fraudster. This is a question which requires more of an answer than a simple assertion that a jurisdiction agreement is only ever effective in relation to a contracting party. For one thing, the jurisdiction clause is separable from the substantive contract, and the absence of a contractual claim against the fraudulent defendant need not entail the irrelevance of a jurisdiction agreement which he engineered. For another even if he is not contractually bound to the jurisdiction, it should not be challenging to contend that the court which he signed his company up to, in circumstances of fraud, is also the proper place in which to assert any available claim of substantive liability against him. I agree with Professor Briggs. In particular I agree with him that it is significant that where a person fraudulently engineers a contract, not only subject to English law but also subject to an English jurisdiction clause, the proper (or natural) place in which to assert a claim for substantive liability against him, whether in contract or tort, is England. The same would of course be true mutatis mutandis if the agreed law and jurisdiction were that of another state. Mr Howards submission on behalf of VTB is that the principal grounds for concluding that England is the natural forum for this action are therefore these. Although a significant number of preliminary events occurred in Russia, the critical ingredients of all the torts took place in England. In particular, the representations were made to VTB in England, where they were intended to be relied upon because it was VTB that was intended to enter into the facility agreement, which was governed by English law and contained an English jurisdiction clause. VTB did enter into the agreement and, pursuant to its terms large sums of money were drawn down and, as the judge and the Court of Appeal held, VTB suffered its loss in England. As explained above, it is substantially for these reasons that English law is the law applicable to the torts. In these circumstances, England is clearly or distinctly the appropriate forum for the trial of the dispute. I would accept those submissions. The judge and the Court of Appeal rejected that approach on the basis that the centre of gravity of the torts lies in Russia. They did so on the basis of the evidence that there was considerable activity in Moscow before VTB was chosen as the lender. It is said that all the evidence referable to that period would be in Russia. There is some force in that but the difficulty facing the respondents is that they have not identified what classes of evidence they might wish to adduce about what. It is therefore appropriate, as counsel for the respondents himself indicated, to approach the case on the basis that VTB will be put to proof of its claims. The nature of VTBs claims is summarised in paras 181 to 184 above. VTB hopes to be able to call Ms Bragina and others from VTB, although it is right to say that Ms Bragina has left VTB and it is no longer in contact with her. There is some documentary evidence available in London and Moscow. I see no difficulty in any of the VTB witnesses who are now in Moscow or elsewhere coming to London to give evidence. The evidence will no doubt focus on the alleged representations. As to the allegation that it was represented that Nutritek and RAP were not under common control, there is evidence in the emails referred to in para 174 above. It is not known whether it is said on behalf of the respondents that no such representations were made or, if they were made, by whom they were made (and with whose knowledge and on whose behalf) and whether they were true. Since the respondents have not indicated the nature of their case, it is not known what evidence they might wish to adduce on this part of the case. For example, it is not known whether Mr Malofeev accepts that he controlled both Nutritek and RAP as alleged, although (as stated at para 170 above), the judge found that the allegation that RAP was ultimately owned and controlled by Mr Malofeev through a web of offshore companies had not been the subject of challenge by him. Mr Malofeev is an international business man who is said to control a series of offshore companies. There is no evidence that either he or any other witness could not readily come to London. It may equally be said that there is no reason why any witness could not go to Moscow. So, on the first alleged misrepresentation, there seems to me to be no reason to depart from the view expressed earlier, namely that the natural forum for the resolution of the issues is England. The same is true of the second alleged representation. The issues may essentially be whether the facts relating to the dairy companies were fairly given to E&Y in Moscow. Much of the information is no doubt in Russian and, if detailed evidence is required, it may be in Russia. However, Deloittes LLP in London have made a report in English on which VTB relies dated 11 April 2011, which analysed the figures provided by Nutritek to E&Y and compared them with the financial information provided by the dairy companies from their own accounting records, which represent the true trading position, as well as information from other sources. It is said that it is apparent from Deloitte's opinion that Nutritek very substantially overstated the true performance figures for the dairy companies. It is VTB's case that the extent of the overstatement is such that it could only have been deliberate. It seems likely to me that any issues under this head could be determined in England or Russia. In all the circumstances, given that VTB is the claimant and not VTB Moscow, I do not agree with the Court of Appeal that the centre of gravity of the torts is in Russia. I would hold that VTB has shown that England is clearly or distinctly the appropriate forum for the reasons summarised in para 223 above. I would therefore allow the appeal on the forum non conveniens point. I would only add this in the light of the judgments of Lord Mance and Lord Neuberger which I have seen since I prepared my own draft. Subject to the general point that one of the underlying principles of the CPR is that the parties should co operate with each other and the court in order that cases are resolved justly, which must surely include the necessity for each party to put his cards on the table, I do not disagree with the general points made by Lord Neuberger in the early parts of his judgment. None of the points I have made above is inconsistent with them. Thus, as I see it, even if the burden of proof is on the claimant, the defendant must indicate, at least in general terms what positive case he wishes to advance at a future trial, whether in England or elsewhere. This should be done shortly and concisely. In the instant case no attempt was made to do it at all. I entirely agree with Lord Neuberger that, where a judge has made no error of principle and the only challenge that can be advanced against his or her decision depends upon persuading an appellate court to balance the various factors differently, an appellate court should not interfere unless the balance struck by the judge can be shown to be plainly wrong. The question is whether this is such a case or whether this is a case in which, as VTB says, both the judge and the Court of Appeal made errors of principle and that, permission to appeal to this Court having been granted, it becomes its responsibility to strike the balance. In my opinion, this case is in the second category. As to the position before the judge, the Court of Appeal held that he had wrongly approached the question as a two stage question. However I agree with Lord Mance and Lord Neuberger that, even if he did, he ultimately posed the correct question. The position as to choice of law is different. The judge erred in law in concluding that Russian law was the applicable law by reference to both section 11(2)(c) and section 12 of the 1995 Act. The Court of Appeal correctly held that he was wrong under section 11(2)(c) but it too was wrong in so far as it held that the applicable law was Russian law under section 12. In my opinion, as discussed in paras 195 to 210 above, those were errors of principle. Moreover, as explained in para 219, they were significant errors, as evidenced by the importance attached to the applicable law point by both sides. Both sides naturally took the view that whichever was the applicable law provided a strong pointer to the forum conveniens. As Lord Mance puts it at para 46, it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. There are to my mind two other important respects in which the courts below failed to apply the correct principles. They are the correct approach to the significance of, first, the place where the tort was committed and, secondly, the fact that the facility agreement contained an English jurisdiction clause. As to the first, it is only fair to the judge to note that VTB did not refer to The Albaforth or the other cases following it which I have discussed in paras 212 to 217 above. Although there is reference in the cases to the proposition that the place of the tort is prima facie the natural forum and although of course (as ever) all depends upon the circumstances, in the passage quoted from The Albaforth at para 213 above, Robert Goff LJ expressed the view that, where the jurisdiction of the court was based on the fact that the tort was committed within the jurisdiction, that court was the most appropriate court to try the claim on the basis that it was manifestly just and reasonable that the defendant should answer there for his wrongdoing. Robert Goff LJ there echoed (at p 96) the expression used by Lord Pearson in the Distillers case at p 468: see para 212 above. Finally, as I read the speech of Lord Steyn in Berezovsky (quoted at para 214 above), the majority of the House of Lords approved the proposition that there is no real distinction between treating the place of the tort as a prima facie pointer and treating it as a weighty factor. It is in my opinion a weighty factor here, where the alleged representations (if made) were deliberate acts which were committed within the jurisdiction, which were intended to be relied upon within the jurisdiction, which were in fact relied upon within the jurisdiction and which caused VTB to sustain loss within the jurisdiction. I stress again that this is a claim by VTB and not by VTB Moscow and VTB is not suing upon a tort committed in Moscow. Albeit for understandable reasons, this point was not considered by the judge. It follows, as I see it, that he did not take it into account, even in the alternative, in carrying out the balancing exercise. In the Court of Appeal the effect of the authorities was in my judgment down played. It is not to my mind a fair conclusion based on the authorities that the statements made in Berezovsky can only describe, at best, a prima facie position, at any rate unless one keeps well in mind the reasoning of Lord Goff and Lord Pearson referred to above. Although it is fair to say that the Court of Appeal did refer to the passage from the speech of Lord Steyn in Berezovsky quoted above, there is no hint that they treated this consideration as a weighty factor. For the reasons I have given they should have done so. The second respect in which in my opinion the courts below erred in principle relates to the relevance of the English jurisdiction agreement in the facility agreement. The judge merely said in para 187 that the English jurisdiction and arbitration clauses are a pointer to England but not a strong one, given that the claim is a tort claim not a contract claim. He does not explain why the fact that the claim is a tort claim leads to the conclusion that the pointer to England is not a strong one. He does not address the force of the submissions made on behalf of VTB. For the reasons given in paras 220 to 212 above, this is in my opinion a strong factor, on the basis that, as Professor Briggs observed, where a person fraudulently engineers a contract, not only subject to English law but also subject to an English jurisdiction clause, the proper (or natural) place in which to assert a claim for substantive liability against him, whether in contract or tort, is England. The Court of Appeal did not expressly address this point. Lord Neuberger says that they must have agreed with the judge. That may be so but, given that the judge gave no reasons for his view, it seems to me to be of little assistance to the respondents. With respect to him, Lord Neuberger does not as I see it address this way of putting the case, which is much narrower than that addressed by Lord Neuberger in paras 105 and 106. In so far as he does address the point, I strongly prefer the opinion of Professor Briggs. In all the circumstances I remain of the view that both the judge and the Court of Appeal erred in principle in more than one respect, that it is now for this Court to reach its own conclusion on the question whether England is clearly or distinctly the appropriate forum for the trial of the dispute or (which amounts to the same thing) the forum in which the case can be most suitably tried for the interests of all the parties and for the ends of justice. For the reasons I have given, my conclusion is that it is. In so far as it is suggested by Lord Neuberger and Lord Wilson that this approach is to assume what VTB has to prove, namely that Mr Malofeev was guilty of deceit, I respectfully disagree. The approach I favour does not assume that VTB will succeed but is based upon the fact that it has been held that VTB has at least a good arguable case on each of these factors: (1) the tort alleged was committed in England; (2) English law is the applicable law under the 1995 Act; (3) the respondents made fraudulent representations which induced VTB to enter into the facility agreement which is not only subject to English law but also subject to an English jurisdiction clause; and (4) the loss sustained as a result of lending money in England pursuant to the facility agreement was incurred in England. In all these circumstances England is clearly and distinctly the proper (or natural) place in which to assert a claim for damages for fraudulent representation against the respondents. I recognise that, as pointed out by Lord Mance there are many factors which connect the underlying dispute with Russia but many of them are evidential and, indeed, many of them treat the claim as if it were a claim by VTB Moscow or the VTB Group, which it is not. As Lord Wilson observes, the defendants points primarily go to practicality, but it seems to me that a trial could perfectly well take place in England or Russia but that England is the natural forum for the reasons I have given. In all the circumstances I would allow the appeal on the forum non conveniens point. Piercing the corporate veil I agree with Lord Neuberger that this is not a case in which it would be appropriate to pierce the corporate veil on the facts. I would however wish to reserve for future decision the question what is the true scope of the circumstances in which it is permissible to pierce the corporate veil. That includes the question whether Antonio Gramsci Shipping Corpn v Stepanovs [2011] EWHC 333 (Comm), [2011] 1 Lloyds Rep 647 was correctly decided. The WFO Since the appeal is to be dismissed, I agree with Lord Neuberger that the discharged freezing order should remain discharged and that the temporary WFO should be discharged as well. LORD REED (dissenting) In relation to the first question in this appeal, namely whether the permission granted ex parte to VTB to serve the proceedings out of the jurisdiction should be set aside, I have reached the same conclusion as Lord Clarke. I do not question the general points made by Lord Neuberger at paragraphs 79 to 93 of his judgment. Nevertheless, it appears to me that the courts below erred in law in their approach to this question. In particular, as explained by Lord Clarke, they erred (i) in concluding that the applicable law was Russian law rather than English law and (ii) in failing to attach appropriate weight to the fact that the alleged tort was committed in England, in accordance with the line of authority including The Albaforth [1984] 2 Lloyds Rep 91 and Berezovsky v Michaels [2000] 1 WLR 1004. These errors, particularly when considered cumulatively, appear to me to have been material. I recognise that the Court of Appeal stated (para 166) that, even if it had concluded that the applicable law was English law, this would not have been a factor that would weigh heavily, precisely because if the defendants wished to allege and plead that the applicable law was Russian law, both sides would have had to prepare for a trial on that basis. The fact of the matter is however that the defendants have not pleaded, or indicated any intention to plead, that the applicable law is Russian law. Since the approach of the courts below was flawed in principle, it appears to me that this court has no alternative but to reconsider the question on a proper basis. Having done so, I have reached the same conclusion as Lord Clarke, essentially for the reasons stated at paragraphs 223 to 227 of his judgment. In relation to the second question, namely whether VTB should be allowed to amend its statement of case so as to add a claim of damages for breach of contract, based upon piercing the corporate veil, I agree that permission should be refused, for the reasons given by Lord Neuberger. Since the appeal is being dismissed, I also agree that the discharged freezing order should remain discharged, and that the temporary freezing order should also be discharged.

UK-Abs

In 2007, VTB Capital plc (VTB), an English incorporated bank, entered into agreements (the agreements) with Russagroprom LLC (RAP), a Russian company. Under the agreements, VTB loaned US$225,050,000 to RAP, primarily to enable RAP to buy six Russian dairy companies and three associated companies (the dairy companies) from Nutritek International Corp (Nutritek). In 2008, RAP defaulted on the loan. VTB claims that it was induced in London to enter into the agreements by misrepresentations made by Nutritek. Mr Konstantin Malofeev, a Russian businessman resident in Moscow, is said to be the ultimate owner and controller of Nutritek, Marshall Capital Holdings Ltd (Marcap BVI), and Marshall Capital LLC (Marcap Moscow). VTB claims that Marcap BVI, Marcap Moscow, and Mr Malofeev are jointly and severally liable for these alleged misrepresentations. To bring proceedings in England, VTB required permission to serve proceedings out of the jurisdiction, because the intended defendants were not resident, or otherwise to be found, within the jurisdiction. After being served, Nutritek, Marcap BVI and Mr Malofeev applied to Mr Justice Arnold for the service to be set aside, largely because England was not considered to be the appropriate forum. In addition to opposing this application, VTB sought to amend its pleaded case to contend that RAPs corporate veil should be pierced with the effect that Mr Malofeev, Marcap BVI and Marcap Moscow would be treated as jointly and severally liable with RAP for breaches of, and/or otherwise subject to remedies to enforce, two of the agreements. Mr Justice Arnold found against VTB on both issues, and, while holding that he had gone wrong in certain respects on the first of those issues, the Court of Appeal dismissed VTBs appeal. VTB appeals on both issues to the Supreme Court. In the meantime, it obtained a worldwide freezing injunction against Mr Malofeevs assets pending the determination of the legal proceedings (the freezing injunction). There are three issues before the Supreme Court: (i) whether the permission granted to VTB to serve the proceedings out of the jurisdiction should remain set aside (the jurisdiction appeal); (ii) whether VTB should be allowed to amend its pleaded case to include the claim based on piercing the corporate veil (the corporate veil appeal); and (iii) whether the freezing injunction should be discharged. The Supreme Court (i) by a majority of three to two (Lord Clarke and Lord Reed dissenting), dismisses the jurisdiction appeal, so that VTB may not serve out of the jurisdiction; (ii) unanimously dismisses the corporate veil appeal, so that VTB is not permitted to amend its pleaded case to include a claim on piercing the corporate veil; and (iii) unanimously discharges the freezing injunction obtained by VTB against Mr Malofeevs assets. The jurisdiction appeal It is incumbent on a defendant challenging jurisdiction to identify the issues concerned and to state as clearly as possible how they arise or may arise in the proceedings [36]. This does not require the defendant to advance a positive case [39]. A defendant is entitled to keep his powder dry in relation to his evidence [90]. Hearings concerning appropriate forum should not involve masses of documents and long argument. It is self defeating if, in order to determine the question of jurisdiction, parties prepare for and conduct a hearing which approaches the putative trial itself [82]. In a case such as this, if a court is not satisfied that England is clearly the appropriate forum in which to bring a claim, then permission to serve out must be refused or set aside [18]. Where a judge has exercised his or her judgment to determine whether England is the appropriate forum, an appellate court should refrain from interfering with that decision, unless satisfied that the judge made a significant error [69]. In this case, the majority consider that there are no grounds which justify interfering with the judges decision, or, if the Court of Appeal was entitled to re exercise the power, interfering with the Court of Appeals decision, on this issue. Whilst the conclusion of the lower courts that Russian law governed the alleged torts was wrong, the correct conclusion that English law governed would not have made any difference. Not only did the judge and the Court of Appeal say as much, but the governing law is a factor of very little, if any, real potency, because the key issues in this litigation will on the face of it be factual not legal [45] [49],[54] [55],[100] [101]. The issues, oral and documentary evidence are focused on Russian witnesses and overwhelmingly on matters which happened in and concern Russia, where they could be considered without translation [62],[66],[154]. The issue of governing law cannot have been decisive in the judges decision [68]. Whilst agreements relevant to VTBs claims contained non exclusive jurisdiction clauses in favour of England, such clauses in this case are, as the judge said, not particularly strong factors in favour of English jurisdiction [65] [66],[105],[111]. There is therefore no basis on which the Supreme Court would be justified in re exercising the power to decide for itself the jurisdictional issue [69],[98],[113],[156]. The minority agree that, where the only challenge that can be advanced depends upon persuading an appellate court to balance the various jurisdictional factors differently, an appellate court should not interfere [229]. They consider, however, that a number of errors of principle were made in the exercise of the power to decide the jurisdictional issue, which require the Supreme Court to reach its own independent conclusion [191],[231],[241]. This is primarily because it is generally appropriate for a claim in tort governed by English law to be adjudicated upon by an English court [219],[233], and the non exclusive jurisdiction clauses also point in the direction of England [221] [222],[234] [235]. In coming to that independent conclusion, the minority consider that England is the appropriate forum for the trial of the dispute [227],[236] [237]. The corporate veil appeal VTB may not amend its pleaded case to include a claim on piercing the corporate veil of RAP in order to attach liability to Mr Malofeev, Marcap BVI, and Marcap Moscow, because VTBs proposed case does not give rise to arguable grounds for contending that the jurisdiction to pierce the corporate veil can be invoked [72],[148],[158],[238],[243]. This is an interlocutory appeal, and so it is unnecessary and inappropriate to resolve the issue of whether, unless any statute relied on in the particular case expressly or impliedly provides otherwise, the court is entitled to pierce the veil of incorporation [130],[158],[238]. On the assumption that the court can pierce the corporate veil on appropriate facts, VTBs case involves an extension to the circumstances where it has traditionally been held that the corporate veil can be pierced [131]. This extension would mean that the person controlling the company could be held liable as if he had been a co contracting party with the company concerned to a contract where the company was a party but he was not, and where neither he nor any of the contracting parties intended him to be [132]. Such an extension would be contrary to authority and contrary to principle [133] [147]. Moreover, the extension is not needed to enable VTB to seek redress from Mr Malofeev: if VTB establishes that it was induced to enter into the agreements by the fraudulent statements which he is alleged to have made, then Mr Malofeev will be liable to compensate VTB [146]. The freezing injunction The worldwide freezing order against Mr Malofeev is discharged, because VTB has not been granted permission to serve proceedings on him [74],[150],[159],[239],[244].

The claimant Kevin Nunn was convicted in November 2006 of the murder of his girlfriend following the ending of their relationship. His application for leave to appeal to the Court of Appeal (Criminal Division) was refused after hearing counsels written and oral representations on his behalf. He continues to protest that his conviction was wrong. The present proceedings for judicial review raise the question of the extent of any continuing duty of the police and the Crown Prosecution Service to assist him in gathering and examining evidence with a view to a further challenge to his conviction, which he asserts was a miscarriage of justice. It is common ground, and well understood, that while his trial was pending the Crown owed him the statutory duties of disclosure which are set out in sections 3 and 7A of the Criminal Procedure and Investigations Act 1996. That meant that it was the Crowns duty to disclose to him anything which had become known to it and which might reasonably be considered capable either of undermining the prosecution case or of assisting his own. At the heart of the submissions of Mr Southey QC for the claimant is the contention that this duty remains in existence in exactly the same form after as well as before his trial ended with his conviction. Whilst the statutory duties of disclosure are expressly framed as continuing only until the end of the trial, Mr Southey contends that those duties are only statutory enactments of the common law duty which pre-existed the 1996 Act, and that accordingly this common law duty remains binding on the Crown indefinitely. The basis for it, he argues, lies in the necessity of detecting and correcting any miscarriage of justice which may have occurred. Kevin Nunn had been the boyfriend of the deceased, Dawn Walker, for about two years prior to February 2005. They did not live together and she may have had other boyfriends during this period. It was agreed that on the evening of Wednesday 2 February their relationship was brought to an end in the course of a discussion between them at her home. The Crown case was that there was a noisy argument, overheard by the neighbours and seen by one, and that Dawn had ended the affair against Nunns wishes. His case by contrast was that it had been a matter of amicable agreement; there had been no argument and he had left well before the time spoken of by the neighbours. After that evening Dawn was not seen alive again. Her body was found by a river two days later on Friday 4 February. Attempts had been made to set fire to it at a different place near the river and at some stage it had been immersed in water. It had then been disposed in a sexually degrading position, unclothed except for a fleece over a sweatshirt pulled up above her breasts, which garments had been put on after death and burning in other clothes. The exact cause of death could not be determined. Her head and pubic hair had been shaved off, her ankles and Achilles tendon had been lacerated, and a length of reed had been inserted into her anus. The body must have been somewhere else during Wednesday night and Thursday, for it would have been seen if then by the river. In barest outline, the Crown case against the claimant relied upon (i) the motive afforded by Dawns rejection of him, (ii) evidence that he was of a jealous disposition and had stalked both Dawn and a previous partner, (iii) his admitted presence with her on the evening of her disappearance, (iv) the argument which the neighbours said that they had heard that night, (v) his having provided himself with a key to her home without her knowledge, which would have afforded access both to items found where the body had been burned and to a petrol can apparently removed from her shed for use in the burning, (vi) his having told her employers the next day that she was not at work because unwell, and (vii) the evidence of a neighbour who knew him and who said that she had seen him, with an accomplice, removing a large wrapped object, consistent with a body, from Dawns house in the small hours of the night before she was found. By contrast, the claimants case was that he had left Dawn in good health and had thereafter been elsewhere. He pointed to a telephone record of her mobile telephone calling his at 04.55 on the night of 2/3 February; he denied that he had made the call himself to lay a false trail, and he explained the absence on his own phone of the voicemail message which he said she had left by saying that he had accidentally deleted it. He said that footprints consistent with his boots near the riverbank burning site were there because he had gone looking for Dawn the day after she disappeared; he had walked the river bank but had not seen various items connected with her which others had seen there. He advanced the positive case that Dawn had been murdered by one, or perhaps another, of her previous boyfriends, to one of whom she was perhaps hoping to return. Both were called and cross examined on his behalf before the jury, as was the girlfriend of one of those men, who provided that alleged murderer with an alibi. The claimant pointed to the presence of traces of sperm (four cells) on Dawns inner thigh and pubic area (but not in her vagina) which, since he had had a vasectomy, were unlikely to derive from him; unless they had got there by secondary or tertiary transfer or unknown past sexual contact via clothing these, he suggested, were an indication of a killer other than him. These and other issues were all fully investigated at a trial which lasted some six weeks. In the course of it the jury heard and was able to judge the evidence of the claimant and of the identifying neighbour, as well as of the two men whom the claimant accused. The jurys verdict of guilty was returned on 20 November 2006. The Court of Appeal refused the application for leave to appeal against conviction on 17 October 2007. The claimant continued to protest his innocence. Beginning in January 2008, he made a series of written applications to the police for supply of all their records of the investigation. These will, for an investigation such as this, have been very voluminous; they were logged in detail under the normal police computerised system for major enquiries (HOLMES). He sought everything, including officers notebooks, computer files, incident logs, CID journals and the like, together with all photographs and forensic science records. The applications were framed under either the Freedom of Information Act 2000 or the Data Protection Act 1998. Whether or not the claimant fully appreciated the law, even if there was anything which could be obtained under these two statutes, these blanket applications were misconceived (see, inter alia, section 30 of the former and section 29 of the latter), quite apart from the fact that there is no suggestion that anything relevant had not been disclosed to the defendant, through his trial solicitors, before the trial. By February 2010, however, the claimant had instructed fresh solicitors, who had not represented him at his trial. He will have been entitled to call for the case papers, including unused prosecution material, from his trial solicitors to give to his new representatives. On 8 February 2010 the new solicitors wrote the first of a number of letters to the police seeking information. They said: We should be most obliged if you could serve upon us some relevant and as yet undisclosed material in relation to the finances of the deceased, Dawn Walker. The purpose of this enquiry is to ascertain whether Ms Walker had any undisclosed source of income which might indicate any form of economic activity which was not disclosed to the defence. This enquiry is necessitated in part by the conclusion drawn from the available facts that Ms Walker was living at a standard way beyond the income which she earned at [her employers]. .. We should also like to know whether the keys to the shed at Dawn Walkers home and her mobile phone can be made accessible to our expert, probably at the forensic science laboratory for the purpose of DNA testing. There is no sign that Ms Walkers finances had been thought by anybody to have any relevance at all to the trial or to the question of who had murdered her. The enquiry clearly indicated a wish to start afresh investigating the case. Nor was the request for anything specific; it was a request for the police to exhume all the investigation records, a little over three years after the end of the trial, and to review anything bearing on this new topic. By now the investigation documents were all in storage and some officers concerned had moved on to other postings. In the event, some research was undertaken and a positively worded letter from the CPS responded that the author had ascertained that the deceased had certainly not been living beyond her means. Nothing more seems to have been heard of this line of enquiry. Other requests, however, followed, some specific and some not. They included a request for sight of the notes of any forensic scientist who had worked on the case so that an independent expert could check their adequacy, and they sought access to various exhibits for further testing as and when their expert so advised. The solicitors made it clear that they were undertaking a full review of the case to determine what lines of enquiry may turn up fresh evidence. They referred to wanting to review material relating to DNA, pathology, soil composition, pollens and diatoms. In November 2010 an itemised list of requests for information was sent to the police. It asked a variety of questions which would have entailed a detailed review of the investigation documents. It included the question, described as relating to an obvious possibility, whether the murder of Dawn Walker had been linked to a series of high profile murders of prostitutes in Ipswich. The several letters made it clear that other requests would be likely to follow as the general review of the case proceeded. On 1 February 2011 the police replied formally, repeating what had already been said in correspondence, to the effect an obligation was accepted to disclose any material which came to light after the conviction and which might cast doubt on the safety of the conviction, but not to facilitate a general trawl through a finished case. The claimants application for judicial review followed. It sought: (a) A declaration that the defendant's 1 February 2011 refusal to grant the claimant access to prosecution evidence is unlawful being in breach of his rights under domestic common law, under articles 5 and 6 of the ECHR and/or under section 7 of the Data Protection Act 1998; and (b) a mandatory order requiring the Chief Constable to grant the claimant access to the prosecution evidence, together with such other declaratory relief as might be appropriate. The Divisional Court (Sir John Thomas P and Haddon-Cave J) refused the application. This is the claimants appeal from that refusal. It should be recorded that after the lodging of the claim for judicial review, and again between the hearing before the Divisional Court and that in this court, the apparent target of the claimants present requests has been narrowed. It seems that nothing is now made of the suggested obvious possibility that this murder was linked to the murders of prostitutes in Ipswich; the several important differences between the two cases which have been explained may have been taken on board. The focus is now upon (i) access to the working papers of the forensic scientists who advised the Crown and/or gave evidence and (ii) requests for re-testing, or first testing, of various exhibits recovered in the course of the investigation. At the trial, the scientific evidence was, in most respects, inconclusive as to the identity of the killer. The Crown did not rely on it to support the case against the claimant, as the trial judge carefully reminded the jury early in her summing up. There were the footprints near the river which were consistent with boots which the claimant wore, but they were not uniquely so, and he admitted walking there at the material time. DNA testing of various items found either on the body or where it had been burned provided nothing to associate them either with the claimant or with any of the other males who figured in the case. The scientific evidence of the presence of traces of sperm on the deceased was not disputed, and evidence was given about the possible ways in which, by secondary or tertiary transfer, such material might arrive where it was found. The claimant called expert evidence relating to the consequences of his vasectomy. What other scientific advice he had cannot, in the absence of waiver of privilege, be known. No forensic science report available to him at trial has ever been disclosed by him; there is of course no obligation upon a defendant to disclose such a report unless he proposes to rely upon it. A great many defendants decide, on advice, that there is nothing in the reports obtained for them which will help them or that the best use to which they can be put is to inform cross-examination of the Crown scientists without exposing points on which the reporting expert agrees. Some time after the claim for judicial review was lodged, the claimant provided the police and CPS with a full report from an independent forensic scientist who had clearly been instructed by the new solicitors some while beforehand, though long after the trial. While appeal to this court was pending, a further statement from a different forensic scientist has also been lodged, dealing with advances in DNA testing techniques over the period since the trial; this was admitted without objection before this court. Nevertheless, whilst the focus of the now current application to the police has narrowed, it is plain from the sequence of the requests made that what the claimant seeks is a full re-investigation, and access from time to time to whatever he thinks necessary to review any point which he wishes. Consistently with this, the appeal has been argued before this court at the general level of the extent of the duty, after conviction and exhaustion of appeal, to which the Crown and the police remain subject in relation to the products of the police enquiry. The question of law of general public importance which the Divisional Court certified at Mr Southeys request is: Whether the disclosure obligations of the Crown following conviction extend beyond a duty to disclose something which materially may cast doubt upon the safety of a conviction, so that the [Chief Constable] was obliged to disclose material sought by the claimant in these proceedings ? As is apparent from the summarised history of applications set out above, what this claimant chiefly seeks is not disclosure of something which has been withheld from him, but inspection of material which was fully and properly disclosed during the trial process. Disclosure and inspection are related, and governed by similar principles, but it does not at all follow that the exact content of the Crowns duty in a particular case can be understood without adverting where necessary to the difference between them. As Mr Southey rightly submits, the Crowns duty of disclosure and inspection was formulated by the common law in the second half of the twentieth century. There were parallel developments of rules of disclosure in other common law jurisdictions: see for example Brady v Maryland 373 US 83 (1963) in the United States of America. The precise extent of the duty in England and Wales before and during trial is not in issue in the present case and calls for no more than a summary. Early decisions, such as R v Bryant and Dickson (1946) 31 Cr App R 146 and Dallison v Caffery [1965] 1 QB 348 recognised the Crowns duty to disclose to a defendant the existence of a witness who can give material evidence. Later decisions expanded the rule into a general duty to disclose evidence of any kind which might reasonably be thought capable of assisting a defendant, in large part in response to a few notorious cases in which trials went wrong because defendants were unaware of such material although it was in the hands of the prosecution. R v Ward [1993] 1 WLR 619 is a well-known example, where wholesale failure to disclose scientific material bearing on the reliability of scientific evidence at the centre of the Crown case made it necessary to quash convictions for bomb-setting some twenty years after the event. A defendants right to have disclosed evidential material inspected on his behalf will generally go with the duty of disclosure. For example, R v Mills [1998] AC 382 held that a material witness statement should be provided for inspection as well as the existence of the witness disclosed. There are, however, inevitably additional considerations associated with inspection of evidential material other than witness statements. Occasionally, material may have had to be destroyed for reasons of safety, or may unavoidably have been used up in a testing process. If it remains available, inspection must be on terms that it is properly preserved and, if scientific, not exposed to risk of contamination. Particular issues may arise in relation to the cost of handling or preserving some kinds of material. There are special rules for material falling within the Sexual Offences (Protected Material) Act 1997 designed to prevent it from being put into the possession of individual defendants. In practice, in many cases, inspection is likely reasonably to be restricted to nominated and trusted professional or expert persons. What will be reasonable will vary from case to case. The Criminal Procedure and Investigations Act 1996 put the common law prosecution duty of disclosure into statutory form. It recognised a two-stage process of disclosure, initially under section 3 and continuing under what is now section 7A. It also inaugurated a duty of defence disclosure, which, although one of imperfect obligation, is connected to the prosecution duty since the defence statement required by section 5 and the advance notices required by sections 6C and 6D help to define the issues and thus to identify material which may be relevant to the duty of continuing disclosure. The Act somewhat modified the test for disclosure from that variously articulated in R v Ward and in R v Keane [1994] 1 WLR 746 at 752, whilst maintaining its purpose. Both the initial duty under section 3 and the continuing duty under section 7A are couched in the same terms. They apply to any material which the prosecution has or has inspected and which: .might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused. The Act dealt specifically with the timing of the duties which it created. In this and generally it gave effect to the recommendation of the Royal Commission on Criminal Justice (the Runciman Commission) (1993) (Cm 2263) which had expressed concern that the common law risked requiring detailed disclosure of matters whose potential relevance is speculative in the extreme and about the impracticability of the sheer bulk of disclosure which might be within the principle (chapter 6, p 95, at para 49). The Act met those concerns firstly by providing the test for disclosure set out above. By section 21, where the statutory duties created by the Act apply, they displace the former common law duties which cease to operate. The Act then recognised the two-stage disclosure procedure described above and it defined the period during which its statutory duties of disclosure are imposed. For trials on indictment, the duty begins with the arrival of the case (by whatever route) in the Crown Court: section 1(2). It ends with the end of the trial, whether by conviction, acquittal or the Crown discontinuing proceedings: section 7A(1)(b). It follows that the duty of disclosure created by the Act does not apply to the present claimant. The end of the trial is, however, not always the end of the criminal process. Any convicted defendant has the right to appeal to the Court of Appeal (Criminal Division) if he can show an arguable case that his conviction is not safe. If that fails, a defendant cannot mount a second appeal, because the court is functus officio. But, again in response to the recommendations of the Runciman Commission, the law of England and Wales (and also of Northern Ireland and Scotland) has put in place a separate body, the Criminal Cases Review Commission (CCRC), which has the power to review any conviction and which is charged, if it thinks that there is a real possibility that the Court of Appeal might quash the conviction, with the power to refer the case back to that court for, exceptionally, the hearing of a second appeal and on any grounds, whether the same as before or different. Such a referral by- passes the requirement for leave to appeal. An arguable case is assumed. The Court thereupon has the duty to investigate the safety of the conviction and must quash it if it is unsafe. The CCRCs extensive investigative powers include the power to require the production to it of any material in the hands of the police or any other public body, to appoint an investigator with all the powers of a police officer, and to assemble fresh evidence not before the court of trial. As summarised above, Mr Southeys essential submission is that the common law duty of disclosure was developed with the purpose of preventing miscarriages of justice. Whilst the common law duty is displaced where the Act applies, it remains in force, he submits, for periods before and after the Crown Court trial. In particular, it remains in force after conviction for the purpose of exposing and correcting any miscarriage of justice which may have occurred. Hence, he contends, the duty of the Crown in the present case is exactly the same now as it was while the claimants case was pending in the Crown Court. It follows, he says, that the police, as the custodians of the exhibits and the other products of the investigation, must afford the claimant such access as he seeks so that he can, if material emerges which supports him, challenge his conviction. Mr Southey accepts, as he must, that any such challenge can now only be brought to court if the CCRC decides to refer the conviction to the Court of Appeal (Criminal Division). But he contends that in order to demonstrate to the CCRC that this is a proper case in which it should launch a review, the claimant needs, via his solicitors, to re-investigate the several matters which they have identified and perhaps more. The principled origin of the duty of disclosure is fairness. Lord Bingham put it in this way in R v H [2004] UKHL 3; [2004] 2 AC 134, at para 14, speaking in the context of the proper procedure for handling claims to withhold disclosure on public interest grounds: Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. There is no doubt that this principle of fairness informs the duty of disclosure at all stages of the criminal process. It does not, however, follow, that fairness requires the same level of disclosure at every stage. The terms of section 7A of the statute plainly suggest otherwise. So, on inspection, does the jurisprudence. The common law of England and Wales has proved capable of adapting the duty of disclosure to the different stages of the criminal process. In R v Director of Public Prosecutions, Ex p Lee [1999] 1 WLR 1950 the Divisional Court dealt with the position before committal to the Crown Court, and thus before the statutory duties under the Criminal Proceedings and Investigations Act apply. It held that some disclosure was indeed required at that early stage but not what Kennedy LJ described, at p 1963, as the full blown version applicable under the Act once Crown Court proceedings are under way. Examples of material which ought to be disclosed before committal would include evidence which bears on a bail application, or which is relevant to an application to stay for abuse, or which relates to unused eye witnesses whose evidence might be less effective unless promptly proofed. That illustrates the proposition that the common law duty did not remain the same throughout. Rather, it was tailored to the needs of the stage of the proceedings in question. Similarly, although the duties laid down by the Act cease on conviction, some continuing common law duty is recognised to apply pending sentence, but only in relation to material relevant to that stage. The Attorney-General has issued guidelines on disclosure for prosecutors. They recognise at para 58 that prosecutors must consider disclosing in the interests of justice any material relevant to sentence, such as information not known to the defendant which might assist him in placing his role in the offence in the correct context vis--vis other offenders. That correctly gives effect to the common law duty which at this point is limited to material not known to the defendant which might assist him in relation to sentence. In the same way, while an appeal is pending, a limited common law duty of disclosure remains. Its extent has not been analysed in English cases, but plainly it extends in principle to any material which is relevant to an identified ground of appeal and which might assist the appellant. Ordinarily this will arise only in relation to material which comes into the possession of the Crown after trial, for anything else relevant should have been disclosed beforehand under the Act. But if there has been a failure, for whatever reason, of disclosure at trial then the duty after trial will extend to pre-existing material which is relevant to the appeal. This was the case, for example in R v Makin [2004] EWCA Crim 1607, to which Mr Southey referred the court, where the complaint was of a failure of disclosure at trial, and disclosure pending appeal was necessary to enable the complaint to be investigated by the court, albeit on examination the court rejected it. A similar result was reached in McDonald v HM Advocate [2008] UKPC 46; 2010 SC (PC) 1 in relation to Scottish law (where the content of the duty of disclosure was then in a transitional state). The Judicial Committee of the Privy Council accepted that if there had been a failure of disclosure at trial, the duty on appeal was to make available what should have been provided at trial as well as material relevant to existing grounds of appeal. However, it roundly rejected the contention that at the appellate stage there arose a duty on the prosecution to re-perform the entire disclosure exercise, so that the appellant could see whether anything might emerge which could be used to devise some additional ground of appeal. Lord Rodger observed at para 71 that that was an extravagant proposition. He went on to explain why, at para 74: Not only would such an obligation be unduly burdensome, but it would often be quite inappropriate at the appeal stage. By then, the real issues in contention between the parties will have been focused at the trial. In this new situation material which might have seemed to be of potential significance for the defence before the trial (for instance as weakening the identification evidence of a witness to a murder) may now be seen to have actually been irrelevant (because for instance the accused admitted that he killed the deceased but pleaded self-defence). In other words, what fairness requires varies according to the stage of the proceedings under consideration. This conclusion is consistent with that reached in other common law jurisdictions. In the New Zealand case of The Queen v Nepia (unreported) 3 October 2000, the Court of Appeal found the source of the disclosure rule at the pre-appeal stage in the power of that court under section 389(a) of the Crimes Act to order production of any document exhibit or thing which appears to be necessary for the determination of the case (a provision equivalent to section 23 of the England and Wales Criminal Appeal Act 1968). It held that this jurisdiction, exercisable on appeal, is not part of an investigatory procedure and should not be used as part of a general fishing expedition. It held that a realistic evidential foundation will in general have to be laid before it is used. In the recent case of Cant v The Queen [2013] NZCA 321, again a pending appeal, the Court of Appeal similarly held that questions of the Crown were not appropriate, and that requests for disclosure must have a material bearing on an articulated ground of appeal. A similar approach was adopted in the Court of Appeal of Ontario in The Queen v Trotta [2004] CanLII 600114 (ON CA). Canadian law recognises a duty of disclosure for the purposes of trial which is equivalent to that imposed in England and Wales: R v Stinchcombe [1991] 3 SCR 326. Trotta held that in principle disclosure obligations continued into the appellate process. The court observed that the protection of the innocent is as important on appeal as it is prior to conviction. But it drew attention to the fundamental differences between the two stages when it comes to the content of the duty. The convicted person is no longer to be presumed innocent. He has exhausted his right to make full answer and defence. The duty of disclosure at this stage was held to extend to any information in the possession of the Crown where the accused can show that there is a reasonable possibility that it could assist him in the prosecution of his appeal. In that case, there had arisen since the trial some suggestions of lack of balance in the evidence given in other cases by the Crown pathologist. The Court held that there would be a duty to disclose this material to the appellant if there were any reason suggested to doubt the evidence which the pathologist had given in the instant case. Since there was not, the material was irrelevant and the request for it speculative. This is a good illustration of the difference between the two stages. There can be no doubt that, if it had then been in existence, the material affecting the pathologist would have been disclosable pre-trial, for at that stage it would not have been known whether there was or was not any challenge to his findings. The important differences between the pre-trial and post-conviction stages were similarly emphasised by the US Supreme Court in District Attorneys Office (Third Judicial District) v Osborne 557 US 52 (2009). The court divided 5:4 upon the jurisdictional question whether a complaint of denial of access to DNA testing post-conviction raised a constitutional issue, and thus on whether the issue was a proper one for the Supreme Court rather than for the federal or State courts. There was also disagreement on whether there was a right to such access in a case where it was agreed that the testing would be conclusive of guilt or innocence. But there was agreement that the position of a convicted person was not generally analogous to that of a person on trial. All the judges agreed that the disclosure rules applicable prior to and during trial, set out in Brady v Maryland 373 US 83, did not continue unaltered after conviction. Roberts CJ, giving the judgment of the majority, said this: Osbornes right to due process is not parallel to a trial right, but rather must be analysed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief. Brady is the wrong framework. The minority opinion, delivered by Justice Stevens, agreed on this. It included approval of Luttig Js statement in the earlier case of Harvey v Horan 285 F 3d (2002) 298 at 305 that: no-one would contend that fairness, in the constitutional sense, requires a post-conviction right of access or a right to disclosure anything approaching in scope that which is required pre-trial Whilst the jurisdictional question was later resolved in favour of a different appellant in Skinner v Switzer 562 US (2011) nothing in that decision bears on the distinction between disclosure pending trial and disclosure post-conviction. There is thus no basis for saying that the common law ever recognised a duty of disclosure/inspection after conviction which was identical to that prevailing prior to and during the trial, and no case, whether in this jurisdiction or any other, has been found to suggest it. All the stages thus far considered are ones at which the criminal justice process remains afoot, with either trial or sentence or appeal to be catered for. When it comes to the position after the process is complete, the Attorney Generals guidelines deal specifically with disclosure of something affecting the safety of that conviction. The relevant paragraph in the most recent edition (2013), echoing the same principle in earlier editions, says this: Post conviction. 72. Where, after the conclusion of proceedings, material comes to light that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material. The guideline must mean that not only should disclosure of such material be considered, but that it should be made unless there is good reason why not. Thus read, it is entirely consistent with the principle reflected in the position set out in the paragraphs above in relation to the pre-Crown Court stage, to the pending sentence stage and to the pending appeal stage. Mr Southeys submission entails the argument that the guidelines greatly understate the duty in the circumstances of the present claimant. He is entitled, if Mr Southey is right, to the full extent of the duty which the Crown had had during his trial. That would mean a duty to give active consideration, presumably continuously, to the state of the evidence. And, as the requests made of the police in the present case illustrate, it would mean a duty to respond from time to time to any requests for information, or for access to material, which the convicted defendant makes. The argument appears to be that his right to the performance of that duty endures indefinitely, or certainly whilst he, or perhaps anyone else, asserts that the conviction was wrong. The fallacy in this argument lies in the implicit assumption that the common law duty, as it evolved, was identical before and after conviction. As has been seen, it was not. Moreover, it does not at all follow from the fact that the common law developed the Crowns duty of disclosure with the object of minimising the risk of miscarriages of justice that a convicted defendant such as the claimant, who asserts that his conviction was wrong, is or ever was entitled to the same duty continuing indefinitely after that conviction. The common law developed the duty as an incident of the trial process, to ensure that that process was fair to defendants. It was designed to avoid trials creating miscarriages of justice, not as a means of investigating alleged miscarriages after a proper trial process has been completed. It was not devised in order to equip convicted persons such as the claimant with a continuing right to indefinite re-investigation of their cases, and the fact that some such persons assert that their convictions were miscarriages of justice does not mean that it was. The position of a convicted defendant is different in kind from that of a defendant on trial. The latter is presumed innocent until he is proved guilty, as he may never be. The former has been proved guilty. He is presumed guilty, not innocent, unless and until it be demonstrated not necessarily that he is innocent, but that his conviction is unsafe. The defendant on trial must have the right to defend himself in any proper way he wishes, and to make full answer to the charge. The convicted defendant has had this opportunity. The public interest until conviction is in the trial process being as full and fair as it properly can be made to be. After conviction, there is of course an important public interest in exposing any flaw in the conviction which renders it unsafe and in quashing any unsafe conviction, but there is also a powerful public interest in finality of proceedings. All concerned, including witnesses, complainants, the relatives of the deceased and others, have a legitimate interest in knowing that the legal process is at an end, unless there be demonstrated to be good reason for re-opening it. A duty such as that suggested by Mr Southey should not be assumed to be straightforward of performance. The products of a major investigation are typically voluminous, far more so than the evidence adduced at trial, extensive though that often is. Whilst they are generally catalogued on computer, many will be paper material. In smaller cases, in which the same duty would apply, there may be very little retained. Generally, materials will often be archived after the appeal process is exhausted. To make an informed or useful search of them requires them to be mastered. Police officers move on to other appointments, or retire; it cannot be assumed that the investigating officers will remain in the same place where they formerly were, or that they will continue to have regular access to the material. If the material is actively to be managed and re-considered, officers will have to be diverted to the task from other investigations. The evidence of the detective inspector in the present case was, for example, that reviewing the stored evidence in order to deal with the claimants subject access request under the Freedom of Information Act occupied approximately four man-days of police time. If there is demonstrated to be a good reason for this kind of review of a finished case, then the resource implications must be accepted. There is, however, a clear public interest that in the contest for the finite resources of the police current investigations should be prioritised over the re-investigation of concluded cases, unless such good reason is established. If, then, there is no basis for Mr Southeys principal submission, that the duty of disclosure remains the same after conviction as before, the question remains what the duty does entail at that stage. There can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. Simple examples might include a new (and credible) confession by someone else, or the discovery, incidentally to a different investigation, of a pattern, or of evidence, which throws doubt on the original conviction. Sometimes such material may appear unexpectedly and adventitiously; in other cases it may be the result of a re-opening by the police of the enquiry. In either case, the new material is likely to be unknown to the convicted defendant unless disclosed to him. In all such cases, there is a clear obligation to disclose it. Para 72 of the Attorney Generals guidelines, quoted above, correctly recognises this. This is, however, plainly different from an obligation not to reveal something new, but to afford renewed access to something disclosed at time of trial, or to undertake further enquiries at the request of the convicted defendant. Miscarriages of justice may occur, however full the disclosure at trial and however careful the trial process. A convicted defendant clearly has a legitimate interest, if continuing to assert his innocence, to such proper help as he can persuade others to give him: see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, where a prisoners right, for this purpose, to a visit by, and oral interview with, an investigative journalist was recognised. Quite apart from the defendants interest, the public interest is in such miscarriages, if they occur, being corrected. There is no doubt that there have been conspicuous examples of apparently secure convictions which have been demonstrated to be erroneous through the efforts of investigative journalists, or of solicitors acting on behalf of convicted persons or, sometimes, of other concerned persons. This court was referred to R v Hodgson [2009] EWCA Crim 490 as a particularly graphic illustration. There, the defendants conviction for rape and murder, based essentially upon the apparently compelling detail of his own circumstantial confessions, was, some twenty seven years later, demonstrated to have been wrong by the advances in science, and despite no one concerned with the investigation or trial having done anything which could be criticised. This was possible because samples of semen recovered from vaginal and anal swabs taken from the deceased could be analysed for DNA in a way which had not been possible at the time. A solicitor who was recently instructed on behalf of the defendant made the enquiry of the CPS and/or the police whether the samples remained in existence despite the passage of time. When it was found that they did, analysis of them by modern methods was immediately commissioned by the police and prosecution, with a view to immediate disclosure of the outcome. The semen could only have come from the rapist/murderer. The results excluded the defendant. A rapid joint submission to the CCRC followed, with an immediate reference by that body to the court. In quashing the conviction, the Court of Appeal, Criminal Division, gave appreciative recognition to the efforts of solicitor, police and prosecutor and to the level of co-operation between them. It does not, however, follow from cases such as this that the law ought to impose a general duty on police forces holding archived investigation material to respond to every request for further enquiry which may be made of them on behalf of those who dispute the correctness of their convictions. Indeed, the potential for disruption and for waste of limited public resources would be enormous if that duty were to be accepted. The claimants initial requests in the present case for investigation of the finances of the deceased, as well as his earlier applications for sight of the entire investigation files, afford good illustrations of the kind of speculative enquiry which such a rule would encourage. There is no such duty. If the duty of disclosure pending appeal is limited, as it plainly is, to material which can be demonstrated to be relevant to the safety of the conviction, it is all the clearer that after the appellate rights which the system affords are exhausted the continuing obligation cannot be greater than that stated in the Attorney Generals guidelines, read as explained in para 30 above. The safety net in the case of disputed requests for review lies in the CCRC. That body does not, and should not, make enquiries only when reasonable prospect of a conviction being quashed is already demonstrated. It can and does in appropriate cases make enquiry to see whether such prospect can be shown. It has ample power, for example, to direct that a newly available scientific test be undertaken. R v Shirley [2003] EWCA Crim 1976, a DNA case not unlike Hodgson, appears to be a case in which it did exactly that. What it ought not to do is to indulge the merely speculative. It is an independent body specifically skilled in examining the details of evidence and in determining when and if there is a real prospect of material emerging which affects the safety of a conviction. This exercise involves a detailed scrutiny of the other evidence in the case and a judgment on the likely impact of whatever it is suggested the fresh enquiries may generate. Whilst in principle the court retains control, via the remedy of judicial review, of the duty laid upon the police and prosecutors after the appeal process is exhausted, it is likely to determine, unless good reason for not doing so is provided, that relief by that route is inappropriate until the CCRC has had the opportunity to make a reasoned decision. The advances of science mean that from time to time it will become possible to undertake tests which were not available earlier. This possibility presents just one example of the approach set out above. Sometimes such tests will be potentially determinative of guilt, as they were in Hodgson. In other cases they will be simply speculative, either because there is great uncertainty about whether any result can be obtained or because any result will be consistent both with guilt and innocence. The difference between the two cases has given rise in the USA to debate about the extent of any right to re-testing especially if it is likely to be conclusive. Osborne, referred to above, records some of the debate and the fact that a large number of US states have made legislative provision for such testing in defined circumstances. There is, however, no body such as the CCRC in the United States, which can decide in an appropriate case to require testing. Here, there is. None of this means that the work of solicitors and others in the interests of convicted persons may not be of great value. There is no doubt that the CCRC is much assisted by informed legal analysis and presentation if an application for review is made to it, and not only because its funding is not unlimited, but also because accurate legal formulation focuses the mind correctly. Sometimes, such solicitors or others can usefully undertake enquiries of their own, respecting of course the interests of third parties. On other occasions they may well, by their arguments and presentations, enlist the co-operation of the police, or the prosecution, or both: Hodgson was just such a case. The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons. If there appears to be a real prospect that further enquiry will uncover something which may affect the safety of the conviction, then there should be co-operation in making it. It is in nobodys interests to resist all enquiry unless and until the CCRC directs it. It is enough to determine the instant appeal that after conviction there is no indefinitely continuing duty on the police or prosecutor either in the same form as existed pre-trial or to respond to whatever enquiries the defendant may make for access to the case materials to allow re-investigation. The duty is properly stated at para 72 of the Attorney Generals guidelines, read as explained in para 30 above, with the addition that if there exists a real prospect that further enquiry may reveal something affecting the safety of the conviction, that enquiry ought to be made. The Divisional Court held that there was no basis for concluding that any of the enquiries made in the present case go beyond the simply speculative and satisfy this latter condition. This court has, rightly, been pressed with argument chiefly on the principled point of law rather than on the facts of this case. This appeal ought not, however, to be left without the observation that the fact that DNA testing is one of the things sought does not by itself answer the question whether the request has a real prospect of uncovering material affecting the safety of the conviction. The request for sight of all forensic science working papers so that the scientists work could be checked was plainly speculative. The report provided by the claimant states specifically that there is no reason to query any of the work done or conclusions arrived at. The report also makes it clear in some instances that the request for testing of items which were not previously tested is made simply because the claimant or his family would like it done; those requests have the plain appearance of being likewise speculative. In the case of some of the testing proposed it seems likely that some alteration of the samples would be involved, by consolidating them; if this kind of operation is in question, there is a further decision to be made whether re-testing would rule out any future use of the material. There may be a separate question concerning the new possibilities of undertaking modern, and better, DNA testing of certain swabs, especially those from the thigh and genital region. Even there, however, the forensic science report now relied upon concludes that even if a match were found to one of the men under discussion in the case, that would not necessarily exclude the claimant as the killer. The killer may or may not have deposited traceable DNA. Although it is suggested for the claimant that if DNA attributable to one of these men were to be found, that would provide good evidence that he might be the killer, it must also be the case that any DNA which is found need not be related to the killing, particularly if the deceased had an association with the man in question. It is plain that the presence of a very few unattributed spermatozoa was known at the trial and the possibilities for innocent transfer were fully investigated. On the limited information presently available it seems unclear that a real prospect is established of material emerging affecting the safety of the conviction. However, any further request for access to the sample should be tested on the principles explained above, in the first instance by the police and if necessary by the CCRC. For these reasons, this appeal should be dismissed.

UK-Abs

Mr Nunn was convicted in November 2006 of killing his girlfriend following the end of their relationship. Her body was found by a river two days after that end, having been subjected to various indignities and abuses. Evidence was given at trial that he had rowed noisily with her on the night she disappeared, and had been seen carrying what appeared to be a body out of her house. Small traces of sperm were found on her inner thigh and pubic area. Mr Nunn consistently asserted his innocence before, during, and following his trial. He pointed to the sperm presence as indicating another killer, since he had had a vasectomy. Following his conviction Mr Nunn sought to appeal, which was refused. In January 2008 Mr Nunn began to make written applications to the police for supply of all of their records of the investigation into his case. By February 2010 he had instructed fresh solicitors, who made further applications to the police on his behalf. They initially sought the investigation records and requested fresh enquiries to be made into Mr Nunns girlfriends finances. Some research was undertaken, and the CPS responded saying that the deceased had not been living beyond her means. A number of other requests followed, including a request for notes of the forensic scientists working on the case, and various items of evidence. The police formally replied, stating that their only obligation was to disclose material which might cast doubt on the safety of the conviction. Mr Nunn judicially reviewed that decision, arguing that the police were required to provide, after conviction, the same disclosure as is required of them pending trial and appeal. The Divisional Court rejected that application. Mr Nunn appealed to the Supreme Court, arguing that there is an enforceable common law disclosure obligation requiring the police to provide, in his case, at least: (i) Access to the working papers of the forensic scientists who advised the Crown and/or gave evidence, and (ii) Requests for re testing or first testing of various items of evidence recovered in the course of the investigation. The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the only reasoned judgment, with which the other members of the Court agree. The common law duty of disclosure exists in addition to the statutory duty of trial disclosure created by the Criminal Procedure and Investigations Act 1996 (CPIA 1996). The basis of the common law duty is fairness, and what fairness requires varies depending on the stage reached by the proceedings. There is no basis for the submission that the full trial duty of disclosure and investigation continues indefinitely: this would be contrary to the public interest in finality and to the need for finite police resources to be appropriately applied. The extent of the common law duty post appeal is correctly stated in the Attorney Generals guidelines: any material coming to light that might cast doubt on the safety of the conviction should be disclosed. However, the Criminal Cases Review Commission can, in appropriate cases, make enquiry to see whether a reasonable prospect of a conviction being quashed can be demonstrated, which includes a power to direct new scientific tests and similar. Moreover, the police and prosecutors can choose to accede to representations for further enquiry made on behalf of convicted persons, and should exercise sensible judgment in relation to such representations. The Crowns duty of disclosure and inspection was formulated by the common law in the second half of the twentieth century, mirroring parallel developments in other common law jurisdictions. A general duty was formulated to disclose any evidence reasonably thought capable of assisting a defendant [16]. Inspection would generally go with disclosure, though there were additional considerations in this sphere [17]. The CPIA 1996 put the duty of disclosure on a statutory footing, displacing the common law duties within its sphere of operation, and applying to any material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. That statutory duty is temporally limited: for Crown Court cases, it applies between the arrival of the case in the Crown Court to the end of the trial [18 20]. Thus it does not apply to Mr Nunn. The basis of the common law duty of disclosure is fairness. However, fairness does not require the same level of disclosure at every stage of the process [22]. Before committal, the duty is limited to evidence that might be relevant at that stage [23]. Similarly, pending sentence, the duty is only to disclose material relevant to sentence [24] and, pending appeal, to disclose material relevant to the appeal [25]. That conclusion is consistent with the approach reached in other common law jurisdictions: New Zealand, Canada and America [26 28]. Therefore there is no basis for finding a temporally limitless duty of disclosure post conviction identical to that subsisting during trial [29]. During trial, the defendant is presumed innocent: post conviction he/she is proved guilty. There is an important public interest in exposing any flaw in the conviction, but there is also a powerful public interest in finality of proceedings [32], and in ensuring that the polices finite resources are applied to current investigations, unless there is a good reason for review [33]. The remaining question was what the post conviction duty of disclosure does entail [34]. Clearly, if the police or prosecution come into possession of evidence affording arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant [35]. This was the limit of the duty of disclosure [38]. There are however additional safety nets: o The CCRC has a power to review any conviction and refer a conviction it considers unsafe to the Court of Appeal. It has extensive investigative powers including powers to require production of evidence held by public bodies, to appoint investigators, and to assemble fresh evidence [20]. Its powers include making enquiries to see whether a prospect of a reasonable conviction can be shown, which includes a power to direct new scientific tests [39]. o It is always open to police and prosecutors to accede to representations made on behalf of convicted persons. Police and prosecutors should exercise sensible judgment when such representations are made and, if there appears to be a real prospect that further enquiry will uncover something of real value, there should be co operation in making those further enquiries [41].

These appeals raise issues as to the respective duties of the Secretary of State and the First tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, more particularly as to the operation of the so called one stop procedures. The Master of the Rolls (para 40), echoing words of Jackson LJ, described the law in this field as an impenetrable jungle of intertwined statutory provisions and judicial decisions. It is difficult to disagree, although on this occasion the judiciary must share some of the blame. The Patels Mr Patel and his wife arrived from India in the United Kingdom on 24 March 2009. He had been granted leave to enter as a working holiday maker until 6 March 2011, and she as his dependent wife. Their only child was born here in 2010. On 26 February 2011, they applied for further leave to remain in the UK, relying on article 8 of the European Convention on Human Rights, and rule 395C of the Immigration Rules. Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the United Kingdom. They had a right of appeal to the First tier Tribunal, but that was dismissed on 14 July 2011. The merits of the refusal on the issues there raised are no longer in dispute. On further appeal to the Upper Tribunal they took a new point. This was that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484, followed in Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm AR 254, the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument, which failed before the Upper Tribunal and the Court of Appeal, is the principal issue in this court. Mr Alam Mr Alam, a citizen of Bangladesh, entered the country on 26 August 2007, as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies. On 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old, and therefore did not, as required by the guidance under the Points Based System, show that he had held the necessary level of funds for a consecutive period ending no more than one month before the application. By the time of the hearing before the tribunal, on 10 June 2011, he had produced the appropriate bank statements. The tribunal held that, for the purposes of his appeal under the rules, this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had come into effect between the date of his appeal and the date of the hearing). However, the immigration judge held that this did not prevent him taking it into account in the appeal under article 8 of the Convention, on the basis that, since he clearly meets the requirements of the rules, it was not proportionate to the aims of immigration control to refuse his application. The Upper Tribunal reversed that decision, holding that the judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8. The tribunal accepted that the appellant having been in the country undertaking studies for some four years had thereby formed some sort of protected private life for the purposes of article 8. But no other aspect of his life in this country was relied on. His family ties were all with his native Bangladesh, to which he wished to return after his studies. Although the new evidence was not directly relevant under article 8, it took account of the unusual circumstances in which the right to prove compliance with the rules had been lost: I have considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings. Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules. If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate. As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State. (para 22) Mr Anwar Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to remain as a student until 1 April 2011. On 31 March 2011 he applied to extend his leave as a Tier 4 student to enable him to complete his course. The application was supported by a Confirmation of Acceptance for Studies (CAS), which recorded that he had been assessed by reference to a document entitled ACCA examination Financial Accounting (F3). The F3 document itself was not included with the application. On 10 May 2011 the Secretary of State refused the application because, contrary to the relevant guidance, it had not included a document referred to in the CAS, and accordingly no points had been awarded for the CAS. On his appeal to the First tier Tribunal the appellant produced the relevant document, claiming that it had in fact been sent with his application form. The tribunal allowed his appeal, but their decision was set aside by the Upper Tribunal, which held that on the balance of probabilities he had not sent the relevant document with his application. That factual finding is not now in dispute. Although there was a reference to the European Convention in the grounds of appeal to the First tier tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together, and dismissed them both on 13 July 2012. The arguments were wide ranging, summarised by Sullivan LJ under eight grounds. Most are no longer in issue. The issues According to the agreed statement, the following issues are said to arise in the appeals to this court: Patel i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individuals application for variation of leave to remain in the United Kingdom. ii) Whether there is an obligation on the Secretary of State to issue a one stop notice under section 120 of the 2002 Act when refusing an individuals application for variation of leave to remain in the United Kingdom. iii) Whether the Secretary of States refusal to vary an individuals leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one stop notice or a decision to remove. Alam/Anwar iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct. v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to additional grounds under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act. vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non compliance with the Immigration Rules, whether the nature and degree of the non compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant. While these issues were agreed between the parties, and they conveniently identify the main matters on which we heard submissions, it will be necessary to consider in due course the extent to which they do properly arise for decision on these appeals. For example, the question of an obligation to serve notices under section 120 (issue (ii)) does not arise in any of the three cases, since such notices were in fact served in all of them. The statutory provisions The Immigration Act 1971, and the rules made under it, constitute the principal statutory framework for the control of immigration, and the Secretary of States functions in that respect. Both the statute and the rules have been subject to frequent amendment and addition. The issues in the present appeals turn principally on the provisions of the Nationality, Immigration and Asylum Act 2002 which established a new statutory code relating to appeals against immigration decisions, including the so called one stop notices under section 120. In relation to the Secretary of States powers of removal, it will be necessary also to consider the Immigration and Asylum Act 1999 section 10, and the Immigration, Asylum and Nationality Act 2006 section 47. The starting point is section 3 of the 1971 Act. It provides that a person who is not a British citizen may not enter the United Kingdom except with leave under the Act. Where leave is given for a limited period, it may be varied by restricting, enlarging or removing the limit on its duration (section 3(3)). Section 3C (added by the 2002 Act) is entitled Continuation of leave pending variation decision. It applies where a person with limited leave applies, before the leave expires, for a variation of the leave. Subsection (2) has the effect that the leave is extended during any period when (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the 2002 Act could be brought while the appellant is in the United Kingdom, or an appeal brought while the appellant is within the United Kingdom is pending. By section 3C(4), a person may not make a further application for variation of his leave while it is extended under this section, but that does not prevent a variation of the application already made. It is common ground that such a variation may include grounds unrelated to those in the initial application. This provision needs to be understood also in the context of section 92 of the 2002 Act. That makes clear that for most categories of immigration decision, other than asylum or human rights claims made from within the United Kingdom and those decisions listed in subsection (2), an appeal must be brought from outside the country. Section 3C provides a limited exception for applications to extend existing leave made before its expiry. Section 82(1) of the 2002 Act confers a right of appeal to the tribunal in respect of an immigration decision. By section 82(2) immigration decision is defined as including (inter alia) a refusal to vary leave to enter or remain if the result of the refusal is that the person has no leave to remain (para (d)); and a decision that a person is to be removed by way of directions under either section 10 of the 1999 Immigration and Asylum Act or section 47 of the Immigration, Asylum and Nationality Act 2006 (paras (g), (ha)). Section 84 enumerates the possible grounds of appeal which include: (a) that the decision is not in accordance with immigration rules; (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights. Section 85 is headed Matters to be considered. Its present form, along with section 85A, is derived from amendments made by the UK Borders Act 2007, which were brought into effect, subject to transitional provisions, on 23 May 2011. It provides: (1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1). (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced. (4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But subsection (4) is subject to the exceptions in section 85A. The exceptions in section 85A include the following: (3) Exception 2 applies to an appeal under section 82(1) if (a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d), (b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a Points Based System, and (c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f). (4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it (a) was submitted in support of, and at the time of making, the application to which the immigration decision related, (b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c), (c) is adduced to prove that a document is genuine or valid, or (d) is adduced in connection with the Secretary of States reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of points under the Points Based System. This provision, which is relevant to the Alam and Anwar appeals, needs a little unravelling. It is not in dispute that exception 2 applied to both appeals, because the applications had fallen to be considered under the Points Based System. Accordingly, (under subsection (4)(a)) the tribunal was unable to consider the new evidence in support of the case under the rules. It could only consider it (under subsection (4)(b)) in so far as it related to grounds other than those specified in (3)(c), that is grounds other under section 84(1)(a), (e) or (f). Such other grounds include the human rights grounds under section 84(1)(c) and (g). Accordingly, consideration of the new evidence so far as relevant to such grounds, in particular article 8 of the Convention, was not excluded. Section 86 deals with the determination of the appeal. The tribunal is required to determine any matter raised as a ground of appeal and any matter which section 85 requires it to consider. It must allow the appeal in so far as it thinks that a decision against which the appeal is brought or is treated as being brought was not in accordance with the law. It may also allow the appeal on the grounds that a discretion exercised in making such a decision should have been exercised differently (section 86(3)(b)), but refusal to depart from the immigration rules is not treated as the exercise of a discretion for these purposes (section 86(6)). One stop notice Section 120 of the 2002 Act applies to a person (a) who has made an application to enter or remain in the UK, or (b) in respect of whom an immigration decision has been taken or may be taken. By subsection (2): The Secretary of State or an immigration officer may by notice in writing require the person to state: (a) his reasons for wishing to enter or to remain in the United Kingdom, (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom. There is no express provision dealing with the form of the response, nor imposing on the Secretary of State any express duty to consider it or determine the issues raised by it. Under section 85(2) as already noted, the tribunal, hearing an existing appeal under section 82(1), is required to consider any matter raised in the section 120 statement if it constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. Furthermore, by section 96, the section 120 notice opens the way for the Secretary of State to issue a certificate limiting the scope for subsequent appeal. Thus section 96(2) precludes an appeal against an immigration decision (the new decision) in respect of a person where the Secretary of State or an immigration officer certifies: (a) that the person received notice under section 120 by virtue of a decision other than the new decision, (b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement in response to that notice. Removal decisions The Secretary of States powers of removal are defined by section 10 of the 1999 Act and section 47 of the 2006 Act. The former provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; By subsection (9) the reasonable costs of complying with the direction must be met by the Secretary of State. Section 47 of the 2006 Act, as originally enacted, provided: (1) Where a persons leave to enter or remain in the United Kingdom is extended by section 3C(2)(b), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends. Again the costs of compliance must be met by the Secretary of State (section 47(4)). For completeness, I note that on 8 May 2013 (after the time relevant for the present appeals) a new form of the section was inserted, providing for notice of a pre removal decision (which includes the decision on an application to vary leave to remain) to be given at the same time as the removal direction under section 47. This change was designed to deal with a practical problem arising from Sapkota which had been highlighted by a subsequent decision of the Upper Tribunal (upheld by the Court of Appeal). It is not directly material to the present appeals. The Patel appeals There is no dispute now as to the merits of the refusal of leave to remain in the Patel cases, under either the rules or the Convention. The sole issue is one of law relating to the form in which the decision was made, more particularly its segregation (the word used in some of the cases) from the decision to direct removal. The failure to issue such a direction, it is said, was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain. A similar issue in relation to service of a section 120 notice, although identified in the agreed statement, does not arise on the facts of the case, since such a notice was in fact served. In support of this argument, Mr Malik relies principally on the decisions of the Court of Appeal in the cases of Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254 to which I have already referred. It was held, in summary, (in Mirza) that a policy of separating the refusal of leave to remain from the decision to remove was contrary to the policy and objectives of the 2002 Act to deal compendiously with all issues on the lawfulness of a persons residence in the United Kingdom; and consequently (in Sapkota) that an unjustified deferral of the removal decision would mean that the actual immigration decision was not in accordance with the law. Those judgments, and the subsequent Court of Appeal authorities, are discussed in detail in the judgment of the Master of the Rolls in the present case. Without disrespect to the judges involved in those decisions, or to Mr Maliks determined arguments in support of them, I do not propose to add materially to the voluminous discussion which this issue has already generated. It is sufficient to say that I am in entire agreement with the reasons of the Court of Appeal for not following them. The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that powers. Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control. Any extra protection provided to an appellant is incidental. Neither section can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision. As Burnton LJ said in the Court of Appeal [2013] 1 WLR 63, para 73: This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty. For the court to do so is to amend the legislation, not to interpret it. The contrary argument depends to my mind on a misapplication of the so called Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Under that principle, it is clear that discretionary powers conferred by statute must not be used in such a way as to thwart or run counter to the policy or objects of the Act (per Lord Reid, at p 1030C D)). It can no doubt be said that one of the purposes of the 2002 Act was to reduce the scope for repeat appeals, and that, as Laws LJ observed, the legislation leans in favour of what are called one stop appeals (JM (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 23). It may be also, as Mr Malik submits, that the exercise of the Secretary of States powers has the incidental effect in some cases of adding to the range of matters an appellant is able to raise by way of appeal during the period that his leave is extended under section 3C. However, neither such general observations nor such incidental effects can be translated into an overriding policy requiring the Secretary of State to act in a particular way, nor into a right for the appellant to insist that he does so. It is to be borne in mind also that exercise of the powers to direct removal, which alone are at issue in the Patel case, is likely to involve both public cost and personal hardship or indignity. The Secretary of State does not thwart the policy of the Act if she proceeds in the first instance on the basis that unlawful overstayers should be allowed to leave of their own volition (as on the evidence the great majority do). The Upper Tribunal observed in the present case, commenting on its concerns at the implications of the decision in Sapkota: For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful. Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law. (para 32) It follows that the Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by the failure to do so. In so far as the decisions of the Court of Appeal in the cases of Mirza and Sapkota indicate the contrary, they were in my view wrongly decided. It is unnecessary to consider whether the Court of Appeal was entitled as a matter of precedent to depart from them. No such inhibition affects this court. The Alam/Anwar appeals I have set out above the agreed issues said to arise in these appeals. The practical problem faced by the appellants arises from their failure to produce relevant information as required under the Points Based System at the relevant time. Each appellant was able to adduce the relevant evidence in response to the section 120 notice, but was barred by exception 2 of section 85A from relying on it directly in support of his appeal. The issue in short is whether an indirect route could be found to achieve a favourable result. The proposed route depends on using the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain, relying not on the rules, but on human rights grounds (article 8 of the Convention), and thus taking it outside the scope of exception 2. This in turn depends on two propositions: first, that the tribunal was obliged to consider the new evidence in that context (scope of appeal), and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 (merits of appeal). I would accordingly dismiss the Patel appeals. Scope of appeal The first issue was the subject of detailed discussion in AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385. The Court of Appeal by a majority held that section 85(2) was to be construed as imposing a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it was not directly related to the issues considered by the Secretary of State in the original decision. In AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833; [2011] Imm AR 832), it was held that majoritys approach did not require consideration of events subsequent to the Secretary of States decision. That issue does not arise in the present cases, where the new evidence related to material which was available at the time of the decisions. Turning to the judgments in AS itself, it would be difficult to expand on or improve the depth of legal and contextual analysis to be found in the judgments of all three judges. The fact that the analysis led such experienced judges to opposite conclusions suggests that the path to enlightenment will not be found by attempting a similar exercise in this judgment. The problem lies in the drafting of the relevant provisions, which defies conventional analysis. It is not only obscure in places and lacking in detail, but contains pointers in both directions. On the one hand, the words against the decision appealed against in section 85(2) suggest a focus on the content of the original decision. As Arden LJ said: A ground of appeal is not a ground of appeal against the decision appealed against if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted. (para 30) On the other hand the first ground of appeal under section 84(1) is that the immigration decision is not (not was not) in accordance with the Rules; and in considering that question the tribunal is specifically empowered (subject to the exceptions in section 85A) to have regard to evidence concerning a matter arising after the date of appeal. Moore Bick LJ (with whom Sullivan LJ agreed) thought that the reference to the decision appealed against did not imply a limitation to the original grounds. Having decided that the decisions referred to sections 85(1) and (2) were immigration decisions of the kind identified in section 82(1), he said at para 79: . the natural meaning of these provisions is to impose on the tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of a kind identified in section 82 that affects his immigration status. On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal. There was a similar lack of agreement on the effect of section 85(4), and in particular of the reference to matters relevant to the substance of the decision appealed against. That seems a curiously ambiguous term, which can fairly be read as referring either to the substantive effect of the decision or to the substantive reasons underlying it. Arden LJ took the latter view, which she saw as supporting her interpretation of section 85(2) (paras 31 2). At para 30 she adopted as plainly correct the approach of the Asylum and Immigration Tribunal (EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013), which had read these words as meaning that the new evidence had to be relevant to the decision actually made, and had added at para 6 that: a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the rule in question in the context of an application that that person has made. Sullivan LJ took the opposite view, seeing section 85(4) as consistent with his view that the tribunals consideration was not limited to the grounds considered by the Secretary of State: Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to the decision appealed against must be a reference to the decision to refuse to vary leave to remain under rule x, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82 (2). Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to the substance of the decision. (para 113) Moore Bick LJ thought that section 85(4) itself had little bearing on the issues before the court, since it was concerned only with the evidence which the tribunal could consider (para 83). However, his understanding of the word substance in this context, agreeing with that of Sullivan LJ, is apparent from his earlier discussion of the appropriate response to a section 120 notice. He saw its purpose as to impose on the appellant a duty to put forward any grounds he may have for challenging the substance of the decision made against him, rather than simply the grounds on which it was made (para 80, emphasis added). The broader approach of the majority seems to me to gain some support from the scheme of section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the section. Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or rules under which the application is initially made. The same approach can be applied to the decision on that application, the identity or substance of which in the context of an appeal is not dependent on the particular grounds first relied on. It is of interest that, at an earlier stage, the broader approach seems to have accorded with the reading of those responsible within the Home Office for advice to immigration officers. The Immigration Directorates Instructions, issued in September 2006, noted that it was not possible under section 3C to make a second application, but continued: On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new. A student application can be varied so as to include marriage grounds. If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application. (para 3.2 emphasis added) The same approach is supported by the current edition of Macdonalds Immigration Law & Practice 8th ed (2010) para 19.22 (under the heading The tribunal as primary decision maker). The only implicit criticism made of the majority approach in AS is that it did not go far enough. They observe that even without a section 120 notice the tribunal should be free to consider any matter including a matter arising after the decision which is relevant to the substance of the decision regardless of whether a one stop notice has been served. The substance of the decision is not the decision makers reasoned response to the particular application or factual situation that was before it but is one of the immigration decisions enumerated in section 82 and a matter includes anything capable of supporting a fresh application to the decision maker Whether or not such an extension of the majoritys reasoning can be supported, that passage indicates that the broader approach in itself is not controversial. In the end, although the arguments are finely balanced, I prefer the approach of the majority in AS. Like Sullivan LJ, I find a broad approach more consistent with the coherence of this part of the Act. He noted that the standard form of appeal, echoing the effect of the section 120 notice, urged appellants to raise any additional ground at that stage, on pain of not being able to do so later, and observed: . it seems to me that appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward. (para 99) Merits of appeal The second issue is the materiality to the human rights case of evidence that the appellant could in fact have complied with the rules, even though he failed to do so. The argument is that, if it is shown that the appellant could have met the substantive requirements of the rules, the failure to do so should be regarded as purely formal, and that accordingly, in the proportionality balance required by article 8, the objectives of immigration control should carry relatively less weight. A variant of this argument, referred to as the near miss principle, is that the degree of failure to meet the requirements of the rules may be relevant in the proportionality balance. Support for such an approach is said to be found in the judgment of Sedley LJ (agreed by Rimer and Sullivan LJJ) in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376. The main issue in that case was the extent to which it was permissible for mandatory criteria relevant to the Points Based System to be contained in guidance rather than rules submitted to Parliament under section 3(2) of the 1971 Act. That issue has since been considered in the Supreme Court in R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33; [2012] 1 WLR 2208 and R (New College London Ltd) v Secretary of State for the Home Department (Migrants Rights Network intervening) [2013] UKSC 51, [2013] 1 WLR 2358. However Sedley LJ also considered the application of article 8 under such a system. He said at paras 45 46: There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here. That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having 800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route. The court can be seen in that passage to have endorsed the view that, at least in relation to financial criteria, a near miss (a marginal or momentary shortfall) might affect the consideration of proportionality under article 8. That view did not affect the results in any of the cases before it. In the only one to which it might have been relevant (Mrs Maleckia), it was held that there was in any event no prospect of success under article 8 (para 53). Mr Malik also relies on other cases, before and since, which have adopted a similar approach without reference to Pankina. In SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28, the court when allowing an appeal against the tribunals decision on other grounds agreed with them that the fact that the appellant only just failed to qualify for admission was a fact to be counted in her favour. Ward LJ, at para 30, adopted the observation of Collins J in Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin) para 38 that: one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter. Ward LJ added: That seems to us to be the right approach. As Simon Brown L.J. said in Ekinci at paragraph 16: Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights. (I note in passing that those comments of Simon Brown LJ were made with reference to the rather different appeal provisions of the Immigration and Asylum Act 1999, and were directed specifically to a case with an obvious article 8 dimension.) More recently, in R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), Blake J, sitting on this occasion in the Administrative Court, held that on the facts the interference with the applicants family life was such as to make it disproportionate under article 8 to remove her, notwithstanding that she was unable to satisfy a relevant criterion in the rules. He said, at para 35 (without specific reference to Pankina): the terms of the immigration rules are not a legitimate aim in their own right A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim. The mere fact a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that is otherwise to be respected. The opposite approach is supported by the judgment of Stanley Burnton LJ (agreed by Maurice Kay and Lewison LJJ) in Miah v Secretary of State for the Home Department [2013] QB 35. In that case the applicant was refused leave to remain as a Tier 2 (General) Migrant at a time when he was two months short of the five years continuous residence necessary to support a case for indefinite leave to remain under the rules. It was argued that, in assessing whether his removal should be permitted under article 8.2 of the Convention, the weight to be given to the maintenance of immigration controls should be diminished because he had missed satisfying the rules by only a small margin. Burnton LJ observed that, as formulated in the skeleton submissions of Mr Malik (appearing for the appellant in that case as in the present), the argument was not so much near miss as sliding scale, by virtue of which There is an inverse relationship between the degree to which there is compliance with the rules and the immigration policy imperative which demands that unsuccessful applicants be removed (paras 9 10). In rejecting that argument, Burnton LJ referred to a passage in the speech of Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which he discussed the long established and central role of the immigration rules in determining those to whom leave to enter or remain should be granted. Although the near miss argument as such was not in issue in that case, Burnton LJ thought it inconsistent with Lord Binghams approach. He said at para 14: I find Lord Bingham's reference in para 6 to rules, to be administratively workable, [requiring] that a line be drawn somewhere and in para 16 to the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory to be helpful and generally inconsistent with a near miss principle. He referred to two previous Court of Appeal judgments (not cited in Pankina) in which similar arguments had been rejected: Mongoto v Secretary of State for the Home Department [2005] EWCA Civ 751, and R (Rudi) v Secretary of State for the Home Department [2007] EWCA Civ 1326. In the latter case, citing Mongoto, I said of the near miss argument: 28. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of the policy does not excuse the decision maker from due consideration of cases falling outside it. However, the law knows no near miss principle. There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason. Faced with the conflict between the approach taken in these authorities and that of Pankina Burnton LJ had no difficulty in preferring the former, which he regarded as binding on the court (paras 21 25). He could see no principled basis for distinguishing, as Sedley LJ had proposed, between rules to which the near miss principle did and did not apply. In particular he disagreed with Sedley LJ that a financial criterion has in itself no meaning, and could therefore be distinguished from other rules, such as those relating to academic qualifications, in respect of which a miss is as good as a mile. In conclusion he said at paras 25 26: Finally, quite apart from authority, I prefer the approach stated in Mongotos case and Rudis case. A rule is a rule. The considerations to which Lord Bingham referred in Huangs case require rules to be treated as such. Moreover, once an apparently bright line rule is regarded as subject to a near miss penumbra, and a decision is made in favour of a near miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined. For these reasons, I would dismiss the appeal in relation to the near miss argument. In my judgment, there is no near miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the tribunal, must assess the strength of an article 8 claim, but the requirements of immigration control are not weakened by the degree of non compliance with the Immigration Rules. The difference between the two positions may not be as stark as the submissions before us have suggested. The most authoritative guidance on the correct approach of the tribunal to article 8 remains that of Lord Bingham in Huang. In the passage cited by Burnton LJ Lord Bingham observed that the rules are designed to identify those to whom on grounds such as kinship and family relationship and dependence leave to enter should be granted, and that such rules to be administratively workable, require that a line be drawn somewhere. But that was no more than the starting point for the consideration of article 8. Thus in Mrs Huangs own case, the most relevant rule (rule 317) was not satisfied, since she was not, when the decision was made, aged 65 or over and she was not a widow. He commented at para 6: Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative. Thus the balance drawn by the rules may be relevant to the consideration of proportionality. I said much the same in Rudi. Although I rejected the concept of a near miss principle, I did not see this as inconsistent with the Collins Js words in Lekstaka: Collins J's statement, on which the court relied [in SB], seems unexceptionable. It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment. He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them. (para 31(ii)) (My reference to exceptional treatment needs to be read now in the light of Huang para 20 in which Lord Bingham made clear that, contrary to previous Court of Appeal case law, there was no separate test of exceptionality.) Although the context of the rules may be relevant to the consideration of proportionality, I agree with Burnton LJ that this cannot be equated with a formalised near miss or sliding scale principle, as argued for by Mr Malik. That approach is unsupported by Strasbourg authority, or by a proper reading of Lord Binghams words. Mrs Huangs case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8. Conversely, a near miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of States discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJs call in Pankina for common sense in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above). However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8. The present appeals I have discussed the respective arguments on this point in some detail because of its general importance and the conflicting statements found in some of the judgments. However, I can deal relatively shortly with the two cases before us. The near miss argument was not advanced in the same form before the Court of Appeal, apparently because it was thought to be precluded by Miah. Even if otherwise well founded, it is not in my view available to Mr Anwar, since no separate human rights grounds were advanced on his behalf before either tribunal. So the issue as to whether the tribunal would have been obliged to consider them, and with what effect, did not arise. In Mr Alams case the human rights case was considered at both levels, but ultimately failed before the Upper Tribunal on its merits. The Upper Tribunal fairly gave some weight to the unusual circumstances in which he had lost his ability to rely on the new evidence (as a result of a change in the rules after the start of the appeal). But there was little or nothing to weigh on the other side of the balance, apart from the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. I see no error in the approach of the Upper Tribunal. Conclusion For these reasons, I would dismiss all three appeals. LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree) I would also dismiss these appeals for the reasons given by Lord Carnwath. Anything that we say about AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385 is obiter, since in the case of Anwar no separate human rights ground was advanced in either tribunal and in the case of Alam the Upper Tribunal held correctly that there is nothing in any human rights point that was raised. If we were to disagree with the majority approach in AS, that would raise a problem of precedent for lower courts, but since I would on balance also favour leaving the majority view undisturbed, that problem does not arise. In fact, it appears that the whole area of appeals is likely to be reshaped by the Immigration Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we express about the correct approach are likely to become irrelevant in future cases. The issue arising under section 85(2) of the Nationality, Immigration and Asylum Act 2002 which was addressed in AS is undoubtedly a difficult and very arguable one, and the arguments for and against the rival approaches are comprehensively discussed in AS. As I see it, the essential question was well defined by Sullivan LJ at paras 111 113. It is whether the decision appealed against to which section 85(2) refers is the generic decision to refuse leave to remain (i.e. in the present cases, within section 82(2)(d)), or the particular decision to refuse leave under a particular head, for example under a particular rule of the Immigration Rules or on a Human Rights ground. The majority approach in AS does not mean that section 85(2) enables an appellant, who has sought leave to remain, to go outside the scope of a leave to remain application by adding or substituting an appeal under a different head of section 82(2), e.g. by asserting a wrongful refusal of entry clearance or of a certificate of entitlement: see sections 82(2)(b) or (c)). To that extent, it seems to me that the majority approach is not open to the criticism that it amounts to re reading section 85(2) as if it used the words against a decision of a kind listed in section 82(2) or omitted the words against the decision appealed against altogether. Where the Secretary of State chooses to give a section 120(2) notice, the aim is to flush out any new (a) reasons for wishing to enter or remain and/or (b) grounds for being permitted to enter or remain and/or (c) grounds for not being removed or required to leave the UK. The statement in response need not repeat reasons or grounds set out in the existing application or decision which is the occasion for giving the notice: section 120(3). When section 85(2) requires the Tribunal to consider any matter raised in the [section 120] statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against, it is therefore referring to new reasons or grounds not previously covered by the decision appealed against. So long as they [constitute] a ground of appeal of a kind listed in section 84(1), they can be relied upon. By inference, it can be said, it is or becomes legitimate to treat them as constituting a ground of appeal, even though they were not raised before or decided by the Secretary of State. So, instead of relying on the Immigration Rules to justify leave to remain, an appellant can rely on a Human Rights ground, as Alam sought to do. And in AS itself, it would follow that the majority was correct to hold that an appellant could invoke a different Immigration Rule to justify leave to remain in the case of AS herself: that she qualified under the International Graduate Scheme, rather than as a person intending to establish herself in business, in the other case of NV, on the basis that she had ten years residence, rather than on the basis that she was a student. Section 3C(4) of the 1971 Act certainly provides some forceful arguments to the contrary of the majority conclusion in AS. But I am inclined to think that Moore Bick and Sullivan LJJ deal sufficiently in their paras 84 86 and 102 with the problem of reconciling their conclusion with section 3C(4). Essentially, it is up to the Secretary of State to decide whether to serve a section 120 notice. It is true that the majority approach to section 85(2) means that an applicant may open up issues which would otherwise be closed, at least until conclusion of the existing appeal (after which the applicant, if unsuccessful in the appeal, would be an overstayer). But it does at the same time close down some further applications which the appellant might, whether as an overstayer or from abroad, make. The fact that the Tribunal will, in a wider area, become primary decision maker appears to me relatively indecisive, bearing in mind that it anyway acts as decision maker in some significant areas. The overlap argument advanced by Sullivan LJ at para 106 also seems to me relevant, if one is considering the advantages and disadvantages of each solution. help identify at what level of detail that decision is to be considered. On the other hand, I am not persuaded that there is anything in the substance point based on section 85(4). Moore Bick LJ (para 83), rather than Sullivan LJ (para 113) was in my view right on this. Section 85(4) is dealing only with evidence which goes to the substance (heart) of the decision, but does not

UK-Abs

These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependent wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].

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

UK-Abs

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

This is a reference made by the Attorney General for England and Wales (the Attorney General) under section 112 of the Government of Wales Act 2006 (the 2006 Act) for a determination on whether sections 6 and 9 of the Local Government Byelaws (Wales) Bill 2012 are within the legislative competence of the National Assembly for Wales (the Assembly). The background to the reference Following a referendum held in 1997, the Government of Wales Act 1998 (the 1998 Act) set out the initial devolution settlement for Wales. This included the establishment of the Assembly, a body corporate which had the legal responsibility for discharging the devolved executive and legislative functions. Sections 21 and 22 of the 1998 Act governed the functions of the Assembly, and they included provisions for transferring functions vested in a Minister of the Crown to the Assembly, by Order in Council. Schedule 2 to the 1998 Act set out the fields of functions which were to be devolved to the Assembly in the first such Order in Council, including [t]he environment and [l]ocal government. The first Order in Council making such provision was the National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999 No 672 (the 1999 Order). The Assemblys legislative powers were limited, and a White Paper, Better Governance for Wales (Cm 6582) published in June 2005, proposed increasing those powers in three respects: (i) giving the Assembly wider powers to make subordinate legislation; (ii) allowing the United Kingdom Parliament (Parliament) to confer enhanced legislative powers on the Assembly in relation to specified matters in devolved fields; and (iii) following a referendum, enabling the Assembly to make laws in all devolved fields without recourse to Parliament. These proposals were adopted by Parliament, and implemented by the 2006 Act. Part 1 of the 2006 Act re-enacts many of the provisions of the 1998 Act, but it omits any reference to the Assembly being a corporate body. Section 45 establishes the Welsh Assembly Government, which comprises the First Minister, the Welsh Ministers, the Counsel General to the Welsh Assembly Government and the Deputy Welsh Ministers. Section 46 provides for the First Minister to be appointed by Her Majesty. Sections 48 and 50 confer on the First Minister the power to appoint, with the approval of Her Majesty, the Welsh Ministers and the Deputy Welsh Ministers from among the Assembly members. Sections 56 to 92 make provision about the functions of the First Minister, the Welsh Ministers, and the Counsel General. Part 3 of, and Schedule 5 to, the 2006 Act contain what were anticipated to be transitional provisions regarding the Assemblys powers with effect from the day after the Assembly election in 2007. They were intended to be replaced by the Assembly Act provisions, contained in Part 4 of, and Schedule 7 to, the 2006 Act. These provisions are intended, inter alia, to give the Assembly primary legislative powers for certain areas, and are provided by section 105 to come into force pursuant to an order made by Welsh Ministers following a referendum. That referendum duly took place, and the Welsh Ministers duly made the order contemplated, as a consequence of which the provisions of Part 3 and Schedule 5 lapsed, and the provisions of Part 4 and Schedule 7 took effect, on 5 May 2011. As a result of this, the Assembly has power to make primary legislation, which powers are delimited by provisions which identified the extent of the Assemblys legislative competence. If there is an issue as to whether a Bill, or a provision in a Bill, passed by the Assembly exceeds that competence, the issue can be referred to this court under the terms of section 112 of the 2006 Act. The first Bill to be passed by the Assembly under its new power was the Local Government Byelaws (Wales) Bill 2012 (the Bill), the aim of which is to simplify procedures for making and enforcing local authority byelaws in Wales. Certain provisions of the Bill, in particular section 6 and section 91, are intended to remove the need for the confirmation of byelaws by the Welsh Ministers or by the Secretary of State. Section 6 (through Part 1 of Schedule 1 to the Bill) refers to certain specific enactments (the scheduled enactments) which currently require confirmation, and section 9 would empower the Welsh Ministers to add to those enactments. The Secretary of States consent to the inclusion of these two sections in the Bill was sought. She was prepared to agree to section 6 of the Bill (section 6), because she was content to give up her right to confirm byelaws made under the specific provisions identified in Part 1 of Schedule 1 to the Bill, but she was not prepared to agree to the inclusion of section 9 of the Bill (section 9). The Assembly nonetheless proceeded to pass the Bill with sections 6 and 9 in their 1 What would be, or become, sections of a Statute enacted by the UK Parliament are conventionally referred to as clauses in the Bill until it becomes a Statute. However, in this judgment, I follow the language used in Standing Orders 26 and 26A of the National Assembly for Wales (June 2012), which deal with Acts of the Assembly, and refer to sections of a Bill. original form. The Attorney General then referred to this court the question whether sections 6 and 9 were outwith the Assemblys legislative competence. The parties who were identified as respondents to the reference were (i) the National Assembly for Wales Commission, representing the Assembly, and (ii) the Counsel General, both of whom appeared before us. The Assembly was represented by Mr Rhodri Williams QC, with Ms Rebecca Stickler, and the Counsel General, Mr Theodore Huckle QC, was assisted by Mr Clive Lewis QC. The Attorney General for Northern Ireland, Mr John Larkin QC (who appeared with Mr David McAlister) also appeared, having been permitted to intervene, as the issues raised by this reference have potential implications for the extent of the legislative competence of the Northern Ireland Assembly under the Northern Ireland Act 1998. I propose first to explain the position (under the Local Government Act 1972 and the 1999 Order) relating to the confirmation of many of the byelaws identified in Schedule 1 to the Bill, following which I will identify the relevant provisions of the Bill and of the 2006 Act. Having set the scene, as it were, I will then discuss certain preliminary issues, following which I will address the central issue on this reference. Finally, I must deal with certain procedural issues which have arisen on this reference. The Local Government Act 1972 and the 1999 Order The power to make byelaws is conferred by a host of statutes, mostly on local authorities and similar bodies. Many of those statutes contain specific provisions whereby a byelaw must be confirmed by some other body or person (normally the Secretary of State or another Minister of the Crown), but many do not. The Local Government Act 1972 (the 1972 Act), as its long title states, includes many provisions concerning local government and the functions of local authorities in England and Wales. Section 236 of the 1972 Act (section 236) is entitled Procedure, etc, for byelaws. Subsection (1) explains that, subject to certain exceptions (irrelevant for present purposes), the section appl[ies] to byelaws to be made by a local authority under this Act and to byelaws made by a local authority under any other enactment and conferring on the authority a power to make byelaws and for which specific provision is not otherwise made. Section 236(3) sets out the technical requirements for a local authority making a byelaw (under its common seal or, where there is no seal, under the hands and seals of two members). Subsections (3), (4) and (5) of section 236 make reference to confirmation of a byelaw, and subsection (7) states that [t]he confirming authority may confirm, or refuse to confirm, any byelaw submitted under this section. Crucially for present purposes, section 236(11) is in these terms: In this section the expression the confirming authority means the authority or person, if any, specified in the enactment (including any enactment in this Act) under which the byelaws are made, as the authority or person by whom the byelaws are to be confirmed, or if no authority or person is so specified, means the Secretary of State. The effect of this provision is that, where a statutory provision giving the local authority the power or duty to make the byelaw either so provides or is silent as to the existence or identity of a confirmatory body or person, before any byelaw made under that provision by a local authority can be effective, the Secretary of State has to confirm the byelaw. The National Assembly for Wales (Transfer of Functions) Order 1999 The 1998 Act provided in section 22(1) that: Her Majesty may by Order in Council (a) provide for the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales, (b) direct that any function so far as so exercisable shall be exercisable by the Assembly concurrently with the Minister of the Crown, or (c) direct that any function so far as exercisable by a Minister of the Crown in relation to Wales shall be exercisable by the Minister only with the agreement of, or after consultation with, the Assembly. The 1999 Order was made pursuant to that provision, and was concerned with transferring a large number of functions of Ministers of the Crown to the Assembly. It did this by identifying each specific function which was to be so transferred. In some cases, there had to be qualifications to, and in other cases there had to be exceptions from or variations to, the transfer of functions. Thus, article 2 of the 1999 Order is to this effect: Schedule 1 to this Order shall have effect as follows (a) except as provided [below], all functions of a Minister of the Crown under the enactments specified in Schedule 1 are, so far as exercisable in relation to Wales, transferred to the Assembly; (b) where so directed in Schedule 1 functions exercisable by a Minister of the Crown shall, so far as exercisable in relation to Wales, be exercisable by the Assembly concurrently with the Minister; (c) it is directed that (except in the case of functions which are exercisable by the Assembly jointly with a Minister of the Crown) .. Schedule 1 to the 1999 Order sets out Enactments Conferring Functions Transferred by Article 2. The list of those enactments includes the 1972 Act, in respect of which it is expressly directed that the functions of the Secretary of State under section 236(11) shall be exercisable by the Assembly concurrently with the Secretary of State. The Local Government Byelaws (Wales) Bill 2012 Section 1 is entitled Overview, and it is in these terms, so far as relevant: This Act - (a) reforms procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh Ministers; . (d) restates for Wales a general power to make byelaws. Section 2 delimits the powers of a county or county borough to make byelaws, which must be for the good rule and government of the whole or any part of its area or to prevent nuisances in its area. Section 3 defines legislating councils, which extends to counties, county borough councils, community councils, National Park authorities in Wales, and the Countryside Council for Wales. Sections 4 and 5 deal with the powers of legislating authorities and the Welsh Ministers to revoke byelaws. Section 6 is entitled Byelaws not requiring confirmation, and the first two subsections are in these terms: (1) This section applies to byelaws made by a legislating authority under the enactments listed in Part 1 of Schedule 1 . (2) Before it makes a byelaw, an authority must (a) publish on the authoritys website an initial written statement which describes the issue which the authority thinks may be addressed by making a byelaw; (b) consult any person who the authority thinks is likely to be interested in, or affected by, the issue. The remaining six subsections set out the procedural requirements which a legislating authority must then satisfy before making a byelaw not requiring confirmation. These requirements include considering responses to the subsection (2) consultations, publishing on its website a further statement, followed by notice of the intention to make the byelaw, and then the draft byelaw, ensuring that the draft byelaw is available for inspection to those who want to see it, and making the byelaw within six months of the date of the notice of intention. Part 1 of Schedule 1 to the Bill has the same heading as section 6, and sets out what I call the scheduled enactments, which are specific sections of certain statutes, including a number of sections in respect of which it is common ground between all parties that section 236(11), as varied by the 1999 Order, applies. Most of these sections are in the Public Health Act 1936, and they include, for example, byelaw-making powers in relation to preventing the occurrence of nuisances from snow, filth, dust, ashes and rubbish (section 81), for regulation of sanitary conveniences (section 87), for regulating management of, and charges for, the use of mortuaries and post-mortem rooms (section 198), and regulating baths, washhouses, swimming baths and bathing places (section 223). Section 7 is concerned with Byelaws requiring confirmation, which subsection (1) explains are byelaws made by a legislating authority under any enactment other than those listed in Part 1 of Schedule 1, subject to exceptions set out in subsection (2), namely to the extent that the statutory power under which a particular byelaw is made makes different provision in relation to the requisite procedure. Subsections (3) to (9) then set out procedures which have to be followed by the legislating authority, which are similar to those in subsections (2) to (7) of Section 6. Subsections (10) to (12) of section 7 provide as follows: (10) The confirming authority may confirm, or refuse to confirm, any byelaw submitted to it under this section. (11) For the purposes of this Act, the confirming authority is (a) the person specified in the enactment under which the byelaws are made as the person who is to confirm the byelaws, or (b) if no person is specified, the Welsh Ministers. (12) The functions of the Welsh Ministers under subsection (11)(b) are exercisable concurrently with the Secretary of State. Section 8 is concerned with formalities for making byelaws. Section 9 is headed Power to amend Part 1 of Schedule 1, and is in these terms: The Welsh Ministers may by order amend Part 1 of Schedule 1 by adding to or subtracting from the list of enactments, or by amending the type of authority that may make byelaws without confirmation. Sections 10 and 11 are concerned with enforcement of byelaws, and sections 12 to 16 (and Part 2 of Schedule 1) with fixed penalty notices. Sections 18 to 23 are headed Miscellaneous and general, and only section 20, which is entitled Consequential amendments and incorporates Schedule 2, needs to be mentioned. Schedule 2 sets out a number of Minor and consequential amendments to other statutes. Paragraph 9(3) amends section 236, effectively limiting its ambit in local authorities to England. Paragraph 17 amends the 1999 Order, inter alia, by deleting the words directing that the functions of the Secretary of State under section 236(11) shall be exercisable by the Assembly concurrently with the Secretary of State. The question whether any of the provisions of the Bill are within the competence of the Assembly must be judged by reference to the 2006 Act, to which I now turn. The Government of Wales Act 2006 The provisions of the 2006 Act which are directly relevant for present purposes are in Part 4 and Schedule 7. The provisions which are of central importance are section 108, and paragraph 1 of Part 2, and paragraph 6 of Part 3, of Schedule 7. Section 108 is entitled Legislative competence and subsections (1) to (3) provide as follows: (1) Subject to the provisions of this Part, an Act of the Assembly may make any provision that could be made by an Act of Parliament. (2) An Act of the Assembly is not law so far as any provision of the Act is outside the Assemblys legislative competence. (3) A provision of an Act of the Assembly is within the Assemblys legislative competence only if it falls within subsection (4) or (5). It is common ground that subsections (4) and (5) present no problems for the Bill in the present case. Subsection (4) requires every provision in an Act of the Assembly to relate to one or more of the subjects listed in Part 1 of Schedule 7, which every provision in the Bill does. Subsection (6) states: (6) But a provision which falls within subsection (4) or (5) is outside the Assemblys legislative competence if (a) it breaches any of the restrictions in Part 2 of Schedule 7, having regard to any exception in Part 3 of that Schedule from those restrictions, . . Part 2 of Schedule 7 is headed General Restrictions, and the first of those restrictions is in paragraph 1, which is headed Functions of a Minister of the Crown, and is in these terms: (1) A provision of an Act of the Assembly cannot remove or modify, or confer power by subordinate legislation to remove or modify, any pre-commencement function of a Minister of the Crown. (3) In this Schedule pre-commencement function means a function which is exercisable by a Minister of the Crown before [5 May 2011]. Part 3 of Schedule 7 is headed Exceptions from Part 2, the first of which is in paragraph 6, which has a very similar heading to paragraph 1 of Part 2, and states: (1) Part 2 does not prevent a provision of an Act of the Assembly removing or modifying, or conferring power by subordinate legislation to remove or modify, any pre-commencement function of a Minister of the Crown if (a) the Secretary of State consents to the provision, or (b) the provision is incidental to, or consequential on, any other provision contained in the Act of the Assembly. I must also refer to section 112(1), which explains how this reference arises. It empowers the Counsel General or the Attorney General to refer the question whether a Bill, or any provision of a Bill, would be within the Assemblys legislative competence to the Supreme Court for decision. Pending such a reference, a Bill cannot be given Royal Assent see section 115. It is also appropriate to refer to section 154, which provides: (1) This section applies to (b) any provision of an Act of the Assembly, or a Bill for such an Act, which could be read in such a way as to be outside the Assemblys legislative competence, (2) The provision is to be read as narrowly as is required for it to be within competence or within the powers, if such a reading is possible, and is to have effect accordingly . Preliminary issues: the meaning of concurrently While the central issue on this reference is whether section 6 and section 9 are outside the legislative competence of the Assembly, there are two preliminary points which have been debated and which need to be resolved before turning to that central issue. First, there is the question of what is meant by the direction in the 1999 Order that the functions of the Secretary of State under section 236(11) shall be exercisable by the Assembly concurrently with the Secretary of State. Three possible interpretations were aired. The first interpretation, which arose in argument, is that the Assembly is to exercise each of the functions, but needs the Secretary of States agreement before it does so. The second and third interpretations both involve the Assembly and the Secretary of State each having the right to exercise the functions. The second interpretation, favoured by Mr Williams for the Assembly, is that, in relation to any particular function, it is, as a matter of law, only the Assembly or, as the case may be, the Secretary of State who can exercise the function. The third interpretation, favoured by Mr Jonathan Swift QC (who appeared with Ms Joanne Clement for the Attorney General) and by the Counsel General, is that, subject to the normal public law principle of rationality, it is open to either the Secretary of State or the Assembly to exercise any of the functions. I have reached the clear conclusion that the third of these interpretations is correct. First, the natural meaning of concurrently in a provision such as the 1999 Order, which involves two persons or entities having concurrent functions, is that they each have the right to exercise the functions separately. The primary meaning of the word concurrent is running with rather than agreeing. And it would involve implying some qualification to the provision, if only one of the two persons or entities could exercise any particular function. Indeed, if each function could only be exercised by the Assembly or the Secretary of State, it would be the antithesis of their having concurrent power. Secondly, the notion that the Assembly can exercise any of the functions, but only with the consent of the Secretary of State, would effectively mean that there is no difference between concurrent functions and joint functions. That is unlikely as the 1999 Order refers in a number of places to joint exercise of functions, including in article 2(c). That point is reinforced when one looks at section 22(1) of the 1998 Act, under which the 1999 Order was made: subsection (b) deals with concurrently exercisable functions, and subsection (c) is concerned with functions exercisable by the Secretary of State with the agreement of the Assembly. Thirdly, Craies on Legislation 10th ed, (2012) supports the notion that the concept of concurrent power to exercise functions has an established meaning in legislation. At para 3.12.6, it is stated that [w]here a function is vested in two Ministers concurrently, either may perform it, acting alone, on any occasion. While no case law is cited in support of this proposition, such an unequivocal statement in a respected book on the subject deserves respect, and is likely to be familiar to those responsible for drafting statutes. Fourthly, it seems far more sensible and consistent with the purpose of the Welsh devolution legislation to conclude that it was intended that the Assembly and the Secretary of State were each intended to have the power to exercise the concurrent functions, and that it was to be left to their good sense to decide which should exercise a particular function in a particular case. As Lord Carnwath said during argument, the courts should only be involved where normal public law principles justify quashing a particular exercise of a function on the ground that it should not have been exercised by the particular person or entity. Preliminary issues: does any question of legislative competence arise? The Attorney General for Northern Ireland contends that the instant reference is, in effect, misconceived, at least in relation to section 6, because that section would not have the effect which the Attorney General contends, namely removing any right vested in the Secretary of State to confirm byelaws. He puts this point in two ways. The first way in which the argument is put is that Section 6 itself does not remove any right. I will discuss that point when considering the central issue on this reference. However, even if it is right, it could be no more than a technical point, as there can be no doubt but that paragraphs 9 and 17 of Schedule 2 to the Bill indubitably remove the Secretary of States right to confirm byelaws under section 236(11). Accordingly, the first way of putting the Attorney General for Northern Irelands point goes nowhere in substantive terms (albeit that it has some relevance to the central issue, and it gives rise to a procedural point which Lord Hope discusses in his judgment). The second way in which the Attorney General for Northern Ireland puts his case is that section 236(11) states in terms that it applies only to those byelaws for which there is no statutory provision for confirmation by someone other than the Secretary of State. Accordingly, runs the argument, section 236(11) specifically contemplates, and therefore effectively permits, a subsequent statutory provision conferring the confirmatory function, in respect of any byelaw to which section 236(11) currently applies, on some other person or entity. This argument is ingenious, but I would reject it. It seems to me clear that the effect of section 236(11) was to confer a function on the Secretary of State, and the Bill, if it becomes an Act, will remove that function from the Secretary of State in relation to the scheduled enactments, and accordingly, paragraph 1 of Part 2 of Schedule 7 to the 2006 Act appears to be engaged. The fact that the function concerned was conferred by a default statutory provision, which specifically envisages that there may be legislation which transfers the function to someone else, does not alter the fact that the confirmatory function of the Secretary of State falls within the ambit of paragraph 1(3) of Part 2 of Schedule 7. The central issue on this reference: Section 6 of the Bill It is common ground between the original parties to this reference that section 6 is within paragraph 1 of Part 2 of Schedule 7 to the 2006 Act, in that it would have the effect of remov[ing] [a] pre-commencement function of a Minister of the Crown, namely the Secretary of States role in confirming (or refusing to confirm) byelaws made under the statutory provisions which are (i) scheduled enactments, and (ii) provisions to which section 236(11) applies. On that basis the only issue is whether, as the Counsel General contends (with the support of Mr Williams and the Attorney General for Northern Ireland), the section can be saved on the basis that, in so far as it would remove the pre- commencement function, it would be within paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act, as it is incidental to, or consequential on, [an] other provision contained in the [Bill]. However, as already mentioned, the Attorney General for Northern Ireland challenges the otherwise agreed proposition that section 6 would remove the Secretary of States confirmatory role under section 236(11) in relation to any scheduled enactments. He makes the point that section 1 only refers to the confirmatory powers of the Welsh Ministers, not to the Secretary of States powers, and that no part of section 6 refers to his powers either. In my view, this point highlights the way in which the Bill is structured, and, more importantly for present purposes, it tends to support the argument advanced by the Counsel General, namely that the removal by the Bill of the Secretary of States power to confirm byelaws under section 236(11) is indeed incidental to, or consequential on one of the principal purposes of section 6 of the Bill, which is, as section 1 states, to remove the requirement for confirmation by the Welsh Ministers, as part of the overall streamlining and modernising of the way in which byelaws are made in Wales. The answer to the question whether a particular provision in an enactment is incidental to, or consequential on another provision, obviously turns on the facts of the particular case. The answer may to some extent be a question of fact and degree, and it should turn on substance rather than form, although, of course, in any well drafted Bill, the substance will be reflected in the form, at least in relation to that sort of question. Assistance on the point may be gleaned from what was said in this court in Martin v Most [2010] UKSC 10; [2010] SC (UKSC) 40, about paragraph 3(1)(a) of Schedule 4 to the Scotland Act 1998, which permits the Scottish Parliament to modify the law on reserved matters if, inter alia, the modification is incidental to, or consequential on, provision made which does not relate to reserved matters. There is a close similarity between those words and the words in paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act, and the two provisions are concerned with similar material. However, they are found in different statutes, and one must therefore be wary of assuming that they have precisely the same effect, as context is so crucially important when interpreting any expression, perhaps particularly an expression as potentially fact-sensitive as incidental to, or consequential on. Nonetheless, I consider that the approach adopted in that case is of assistance here. In a brief passage at [2010] UKSC 10, paragraph 40, Lord Hope described a point as important in explaining why it was not incidental or consequential on provisions found elsewhere in the enactment. Lord Rodger described certain amendments as falling within paragraph 3(1)(a) of Schedule 4 to the Scotland Act 1998, if they raise[d] no separate issue of principle, and were safely stowed away in a schedule in paragraph 93. He referred back to that observation at paragraph 128, where he described paragraph 3(1)(a) of Schedule 4 to the Scotland Act 1998 as intended to cover the kinds of minor modifications which are obviously necessary to give effect to a piece of devolved legislation, but which raise no separate issue of principle. He contrasted them with other provisions which were independent and deal with distinct aspects of the situation. Section 6 of the Bill plainly is intended to have the effect of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments. That is a primary purpose of the Bill, as is clear from reading the provisions quoted above, both in itself and for the purpose of streamlining and modernising the making of byelaws. I consider that, applying the approach of Lord Hope and Lord Rodger in Martin v Most [2010] UKSC 10, the removal of the Secretary of States confirmatory powers by the Bill in relation to the scheduled enactments would be incidental to, and consequential on, this primary purpose. In summary form, I reach this conclusion because of the following combination of circumstances, of which points (i) and (iv) are particularly telling. (i) The primary purpose of the Bill cannot be achieved without that removal, (ii) the Secretary of States confirmatory power is concurrent with that of the Welsh Ministers, (iii) the confirmatory power arises from what is in effect a fall-back provision, (iv) the scheduled enactments relate to byelaws in respect of which the Secretary of State is very unlikely indeed ever to exercise his confirmatory power, (v) section 7 of the Bill reinforces this conclusion, and (vi) the contrary view would risk depriving paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act of any real effect. The first of these reasons is obvious. One of the streamlining and modernising purposes of the Bill would be undermined if the Secretary of States confirmatory function remained in respect of any of the scheduled enactments. There would be no point in removing the Welsh Ministers confirmatory function in relation to the scheduled enactments unless the Secretary of States concurrent function was also disposed of. Indeed, the notion that the Assembly would intend to remove the Welsh Ministers confirmatory function while retaining that of the Secretary of State is bizarre. Secondly, there is attraction in the point that the Secretary of States confirmatory function has become redundant on the basis that, as Lord Clarke put it, the enactment by the Assembly of section 6(1) amounted to a blanket confirmation in advance by the Welsh Ministers of any future byelaw made under the scheduled enactments, provided the procedures laid down by sections 6(2) to (8) are complied with. While a blanket confirmation in advance of any byelaw cannot be a valid exercise of the Welsh Ministers confirmatory function, the argument highlights the oddity of the Secretary of States confirmatory power surviving the removal of the Welsh Ministers confirmatory power. Thirdly, there is the fact that the confirmatory function bestowed on the Secretary of State by section 236(11) is really a default function. The confirmatory function is only given to the Secretary of State if no other statute (including one passed after the 1972 Act) confers the function on any other body or person. To my mind, that feature tends to support the notion that it is not, to use Lord Hopes word in Martin v Most [2010] UKSC 10, paragraph 40, an important function. Thus, the point made by the Attorney General for Northern Ireland assists my conclusion. Fourthly, and most crucially, the scheduled enactments concern byelaws whose nature is such that it would be for the Welsh Ministers, rather than the Secretary of State, to confirm them. This is because they are very much directed to local, small-scale (but important) issues. That point is strongly supported by the fact that it appears that, since the 1999 Order came into force, it has always been the Welsh Ministers, rather than the Secretary of State, who have exercised the confirmatory function in relation to byelaws made under any of the scheduled enactments. It seems to me that, in those circumstances, given the purpose of section 6, and the purpose of the Bill as explained in section 1, it would be positively perverse if the Secretary of State should retain the confirmatory function when the Welsh Ministers have disclaimed their confirmatory function. It was not suggested by Mr Swift that there were any circumstances envisaged by the Secretary of State in which she would wish to exercise her confirmatory function in relation to the scheduled enactments. In practical terms, this conclusion is supported by the fact that the only reason the Secretary of State did not consent to section 6 had nothing to do with the contents of that section or of Schedule 1, but with the inclusion of section 9 in the Bill. Fifthly, as pointed out by Lord Reed, the provisions of section 7 of the Bill give some support for this conclusion. It establishes new concurrent powers in relation to byelaws (other than the scheduled enactments) which previously fell within section 236(11). Where subsections (11)(b) and (12) of section 7 apply, the confirmatory power of the Welsh Ministers is exercisable concurrently with that of the Secretary of State. This reinforces the argument that the Secretary of States confirmatory function under section 236(11) is redundant as a result of the enactment of sections 6 and 7. Finally, it is important, as the Counsel General argued, to arrive at a conclusion which gives a provision such as paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act some real effect. It is difficult to think of circumstances in which it would have effect if it does not apply to section 6. Mr Swift suggested that, if it did not apply to section 6, it could still apply in a case where the Assembly abolished a statutory provision for byelaws altogether. I do not find that very persuasive. First, if he is right in the present case, it suggests that the provision can apply in a more extreme type of case than the present case, but not in the present case. Secondly, I am not convinced that it would be necessary to remove a power to confirm byelaws in relation to a given activity if the power to make byelaws in relation to that activity was abolished. The central issue on this reference: section 9 of the Bill Section 9 of the Bill would have the effect of enabling the Welsh Ministers to add to (and to subtract from) the scheduled enactments, which would then become subject to the section 6 procedure, rather than the section 7 procedure. As already explained, the crucial difference for present purposes between the two procedures is the requirement under section 7 for confirmation of the byelaw by Welsh Ministers and/or the Secretary of State or other Minister of the Crown (depending on the statutory provision under which the byelaw is made) see, in particular, section 7(10) to (12). The Attorney Generals argument is that section 9 would confer power on the Welsh Ministers by subordinate legislation to remove or modify pre- commencement function[s] of a Minister of the Crown. Accordingly, he argues, by virtue of section 108(6)(a) of, and paragraph 1(1) of Part 2 of Schedule 7 to, the 2006 Act, the section is outside the legislative competence of the Assembly. If section 9 is to be interpreted as giving the Welsh Ministers power to add to the scheduled enactments any enactment which gives the Secretary of State or another Minister of the Crown a confirmatory function in relation to byelaws, then I would accept that argument. However, there could be no objection to the section, if the scope of the power it would confer on the Welsh Ministers was limited to byelaws made under enactments which currently satisfy one of two requirements. Those requirements are that the enactment concerned (i) identifies the Welsh Ministers, and not a Minister of the Crown, as having the confirmatory power, or (ii) identifies a Minister of the Crown as having the confirmatory power, but the removal of that power would be incidental or consequential within the meaning of paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act. The basis for requirement (i) is self-evident, and the basis for requirement (ii) is the same as that for concluding that section 6 is within the legislative competence of the Assembly. Although it is perfectly true that there are no express words in section 9 which limit its scope in this way, I am satisfied that it does have such a limited effect. That is because of the simple legal principle, identified by Lord Reed, embodied in the Latin maxim nemo dat quod non habet. Given that the jurisdiction of the Assembly is limited to removing, or delegating the power to remove, functions of Ministers of the Crown when the removal satisfies the requirements of paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act, the Assembly cannot confer a wider power on Welsh Ministers. Accordingly, the wide words of section 9 must be read as being circumscribed in their scope so as to render the section valid. The same conclusion can be arrived at by invoking section 154(2) of the 2006 Act. It would not be permissible to invoke that statutory provision if it was inconsistent with the plain words of section 9. However, it would, in my view, be permissible to invoke it to limit the apparently unlimited and general effect of that briefly expressed section. Such an interpretation is consistent with the thrust of the Bill as a whole, and it does not conflict with any other provision in the Bill. And that point is reinforced by the fact that all the currently scheduled enactments satisfy requirements (i) or (ii). Some procedural issues I have read in draft the judgment to be given by Lord Hope. He discusses certain practical issues in paragraphs 85 to 100, and I agree with what he says. I should add that I also agree with his further observations at paragraphs 71 to 84. Conclusion For these reasons, I would make a declaration on the reference that the Assembly had the legislative competence to enact sections 6 and 9 of the Bill. It should be added that, although this is a successful outcome for the Assembly and the Counsel General, it cannot be regarded as a setback in practical terms for the Secretary of State. Somewhat curiously, the conclusion I have reached as to the effect of section 9 is one which reflects the terms on which she was prepared to give her consent to Section 6 of the Bill. It is also right to say that, standing back, and considering the general purpose of the 2006 Act and the 1999 Order, this appears to be a sensible conclusion. As Lord Carnwath said, the desirability of streamlining and modernising the system for making byelaws is reflected in section 236A of the 1972 Act, which only applies to England, and was inserted by section 129 of the Local Government and Public Involvement in Health Act 2007. A similar system of modernising and streamlining the system in Wales is hard to object to. And, if that system removes the confirmatory function of the Secretary of State, or other Ministers of the Crown, but only where (i) the function is concurrently exercisable with Welsh Ministers, and (ii) the byelaws concerned would probably always be for the Welsh Ministers to confirm, it would be entirely consistent with the general thrust of the extended powers given to the Assembly and Welsh Ministers by Part 4 of, and Schedule 7 to, the 2006 Act. Finally, it is right to record that various other issues were canvassed in the written and oral arguments. They included the proper approach to the interpretation of the 2006 Act as a constitutional enactment, and whether certain statutory provisions mentioned in Part 1 of Schedule 1 were governed by section 236(11). Given my conclusions on the issues considered in this judgment, it is unnecessary to determine those other issues, and it therefore seems to me appropriate to leave them to be resolved if and when it is necessary to do so in a future appeal or reference. LORD HOPE (with whom Lord Clarke, Lord Reed and Lord Carnwath agree) I add this supplement to Lord Neubergers judgment, with which I am in full agreement, in order to do two things. The first is to make some general observations on the approach to issues about the legislative competence of the National Assembly for Wales in the light of the Scottish experience. The second is to provide guidance on some matters of practice which require clarification in the light of the way this reference has been dealt with. Background The making of this reference to the Supreme Court is a significant event in Welsh law. The Local Government Byelaws (Wales) Bill 2012 is the first Bill to have been passed by the Assembly. That in itself is important, as it has provided the Assembly with the first opportunity to put into practice its power to make laws. That power was given to it by section 107(1) of the Government of Wales Act 2006 (the 2006 Act) upon the coming into force on 5 May 2011 of the Assembly Act provisions in Part 4 of the Act. Now there is the making of the reference. This is an even more significant milestone than, in the words of Lady Cosgrove, the case of A v Scottish Ministers [2002] SC (PC) 63 was for Scotland: see para 2. In that case the first Act of the Scottish Parliament, the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, received the Royal Assent 13 days after the Bill had been introduced in the Parliament as a matter of urgency. A restricted patient who was being detained in the State Hospital then challenged the Parliaments legislative competence on the ground that the Act was incompatible with his Convention rights. It took nearly two years before, after working its way through the devolution issues procedure, the challenge was finally dismissed by the Judicial Committee of the Privy Council. Here use is being made, for the first time, of the power that is given by section 112 of the 2006 Act to the Counsel General or the Attorney General to refer the question whether a Bill would be within the Assemblys legislative competence to the Supreme Court for decision before it is submitted for Royal Assent under section 115. A similar provision was included in section 33 of the Scotland Act 1998 (the 1998 Act) to ensure that the Lord Advocate and the law officers of the United Kingdom Government were content that Bills of the Scottish Parliament were within competence before they were submitted for Royal Assent under section 32 by the Presiding Officer. The Scottish Parliament has passed many Bills since that Act came into force. But none of them has been challenged before enactment by any of the relevant law officers. So there has not yet been an occasion for the making use in relation to any of its Bills of the power under section 33 for pre-legislative scrutiny. The reason why a reference has been made in this case, in contrast to the lack of use of the equivalent provision in Scotland, is likely to lie in differences between the systems that have been used to devolve legislative power to the devolved legislatures from the United Kingdom Parliament at Westminster and executive power to the devolved governments from Ministers of the United Kingdom Government. Under the Scottish system, the general power to make laws conferred on the Scottish Parliament by section 28 is subject to section 29 of the 1998 Act, which provides that an Act of the Scottish Parliament is outside its competence so far as, among other things, it relates to matters reserved to Westminster or is in breach of the restrictions in Schedule 4. A list of the reserved matters is set out in Schedule 5 to the 1998 Act. These provisions were accompanied by a general transfer of functions conferred on Ministers of the Crown to the Scottish Ministers by section 53, so far as these functions are exercisable within devolved competence. This difference of approach can be illustrated by comparing the restrictions on the powers of the Assembly under Part 2 of Schedule 7 to the 2006 Act, read together with the exceptions in Part 3, with the restrictions on the powers of the Scottish Parliament under Schedule 4 to the 1998 Act. The Assembly cannot remove or modify, or confer power by subordinate legislation to remove or modify, any pre-commencement function of the Minster of the Crown unless (a) the Secretary of State consents to the provision or (b) the provision is incidental to, or consequential on, any other provision contained in the Act of the Assembly: paragraph 1 of Part 2 read together with paragraphs 6(1)(a) and (b) of Part 3. The phrase incidental to, or consequential on is used in paragraph 3(1)(a) of Schedule 4 to the 1998 Act, which provides that the restriction on the power of the Scottish Parliament to modify, or confer power by subordinate legislation to modify, the law on reserved matters does not apply to modifications which are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters. But there is no reference here or anywhere else in the 1998 Act which defines devolved competence differently, to removing a pre-commencement function of a Minister of the Crown. A proper understanding of the effect of Schedule 7 to the 2006 Act, and of paragraph 6(1)(b) of Part 3 in particular, is of central importance to the resolution of the issue raised by this reference. So I think that it was entirely proper for the Attorney General to refer sections 6 and 9 of the Bill to this court for pre- legislative scrutiny under section 112 rather than raise the issue after its enactment as a devolution issue under section 149 and Schedule 9. Any delay in the submitting of a Bill which has been passed by the Assembly for Royal Assent is, of course, to be regretted. It was with that in mind that the hearing was given the earliest possible date in the courts programme. But it is to be hoped that it will be more than compensated for by the benefits that will come from the removal of uncertainty at the first opportunity as to whether sections 6 and 9 are within legislative competence. General principles It may be helpful to restate, in the Welsh context, some principles of general application that have guided the court when dealing with issues about the legislative competence of the Scottish Parliament. First, the question whether a Bill of the Assembly is within its legislative competence is a question of law which, if the issue is referred to it, the court must decide. The judicial function in this regard has been carefully structured. It is not for the judges to say whether legislation on any particular issue is better made by the Assembly or by the Parliament of the United Kingdom at Westminster. How that issue is to be dealt with has already been addressed by the United Kingdom Parliament. It must be determined according to the particular rules that section 108 of the 2006 Act and Schedule 7 have laid down. Those rules, just like any other rules, have to be interpreted. It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence. Second, the question whether the Bill is within competence must be determined simply by examining the provisions by which the scheme of devolution has been laid out. That is not to say that this will always be a simple exercise. But, as Lord Walker observed in Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, para 44 when discussing the system of devolution for Scotland, the task of the United Kingdom Parliament in relation to Wales was to define the legislative competence of the Assembly, while itself continuing as the sovereign legislature of the United Kingdom. It had to define, necessarily in fairly general and abstract terms, permitted or prohibited areas of legislative activity. The aim was to achieve a constitutional settlement, the terms of which the 2006 Act was designed to set out. Reference was made in the course of the argument in the present case to the fact that the 2006 Act was a constitutional enactment. It was, of course, an Act of great constitutional significance, and its significance has been enhanced by the coming into operation of Schedule 7. But I do not think that this description, in itself, can be taken to be a guide to its interpretation. The rules to which the court must apply in order to give effect to it are those laid down by the statute, and the statute must be interpreted like any other statute. But the purpose of the Act has informed the statutory language, and it is proper to have regard to it if help is needed as to what the words mean. Third, the question whether measures passed under devolved powers by the legislatures in Wales, Scotland and Northern Ireland are amenable to judicial review, and if so on what grounds, was considered in AXA General Insurance Company Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868. The court in that case had the benefit of submissions by the Counsel General. It was common ground that, while there are some differences of detail between the 2006 Act and the corresponding legislation for Scotland and Northern Ireland, these differences do not matter for that purpose. The essential nature of the legislatures that the devolution statutes have created in each case is the same. But it has not been suggested that the Bill is the result of an unreasonable, irrational and arbitrary exercise of the Assemblys legislative authority. This case is concerned only with the question whether the Bill is outside competence under the provisions laid down by the statute. In the light of these principles the issue at the heart of the argument about section 6 of the Bill resolves itself into a simple question: what is meant by the phrase incidental to, or consequential on in paragraph 6(1)(b) of Part 3 of Schedule 7 to the 2006 Act? Section 6 would have the effect of removing a pre- commencement function of a Minister of the Crown. According to the rules that section 108 read together with Part 2 of Schedule 7 have laid down, a provision of an Act of the Assembly cannot do this unless it falls within one of the exceptions in paragraph 6 of Part 3. I agree with Lord Neuberger that section 6 falls within the exception in paragraph 6(1)(b). The words incidental to, or consequential on, any other provision contained in the Act of the Assembly make it clear that the interpretative exercise to which it points is one of comparison. How significant is the removal of the pre-commencement function, when it is seen in the context of the Act as a whole? If the removal has an end and purpose of its own, that will be one thing. It will be outside competence. If its purpose or effect is merely subsidiary to something else in the Act, and its consequence when it is put into effect can be seen to be minor or unimportant in the context of the Act as a whole, that will be another. It can then be regarded as merely incidental to, or consequential on, the purpose that the Bill seeks to achieve. The provision in question meets this test. So it is within competence. I also agree with what he says about section 9. On the face of it, the power that it gives to add or subtract from the list of enactments is open-ended. This, no doubt, is why the UK Government has thought it right to raise the question whether it too is within competence. But it falls to be read as narrowly as is required for it to be within competence, if such a reading is possible, and to have effect accordingly: see section 154(2). That can be done by reading it in a way that brings it within the exception in paragraph 6(1)(b) of Part 3 of Schedule 7. The Assembly does not have legislative competence to confer on the Welsh Ministers powers that are wider than those which have been given to it by the 2006 Act. So it will be open to the Welsh Ministers to add to the list of enactments in Part 1 of Schedule 1 to the Bill by removing a pre-commencement function of a Minister of the Crown without the consent of the Secretary of State only if it meets the test in paragraph 6(1)(b). I see no difficulty in reading section 9 in this way, and in holding that the power is to have effect subject to that limitation. So it too is within competence. Practice The method which the Attorney General used for the bringing of this reference was to file a Notice of Appeal in the form for applications for permission to appeal or appeals which is described as Form 1 in UKSC Practice Direction 7.3.2 and its Annex. It named the National Assembly for Wales as the only respondent and its Chief Legal Advisor, on whom the Notice of Appeal was served, as its solicitor. The Counsel General for Wales and the Attorney General for Northern Ireland were later joined as respondents at their own request. The use of this procedure raises two questions. The first is as to the correct procedure that should be adopted under Rule 41 of the Supreme Court Rules 2009 and Practice Direction 10 for the making of a reference under section 112 of the 2006 Act and its counterparts in Scotland and Northern Ireland. The second has two parts. First, was it appropriate for the Assembly to be called as a respondent to these proceedings? Second, what are the circumstances in which the Assembly, although not called as respondent, would have standing to appear in proceedings which raise questions as to the legislative competence of one of its enactments? The only previous example of a reference being made to the Supreme Court of a Bill passed by a devolved legislature is a reference that was made by the Attorney General for Northern Ireland in 2011. As was noted in AXA General Insurance Co Ltd v Lord Advocate [2012] 1 AC 868, para 15, he referred the question whether the Damages (Asbestos-related Conditions) (Northern Ireland) Bill was within the competence of the Northern Ireland Assembly for pre- enactment scrutiny under section 11 of the Northern Ireland Act 1998. He too used Form 1 for this purpose and the reference was served on the Northern Ireland Assembly, which was named on the form as the only respondent. The Northern Ireland Assembly responded by serving a notice of objection indicating its opposition to the grounds of the reference. It used the form which is described as Form 3 in Practice Direction 7.3.2 and its Annex. But the reference was withdrawn before the hearing of the appeal in AXA took place. So there was no opportunity for a discussion of the procedural issues in that case. (a) the reference procedure Rule 41 of the Supreme Court Rules 2009 (SI 2009/1603 (L17)) provides: (2) A reference made by the relevant officer is made by filing the reference and by serving a copy on any other relevant officer who is not already a party and who has a potential interest in the proceedings. [emphasis added] (3) A reference must state the question or issue to be decided by the Court. (4) The Registrar shall give notice of the question or issue to the appropriate relevant officer where that officer is not already a party to any proceedings. Rule 3(2) of the Supreme Court Rules defines the expression relevant officer as meaning, in relation to proceedings in England and Wales, the Attorney General and, in relation to proceedings that particularly affect Wales, the Counsel General to the Welsh Assembly Government. The procedure to be used in cases which raise devolution issues is dealt with in Practice Direction 10. It is pointed out in Practice Direction 10.1.3 that such a case can reach the Supreme Court in four ways, one of which is by way of a reference by a relevant officer. Practice Direction 10.1.4 repeats the definition of the expression relevant officer which is set out in Rule 3(2). The four ways in which a devolution issue may reach the Supreme Court are then dealt with under four separate headings. Practice Direction 10.2, under the heading references of a question by a relevant officer, states: 10.2.1 A reference of a question by a relevant officer is made by filing the reference, and serving a copy on any other relevant officer who is not already a party and who has a potential interest in the proceedings, within any time limits specified by the relevant statute. [emphasis added] 10.2.2 The reference should state the question to be determined with respect to the proposed Order in Council, proposed Assembly Measure or Bill to which the reference relates; whether it applies to the whole Order in Council, proposed Assembly Measure or Bill or to a provision of it, and the reference shall have annexed to it a copy of the Order in Council, Assembly Measure or Bill to which it relates. 10.2.3 Any relevant officer (other than the one making the reference) who wishes to participate in the proceedings shall within 7 days of service of the reference on him notify the Registrar and the other parties. Any relevant officer who gives notice automatically becomes a respondent to the proceedings. As these provisions make clear, the reference should be served on any other relevant officer. Those words are to be read together with the definition of the expression relevant officer in Rule 3(2) and Practice Direction 10.1.4. There ought not to have been any room for doubt that, in the case of a reference by the Attorney General of a Bill of the National Assembly for Wales, the Counsel General had a potential interest in the proceedings. So the reference should have been served on him. It should not have been served on the Assembly which is not referred to in any of these provisions. It is not a relevant officer. It should also be noted that, in contrast to what is set out in the part of Practice Direction 10 which deals with appeals to the Supreme Court (see Practice Direction 10.3.5), the procedure set out in Practice Direction 10.2 does not lay down any particular form for use in such proceedings: see also Practice Direction 10.4.1 for references by courts and Practice Direction 10.5.1 for direct references by a law officer. These Practice Directions do not refer to Form 1. That form is designed for use only for notices of appeal and applications for permission to appeal. As the wording of Practice Direction 7.3.2 makes clear, it is not designed for use in the case of references. Counsel for the Attorney General submitted that these provisions fail to identify who is the respondent to a section 112 reference, and that there is a lack of coherence in the combination of Rule 41 and Practice Direction 10. I do not think that this does justice to the provisions which I have quoted. They require service of the reference on any other relevant officer, and they provide that he will automatically become a respondent to the proceedings if he notifies the Registrar that he wishes to participate in them. The phrase any other relevant officer reflects the fact that section 112 does not state that there must be a respondent to a reference that is made under it. Circumstances can be envisaged where that would not be appropriate. It would, for example, be open to the Counsel General, to make a reference of a question about legislative competency in which no other relevant officer has an interest on the ground, for example, that a provision was incompatible with the Convention rights: see section 108(6)(c). The court will, of course, benefit from the argument of a contradictor. But it is not in a position to compel the appearance of a law officer who does not wish to participate. What it seeks to ensure is that any other relevant officer is notified. What then happens is up to the relevant officer. It should be understood therefore (a) that proceedings on a reference under section 112 of the 2006 Act and its counterparts in Scotland and Northern Ireland are proceedings sui generis and (b) that they should be served on, and only on, any other relevant officer in his capacity as a relevant officer, not as a respondent. He will become a respondent if, and only if, he notifies the Registrar that he wishes to participate. There is no requirement for the reference to be served on the National Assembly, although Practice Direction 10.2.6 states that it must be notified. Notification also should be given to the Clerk of the Assembly appointed under section 26. This is because it is her function to submit the Bill for Royal Assent under section 115. She may not do this if a reference has been made and not yet disposed of by the Supreme Court: section 115(2). The Presiding Officer has the same function in Scotland, and is under the same prohibition, with regard to Acts of the Scottish Parliament under section 32(2) of the 1998 Act; see, as regards Northern Ireland, section 11(2) of the Northern Ireland Act 1998. No form has been laid down for use in the case of references. So it is open to the law officer or court, on making the reference, to adopt whatever style and layout is thought to be most appropriate in the circumstances. The Registrar must however be provided with the following information for administrative purposes: (a) the names, addresses and contact details of the party making the reference and his legal representatives; (b) the names, addresses and contact details of any relevant officer on whom the reference has been served and his legal representatives; and (c) similar details of any person who has been notified. These details should be set out in a covering document, to which the reference and any accompanying documents should be attached. The Practice Directions are kept under continuous review and amended from time as required. Amendments are needed to take account of changes in the systems for devolution. For example, references to a Measure of the National Assembly for Wales in Practice Direction 10 are no longer appropriate as Part 3 of the 2006 Act has ceased to have effect. They will need to be deleted. Changes will be needed to take account of a new system for appeals to the Supreme Court in devolution questions arising in criminal cases under the Scotland Act 2012 which are classified as compatibility issues. Account will be also have to be taken of the points mentioned in this judgment. A revised version of the Practice Directions will be issued in due course. (b) participation of the Assembly The 2006 Act confers no legal personality on the National Assembly for Wales. Instead the National Assembly for Wales Commission was established by section 27, which does have legal personality. The Commission has the duty of providing the Assembly with the property, staff and premises required for its purposes: section 27(5). Further provisions about the Commission are set out in Schedule 2 to the 2006 Act. Among them is paragraph 4 which sets out its powers. These include, in particular, entering into contracts, charging for goods and services, investing sums not immediately required for its functions and accepting gifts: paragraph 4(2). There is no indication either in section 27 itself or in the Schedule that it was contemplated that either the Assembly or the Commission should have the right to institute, defend or appear in legal proceedings in which the legislative competence of a Bill passed by the Assembly was under scrutiny. Section 112(1) of the 2006 Act confers the function of referring a question about legislative competence on the Counsel General or the Attorney General. The Counsel General represents the interests of the Welsh Ministers on the one hand and the Attorney General represents the interests of the Ministers of the Crown on the other. So their positions under this provision can be regarded as reciprocal. Each can be taken to have the right to appear in proceedings raised by the other, which he can exercise if he wishes to do so. References to the right of the Counsel General to bring and defend proceedings are also to be found in Schedule 9: see, for example, paragraphs 4, 13, 14 and 30. No reference is made anywhere in such terms to the Assembly or the Commission. In Adams v Advocate General 2003 SC 171 a challenge was made by way of a petition for judicial review to the validity of the Protection of Wild Mammals (Scotland) Act 2002, which was an Act of the Scottish Parliament. Among the questions raised was whether the Act was outside the Parliaments legislative competence. The Advocate General for Scotland lodged answers in which she contended that the Scottish Parliament was the appropriate respondent and that, since proceedings instituted against the Parliament must be instituted against the Parliamentary corporation in terms of section 40(1) of the 1998 Act, the corporation ought to have been called as respondent. Lord Nimmo Smith rejected this contention: see para 31. He said that the proceedings were not proceedings against the Parliament within the meaning of section 40(1), as by the stage when they were brought the Act had passed out of its hands. Appearing as a contradictor did not appear to be one of the corporations functions, and it was clear from the scheme of the Act that the Lord Advocate, as the Scottish law officer acting in the public interest, was the appropriate person to perform that role. I would apply the same reasoning to a case where the challenge to legislative competence was made after a Bill had been enacted and become an Act of the Assembly. The situation in this case is different, as the Bill is still in the hands of the Clerk. So it cannot be said to have passed out of the hands of the Assembly. But the more important point is that appearing as a contradictor to a challenge of that kind is not one of the Commissions functions under the 2006 Act. The way that Act has set out its functions and those of the Counsel General must be respected. The appropriate person to represent the public interest in resisting a challenge of that kind is the Counsel General, whose functions include making appropriate representations about any matter affecting Wales: section 62. The scope that is given to him by that section makes any intervention by the Assembly or the Commission in such proceedings unnecessary. This is not to say that the Assembly or the Commission may not have standing to appear in proceedings in which such questions are raised. There may be cases where the views of the Assembly or the Commission, one way or the other, might be of assistance. In that event the court would be willing to give permission to these bodies, or either of them, to intervene under Rule 26 if it was asked to do so. This should not be regarded, however, as detracting from the rule that the appropriate person on whom such proceedings should be served is the Counsel General or, if the proceedings are brought by the Counsel General, the Attorney General. Conclusion For the reasons given by Lord Neuberger, I would determine this reference by declaring that sections 6 and 9 of the Local Government Byelaws (Wales) Bill 2012 are within the legislative competence of the Assembly.

UK-Abs

Following a referendum, various provisions of the Government of Wales Act 2006 (the 2006 Act) came into force on 5 May 2011. These provisions gave the National Assembly for Wales (the Assembly) primary legislative competence in certain areas [5]. If there is an issue as to whether a Bill, or a provision in a Bill, passed by the Assembly exceeds legislative competence, the issue can be referred to the Supreme Court [6]. The Local Government Byelaws (Wales) Bill 2012 (the Bill) was the first Bill to be enacted by the Assembly under these new powers. The aim of the Bill is to simplify procedures for making and enforcing local authority byelaws in Wales [7]. Certain provisions of the Bill are intended to remove the need for the confirmation of byelaws by the Welsh Ministers and by the Secretary of State [8]. This need arises by virtue of the Local Government Act 1972 (the 1972 Act) and the National Assembly for Wales (Transfer of Functions) Order 1999 (the 1999 Order). The effect of section 236(11) of the 1972 Act is that, where a statutory provision giving a local authority the power or duty to make the byelaw either so provides or is silent as to the existence or identity of a confirmatory body or person, before any byelaw made under that provision by a local authority can be effective, the Secretary of State has to confirm the byelaw [16]. Schedule 1 to the 1999 Order provides that the functions of the Secretary of State under section 236(11) of the 1972 Act shall be exercisable by the Assembly concurrently with the Secretary of State [20]. The Attorney General referred to the Supreme Court the question whether sections 6 and 9 of the Bill were within the Assemblys legislative competence [1]. Section 6 of the Bill (through Part 1 of Schedule 1 to the Bill) removes the need for the confirmation of byelaws under certain specific enactments (the scheduled enactments) which currently require confirmation under section 236(11) of the 1972 Act. Section 9 would empower the Welsh Ministers to add to the scheduled enactments [8]. The specific issue in relation to sections 6 and 9 was whether either section removed the Secretary of States role in confirming (or refusing to confirm) byelaws made under statutory provisions which are (i) scheduled enactments, and (ii) provisions to which section 236(11) applies. If either section removed this role, they would be beyond the legislative competence of the Assembly, unless they were incidental to, or consequential on another provision contained in the Bill [46]. The Supreme Court unanimously declares that the Assembly had the legislative competence to enact sections 6 and 9 of the Bill. Lord Neuberger gives the leading judgment. Lord Hope gives guidance on some matters of practice regarding the making of such references. Section 6 is within the legislative competence of the Assembly [66],[83]. The removal of the Secretary of States confirmatory powers in relation to the scheduled enactments would be incidental to, and consequential on, the primary purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments [52],[53]. The primary purpose of the Bill cannot be achieved without that removal [54]. The Secretary of States confirmatory power is concurrent with that of the Welsh Ministers [55]. It is open to either the Secretary of State or the Assembly to exercise any functions which are exercisable concurrently [37]. Where a function is vested in two Ministers concurrently, either may perform it, acting alone, on any occasion [40]. It is far more sensible and consistent with the purpose of the Welsh Government legislation to conclude that the Assembly and the Secretary of State were each intended to have the power to exercise the concurrent functions, and that it was to be left to their good sense to decide which should exercise a particular function in a particular case [41]. The confirmatory power is only given to the Secretary of State if no other statute (including one passed after the 1972 Act) confers the function on any other body or person, which supports the notion that it is not an important function [56]. The scheduled enactments relate to byelaws in respect of which the Secretary of State is very unlikely ever to exercise his confirmatory power [57]. Section 9 is within the legislative competence of the Assembly [66],[84]. Section 9 has a limited effect, because the jurisdiction of the Assembly is limited to removing, or delegating the power to remove, functions of the Secretary of State where this would be incidental to, or consequential on, the purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments, and the Assembly cannot therefore bestow wider powers than this on the Welsh Ministers [63]. The same conclusion can be arrived at by invoking section 154(2) of the 2006 Act, which provides that a provision of a Bill which could be read in a way as to be outside the Assemblys legislative competence is to be read as narrowly as is required for it to be within that competence [64]. The outcome of this reference is in favour of the Assembly, but it cannot be regarded as a setback in practical terms for the Secretary of State, because the conclusion the Supreme Court has reached as to the effect of section 9 of the Bill is one which reflects the terms on which the Secretary of State was prepared to give consent to section 6 of the Bill [67]. The outcome is also entirely consistent with the general thrust of the extended powers given to the Welsh Ministers by the 2006 Act [68]. Guidance on matters of practice In terms of the relevant rules and practice direction, the reference should not have been served on the Assembly. Rather, it should have been served on the Counsel General in his capacity as a relevant officer having a potential interest in the proceedings. He can then become a respondent if he notifies the Registrar that he wishes to participate [90],[93]. As no form has been laid down for use in the case of references (as opposed to appeals) involving devolution issues, it is open to the referring law officer or court to adopt whatever style and layout is thought to be most appropriate in the circumstances. The Registrar must however be provided with certain information for administrative purposes [94]. Appearing as a contradictor to a challenge to the legislative competence of a Bill or an Act of the Assembly is not one of the Assembly Commissions functions under the 2006 Act. The appropriate person to represent the public interest in resisting such a challenge is the Counsel General. There may however be cases in which the court will allow the Assembly or the Assembly Commission to participate as an intervener [99],[100].

an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976? The 1976 Act was repealed by section 211(2) of, and Schedule 27 to, the Equality Act 2010 and with effect from 1 October 2010 the provision in section 4(2)(c) has been subsumed in section 39(2)(c) of the 2010 Act. INTRODUCTION The appellant, Miss Hounga, appears to have a current age of about 21. She is of Nigerian nationality and now resides in England. In January 2007, when she was aged about 14, she came from Nigeria to the UK under arrangements made by the family of the respondent, Mrs Allen, who is of joint Nigerian and British nationality and who resides in England with her children. Pursuant to these arrangements, in which Miss Hounga knowingly participated, her entry was achieved by her presentation to UK immigration authorities of a false identity and their grant to her of a visitors visa for six months. For the following 18 months Miss Hounga lived in the home of Mrs Allen and of her husband who, albeit formally a respondent to it, plays no part in this appeal. Although Miss Hounga had no right to work in the UK, and after July 2007 no right to remain in the UK, Mrs Allen employed her to look after her children in the home. In July 2008 Mrs Allen evicted Miss Hounga from the home and thereby dismissed her from the employment. This appeal proceeds on the basis that, by dismissing her, Mrs Allen discriminated against Miss Hounga in that on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others. In due course Miss Hounga issued a variety of claims and complaints against Mrs Allen in the Employment Tribunal (the tribunal). The one claim or complaint which the tribunal upheld was her complaint of unlawful discrimination but only that part of it which related to her dismissal. In this regard it ordered Mrs Allen to pay compensation to her for the resultant injury to her feelings in the sum of 6,187. The Employment Appeal Tribunal (the appeal tribunal) dismissed Mrs Allens cross appeal against the order. But the Court of Appeal upheld a further cross appeal brought by Mrs Allen against it and set it aside: [2012] EWCA Civ 609, [2012] IRLR 685. By a judgment given by Rimer LJ, with which Longmore LJ and Sir Scott Baker agreed, the court held that the illegality of the contract of employment formed a material part of Miss Houngas complaint and that to uphold it would be to condone the illegality. It is against the Court of Appeals order, dated 15 May 2012, that Miss Hounga brings her appeal. A small claim generates an important point. Miss Hounga and Mrs Allen both gave oral evidence to the tribunal, which concluded that both of them, but particularly Mrs Allen, had lied to it. The unreliability of the evidence must have made the tribunals task of resolving factual issues difficult. Furthermore the tribunals rejection of part of Miss Houngas complaint on jurisdictional grounds, explained in para 18(c) below, may have led it to consider that it had no need to make certain findings. But whether these factors entirely explain the tribunals widespread failure to find facts is unclear. The absence of findings has hampered the inquiry at all three appellate levels. Miss Houngas evidence was that, when she travelled to the UK in January 2007, she had been aged only 14. She said that an affidavit which she had sworn in Lagos just prior to her journey, in which she asserted that she had been born in July 1986 and so was then aged 20, was untrue. Mrs Allen contended before the tribunal that the assertion in Miss Houngas affidavit was true or, at any rate, that she had been an adult by the date of her entry into the UK. Expert evidence supported Miss Houngas contention that in January 2007 she had been aged only 14. A consultant paediatrician with expertise in assessing age reported in January 2009 that at the date of his report she was aged about 16 and was certainly no more than 18. In June 2009 a local authority conducted a Merton compliant age assessment and concluded similarly that, at the date of its assessment, Miss Hounga was aged 16. The tribunal said only that it was impossible to make a definite finding in relation to Miss Houngas age. It referred to the report and to the assessment but, while it did not make an express finding about her age even in approximate terms, it gave no reason for disagreeing with them. It also accepted Miss Houngas assertion that in the affidavit sworn in Lagos she had falsified her date of birth. In these circumstances, unsatisfactory though they are, it is reasonable to proceed and to conclude that the tribunal proceeded on the basis that, at the time of her entry into the UK, Miss Hounga had been aged about 14. A psychological report on Miss Hounga, dated July 2009, was presented to the tribunal on her behalf but in its reasons the tribunal did not refer to it. The psychologist reported that Miss Houngas cognitive functioning might well be in the extremely low range and indicated a learning disability; that she had long term emotional difficulties; and that she functioned at a developmental age much lower than her chronological age which, again, the writer took to be 16 as at the date of the report. The tribunal did acknowledge that Miss Hounga was illiterate and had not received an education in Nigeria but it added that she spoke English well. Understandably the tribunal did not resolve an issue whether, as Miss Hounga claimed, her parents were dead. It did find, however, that in due course Miss Hounga had joined the well to do family of Mrs Allens brother in Lagos; that for two years she had lived there as a home help; that in due course Mrs Allens mother, who lived in England but was visiting Lagos, and Mrs Allens brother had jointly put a proposal to Miss Hounga, which she had willingly accepted, that she should go to live in England with Mrs Allen, where she would again work as a home help but would also go to school; and that, by telephone, Mrs Allen had offered to pay her 50 per month additional to the provision of bed and board. The tribunal found that it was the prospect of education in England which particularly attracted Miss Hounga. The tribunal found that Mrs Allens brother in Lagos had thereupon masterminded a plan, in which Mrs Allen and her mother had been complicit, to secure Miss Houngas entry into the UK. It was pursuant to the plan that Miss Hounga had sworn the affidavit, drafted in terms directed by Mrs Allens brother, in which she had asserted not only that she had been born in July 1986 (and that her birth certificate had been lost) but also that her surname was that of Mrs Allens mother. The affidavit had led to the issue to Miss Hounga of a Nigerian passport in that name. Mrs Allens family had then caused Miss Hounga to be driven to the British High Commission in Lagos, where she had produced a document by which Mrs Allens mother, pretending to be Miss Houngas grandmother, had purported to invite her to come to stay with her in England. The High Commission had thereupon given her entry clearance. Mrs Allens brother had then purchased a ticket for her travel to England. On arrival at Heathrow on 28 January 2007 Miss Hounga had confirmed to an immigration officer that the purpose of her visit was to stay with her grandmother. Miss Houngas passport had thereupon been indorsed with a visitors visa, valid for six months. The tribunal found that Miss Hounga (a) knew the difference between right and wrong; (b) knew that the assertions in her affidavit about her name and date of (c) knew that she had secured the right to enter the UK on false pretences; birth had been false; (d) knew that it was illegal for her to remain in the UK beyond 28 July (e) knew that it was illegal for her to take employment in the UK. 2007; and Mrs Allen met Miss Hounga at Heathrow and took her to her home in Hanworth, Middlesex. For the next 18 months Miss Hounga acted, according to the tribunal, as a sort of au pair. She helped to care for the three small children of Mrs Allen and her husband, who at that time was also living in the home. She also did housework. She was not entirely confined to the house. She went with the family by car to the supermarket but stayed inside the car while Mrs Allen did the shopping. Occasionally she went with the family to the local park; and once they all went to Thorpe Park. She knew the whereabouts of the key to the front door and was allowed to open it to callers. Mrs Allen bought earrings and clothes for her. But Miss Hounga was never enrolled in a school and, although she was provided with bed and board, she was never paid 50 per month or any wages at all. It was Miss Houngas case before the tribunal that, prior to her departure from the home on 17 July 2008, Mrs Allen had regularly treated her with violence and threats and had thereby harassed her. Miss Hounga gave a detailed account, albeit unsupported by dates, of various acts of violence allegedly perpetrated upon her by Mrs Allen and of ugly threats allegedly made by her. Mrs Allen denied all these allegations. In the event the tribunal made only two findings in this regard, namely first that Mrs Allen had inflicted serious physical abuse on Miss Hounga and second that she had caused her extreme concern by telling her that, were she to leave the house and be found by the police, she would be sent to prison because her presence in the UK was illegal. But the tribunal did accept in full Miss Houngas account of the incident which led to her departure on 17 July 2008, as follows: (a) on that evening Mrs Allen was angry to discover that the children had not eaten the supper which she had directed Miss Hounga to prepare for them; (b) Mrs Allen smacked and hit Miss Hounga; (c) after Miss Hounga had put the children to bed, Mrs Allen attacked and beat her, threw her out of the house and poured water over her; (d) on his return from work, Mrs Allens husband let Miss Hounga back into the house but he later changed his mind and said that Mrs Allen could do whatever she liked to Miss Hounga; (e) thereupon Mrs Allen opened the front door, told Miss Hounga to leave the house and to die and pushed her outside again; (f) that night Miss Hounga slept in the garden in her wet clothes; (g) at 7:00 am she tried to get back into the house but no one would open the door; and (h) she then made her way to a supermarket car park, where she was found and taken to the social services department of the local authority. PROCEEDINGS In December 2008 Miss Houngas claim was filed in the tribunal on her behalf. It did not, at first, recite Mrs Allens address: for, although she had lived there for 18 months, Miss Hounga had remained unaware of it. It was only later that her lawyers discovered it. Miss Houngas claim had various components. They fell into two groups, which, in the interests only of convenience, I will describe as the contract claims and the discrimination complaints. The former included claims for unfair dismissal, breach of contract, unpaid wages and holiday pay. The latter were brought under the Race Relations Act 1976 (the Act) and comprised complaints of racial discrimination both in the form of harassment prior to Miss Houngas dismissal contrary to section 3A of the Act and in relation to the dismissal itself contrary to section 4(2)(c) of the Act. Mrs Allen filed an initial response to the claims and complaints in which she alleged that, other than perhaps meeting Miss Hounga in Hanworth, she had had no dealings with her in any way and had never employed her. At a case management discussion Mrs Allen changed her account only to the extent of accepting that Miss Hounga had visited her house on a number of occasions. It was only later that Mrs Allen accepted that Miss Hounga had lived in her house for an extended period. (a) The tribunal upheld Miss Houngas assertion that there had been a contract of employment between her and Mrs Allen. In the appellate proceedings Mrs Allen did not challenge this determination. (b) The tribunal dismissed Miss Houngas contract claims on the basis that, as she knew, it was illegal for her to have entered into the contract of employment and that the defence of illegality operated so as to defeat such of her claims as were based on it. Miss Hounga unsuccessfully appealed to the appeal tribunal against the dismissal of her contract claims but did not appeal further in that regard. (c) The tribunal dismissed Miss Houngas complaint of pre dismissal harassment on the ground that she had not complied with the grievance procedure made applicable to such a complaint by Schedule 4 to the Employment Act 2002 and that she was therefore precluded from presenting it by section 32(2) of that Act. The appeal tribunal dismissed Miss Houngas appeal in this regard. The Court of Appeal, however, upheld her further appeal in this regard. It held that the tribunal and the appeal tribunal had failed to consider her assertion that the circumstances were as specified in regulation 11(3)(c) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752) and that therefore, by regulation 11(1), the grievance procedure did not apply. The court ruled, however, that it would be futile to remit the point for determination by the tribunal because the complaint of discrimination in relation to pre dismissal harassment would in any event face defeat on the ground on which the court was rejecting the complaint of discrimination in relation to the dismissal itself. (d) The tribunal upheld Miss Houngas complaint of discrimination in relation to the dismissal itself. It was agreed that on any view the grievance procedure did not apply to this complaint. The tribunal found that Mrs Allen had dismissed Miss Hounga from her employment because of her vulnerability consequent upon her immigration status, i.e. upon the absence of any right for her either to remain in the UK or to have taken the employment in the first place. It made the order for compensation which the Court of Appeal subsequently set aside. NEW POINTS A month prior to the hearing in this court Mrs Allen, by her solicitors, indicated that she proposed at its inception to apply for permission under para 6.3.3 of UKSC Practice Direction 6 to raise two points which had not been raised on her behalf at any earlier stage of the proceedings. The court received argument on the application accordingly. The first point was based on section 4(3) of the 1976 Act, which has not been replicated in the 2010 Act. The effect of the subsection was that, in the case of employment for the purposes of a private household, it was not unlawful for the employer to discriminate against the employee by dismissing her (or him) on ground of nationality (as opposed to grounds of race or ethnic or national origins). Miss Hounga conceded that, had it been invoked before the tribunal, the subsection would have defeated her complaint of discrimination in relation to dismissal on ground of nationality and that such had indeed been the ground on which in the event the tribunal had upheld it. She contended, however, that, had it then been invoked, she would, as foreshadowed by the general terms of her claim form, have presented the grounds of discrimination as being those of race or ethnic or national origins. Mrs Allen, for her part, conceded that, in the light of its terms, the subsection could not operate so as to defeat the complaints of pre dismissal harassment which, were this court to uphold Miss Houngas appeal against the Court of Appeals application of the illegality defence, would fall to be remitted to the tribunal. The second point was that, in asking itself pursuant to section 1(1)(a) of the 1976 Act whether on ground of nationality Mrs Allen had treated Miss Hounga less favourably than she would treat other persons, the tribunal had fallen into error in its construction of the hypothetical other persons. Without objection on behalf of Mrs Allen, the tribunal had compared her treatment of Miss Hounga with her hypothetical treatment of a British subject, i.e. a person entitled to remain and work here. That such was the correct comparison had not been challenged on behalf of Mrs Allen whether in the appeal tribunal or in the Court of Appeal. Nevertheless her second new point was that such was an incorrect comparison. She wished to argue that many foreign nationals had rights to remain and work in the UK; that therefore it did not follow from a persons foreign nationality that she (or he) had no such right; that therefore an employer who discriminated against an employee of foreign nationality on grounds that she had no right to remain or work in the UK did not discriminate against her on ground of nationality; put another way, that it was incorrect to construct a comparator who had such rights; and that the correct comparator was a person who had a foreign nationality other than Nigerian but who was remaining in the UK illegally and had no right to work. Following receipt of the argument this court announced that it refused to grant permission to Mrs Allen to introduce either of the new points. The basis of its refusal was only that the points were raised too late. The result of the refusal is that, in the event that the court were to uphold Miss Houngas challenge to the Court of Appeals application of the illegality defence to her complaint in relation to dismissal, the tribunals award would be restored and not amenable to further challenge. In that event, her complaint in relation to pre dismissal harassment on grounds of race or ethnic or national origins would be remitted to the tribunal to determine whether the ground identified by the Court of Appeal for possible disapplication of the grievance procedure existed and, if so, whether the complaint was established. THE DEFENCE OF ILLEGALITY It will thus be seen that, of the various claims and complaints made by Miss Hounga against Mrs Allen in the tribunal, the only one to reach this court is the complaint of discrimination in relation to her dismissal. This particular complaint may well be said not to capture the gravamen of Miss Houngas case against Mrs Allen. Irrespective of whether all of it can form the subject of a civil claim, the case which, on the tribunals exiguous findings, Miss Hounga makes against Mrs Allen relates centrally to her participation in the plan to secure her entry into the UK on a false basis; to Mrs Allens failure to pay her the promised wages and, in particular, to secure for her the promised education (although the tribunal made no finding that Mrs Allen had never intended to secure it for her); and to her acts of serious violence towards Miss Hounga over 18 months, coupled with threats of imprisonment which were entirely convincing to Miss Hounga and which in effect disabled her from taking any steps to rescue herself from her situation in Mrs Allens home. In the event it was Mrs Allens eviction of her which precipitated her rescue. Cruel though the manner of its execution was, the dismissal was, in a real sense, a blessing for Miss Hounga. But, while the facts upon which the present appeal is founded may not represent Miss Houngas essential case against Mrs Allen, the clean legal issue remains: was the Court of Appeal correct to hold that the illegality defence defeated the complaint of discrimination? The application of the defence of illegality to a claim founded on contract often has its own complexities. But, in that it was unlawful (and indeed a criminal offence under section 24(1)(b)(ii) of the Immigration Act 1971) for Miss Hounga to enter into the contract of employment with Mrs Allen, the defence of illegality in principle precluded her from enforcing it. In this regard a claim for unfair dismissal might arguably require analysis different from a claim for wrongful dismissal. But a claimant for unfair dismissal is nevertheless seeking to enforce her contract, including often to secure her reinstatement under it. In Enfield Technical Services Ltd v Payne [2008] EWCA 393, [2008] ICR 1423, the Court of Appeal, while rejecting its applicability to the two cases before it, clearly proceeded on the basis that a defence of illegality could defeat a claim for unfair dismissal. This present appeal proceeds without challenge to the conclusion of the tribunal, upheld by the appeal tribunal, that the defence indeed precluded Miss Houngas claim for unfair dismissal. Equally there is no challenge to the dismissal on that same basis of her claim for unpaid wages although the considerations of public policy to which I will refer from para 46 onwards might conceivably have yielded a different conclusion. Unlawful discrimination is, however, a statutory tort: in relation to discrimination in the field of employment, see sections 56(1)(b) and 57(1) of the 1976 Act, now sections 124(6) and 119(2)(a) of the 2010 Act. The application of the defence of illegality to claims in tort is highly problematic. In National Coal Board v England [1954] AC 403 an employee sued his employer for breach of statutory duty in respect of injuries suffered in an explosion. It had occurred while the employee was implementing an unlawful arrangement between him and a colleague that he, rather than the colleague, should join a cable to a detonator. The House of Lords accepted that he had been contributorily negligent but rejected the defence of illegality. Lord Asquith of Bishopstone said at pp 428 429: The defendants relied on the maxim ex turpi causa non oritur actio as absolving them of liability. The vast majority of cases in which the maxim has been applied have been cases where, there being an illegal agreement between A and B, either seeks to sue the other for its enforcement or for damages for its breach. That, of course, is not this case. Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault (Boulter v Clark (1747) Bull N.P. 16). If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them, B picks As pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort The theft is totally unconnected with the burglary. But, although it has since become established that the defence will sometimes defeat an action in tort, the circumstances in which it will do so have never been fully settled. In Saunders v Edwards [1987] 1 WLR 1116 the purchasers of a flat sued the vendor for damages for the tort of deceit in having fraudulently represented to them that the premises included a roof terrace. By arrangement between the parties, the price of the flat had been improperly reduced below its value, and the price of chattels also included in the sale had been correspondingly inflated above their value, in order to enable the purchasers to pay less stamp duty. The Court of Appeal held that the vendor could not rely on the defence of illegality. Kerr LJ, with whom Bingham LJ agreed, held at p 1127 that the purchasers dishonest apportionment of the price was wholly unconnected with their cause of action and that their moral culpability in that regard was greatly outweighed by that of the vendor in making the fraudulent representation. Nicholls LJ, with whom Bingham LJ also agreed, held at p 1132 that the question (which he answered negatively) was whether to uphold the claim would be an affront to the public conscience in appearing indirectly to encourage the unlawful conduct of which the purchasers had been guilty. For six years the public conscience test was applied to defences of illegality to claims both in tort and in contract: see for example Howard v Shirlstar Container Transport Ltd [1990] 1 WLR 1292. But in Tinsley v Milligan [1994] 1 AC 340 all members of the House of Lords, including the two dissenting judges, agreed that the public conscience was, as Lord Browne Wilkinson observed at p 369, too imponderable a factor. The majority of the House considered that, once that test was stripped out of the law, a reliance test was laid bare, namely that, in the words of Lord Browne Wilkinson at p 376, a claimant is entitled to recover if he is not forced to plead or rely on the illegality, even if it emerges that the title on which he relied was acquired in the course of carrying through an illegal transaction. Before the House was, indeed, a claim to property, namely by Ms Milligan to a joint and equal equitable interest in a home which she had agreed to be vested in the sole name of Ms Tinsley, her cohabitant, only in order that she, Ms Milligan, could represent herself to be Ms Tinsleys lodger and claim state benefits accordingly. In the wake of the Tinsley case the reliance test has inevitably taken hold; and it has been applied to claims in tort. In Stone & Rolls Ltd v Moore Stephens [2008] EWCA Civ 644, [2009] UKHL 39, [2009] AC 1391, a company sued its auditors for negligence in failing to detect fraudulent transactions into which its former controlling director had caused it to enter. It was held both in the Court of Appeal and, by a majority, in the House of Lords that the conduct of the director was to be attributed to the company; and that the defence of illegality defeated it. In his judgment in the Court of Appeal, with which Keene and Mummery LJJ agreed, Rimer LJ referred at para 16 to the reliance test and described its effect in stark terms as follows: The relevant question it identifies is whether, to advance the claim, it is necessary for the claimant to plead or rely on the illegality. If it is, the Tinsley case decided that the axe falls indiscriminately and the claim is barred, however good it might otherwise be. There is no discretion to permit it to succeed. In the House of Lords, Lord Phillips of Worth Matravers concluded at para 86 that the illegal conduct formed the basis of the companys claim, in other words that the company was forced to rely on it. He had, however, observed at para 25: I do not believe that it is right to proceed on the basis that the reliance test can automatically be applied as a rule of thumb. It is necessary to give consideration to the policy underlying ex turpi causa in order to decide whether this defence is bound to defeat [the companys] claim. I will explain in paras 42 and following why I consider that Lord Phillips was correct to soften the effect of the reliance test by the need to consider the underlying policy. The test continues to carry maximum precedential authority but has attracted criticism. It is said that it can work arbitrarily: it was only the presumption of a resulting trust which saved Ms Milligan from having to plead the agreement to defraud and, had Ms Tinsley instead been, for example, her daughter, a presumption of advancement might well have operated and, if so, Ms Milligan would have had to plead the agreement. It is also said that the concept of a need to rely on an unlawful act is often easier to state than to apply. These concerns were summarised in the report of the Law Commission entitled The Illegality Defence, presented to Parliament on 16 March 2010, Law Com No 320, at paras 2.13 15, to which was annexed a draft Bill which, in relation to claims to equitable interests, would have replaced the reliance test. Meanwhile, however, another test, overlapping with the reliance test but not coterminous with it, had been developed in relation to tort and in particular was to be applied to complaints of unlawful discrimination: the inextricable link test. In Cross v Kirkby CA [2000] EWCA Civ 426, The Times 5 April 2000, the claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant Youre fucking dead and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant grappled with him. He wrested the bat from him and hit him on the head, causing his skull to fracture. The Court of Appeal held that the claimants claim for assault and battery failed both because the defendant was acting in self defence and because it was defeated by the illegality defence. Beldam LJ, with whom Otton LJ agreed, said at para 76: In my view the [defence] applies when the claimants claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct. Judge LJ said at para 103 that the defence arose if the facts behind the claimants claim were inextricably linked with his criminal conduct and that this factor went well beyond questions of causation in the general sense. He added at para 125 that, if the defendants behaviour was truly disproportionate overall, it might be powerful evidence that the claimants criminal conduct was not sufficiently linked to the injuries so as to attract the defence. Three months later, in Hall v Woolston Hall Leisure Ltd [2001] ICR 99, the inextricable link test was applied to a complaint of unlawful sex discrimination. The employer dismissed the employee because of her pregnancy and thus discriminated against her on ground of sex. Her wages were 250 net per week but, to her knowledge, were misrepresented on her pay slips as 250 gross per week so that the employer might account to the Inland Revenue for less sums than were due. Rejecting the employers defence of illegality, the Court of Appeal allowed her appeal against a refusal to include in her award compensation for loss of earnings. Peter Gibson LJ held at para 46 that there was no inextricable link between the employees complaint and the employers illegal underpayments to the Revenue. After citing the decision in the Cross case, Mance LJ said: 79. While the underlying test therefore remains one of public policy, the test evolved in this court for its application in a tortious context thus requires an inextricable link between the facts giving rise to the claim and the illegality, before any question arises of the court refusing relief on the grounds of illegality. In practice, as is evident, it requires quite extreme circumstances before the test will exclude a tort claim. [Emphasis supplied] At para 80(D) he also concluded that there was no such inextricable link. In Rhys Harper v Relaxion Group plc [2003] UKHL 33, [2003] ICR 867, the House of Lords determined a different point, namely that an employer might discriminate against an employee in breach of the discrimination statutes even by acts occurring after termination of the employment. But Lord Rodger of Earlsferry quoted with approval from the judgments of Peter Gibson and Mance LJJ in the Hall case and if, as one might assume, he thereby impliedly indorsed the inextricable link test, he clearly thought that it would seldom, if ever, lead to the defeat of a complaint of discrimination. For he said at p 930: where a contract of employment is tainted by illegality, an employee may none the less complain that her employer discriminated against her on the ground of her sex by dismissing her, since both the Equal Treatment Directive and the 1975 [Sex Discrimination] Act are designed to provide effective relief in respect of discriminatory conduct rather than relief which reflects any contractual entitlement which may or may not exist. In Vakante v Governing Body of Addey and Stanhope School (No 2) [2004] EWCA Civ 1065, [2005] ICR 231, the Court of Appeal upheld a defence of illegality to a teachers complaint against a school of unlawful discrimination by dismissal on racial grounds. The teacher was an asylum seeker who was not entitled to work in the UK without a work permit, which he never obtained. He had represented to the school that he did not need a permit and it was unaware that its employment of him was unlawful. Mummery LJ, with whose judgment Lord Slynn of Hadley and Brooke LJ agreed, analysed the inextricable link test as follows: 9. Although Halls case uses some of the familiar language of legal and factual causation (connection, link), the test does not restrict the tribunal to a causation question. Matters of fact and degree have to be considered: the circumstances surrounding the applicants claim and the illegal conduct, the nature and seriousness of the illegal conduct, the extent of the applicants involvement in it and the character of the applicants claim are all matters relevant to determining whether the claim is so inextricably bound up with the applicants illegal conduct that, by permitting the applicant to recover compensation, the tribunal might appear to condone the illegality. Mummery LJ went on to hold at para 34 that the teachers employment was unlawful from top to bottom and from beginning to end and at para 36 that his complaint was so inextricably linked with the illegality of his employment that, were it to have upheld it, the tribunal would have appeared to condone the illegality. In their case comment Race discrimination and the doctrine of illegality (2013) 129 LQR 12 Bogg and Novitz suggest that a series of errors entered the law in the Vakante case. They are right to say that, in para 9 of Mummery LJs judgment above, there was a loosening of the inextricable link test and an entry into it of factors which, logically, might not have been entitled to entry. But whether the loosened test led the Court of Appeal to make the wrong decision is much less clear. In Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 AC 1339, the House of Lords, while not disapproving the inextricable link test, expressed reservations about it. The claimant was injured in the Ladbroke Grove rail disaster and in consequence suffered post traumatic stress disorder. This led him to commit manslaughter, for which he was ordered to be detained in hospital. He sued two railway companies for negligence, which they admitted. The House held however that the defence of illegality barred such part of his claim as sought general damages arising out of his detention and damages for the loss of earnings which followed it. It held that the defence precluded compensation for losses arising from the sentence passed upon him for a criminal act for which he had had responsibility, albeit diminished. So, as Lord Rodger pointed out at para 63, the case was different from the National Coal Board case and the Cross case, in which the claimant had been engaged in an unlawful activity at the time when the defendant committed the alleged tort. Nevertheless reference was made to the inextricable link test. Lord Hoffmann said at para 54: It might be better to avoid metaphors like inextricably linked or integral part and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant?. Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? In the same vein Lord Rodger observed at para 74 that opinions were likely to differ about whether the alleged tort was inextricably linked with the claimants criminal conduct. I agree but am not convinced that the alternative inquiry suggested by Lord Hoffmann is any more likely to secure consistency of decision making. Every formulation of a requirement to identify the active or effective cause of an event or an act to which it is inextricably linked has a potential for inconsistent application driven by subjective considerations. In his article entitled Ex Turpi Causa when Latin avoids liability in the Edinburgh Law Review, 18 (2014) 175, Lord Mance made a related point at p 184: Your painter negligently leaves your front door open, and a thief enters. Of course, in your action for negligence against the painter, the painter is responsible for causing the loss of your goods. Equally, however, in your action for theft of the goods against the thief, if he is caught, he is the cause. Causation, like much else in the law, depends on context. The subjectivity inherent in the requisite value judgement is well demonstrated by the facts of the present case. Three judges in the Court of Appeal were of the view, articulated in the judgment of Rimer LJ, that Miss Houngas complaint was inextricably linked to her own unlawful conduct obviously so. They considered that the only difference between the complaints of Miss Hounga and of Mr Vakante was that, whereas his employers were unaware of the illegality, Mrs Allen and Miss Hounga were equal participants in entry into the illegal contract of employment. Whichever party bore the greater responsibility for making of the illegal contract, said Rimer LJ, [Miss Hounga] was a willing participant in it. He made a further point: Ms Houngas dismissal discrimination case was dependent upon the special vulnerability to which she was subject by reason of her illegal employment contract: she was relying on the facts that she was an illegal immigrant, had no right to be employed here, effectively had no rights here at all and so could be treated less well because of her inferior situation. But were Mrs Allen and Miss Hounga equal participants in entry into the illegal contract? Was there any doubt about the identity of the party who bore greater responsibility for it? And, despite the superficial attraction in logic of Rimer LJs further point, should Mrs Allens cruel misuse of Miss Houngas perceived vulnerability arising out of the illegality, by making threats about the consequences of her exposure to the authorities, be a further justification for the defeat of her complaint? As I will explain in para 49, such threats are an indicator that Miss Hounga was the victim of forced labour but in the hands of the Court of Appeal they become a ground for denial of her complaint. If, indeed, the test applicable to Mrs Allens defence of illegality is that of the inextricable link, I, for one, albeit conscious of the inherent subjectivity in my so saying, would hold the link to be absent. Entry into the illegal contract on 28 January 2007 and its continued operation until 17 July 2008 provided, so I consider, no more than the context in which Mrs Allen then perpetrated the acts of physical, verbal and emotional abuse by which, among other things, she dismissed Miss Hounga from her employment. But the bigger question is whether the inextricable link test is applicable to Mrs Allens defence. PUBLIC POLICY The defence of illegality rests upon the foundation of public policy. The principle of public policy is this said Lord Mansfield by way of preface to his classic exposition of the defence in Holman v Johnson (1775) 1 Cowp. 341, p 343, 98 Eng Rep 1120, p 1121. Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification: Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask What is the aspect of public policy which founds the defence? and, second, to ask But is there another aspect of public policy to which application of the defence would run counter? An answer to the first question is provided in the decision of the Canadian Supreme Court in Hall v Hebert [1993] 2 SCR 159. After they had been drinking heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car careered down the slope and Mr Hall was seriously injured. The Supreme Court held that the illegality of his driving did not bar his claim against Mr Hebert but that he was contributorily negligent as to 50%. At the outset of her judgment on behalf of the majority, McLachlin J, at p 169, announced her conclusion about the basis of the power to bar recovery in tort on the ground of illegality, which later she substantiated in convincing terms by reference to authority. Her conclusion was as follows: The basis of this power, as I see it, lies in [the] duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue. This concern is in issue where a damage[s] award in a civil suit would, in effect, allow a person to profit from illegal or wrongful conduct, or would permit an evasion or rebate of a penalty prescribed by the criminal law. The idea common to these instances is that the law refuses to give by its right hand what it takes away by its left hand. Concern to preserve the integrity of the legal system is a helpful rationale of the aspect of policy which founds the defence even if the instance given by McLachlin J of where that concern is in issue may best be taken as an example of it rather than as the only conceivable instance of it. I therefore pose and answer the following questions: (a) Did the tribunals award of compensation to Miss Hounga allow her to profit from her wrongful conduct in entering into the contract? No, it was an award of compensation for injury to feelings consequent upon her dismissal, in particular the abusive nature of it. (b) Did the award permit evasion of a penalty prescribed by the criminal law? No, Miss Hounga has not been prosecuted for her entry into the contract and, even had a penalty been thus imposed upon her, it would not represent evasion of it. (c) Did the award compromise the integrity of the legal system by appearing to encourage those in the situation of Miss Hounga to enter into illegal contracts of employment? No, the idea is fanciful. (d) Conversely, would application of the defence of illegality so as to defeat the award compromise the integrity of the legal system by appearing to encourage those in the situation of Mrs Allen to enter into illegal contracts of employment? Yes, possibly: it might engender a belief that they could even discriminate against such employees with impunity. So the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Houngas complaint scarcely exist. But what about the second question posed in para 42? It requires the court to consider whether Mrs Allen was guilty of trafficking in bringing Miss Hounga from Nigeria to the UK and into the home in Hanworth. The accepted international definition of trafficking is contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Palermo Protocol) signed in 2000 and ratified by the UK on 9 February 2006. Article 3 provides: (a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability for the purpose of exploitation. Exploitation shall include, at a minimum, sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in subparagraph (a) of this article. So did Mrs Allen, together with other members of her family, recruit and/or transport and/or receive Miss Hounga, being then a child, for the purpose of exploitation, namely forced labour or servitude? In her claim form Miss Hounga alleged that the UK Human Trafficking Centre had accepted her as a victim of human trafficking. Before the tribunal she filed a report on herself made by Ms Skrivankova, Trafficking Programme Coordinator, Anti Slavery International, which intervenes in this appeal. The report must be handled with care because Ms Skrivankova did not interview Miss Hounga and relied on written material, in particular her witness statement, which included disputed allegations in relation to which the tribunal made no findings. At all events Ms Skrivankova reported that all the elements in the definition of trafficking in the Palermo Protocol were present in Miss Houngas case. She suggested that it was a classic case of the trafficking of a vulnerable child, lacking family support, by people known to her, who abused her natural trust in them with promises which were not kept and who subjected her to forced labour. In this latter regard Ms Skrivankova referred to a list of six indicators of forced labour published by the International Labour Organisation (the ILO), which takes the view that, if at least two of the indicators are present, forced labour exists. The tribunal made no finding whether Miss Hounga was the victim of trafficking. No doubt it considered that it had no need to do so. It is only at this third level of appeal that the issue crops up again; and this courts duty to be fair to Mrs Allen demands that it should approach the issue with the utmost caution. Nevertheless, although the court should remember, for example, that Miss Hounga was not actually locked into the home, it is hard to resist the conclusion that Mrs Allen was guilty of trafficking within the meaning of the definition in the Palermo Protocol. Thus, of the ILOs six indicators of forced labour, there might be argument about the existence of the second (restriction of movement) but, on the tribunals findings, there certainly existed the first (physical harm or threats of it), the fourth (withholding of wages) and the sixth (threat of denunciation to the authorities where the worker has an irregular immigration status). Judicious hesitation leads me to conclude that, if Miss Houngas case was not one of trafficking on the part of Mrs Allen and her family, it was so close to it that the distinction will not matter for the purpose of what follows. The Council of Europe Convention on Action against Trafficking in Human Beings CETS No 197 (the Convention) was done in Warsaw on 16 May 2005 and, following ratification, the UK became obliged to adhere to it, as a matter of international law, on 1 April 2009. Among the purposes of the Convention, set out in article 1, are the prevention of trafficking, the protection of the human rights of victims and the design of a comprehensive framework for their protection and assistance. By article 4, the Convention imports the definition of trafficking set out in the Palermo Protocol. Article 15 provides: 3. Each party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. It is too technical an approach to an international instrument to contend that paragraph 3 relates to compensation only for the trafficking and not for related acts of discrimination. In my view it would be a breach of the UKs international obligations under the Convention for its law to cause Miss Houngas complaint to be defeated by the defence of illegality. As Lord Hoffmann said in R v Lyons [2002] UKHL 44, [2003] 1 AC 976, at para 27, Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. Article 4 of the European Convention on Human Rights provides: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. In Rantsev v Cyprus and Russia (2010) 51 EHRR 1 a Russian woman, aged 20, had gone to work as an artiste in a cabaret in Cyprus. Three weeks later she was found dead in a street. The European Court of Human Rights (the ECtHR) upheld her fathers complaint that Cyprus was in breach of article 4 in that its regime for the issue of visas for cabaret artistes had failed to afford effective protection to her against trafficking and that its police had failed properly to investigate events during those weeks which suggested that she was the victim of it. For present purposes the importance of the courts judgment lies in the following: 282. There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes slavery, servitude or forced and compulsory labour. Instead, the Court concludes that trafficking itself, within the meaning of article 3(a) of the Palermo Protocol and article 4(a) of the Anti Trafficking Convention, falls within the scope of article 4 of the Convention. In Siliadin v France (2005) 43 EHRR 287 the ECtHR ruled that a 15 year old girl, brought from Togo to France and made to work for a family without pay for 15 hours a day, had been held in servitude and required to perform forced labour and that France had violated article 4 by having failed to introduce criminal legislation which would afford effective protection to her. In CN v United Kingdom (2012) 56 EHRR 869 the court made an analogous ruling against the UK. After the events in that case, Parliament had provided, by section 71 of the Coroners and Justice Act 2009 which extends to England, Wales and Northern Ireland, that it is a specific criminal offence to hold a person in slavery or servitude or to require her (or him) to perform forced labour. No doubt mindful of their obligations under article 4, the UK authorities are striving in various ways to combat trafficking and to protect its victims. I refer, for example, to the Draft Modern Slavery Bill, Cm 8770, presented to Parliament in December 2013 and in particular to the amendments to it proposed by the government in its paper, Cm 8889, presented in June 2014 by way of response to the report of a parliamentary committee on the draft Bill. I note, for example, that one such amendment would provide a statutory defence to a victim of trafficking who, as a result, has been compelled to commit a crime. Although Miss Hounga is not in that category, the decision of the Court of Appeal to uphold Mrs Allens defence of illegality to her complaint runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims. The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront; and Miss Houngas appeal should be allowed. LORD HUGHES (with whom Lord Carnwath agrees) I agree that Miss Houngas appeal should be allowed in relation to her claim for the statutory tort of discrimination, committed in the course of dismissal. I also agree that it follows that her claim in relation to alleged pre dismissal harassment on grounds of race or ethnic origin (again a claim in relation to the statutory tort) should be remitted to the tribunal to determine whether the ground identified by the Court of Appeal for possible disapplication of the grievance procedure existed and, if so, whether the complaint was established. I am, however, unable to go quite so far in the basis for this conclusion as Lord Wilson feels able to do. As Lord Wilsons penetrating analysis clearly shows, a generalised statement of the conceptual basis for the doctrine under which illegality may bar a civil claim has always proved elusive. The same search for it produced a similar conclusion through no less than three concentrated Law Commission documents, Consultation Papers 154 (1999) and 160 (2001) and its report on the limited case of illegality as it affects claims to beneficial interests under trusts The Illegality Defence, Law Com 320 (March 2010). A case in which, as I understand it, all the members of this court are agreed on the outcome of the appeal is not a suitable vehicle to essay a general synthesis such as has been so difficult to formulate. I attempt no more than a bare summary of such aspects of the question as affect the present case, which is a claim in tort. Miss Houngas contractual claims have rightly not been pursued either in the Court of Appeal or in this court. The various analyses offered in past cases are largely, as it seems to me, different ways of expressing two connected aspects of the basis for the law of illegality. The first is that the law must act consistently; it cannot give with one hand what it takes away with another, nor condone when facing right what it condemns when facing left. The second is that before this principle operates to bar a civil claim, and particularly one in tort, there must be a sufficiently close connection between the illegality and the claim made. Neither proposition is suggested as a comprehensive test. En route to the answer in an individual case, the court is likely to need to consider also the gravity of the illegality of which the claimant is guilty and her knowledge or intention in relation to it. It will no doubt also consider the purpose of the law which has been infringed and the extent to which to allow a civil claim nevertheless to proceed will be inconsistent with that purpose. Other factors may arise in individual cases. It is via considerations such as these that the general public policy is to be served. Public policy very obviously underlies the rules upon illegality as it affects civil claims, but I do not think that the cases establish a separate trumping test of public policy. Whilst Lord Mansfields early statement of the law in Holman v Johnson (1775) 1 Cowp 341, 98 Eng Rep 1120 cannot be treated as a comprehensive test for the application of the law of illegality, it is important to remember one central feature of it, which remains true. When a court is considering whether illegality bars a civil claim, it is essentially focussing on the position of the claimant vis vis the court from which she seeks relief. It is not primarily focusing on the relative merits of the claimant and the defendant. It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimants claim to relief. Lord Mansfields classical expression of this principle was as follows: The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. This is, as it seems to me, consistent with elementary justice. If the bank robbers (or terrorists) are using explosives in their crime, and A is injured by a premature explosion attributable to the carelessness of B, it does not seem to me to be controversial to deny A a civil claim against B. That will not be because he voluntarily accepted the risk of Bs negligence; on the contrary he no doubt relied on B to do his job well. It will be because there is such a close connection between the illegality and the civil claim that the court could not consistently condemn the first and give relief upon the second. For the same reason, claims by one criminal against another in relation to bad driving in escape from the crime will fail. Conversely, when the illegality is not sufficiently closely connected to the claim, and can properly be regarded as collateral, or as doing no more than providing the context for the relationship which gives rise to the claim, the bar of illegality will not fall. An example is Saunders v Edwards [1987] 1 WLR 1116, where a claim in fraud relating to the sale of real property was not defeated by a collateral agreement between the parties to deflate the price in order to avoid stamp duty. Bingham LJ stated the principle thus, at p 1134: Where issues of illegality are raised, the courts have. to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct. [O]n the whole the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiffs action in truth arises directly ex turpi causa, he is likely to fail. [w]here the plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed. Once again, it can be seen that the proportionality to which Bingham LJ was directing his attention was such as lay between the claimants offence and the claim, not as between the claimants turpitude and that of the defendant. However, although the relative turpitude of claimant and defendant is not the test, the extent of the claimants turpitude may be relevant to determining whether there is a sufficiently close connection between the illegal act and the claim. An example is Vakante v Governing Body of Addey and Stanhope School (No 2) [2004] EWCA Civ 1065; [2005] ICR 231, in which the claimant had obtained his employment not only in breach of immigration law but also by criminal deception which caused the employers to take him on, and to risk themselves committing an offence, quite innocently; there his illegal acts were held to be so central to his claims for statutory discrimination, both in employment and in dismissal, as to bar them. For the reasons given by Lord Wilson, I agree that the claim of statutory tort in the present case was set in the context of the claimants unlawful immigration, but that there was not a sufficiently close connection between the illegality and the tort to bar her claim. Contrast her claim to recover for breach of contract of employment (or, by statutory extension, for unfair dismissal), when such claims depend on a lawfully enforceable contract of employment but her whole employment was forbidden and illegal. Human Trafficking? Human trafficking is a very serious crime, recognised both internationally and nationally. Those who practise it can expect, and receive in England and Wales, severe penalties. The position of those who have been transported is, however, more complex. First, the line between (on the one hand) trafficking properly so called and (on the other) the often rapacious demands for money made by agents of persons who are only too keen to be transported to a western country may sometimes be difficult to discern in a particular case. The latter situation is generally referred to as smuggling, to distinguish it from trafficking. Second, assuming that the case is indeed one of trafficking, properly so called, the question arises how offences committed by the trafficked person ought to be treated. The UK is bound by a series of international instruments, all of which adopt the same definition of trafficking, which originates in the Protocol to the UN Convention against Transnational Organised Crime, 2000 (the Palermo Protocol), ratified by the UK on 9 February 2006. The accepted definition is, as set out by Lord Wilson: For the purposes of this Protocol: (a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in subparagraph (a) of this article. The same definition appears in subsequent international instruments, the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197) (the Council of Europe Convention), ratified by the UK on 17 December 2008 and the directly effective EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (the EU Directive), which came into effect on 6 April 2013, after the events with which this case is concerned. The first two instruments are not part of English law, but it is of course a general principle of that law that ambiguous questions of construction are to be resolved in favour of compliance with the UKs international obligations where reasonably possible, and such obligations may similarly inform the application of open questions of common law. It follows that under these instruments transportation amounts to trafficking if, in the case of an adult it is (a) accomplished by threat, force, deception or the other forms of coercion referred to and (b) only if it is undertaken with a view to exploitation, in the sense defined. In the case of a child, (b) suffices. Assuming for the moment that Miss Hounga was a child at the time, which seems overwhelmingly likely, it remains necessary that the transportation was undertaken with a view to her exploitation. Her subsequent exploitation (again assuming despite the absence of findings that it is correctly so described) is no doubt evidence of a prior intent on the part of Mrs Allen, but it is not conclusive, and the tribunal has made no finding one way or the other. However that may be, if this was trafficking, the position of offence(s) committed by Miss Hounga remains to be considered. None of the international instruments, nor any rule of English criminal law, provides any automatic defence to a trafficked person who commits a criminal offence: see R v L(C) [2013] EWCA Crim 991; [2013] 1 All ER 113 per Lord Judge CJ at paras 13 and 17, and R v M(L) [2010] EWCA Crim 2327; [2011] 1 Cr App R 135 at paras 13 and 14. The mechanism of the instruments is different. The second and third of them (although not the first) stipulate that signatory States must have a system which allows for the discretionary non punishment of those who have committed offences which they were compelled by their trafficking to commit. This is particularly necessary in the several European countries where it is a general principle of the criminal law that prosecution must follow the commission of any offence (see for example section 152(2) of the German Code of Criminal Code of Procedure and article 112 of the Italian constitution) but it applies also in England and Wales where the Crown always has an ex post facto discretion to decide against prosecution if it is not judged to be in the public interest. Thus article 26 of the Council of Europe Convention provides: "Each party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so." Article 8 of the EU Directive is to the same effect: "Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to [trafficking]." Thus, the internationally recognised rule is clear, as is English criminal law. The trafficked victim, assuming that is what she is, is not relieved of criminal liability for an offence which she has committed. If, however, she was compelled to commit it as a direct consequence of being trafficked, careful consideration ought to be given to whether it is in the public interest to prosecute her. In the present case, there is no finding that Miss Hounga was compelled to commit the immigration offences which she committed; the tribunal understandably found that she was well aware of what she was doing and voluntarily did it in the hope of advantage. Young as she clearly was, she was no doubt under the influence of Mrs Allen and that would constitute very real mitigation if punishment were in question. But what her trafficking, if that is what it was, does not do is to take away the illegality of what she knowingly did. Article 6(6) of the Palermo Protocol provides: Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered. It is not possible to interpret this international obligation as requiring English law to permit Miss Hounga to recover damages for the statutory tort of discrimination. That statutory tort is not in any sense co extensive with trafficking or for that matter with exploitation. For the same reasons, it would not be possible to interpret this article as requiring English law to depart from its general principles of illegality so as to enable a person such as Miss Hounga to recover wages under an unlawful contract of employment. Moreover, the EU Directive, now in force, is more specific and explains what article 6(6) appears to have in mind: Article 17 Compensation to victims Member States shall ensure that victims of trafficking in human beings have access to existing schemes of compensation to victims of violent crimes of intent. For the sake of completeness, it should be noted that there are currently Government proposals to reinforce the English statutory law on trafficking: see the Draft Modern Slavery Bill (Cm 8770) and proposed adjustments to it following consideration by the joint parliamentary committee (Cm 8889). They are mostly directed to making more severe the controls of, and penalties upon, traffickers, but there are some which affect the position of victims. These are at present proposals only and there can be no certainty that they will be enacted in the form currently suggested. But even if they are, they would not alter the position set out above in any manner which would alter the conclusions set out above in relation to Miss Hounga. The proposals include: a. to provide a trafficked person with a statutory defence to a criminal offence but only where he or she has been compelled to commit the offence; this would be a change to English law, but there is in this case no sufficient evidence, still less a finding, that Miss Hounga was compelled to commit her immigration offences; b. to provide for amendments to the Proceeds of Crime Act 2002 so as to enable victims of trafficking to be compensated out of the confiscatable assets of traffickers; there is already a power to order compensation, which may be payable out of confiscatable assets, but even if this alters the position significantly it will be directed at compensation for trafficking and for the reasons set out above would not impact on the application of the ordinary principles of illegality as a bar to civil claims. Conclusion For these reasons my conclusion is that Miss Hounga succeeds in her appeal, on the particular facts of this case, on the ground that there is insufficiently close connection between her immigration offences and her claims for the statutory tort of discrimination, for the former merely provided the setting or context in which that tort was committed, and to allow her to recover for that tort would not amount to the court condoning what it otherwise condemns. But it is not possible to read across from the law of human trafficking to provide a separate or additional reason for this outcome. Even if one assumes in Miss Houngas favour that her treatment by Mrs Allen in England amounted to slavery or forced labour, and even if one assumes, without any findings of fact, that Mrs Allen brought her to England with the purpose of so treating her, she does not appear to have been compelled to commit the immigration offences which she certainly did commit.

UK-Abs

The appellant, Miss Hounga, appears to have a current age of about 21. She is of Nigerian nationality and now resides in England. In January 2007, when she was aged about 14, she came from Nigeria to the UK under arrangements made by the family of the respondent, Mrs Allen, who is of joint Nigerian and British nationality and who resides in England with her children. Pursuant to these arrangements, in which Miss Hounga knowingly participated, her entry was achieved by her presentation to UK immigration authorities of a false identity and their grant to her of a visitors visa for six months. For the following 18 months Miss Hounga lived in the home of Mrs Allen and of her husband who, although formally a respondent to it, plays no part in this appeal. Although Miss Hounga had no right to work in the UK, and after July 2007 no right to remain in the UK, Mrs Allen employed her, unpaid, to look after her children in the home. There Mrs Allen inflicted serious physical abuse on Miss Hounga and told her that, if she left the home, she would be imprisoned because her presence in the UK was illegal. In July 2008 Mrs Allen forcibly evicted Miss Hounga from the home and thereby dismissed her from the employment. This appeal proceeds on the basis that, by dismissing her, Mrs Allen discriminated against Miss Hounga in that on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others. In due course Miss Hounga issued a variety of claims and complaints against Mrs Allen in the Employment Tribunal. The one claim which the tribunal upheld was her complaint of unlawful discrimination but only the part of the complaint which related to her dismissal. In this regard it ordered Mrs Allen to pay compensation to Miss Hounga for the resultant injury to her feelings in the sum of 6,187. The Employment Appeal Tribunal dismissed Mrs Allens cross appeal against the order. But the Court of Appeal upheld a further cross appeal brought by Mrs Allen against it and set it aside. The court held that the illegality of the contract of employment formed a material part of Miss Houngas complaint and that to uphold it would be to condone the illegality. It is against the Court of Appeals order that Miss Hounga brings her appeal. The Supreme Court unanimously allows the appeal in relation to Miss Houngas claim for the statutory tort of discrimination, committed in the course of dismissal. Miss Houngas claim in relation to alleged pre dismissal harassment on grounds of race or ethnic origin should be remitted to the tribunal to determine whether the ground identified by the Court of Appeal for possible disapplication of the grievance procedure existed and, if so, whether the complaint was established. Lord Wilson (with whom Lady Hale and Lord Kerr agree) gives the lead judgment. Lord Hughes (with whom Lord Carnwath agrees) gives a concurring judgment. The main legal issue is whether the Court of Appeal was correct to hold that the illegality defence defeated the complaint of discrimination [23]. Lord Wilson holds that the application of the defence of illegality to claims in tort is problematic [25]. The Court of Appeal has held in a previous case that the defence of illegality to a complaint of discrimination should succeed only if there is an inextricable link between the complaint and the claimants illegal conduct. If the test applicable to Mrs Allens defence of illegality is that of the inextricable link, Lord Wilson would hold the link to be absent. Entry into the illegal contract on 28 January 2007 and its continued operation until 17 July 2008 provided no more than the context in which Mrs Allen then perpetrated the acts of physical, verbal and emotional abuse by which, among other things, she dismissed Miss Hounga from her employment. But Lord Wilson proceeds to ask whether the inextricable link test is applicable to Mrs Allens defence. [40] The defence of illegality rests upon the foundation of public policy. It is necessary, therefore, first to ask what aspect of public policy founds the defence and, second to ask whether there is another aspect of public policy to which application of the defence would run counter. [42] On the first question, concern to preserve the integrity of the legal system is a helpful rationale of the aspect of policy which founds the defence but the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Houngas complaint scarcely exist. [45] On the second question, the facts disclose that Mrs Allen and her family were guilty or close to being guilty of trafficking Miss Hounga from Nigeria to England. The UK authorities are striving in various ways to combat trafficking and to protect its victims. The decision of the Court of Appeal to uphold Mrs Allens defence of illegality to Miss Houngas complaint runs strikingly counter to this prominent strain of public policy. The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront. [52] Lord Hughes concludes that Miss Hounga succeeds in her appeal on the ground that there is insufficiently close connection between her immigration offences and her claims for the statutory tort of discrimination. But it is not possible to read across from the law of human trafficking to provide a separate or additional reason for this outcome. Even if one assumes in Miss Houngas favour that her treatment by Mrs Allen in England amounted to slavery or forced labour, and even if one assumes, without any findings of fact, that Mrs Allen brought her to England with the purpose of so treating her, she does not appear to have been compelled to commit the immigration offences which she certainly did commit. [67]

The question in these proceedings is whether it would be compatible with the appellants Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in the United Kingdom as an illegal immigrant, another Albanian national named Ylli Pepa, was killed. On the day after this incident the appellant left London and travelled to Glasgow, where he assumed a false Macedonian identity. It was alleged that he had been responsible for Ylli Pepas murder. But the Metropolitan Police were unable to locate him, and he continued to live in Glasgow for the time being under that false identity. In December 2001 the Crown Prosecution Service delivered all the materials about the case that were in their possession, including witness statements and productions, to the prosecuting authority in Albania. This was done under cover of a letter which referred to the European Convention on Extradition 1957, to which both the United Kingdom and Albania are parties. It invited the Albanian authorities to prosecute the appellant, and they decided to do so. Albania has jurisdiction to prosecute in cases of homicide committed extra territorially where the deceased and the alleged perpetrator are both Albanian. The law in Albania also provides for the trial in absence of those who are accused of such crimes. As the appellant could not be traced he was not formally notified of the proceedings that were being taken against him. So the trial took place in his absence. But evidence was heard and counsel were appointed to represent his interests. On 23 December 2002 the appellant was convicted in the Judicial Court of Elbasan of premeditated murder under article 78 of the Criminal Code of Albania. He was sentenced to 22 years imprisonment. On 3 January 2003 that decision became final. On 17 February 2003 the office of the District Prosecutor of Elbasan issued an order for the execution of the decision against the appellant. But his whereabouts were still unknown. So no further steps were taken to make the decision effective. In May 2010 the UK police became aware of the fact that the appellant was living in Glasgow. They notified the Albanian authorities. This led to a formal request by the Albanian Ministry of Justice on 22 June 2010 that the appellant be extradited to Albania, which for the purposes of the Extradition Act 2003 (the 2003 Act) is a category 2 territory. On 24 June 2010 the appellant was arrested in Glasgow under a provisional arrest warrant. On 25 June 2010 he appeared in the sheriff court at Edinburgh and was remanded in custody. The request for the appellants extradition was sent to the Home Office on 29 June 2010. On 29 July 2010 the Scottish Ministers issued a certificate under sections 70 and 141 of the 2003 Act that the request for his extradition to Albania on his conviction for the offence of premeditated murder was valid. The proceedings On 20 January 2011 the sheriff at Edinburgh, having conducted an extradition hearing over a period of three days in December 2010, held that there were no bars to the extradition. So, as he was required to do by sections 87(3) and 141 of the 2003 Act, the sheriff sent the case to the Scottish Ministers for their decision whether the appellant was to be extradited. The appellant was remanded in custody under section 92(4) to await that decision. The Scottish Ministers decided that they were not prohibited from ordering the appellants extradition, and an order was made under section 101(2) under the hand of a member of the Scottish Government which was served on the appellant on 15 March 2011. He appealed against the order under sections 108 and 216(9) of the 2003 Act to the High Court of Justiciary. He remains in custody. In the course of various procedural hearings which then followed the appellant informed the court that he no longer wished to insist on some of the grounds of appeal which had originally been intimated. On 12 October 2011 he was allowed to lodge a minute of amendment by which various grounds were deleted from the note of appeal and a new ground (v) was introduced. The effect was that the grounds of appeal which remained before the court were as follows: (iv) The sheriff erred in concluding that the appellant would be entitled to a retrial in terms of section 85(5) of the Act. Separatim. The sheriff erred in concluding that the rights specified in section 85(8) of the Act would be made available to the appellant. (v) The learned sheriff erred in concluding that the appellants extradition would be compatible with his Convention rights in terms of section 87 of the said Act. Separatim. In seeking the appellants extradition to Albania the Lord Advocate and the Scottish Ministers are acting in a way which is contrary to the appellants fundamental rights in terms of the European Convention. In particular, the appellants extradition to Albania would interfere with his right to liberty and the right to fair trial as provided for in articles 5 and 6 of the Convention. A devolution minute was also lodged in which it was stated that for the Lord Advocate to seek to support the appellants extradition would be for him to act in a way which would be incompatible with his rights under article 6(1) and 6(3)(c) of the Convention and accordingly ultra vires in terms of section 57(2) of the Scotland Act 1998. The new argument of which notice was given in ground (v) was supported by averments in the minute of amendment in which it was said that the judicial system in Albania was systemically corrupt. They incorporated a number of reports about the judicial system in that country by, among others, the European Commission, the Swedish International Cooperation Agency and the US Department of State, Bureau of Democracy, Human Rights and Labour. Reference was also made to reports prepared by Dr Mirela Bogdani and Ms Miranda Vickers, copies of which were lodged on 10 November 2011. The appellant also sought to rely on a report by an Albanian lawyer named Periand Teta about the circumstances in which a right to a retrial might or might not be available in Albania. The Lord Advocate did not oppose the amendment of the grounds in the note of appeal or the receipt of the devolution minute. But he submitted that the amended ground (v) should not be argued until a preliminary issue about the admissibility of the new evidence relating to it had been determined. He did not oppose the receipt or use of the report by Periand Teta in relation to ground (iv). A further procedural hearing was fixed for determining the preliminary issue as to the admissibility of the new evidence on ground (v). The issue as to admissibility was debated on 11 November and 20 December 2011. Counsel for the Lord Advocate submitted that the reports by Dr Bogdani and Ms Vickers did not satisfy the test for the admission of new evidence in section 104(4)(a) of the 2003 Act, as it was not evidence which did not exist at the time of the extradition hearing before the sheriff or could not have been obtained with reasonable diligence: Engler v Lord Advocate [2010] HCJAC 42, 2010 JC 235, para 12. He also submitted that their criticisms of the Albanian judicial system were advanced entirely at the level of generality, and that there was nothing in them which indicated how such criticisms as might be made of the system would affect the appellants right to a fair trial. So they should not be introduced as new evidence, and the appeal in so far as based on ground (v) should be refused. On 2 February 2012 the Appeal Court (Lady Paton, Lord Turnbull and Lord Marnoch) issued their decision on the preliminary issue: [2012] HCJAC 17. Delivering the opinion of the court Lord Turnbull said in paras 28 30 that an examination of the reports disclosed that counsel for the Lord Advocates analysis of them was correct. None of the examples of the particular deficiencies in the judicial system impacted on circumstances in which the appellant would find himself if returned to face trial in Albania. The material which they contained was of a wholly general nature, and it contained nothing to suggest that any of the concerns identified would apply to his case. In para 30 Lord Turnbull said: Nothing within either report supports the appellants contention that he would face an unfair trial on his return to Albania or in any way supports his contention that any retrial would lack the fundamental requirements of article 6. We note also that nothing in either report bears upon the question of whether any such retrial would comply with the particular requirements referred to in section 85(8) of the Act. Accordingly, in our view, the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers is irrelevant to the ground of appeal in question and ought not to be admitted for this reason. It was agreed that the additional evidence of Periand Teta should be admitted, and the Lord Advocate was given leave to lead evidence in rebuttal of it, if so advised. The court declined to give effect to the submission that the appeal so far as based on ground (v) should be refused, holding that the appellant could present arguments in support of it based on evidence led before the sheriff and in the Teta report. Counsel for the appellant submitted that an appellant was entitled to rely on new evidence even if it could have been made available at the extradition hearing, as to which there appears to be some uncertainty about the approach that should be taken. That which was adopted in Engler, paras 11 12, appears not to be consistent with the more flexible approach indicated by Trajer v Lord Advocate [2008] HCJAC 78, 2009 JC 108, paras 28 29. But the Appeal Court found it unnecessary to resolve this issue. A further hearing as to the issues raised by ground (iv) took place in May 2012. On 1 June 2012 the Appeal Court (Lord Justice General Hamilton, Lord Menzies and Lord Wheatley) dismissed the appeal against the sheriffs order of 20 January 2011: [2012] HCJAC 84. In para 3 of his opinion the Lord Justice General observed that the ruling of 2 February 2012 had, in effect, excluded ground (v) of the grounds of appeal. The only subsisting ground was ground (iv), and the court was satisfied that under Albanian law the appellant would, on his return, be entitled to apply for an extension of the time limit for bringing an appeal against his conviction, that he would be entitled to have that appeal granted and that thereafter he would be entitled to a review amounting to a retrial with the rights referred to in section 85(8) of the 2003 Act: para 22. On 21 June 2012 the appellant asked for and was given leave to appeal the issue raised in his devolution minute to the Supreme Court. That was the issue which had in effect been excluded by the Appeal Courts ruling on 2 February 2012 that the evidence that the appellant wished to lead in support of it was irrelevant. Jurisdiction The Scotland Act 2012 made a number of important changes to this courts jurisdiction to deal with devolution issues under Schedule 6 to the 1998 Act. They came into effect on 22 April 2013: see ONeill and Lauchlan v HM Advocate [2013] UKSC 36, para 5. Under the previous law, the question whether the exercise of a function by a member of the Scottish government in ordering the appellants extradition was compatible with the affected persons Convention rights was a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the Scotland Act 1998, as to which a right of appeal against the determination of a court of two or more judges of the High Court of Justiciary was provided by paragraph 13(a) of the Schedule: BH v Lord Advocate [2012] UKSC 24, 2012 SC (UKSC) 308, para 34. The appellant submitted in his written case that, as a consequence of the amendments that were introduced by the 2012 Act, the issue which was identified in his devolution minute had been converted into a compatibility issue. At the hearing his counsel, Mr Scott QC, conceded that this was not so. But the point is of some importance, and it is worth saying something about it. Section 36(4) of the 2012 Act amends the definition of devolution issue in paragraph 1 of Schedule 6 to the 1998 Act by adding at the end of that paragraph the words: But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of (a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament, (b) a function, (c) the purported or proposed exercise of a function, (d) a failure to act. Section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995, which was inserted into the 1995 Act by section 34(3) of the 2012 Act, provides that compatibility issue means, among other things, a question, arising in criminal proceedings, as to (a) whether a public authority has acted (or proposes to act) (i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or (ii) in a way which is incompatible with EU law The appellants point was that, if the issue is a compatibility issue, the focus of attention is not limited to the compatibility of an act of a member of the Scottish government. It can extend to the broader question whether the Appeal Court was correct in its determination of the compatibility issue. A court is a public authority. So acts of a court, including those of the Appeal Court itself, can be brought under scrutiny under the new system if they raise a compatibility issue as so defined. This, it is suggested, widens the scope of the appeal. The nature of the issue is relevant too to the powers that the Supreme Court may exercise. There is no restriction on the powers that it may exercise under rule 29(1) of the Supreme Court Rules 2009 (SI 2009/1603) when it is determining a devolution issue. The amendments introduced by the 2012 Act leave those powers unaltered. That is not so if the issue is a compatibility issue. It is open to the Supreme Court to determine a compatibility issue on an appeal to it under section 288AA of the 1995 Act, which was inserted by section 36(6) of the 2012 Act. But section 288AA(2) provides that the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue. Subsection (3) provides that, when it has determined the compatibility issue, the Supreme Court must remit the proceedings to the High Court of Justiciary. Subsection (4) provides that the expression compatibility issue has the same meaning for the purposes of section 288AA as it has in section 288ZA. The Lord Advocate submits that, properly construed, extradition proceedings are not criminal proceedings for the purposes of section 288AA(4) of the 1995 Act: see para 15 above, in which the definition of compatibility issue for the purpose of that subsection is set out. This is because they do not involve the determination of any criminal charge. The Lord Advocate performs the functions that he is required to carry out in proceedings of this kind under section 191 of the 2003 Act, which states that he must conduct any extradition proceedings in Scotland. He accepts that he is constrained in what he can do by the fact that he is a member of the Scottish Government under section 57(2) of the 1998 Act, which provides that he has no power to act in a way that is incompatible with any of the Convention rights. But his position is that he does not perform these functions in his capacity as the public prosecutor. In Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604, para 31 Lord Mance said that an examination of the case law of the Strasbourg court shows that both the commission and the court have stood firm against any suggestion that extradition as such involves the determination of a criminal charge or entitles the person affected to the procedural guarantees provided in the determination of such a charge under article 6(1) or 6(3) of the Convention. In BH v Lord Advocate, para 33 it was noted that in Goatley v HM Advocate [2006] HCJAC 55, 2008 JC 1 and La Torre v HM Advocate [2006] HCJAC 56, 2008 JC 23 the Lord Advocate had conceded that devolution minutes were competent in proceedings under the 2003 Act. It seemed to me that this concession was properly made and that the High Court was right to give the concession its approval. The basis on which it was made was that the Lord Advocate and the Scottish Ministers were performing their functions under the 2003 Act as members of the Scottish Executive within the meaning of section 57(2) of the Scotland Act 1998, and that the Lord Advocate was not acting as head of the system of prosecution in Scotland: see Goatley, paras 13 14; La Torre, paras 46 47. A challenge to their proposed exercise of those functions by means of a devolution minute was to be seen as a parallel remedy to that afforded by section 87(1) of the 2003 Act. The conclusion that these proceedings are not criminal proceedings for the purposes of section 288AA(4) of the 1995 Act which follows from the analysis in BH v Lord Advocate is reinforced by the fact that extradition is a reserved matter under section B11 of Schedule 5 to the Scotland Act 1998. Scots criminal law is devolved, unless it relates to a reserved matter: section 29(4) of that Act. The Lord Advocate and the Scottish Ministers are given a specific role under various provisions of the 2003 Act in relation to extradition proceedings in Scotland, as is the High Court of Justiciary. These roles are not made part of, but are provided for separately from, those that they are required to perform under the 1995 Act. It is to be noted that there is no right of appeal to this court against a decision of the High Court of Justiciary under Part 2 of the 2003 Act. Section 114(13) provides that the provisions of that section, under which an appeal lies to the Supreme Court from a decision of the High Court on an appeal under Part 2, do not apply to Scotland. That it was thought necessary to make this provision shows that an interlocutor pronounced by the High Court of Justiciary in extradition proceedings is not to be regarded as having been made under Part VIII of the 1995 Act, which has its own provision excluding any further right of appeal. Section 124(2) of that Act provides that an interlocutor under that Part is final and conclusive and not subject to review by any court whatsoever. One can appreciate, in this context, the significance of the Lord Advocates concession in Goatley and La Torre. Its effect is that, although there is no right of appeal to this court under the 2003 Act, the person affected is entitled to exercise the right of appeal against a determination of a devolution issue by two or more judges of the High Court of Justiciary which paragraph 13(a) of Schedule 6 to the Scotland Act 1998 provides for: see BH v Lord Advocate, para 34. The wording of that paragraph is wide enough to accommodate any issue which falls within the definition of devolution issue in paragraph 1 of the Schedule. It includes a question whether a purported or proposed exercise of a function by a member of the Scottish Government is incompatible with any of the Convention rights: paragraph 1(d). That will include the exercise of functions under the 2003 Act. I would hold therefore that it follows from the nature of the statutory provisions under which the Lord Advocate performs his functions in extradition cases, and from the reasoning in BH v Lord Advocate which led to the conclusion set out in para 34 of that judgment, that the issue which has given rise to the proceedings under which this appeal is brought is a devolution issue as defined by paragraph 1(d) of Schedule 6 to the Scotland Act 1998. It is not a question arising in criminal proceedings. So it is not excluded from the definition of devolution issues by section 36(4) of the Scotland Act 2012. I should add that I see no disadvantage to the appellant in this conclusion. The protection against the exercise of functions by the Lord Advocate under the 2003 Act in a way that is incompatible with any of the Convention rights that the devolution issues system provides is just as effective as if the new system introduced by the 2012 Act had applied to them. The substantive issue Mr Scott accepted that, although the situation in Albania about the possibility of a retrial in cases where there has been a conviction in absentia remains complicated, he can no longer rely on ground (iv) alone as the basis for his appeal. In R (Mucelli) v Secretary of State for the Home Department [2012] EWHC 95 (Admin), para 55, Cranston J said that in his view the law and practice in Albania was now such that there was no real risk that the applicant in that case would suffer a flagrant denial of justice on his return to Albania, as he was entitled to a retrial on the merits of the case against him. In Zeqaj v Albania [2013] EWHC 261 (Admin), para 16, Gloster J concluded that the further evidence which the court heard in that case did not justify departing from the analysis in Mucelli. In neither of these cases, however, was extradition resisted on the basis that the judicial system in Albania is systemically corrupt. The appellants case is that from the time of its foundation in 1991, following the dissolution of the former Socialist Republic, the Republic of Albania has suffered from problems with corruption which it inherited from the former Republic. They were still in evidence when Albania joined the Council of Europe in 1995 and when it ratified the European Convention on Human Rights in 1996. While it has been addressing this problem, it has not been eliminated. The Institute for Development Research and Alternatives Report Corruption in Albania: Report of Comparisons between the 2005 Judges and National Surveys (revised on 16 May 2006) noted in its executive summary at p 2 that slightly more than half of the judges surveyed agreed that, although bribery was not thought to be a common feature, corruption in the court system was a serious problem in Albania and that lawyers approached them outside of court to influence their decisions. In the 2009 Foreign and Commonwealth Office Annual Report on Human Rights (March 2010) (Cm 7805), at p 70, it was stated that widespread corruption remains a major obstacle to upholding individual rights in Albania. The Home Office UK Border Agency Country of Origin Information Report of 30 March 2012 includes in para 12.01 a quotation from the US State Department 2010 Human Rights Report on Albania (USSD Report 2010) published on 8 April 2011 to the effect that widespread corruption prevents the judiciary from functioning independently and efficiently. There was enough in this material and in the reports of Dr Bogdani and Ms Vickers to give rise to a concern that the Appeal Court did not give proper consideration to the issue when it refused to admit the proposed new evidence contained in their reports on the ground that it was irrelevant. For the Lord Advocate Mr Wolffe QC pointed out that in 2009 Albania applied for membership of the European Union, and that in October 2012 the Commission recommended that Albania should be accepted as a candidate for membership subject to measures for judicial and public service reform. Albania has a modern code of criminal procedure which is not now said to be incompatible with the Convention and which provides for rights of appeal. But he did not seek to suggest that corruption was not still a problem in that country and he accepted that corruption was an issue about which concern should be expressed. Further work had been done on the Lord Advocates behalf to obtain information as to the situation as it is now, as it was recognised that it was unsatisfactory for the court to be asked to deal with the issue on a hypothesis. For example, it had been established that it is now possible for Albanian judges to be prosecuted on corruption charges, and it appeared that the judges themselves are committed to addressing the problem. The information that had now been obtained would be put before the Appeal Court if the case were to be remitted to it for a reconsideration of this ground of appeal. But Mr Wolffes basic point remained that which he made when the issue was debated before the Appeal Court in December 2011. This was that the material in the reports on which the appellant wished to rely was of a wholly general nature. The question was whether, if the appellant were to face a retrial in Albania, he would be the victim of a flagrant denial of justice: EM (Lebanon) v Secretary of State for the Home Department [2009] UKHL 64, [2009] AC 1198, paras 34 35, per Lord Bingham of Cornhill. There was nothing in the reports on which the appellant wished to rely which addressed the issue whether judicial corruption would lead to a flagrant denial of justice in his case. He pointed out that a finding that any one accused who was facing extradition and a retrial in Albania would face a flagrant denial of justice because the judicial system was corrupt would be of interest to everyone. He said that there were 17 countries which were regarded as being more corrupt than Albania. The precise figure does not matter, but it appears from the Transparency International Corruption Index for 2012 that there are at least that many countries to which the UK currently has extradition arrangements. Discussion It is a sad fact that, despite all the many provisions in international human rights instruments which emphasise that everyone has the right to a fair trial before an independent and impartial judge, there are still states where the judiciary as a whole is infected by corruption. It is, of course, hard to get at the true facts. But there is no smoke without fire, and where allegations of corruption are widespread they must be taken seriously. So too must an appreciation of what corruption may lead to when it affects the whole system. It may involve simple bribery of judges and court officials, or it may involve interference with the judicial system for political reasons of a much more insidious kind. Unjust convictions may result, just to keep the system going and keep prices up. Everyone whose case comes before the courts of that country where practices of that kind are widespread is at risk of suffering an injustice. Those who are familiar with the system may know how much they need to pay, or what they have to do, to obtain a favourable decision but be quite unable to come up with what is needed to achieve that. Those who are not familiar with it will be at an even greater disadvantage. How, then, is the question whether the appellant would suffer a flagrant denial of justice if he were to be extradited to be applied in this case? The Lord Advocate submits that this is a stringent test. It goes beyond mere irregularities or lack of safeguards in the trial process that might give rise to a breach of article 6 if they were to occur within the contracting state itself. In Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, to which Lord Bingham referred when he was describing the test in EM (Lebanon), it was held that this test was not satisfied. The Grand Chamber held that, while there may have been reasons for doubting whether the applicants would receive a fair trial, there was not sufficient information to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice. In para O III14 of their joint partly dissenting opinion, to which Judge Rozakis also subscribed, Judges Bratza, Bonello and Hedigan said that in their view the word flagrant was intended to convey a breach of the principles of fair trial guaranteed by article 6 which was so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by the article. In Othman v United Kingdom (2012) 55 EHRR 1 the applicants complaint was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that incriminating statements against him had been obtained by torture. The court adopted the meaning to be given to the phrase flagrant denial of justice in the partly dissenting opinion in Mamatkulov, which it said was a stringent test of unfairness: para 260. It was satisfied that the ill treatment of the witnesses which was alleged amounted to torture. That meant that the two questions it had to consider were whether a real risk of the admission of that evidence was sufficient and, if so, whether a flagrant denial of justice would arise in the applicants case: para 271. It was conscious of the fact that the Grand Chamber did not find that the test had been met in Mamatkulov: para 283. But the applicants complaint was not of the general and unspecific kind that was made in that case. It was a sustained and well founded attack on a State Security Court system that would try him in breach of one of the most fundamental norms of international justice, which was the prohibition on the use of evidence obtained by torture. The court found that his deportation to Jordan would be in violation of article 6. In the most recent case to which we were referred the Strasbourg court has shown no sign of wishing to soften its approach. In Insanov v Azerbaijan (Application No 16133/08) unreported, given 14 March 2013, the court found that the criminal proceedings against the applicant did not comply with certain guarantees of article 6. Nevertheless it held in para 184 that the flaws were not of such a nature as to render the entire trial so fundamentally unfair as to amount to a flagrant denial of justice. It observed that until now the court has found that a flagrant denial of justice has occurred or would occur only in certain very exceptional circumstances. The test itself is not in doubt. As Lord Bingham said in EM (Lebanon), para 35, the point could not have been put more clearly than it was by the Asylum and Immigration Tribunal in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1. The threshold test will require a flagrant breach of the relevant right, such as will completely deny or nullify the right in the destination country. But none of the cases in which the test has been described was concerned with the way it is to be applied where the complaint is of systemic judicial corruption. It is not so obvious that the only way it can be met, as it was in those cases, is by pointing to particular facts or circumstances affecting the case of the particular individual. The stark fact is that systemic corruption in a judicial system affects everyone who is subjected to it. No tribunal that operates within it can be relied upon to be independent and impartial. It is impossible to say that any individual who is returned to such a system will receive that most fundamental of all the rights provided for by article 6 of the Convention, which is the right to a fair trial. For these reasons I would hold that the allegations that the appellant makes are sufficiently serious for it to be necessary to have a closer look at the material in order to determine how systemic or widespread the problem now is. We are not in a position to do that in this court. The reports of Dr Bogdani and Ms Vickers have been lodged, but they are two years out of date and Mr Scott, very properly, did not ask us to examine them as if they were the last word on the subject. There is reason to think that matters have moved on since they did their work. The further evidence which is available to for the Lord Advocate is not before us. The proper course, therefore, is for the case to be returned to the Appeal Court so that it can be provided with up to date information and reach a properly informed decision as to whether or not the threshold test is satisfied. Its task will be greatly eased if, as there is every reason to expect from responsible counsel, the parties exchange and agree as much information as possible with a view to reducing to a minimum the need for any oral evidence. The further delay that will result in the resolution of these proceedings is regrettable. But it is of the highest importance that due process be observed in matters of this kind. It is always tempting to resort to short cuts. But where a persons liberty and his right to a fair trial is at issue that temptation must be resisted. It is plain that the matter must be properly investigated before a decision is taken as to whether the appellants extradition to Albania should go ahead. Conclusion permitted to adduce evidence to rebut any conclusions in the appellants favour that may be derived from those reports and any other admissible evidence that he may lead. The appellant must remain in custody for the time being. I would recall the Appeal Courts interlocutor of 1 June 2012 by which it dismissed the appeal against the sheriffs order of 20 January 2011, and remit the case to the High Court of Justiciary for further consideration. I would set aside the Appeal Courts finding on 2 February 2012 that the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers was irrelevant to the ground of appeal and ought not to be admitted. The Lord Advocate should be

UK-Abs

The question in this appeal is whether extraditing Mr Kapri to Albania would breach his right to a fair trial under article 6 of the European Convention on Human Rights (the Convention). Mr Kapri is an Albanian national. In 2001 he was present in the UK as an illegal immigrant. He is alleged to have been responsible for the murder of another Albanian national in London on 7 April 2001. The Metropolitan Police were unable to locate Mr Kapri, who had left the day after the murder for Glasgow and assumed a false Macedonian identity. They invited the Albanian authorities to prosecute him, since Albania has jurisdiction to prosecute in cases of homicide committed abroad where the victim and the alleged perpetrator are both Albanian. Mr Kapri was tried in his absence in Albania, convicted, and sentenced to 22 years imprisonment. On 3 January 2003 the decision against Mr Kapri became final. His whereabouts remained unknown to the Albanian authorities. In May 2010, the UK police became aware that he was living in Glasgow. On 22 June 2010, the Albanian authorities formally requested his extradition to Albania. Mr Kapri was arrested in Glasgow on 24 June 2010 and has been in custody ever since. On 20 January 2011, the Sheriff decided that there were no bars to extradition and ordered that the case be sent to the Scottish Ministers. The Scottish Ministers decided that they were not prohibited from ordering his extradition and on 15 March 2011 an extradition order was served on him. Mr Kapri appealed and lodged a devolution minute explaining the nature of his Convention rights challenge under the Scotland Act 1998. He was allowed to amend his Note of Appeal such that only two grounds of appeal were before the Appeal Court: ground (iv) (relating to the likelihood of a retrial in Albania) and a new ground (v) (relating to the alleged systemic corruption in the Albanian judicial system). He also lodged a devolution minute in relation to ground (v). However, on 2 February 2012, the Appeal Court refused to admit certain new evidence which arose under ground (v), effectively excluding that ground. Following a hearing on ground (iv), on 1 June 2012 the Appeal Court dismissed the appeal. It later granted permission to appeal to the Supreme Court. At the appeal hearing in the Supreme Court, Mr Kapri only relied on ground (v). The Supreme Court unanimously allows Mr Kapris appeal. The case will be returned to the Appeal Court for consideration of the question whether Mr Kapri would suffer a flagrant denial of justice if he were to be extradited to Albania [33, 34]. Lord Hope gives the judgment of the Court. The question is whether Mr Kapri would suffer a flagrant denial of justice if he were to be extradited to Albania. This threshold test is stringent. In a recent case, the European Court of Human Rights observed that until now it has been or would be met only in certain very exceptional circumstances. It will require a breach of the relevant right in the country to which the person is to be extradited which is so fundamental that it nullifies, or destroys the very essence of, the right. None of the cases in which the test has been described was concerned with a complaint of systemic judicial corruption as in the present case. It is not apparent that the only way it can be met, as it was in those cases, is by pointing to particular facts or circumstances affecting the case of the particular individual [29, 32]. It is hard to get at the true facts, but where allegations of corruption are widespread they must be taken seriously. When corruption affects the whole system, it may involve simple bribery of judges and court officials, or it may involve interference with the judicial system for political reasons of a much more insidious kind. Unjust convictions may result, just to keep the system going and keep prices up. Those who are familiar with the system may know what they need to do or pay to obtain a favourable decision but be quite unable to come up with what is needed. Those who are not familiar with it will be at an even greater disadvantage. Systemic corruption in a judicial system affects everyone who is subjected to it. No tribunal that operates within it can be relied upon to be independent and impartial. It is impossible to say that any individual who is returned to such a system will receive the right to a fair trial under article 6 of the Convention [28, 32]. The allegations that Mr Kapri makes in relation to the corruption of the Albanian judicial system are sufficiently serious for it to be necessary to have a closer look at the evidence on which Mr Kapri attempted to rely before the Appeal Court. The Supreme Court is not in a position to determine how systemic or widespread the problem now is. The evidence may not reflect the current position and further studies have since been conducted for the Lord Advocate. The case should be returned to the Appeal Court so that it can be provided with up to date information and reach a properly informed decision as to whether or not the threshold test is satisfied. The further delay that will result is regrettable, but it is plain that the matters must be properly investigated before a decision is taken as to whether the appellants extradition should go ahead. For the time being he must remain in custody [33 35]. A preliminary issue arose as to whether the question in this appeal raises a devolution issue in terms of the Scotland Act 1998 or a compatibility issue in terms of the Criminal Procedure (Scotland) Act 1995 as recently amended. The Court holds that it raises a devolution issue. The Lord Advocate does not act in his capacity as head of the prosecution service in Scotland when he performs functions under the Extradition Act 2003. Since the question in this appeal is not a question that arises in criminal proceedings it cannot raise a compatibility issue [23].

We are asked in this case to reconcile the irreconcilable. On the one hand, there is the interest of a vulnerable young woman (X) who made an allegation in confidence to the authorities that while she was a child she had been seriously sexually abused by the father of a little girl (A) who is now aged 10. On the other hand we have the interests of that little girl, her mother (M) and her father (F), in having that allegation properly investigated and tested. These interests are not only private to the people involved. There are also public interests, on the one hand, in maintaining the confidentiality of this kind of communication, and, on the other, in the fair and open conduct of legal disputes. On both sides there is a public interest in protecting both children and vulnerable young adults from the risk of harm. The history M, who is British, and F, who is Australian, married in 2000 and lived in England. A was born in June 2002. M and F separated in December 2002. A remained living with M and F returned to live in Australia in 2003. He applied for contact with A and there have since been six court hearings and six contact orders designed to ensure that A could see her father when he came to England. The most recent of these, made in February 2009, provided for A to stay with her father during his expected visits to England in February and summer 2010 and in later years. In late 2009, X alleged that she had been seriously sexually abused by F when she was a young child. This account was first given to some adults she knew, who reported the matter to the local childrens services authority. Social workers investigated and formed the view that the allegations could be true. X was however adamant that she did not want any action to be taken on her allegations or her identity revealed to anyone. In March 2010, knowing that F would be coming to England to see his daughter, the local authority informed M that a young adult had made serious allegations against F which the authority regarded as credible and that she should take steps to protect A from the risk of sexual abuse by F. After some keep safe work with A, and having advised M not to allow F to have unsupervised contact with A and to seek legal advice, the local authority closed the case. In May 2010, M applied to vary the contact order made in February 2009. The county court ordered the local authority to disclose the information about the allegations in its possession to the parties. The local authority resisted this because they wished to preserve Xs confidence and her level of distress indicated that revealing her identity would expose her to the risk of further serious emotional harm. They recommended that contact between A and F be supervised pending the resolution of the issue of whether F presented a risk to A. The contact order was varied to this effect in September 2010. After an inordinate delay, the proceedings were transferred to the High Court and A was joined as a party to the proceedings, represented by a Childrens Guardian. When the matter eventually came before Peter Jackson J in September 2011, he adjourned it so that a report could be obtained from Dr W, a consultant psychiatrist who has been treating X since 2010, and X could be informed both of the advantages to A of her taking part in the proceedings and of the measures available to protect vulnerable witnesses. In January 2012, Dr W produced two reports, one a full report reviewing Xs medical and psychiatric records in detail and giving her answers to the specific questions asked by the judge, the other a shorter edited version but setting out her opinion and answers in identical terms. This Court has seen only the edited version. The salient points are as follows: (i) X has a long history of repeated presentations with medically unexplained symptoms beginning in early childhood. (ii) There appears to be a close temporal relationship between Xs reported experiences of abuse and her presentation with episodes of medically unexplained symptoms. (iii) Most recently, X has experienced episodes of physical illness which have at times been life-threatening. It is the opinion of a number of medical professionals caring for her that psychological factors are, at the very least, exacerbating her symptoms. X has received medical treatment for her condition which has had a number of damaging side-effects and there has been a significant deterioration in her health. (iv) There does appear to be a pattern of worsening illness which coincides with the increasing pressures arising from the legal issues. (v) X feels that her initial disclosure put in motion a chain of events which has left her feeling distrustful and lacking confidence in processes that should have been protective of her. It is her perception that, despite reassurances about confidentiality, it has at times been breached. She was also led to believe that she would not be required to speak of the allegations again and the present situation has undermined her confidence in the system. (vi) In answer to the specific questions: (a) The psychological/psychiatric implications for or effects upon X regarding the disclosure of social services records to the parties: It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy. (b) The psychological/psychiatric implications for or effects upon X of being summoned to court to give oral evidence about the allegations documented in the said records: My opinion on this is as above. Being summoned to court is one step further than disclosure and would inevitably be immensely stressful and therefore carry the same risk of deterioration in her physical (and mental) health. (c) Xs capacity with appropriate support to participate in the court proceedings including making a statement and attending court to give evidence: I believe that X has the capacity to participate in court proceedings. However, it should be noted that various professionals at different times have commented on the difficulty of interviewing her in relation to the alleged abuse. My own experience of exploring these issues with her is that many of my questions were met with silence; she was clearly very uncomfortable and distressed and seemed unable to respond. When I asked her about appearing in court she responded I can't. (d) Xs understanding of the measures which might be put in place to protect her as a vulnerable witness: When asked about her understanding of these, X told me that she understood that she could provide evidence via video link. However, she said that this would be a traumatic prospect for her as she understood that the alleged abuser would be able to see her face and she could not cope with this. As above, I also think that her perception that processes so far have, to some extent, let her down means that she does not feel confident in any of the reassurances provided. There is also a report, also dated January 2012, from her consultant physician, Dr MG, stating that X is under his care at a hospital, with a diagnosis of steroid dependent difficult asthma and steroid induced myopathy. She has ongoing severe respiratory symptoms. Increasing stress would undoubtedly be of no benefit to her ongoing symptoms and would not help her rehabilitation to occur more quickly. By the time the matter came to be heard by Peter Jackson J on 20 January 2012, the state of knowledge of the various actors was as follows. The local authority not only knew the identity of X but also had a full record of her allegations. M also knew the identity of X, because in July 2010 the local authority had inadvertently disclosed to her unredacted material which had enabled her to work out who X was. M states that she spoke to X as a result and has come to believe that her allegations are true. But she does not know the details. F has always denied that he has sexually abused anyone and has alleged that M is behind the allegations in order to prevent his having a relationship with his daughter. He states that he does not know who X is. The Childrens Guardian inadvertently came to know her identity in September 2011 because her name was erroneously left in a document disclosed by the local authority. But the Guardian knows nothing more of the confidential material. The Judge did, however, have all the material as he had ordered in September 2011 that the material for which the local authority claimed public interest immunity be disclosed to the court. On 16 February 2012, Peter Jackson J gave judgment dismissing the applications of M, F and the Childrens Guardian for disclosure of the local authoritys records: [2012] EWHC 180 (Fam). He accepted the medical evidence about the potentially serious effect of disclosure on Xs health. The information, once disclosed, could not be controlled. Her identity and the allegations were inextricably intertwined. Having earlier reached the conclusion that compelling X to give evidence would be oppressive and wrong, to order disclosure when the court was not prepared to order her to give evidence would risk harming her health without achieving anything valuable for A and her parents. The nature of the allegations was such that they could not readily be proved or disproved by reference to third parties or independent sources. It was therefore unlikely that any outcome achieved in Xs absence would clear the air between the parties or provide a solid foundation for future arrangements for A. The court must also have regard to the interests being balanced, contact on the one hand and physical and mental health on the other. His judgment did not, in so many words, make it clear that the confidential material would henceforth play no part in the case. Indeed there are passages in his judgment which might be taken to suggest otherwise. The Childrens Guardian appealed and it was agreed that the Court of Appeal should also see the full material. On 24 July 2012, the Court of Appeal announced that the appeal was allowed: [2012] EWCA Civ 1084. McFarlane LJ gave short oral reasons. The principal reason was that the mother was now in the worst of all possible positions, knowing and believing X, but not being able to have the truth of the allegations resolved in the proceedings. On 21 September 2012 McFarlane LJ gave a full judgment with which Thorpe and Hallett LJJ agreed: [2012] EWCA Civ 1204. The Court held that the judge had been wrong to link consideration of whether X could ever give oral evidence with the issue of disclosure. Until the relevant adults were told of the allegations, it was simply too early to decide whether or not they could be proved or disproved by reference to third parties or independent sources. Disclosure of the core material had a freestanding value irrespective of whether or not in due course X could be called to give oral evidence. The Court also held that it would have been wrong for Peter Jackson J to continue to hear the case having read the confidential material but having refused to order its disclosure. The Supreme Court gave X permission to appeal. Unlike the High Court and the Court of Appeal, this Court has not seen the material for which public interest immunity is claimed. On the other hand, this Court has had the benefit of hearing argument from counsel appearing pro bono for both the mother and the father who were acting in person in the courts below. We are most grateful to Frank Feehan QC and Gemma Taylor and to Jane Crowley QC and Sharon Segal for offering their services, which have been very helpful to us in resolving this difficult issue. The positions of the parties are as follows: (i) Sarah Morgan QC, on behalf of X, resists disclosure on the primary ground that this will violate her right not to be subjected to inhuman or degrading treatment, contrary to article 3 of the European Convention on Human Rights. Alternatively, the balance between her right to respect for her private life and the rights of the other parties should be struck by the court adopting some form of closed material procedure which would enable the allegations to be tested by a special advocate appointed to protect the parents interests but without disclosure to the father. (ii) Paul Storey QC, on behalf of the Childrens Guardian, supports disclosure in the interests of A. As right to respect for her private and family life is engaged, as potentially is her article 3 right to protection from abuse: see Z v United Kingdom (2001) 34 EHRR 97. The allegations cannot be ignored but they cannot be taken into account unless they can be properly investigated. (iii) The mother is in the same position, but with the additional feature that she knows who X is and believes the principal thrust of her allegations to be true. She understands that it will not be possible to rely upon these unless they can be properly investigated but she will have great difficulty in agreeing that the father should resume unsupervised contact with A unless they are. (iv) The father also supports disclosure. He might instead have relied on the mothers inability to pursue the allegations without disclosure but he wishes to have them resolved. Not having seen the history of how and when Xs allegations were made, he does not accept the judges conclusion that they were not prompted by the mother. (v) The local authority now adopt a completely neutral stance as to disclosure. Roger McCarthy QC on their behalf accepts that if the material is not disclosed in these proceedings it would not be possible for the local authority to bring care proceedings to remove A from her mother unless the material could be disclosed in those proceedings. In other words, they accept that they cannot have it both ways and put all the burden of protecting A upon the mother without giving her the material with which to do so. The common law principles It is convenient first to look at the principles governing the issue at common law, before considering how these may have been affected by the implementation of the Human Rights Act 1998. The local authority claim public interest immunity for their records relating to X and her allegations. They are doing so because of the public interest in maintaining the confidentiality of information given to the authorities responsible for protecting children from abuse. That this is a class of information to which public interest immunity attaches has been established since the decision of the House of Lords in D v National Society for the Prevention of Cruelty to Children [1978] AC 171. That case accorded to people who informed the authorities of allegations of child abuse the same protection as informants to the police and the gaming authorities. It is not the fact that the information is communicated in confidence which attracts the immunity, but the public interest in encouraging members of the public to come forward to help the authorities to protect children. That this may also protect an untruthful or malicious informant is the necessary price to be paid. Although D v National Society for the Prevention of Cruelty to Children was concerned with a neighbour who claimed to have witnessed the alleged abuse, rather than a victim, I can see no reason why the same rationale should not also apply to the victims of alleged abuse. That is not, of course, the whole story. The immunity is only the starting point, for without it there is no question that all documentation relevant to the proceedings must be disclosed. Public interest immunity is not absolute. The public interest in maintaining confidentiality must be balanced against the public interest in a fair trial, according to principles which have developed since the landmark case of Conway v Rimmer [1968] AC 910 required the court to strike that balance. If the public interest against disclosure prevails, the decision-maker, whether judge or jury, is not entitled to take the information into account in deciding the result of the litigation. There is no hard and fast rule as to whether the same judge can continue to hear the case. It is well-established that a judge may do so in a criminal case, but then the jury and not the judge are the finders of fact. It may also be possible to do so in a civil case: see Berg v IML London Ltd [2002] 1 WLR 3271. The well-established test of apparent bias will apply: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. Are cases about the future care and upbringing of children any different? The whole purpose of such cases is to protect and promote the welfare of any child or children involved. So there are circumstances in which it is possible for the decision-maker to take into account material which has not been disclosed to the parties. As Lord Devlin put it in In re K (Infants) [1965] AC 201, 238, a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed. He went on, at p 240, to approve the words of Ungoed Thomas J at first instance [1963] Ch 381, at p 387: However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose. . . . In general publicity is vital to the administration of justice. Disclosure to the parties not only enables them to present their case fully but it provides in some degree the advantages of publicity; and it further ensures that the court has the assistance of those parties in arriving at the right decision. So when full disclosure is not made, it should be limited only to the extent necessary to achieve the object of the jurisdiction and no further. Thus, while there was no absolute right for the mother to see the report made by the Official Solicitor as guardian ad litem for a ward of court, the discretion to refuse it was to be exercised occasionally and with great caution. Lord Evershed had earlier set the bar extremely high when he said (at p 219) that a judge should not reach such a conclusion without the relevant disclosure to the party or parent save in rare cases and where he is fully satisfied judicially that real harm to the infant must otherwise ensue (emphasis supplied). In In re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593, referred to by the Court of Appeal in this case as the starting point, Lord Mustill, at p 611, did not accept that Lord Evershed intended those words to be read literally as a standard applicable in every wardship case, let alone in adoption cases which were governed by the Adoption Rules. These then provided that all reports were confidential, but that an individual could inspect any part of such report which referred to him, subject to the courts power to direct otherwise. In Children Act proceedings, Lord Mustill preferred the broader principle enunciated by Glidewell LJ in In re B (A Minor)(Disclosure of Evidence) [1993] Fam 142 at p 155: Before ordering that any such evidence be not disclosed to another party, the court will have to consider it in order to satisfy itself that the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it. Thus Lord Mustill concluded, at p 614, that the presumption in favour of disclosure is strong indeed, but not so strong that it can be withheld only if the judge is satisfied that real harm to the child must otherwise ensue. He went on, at p 615, to enunciate the principles which have been recited ever since: (i) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. (ii) When deciding whether to direct that a party referred to in a confidential report in adoption proceedings should not be able to inspect the part which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child. (iii) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur. (iv) If the court is satisfied that the interests of the child point towards non- disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case. It will thus be seen that these principles are designed to protect the welfare of the child who is the subject of the proceedings, to prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child. If they were to be applied in this case, it is clear that there is little or no risk of harm to A if the material is disclosed. The risk is if the material is not disclosed and a wrong decision is reached as a result. The principles enunciated by Lord Mustill do not address whether it might be possible in Children Act proceedings to withhold information which is to be taken into account by the court from any of the parties on the ground that disclosure might cause harm to someone other than the subject child. In In re B, above, the proceedings were about a fathers contact with his 12-year-old son. His 15-year-old half-sister had made serious allegations of sexual abuse against her stepfather which the mother wanted the court to take into account without disclosing them to the father. As Glidewell LJ pointed out, at p 156, the order was sought, mainly if not entirely, for the protection of the half-sister and it was the sons welfare which was the courts paramount consideration. Even if it were suggested that in some way the son might be harmed by disclosure (though the suggestion was rather that having to keep his sisters allegations secret would be harmful to him), that possibility had to be weighed against the grave injustice which would result from non-disclosure. So even in a case where the third party was a child, it was the interests of the subject child which might have justified non- disclosure. We therefore have to look outside those authorities for the source of any power to withhold such information in the interests of a third party. As the common law stands at present, in the absence of a statutory power to do so, the choice is between the case going ahead without the court taking account of this material at all and disclosing it to the parties. The Human Rights Act To what extent, if at all, are these principles affected by the Human Rights Act 1998? In A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757, the Court of Appeal accepted that the principles of non-disclosure might now have to be extended to other people whose Convention rights might be violated by disclosure. It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others. However, Miss Morgan on behalf of X has relied principally (as did the mother in A Local Authority v A) upon her article 3 right not to be subjected to inhuman or degrading treatment. Requiring X to give evidence in person would, she argues, amount to treatment for this purpose, but so too would the act of disclosure because of the effect that it would have upon X. Dr W was specifically asked to distinguish between the effect of disclosure and the effect of giving evidence (see para 6(vi) above). She replied that disclosure alone would potentially be detrimental to her health. She pointed out that her condition had deteriorated considerably recently, to such an extent as to be life-threatening. Disclosure would inevitably subject her to further stress. There was therefore a significant risk that exposure to further psychological stress would put her at risk of further episodes of illness. That, argues Miss Morgan, is sufficient to bring the effects of the treatment up to the high threshold of severity required by article 3. X has therefore an absolute right not to be subjected to it. The other parties to these proceedings question whether mere disclosure can amount to treatment within the meaning of article 3. They also support the conclusion of the Court of Appeal that the effects of disclosure alone would not reach the minimum level of severity required to violate article 3. Indeed, Peter Jackson J, while concluding that requiring X to give evidence would probably reach that high threshold, did not hold that disclosure alone would do so. He did not say that it would not, but it is clear, not least from the questions he asked of Dr W, that he was fully alive to the distinction between the effects of disclosure and the effects of giving evidence. If her argument on article 3 is not accepted, Miss Morgans secondary case on behalf of X is that the invasion of her private life which would result from disclosure of this material in these proceedings is so grave that it would be disproportionate to disclose it. The court should therefore contemplate some form of closed material procedure, which would enable the material to be put before the court and tested, without disclosing either her identity or the details to the other parties. Discussion If we were dealing with the common law principles alone, the answer would be clear. There is an important public interest in preserving the confidence of people who come forward with allegations of child abuse. The system depends upon the public as its eyes and ears. The social workers cannot be everywhere. The public should be encouraged to take an interest in the welfare of the children in their neighbourhoods. It is part of responsible citizenship to do so. And that includes victims of historic child abuse who have information about the risks to which other children may now be exposed. But many of these informants will not be required to give evidence in order to prove a case, whether in criminal or care proceedings, against the perpetrators of any abuse. Their information will simply trigger an investigation from which other evidence will emerge. Their confidence can be preserved without harming others. In this case, however, that is simply not possible. We do not know whether A is at risk of harm from her father. But we do know of allegations, which some professionals think credible and which would, at the very least, raise the serious possibility of such a risk. Those allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which her father may present to her or can resume her normal relationship with him. That simply cannot be done without disclosing to the parents and to the Childrens Guardian the identity of X and the detail and history of the allegations which she has made. The mother can have no basis for seeking to vary the arrangements for A to have contact with her father unless this is done. If this were an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie. It is, of course, possible that the harm done to an informant by disclosing her identity and the details of her allegations may be so severe as to amount to inhuman or degrading treatment within the meaning of article 3. The evidence is that X suffers from a physical illness which is at times life-threatening and that her condition deteriorates in response to stress. The father does himself no credit by belittling this. There was some discussion about whether we were here concerned with the duty of the state to take positive steps to protect her from harm (under the principles explained in Osman v United Kingdom (1998) 29 EHRR 245) or with the duty of the state to refrain from subjecting her to harm. As we are here considering the actions of the state whether the state should disclose to others information which she gave it in confidence and, in future, whether the state should compel her to give evidence in these proceedings I have no doubt that we are here concerned with the primary, negative, duty of the state to avoid subjecting her to inhuman treatment. However, when considering what treatment is sufficiently severe to reach the high threshold required for a violation of article 3, the European Court of Human Rights has consistently said that this depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim: see, for example, Kudla v Poland (2000) 35 EHRR 198, para 91. The court has also stressed that it must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment: para 92. Thus the legitimate objective of the state in subjecting a person to a particular form of treatment is relevant. A well- known example is medical treatment, which may well be experienced as degrading by a patient who is subjected to it against his will. However, A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading: Juhnke v Turkey (2008) 49 EHRR 534, para 71, citing Herczegfalvy v Austria (1992) 15 EHRR 437, para 82. Obviously, the ends do not justify the means. But the context in which treatment takes place affects the severity of its impact. The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her. I conclude therefore, in agreement with the Court of Appeal, that to disclose these records to the parties in this case will not violate her rights under article 3 of the Convention. However, that may not be the end of the matter, for to order disclosure in this case would undoubtedly be an interference with Xs right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights? It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531. That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. It is arguable that a greater latitude may be allowed in children cases where the childs welfare is the courts paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a gist of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that Xs identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case. The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, Xs privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail. It does not follow, however, that X will have to give evidence in person in these proceedings. Understandable though it was for Peter Jackson J to ask himself where is all this leading us?, in a case such as this it is only proper and sensible to proceed one step at a time (as was done in A Local Authority v A) and to assess and reassess the competing rights as matters unfold. As the Court of Appeal said, disclosure may be enough to resolve matters either way. If, as Peter Jackson J thought, disclosure will not be enough there would be a number of options available to resolve matters. If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations, perhaps supplemented with written questions put to her in circumstances approved by Dr W. On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The courts only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered. I would therefore dismiss this appeal and uphold the order for disclosure made by the Court of Appeal. It is usual to make no order for costs in cases about the care and upbringing of children. That will be the order of this court unless any party makes submissions to the contrary within seven days of this judgment. Postscript I cannot leave this troubling case without voicing my disquiet at the length of time it took for the first instance decision on disclosure to be made. The mothers application to vary the contact order was made in May 2010. The District Judge made a disclosure order in July 2010 and the local authority challenged that order that same month. The fathers contact was reduced in September, as a temporary measure. But it was not until May 2011 that the case was transferred to the High Court and not until September 2011 that it came before Peter Jackson J for a public interest immunity hearing at which X was represented. Obtaining the medical report took another three months. Nor has the appellate process been as speedy as it might have been. But in retrospect it should have been obvious at the outset that the stance taken by the local authority raised difficult questions of law and fact which required speedy resolution, principally in the interests of A but also in the interests of her parents and of X. The contact arrangements ordered in February 2009 have been interrupted and it is still not possible to say when the matter will be resolved. The parties deserve better of the family justice system than this.

UK-Abs

The issue in this appeal is whether a local authority (ZCC) should be ordered to disclose social work records to the parties in proceedings concerning a child (A), which would reveal the identity of a young woman (X) who has made allegations that she suffered sexual abuse from As father (F) when she was a child. The parents of A separated when she was a baby. A lives with her mother (M) and F had unsupervised contact with her. When ZCC became aware of Xs allegations, which had been reported to ZCC by others, it approached M and advised her that she should take steps to protect A from the risk of sexual abuse by F. It did not tell M who had made the allegations, nor the details of what was alleged, but said they regarded them as credible. M applied to vary the contact arrangements so as to restrict Fs contact with A to supervised contact. F denies that he has sexually abused anyone. The court directed that ZCC should disclose the information in its possession in relation to Xs allegations against A to M and F. ZCC applied to the court for the order to be discharged on the grounds of the severe distress and emotional harm which the removal of her anonymity would cause X to suffer. Medical evidence provided to the court from the psychiatrist treating X indicated that her physical health had deteriorated to the point of being life threatening as result of stress; that disclosure of the records would be potentially detrimental to her health and that being required to participate in the contact proceedings would be immensely stressful for her, even with measures taken to protect her as a vulnerable witness. Peter Jackson J in the High Court held that the records should not be disclosed. In his view disclosure was unlikely to achieve anything valuable and it would be oppressive and wrong to compel X to give evidence at a subsequent hearing. The Court of Appeal reversed this decision and ordered disclosure, on the ground that the question of whether X should give evidence would arise for decision at a later stage. By the time of the appeal hearing in the Supreme Court, inadvertent disclosure of Xs identity had been made by ZCC to M and to the Guardian appointed to act on As behalf, but not to F. The Supreme Court unanimously dismisses the appeal. Lady Hale, with whom the other justices agree, gives the only judgment. The court was required to reconcile the irreconcilable. It was submitted on behalf of X that the impact of disclosure on her would be so severe as to violate her right not to be subjected to inhuman or degrading treatment protected by article 3 of the European Convention on Human Rights (ECHR), or at the very least interfere with her right to a private life under article 8. On the other side, As right to be protected from abuse also potentially engaged article 3, and restricting contact interfered with the right to family life under article 8 on the part of A, M and F. In addition, all three of the parties to the contact proceedings A, M and F were entitled to the right to a fair trial of those proceedings protected by article 6. Both article 3 and article 6 rights are absolute. ZCCs records enjoy public interest immunity from disclosure because of the public interest in encouraging members of the public to come forward to help the authorities to protect children, whether witnesses or the victims themselves [15]. The immunity is not absolute, and has to be balanced against the public interest in a fair trial. In children cases, the court may exceptionally take into account material which has not been disclosed to the parties, if disclosure would harm the child, but there was little or not risk of harm to A in this case[21]. But the common law principles have been affected by the Human Rights Act 1998 and the court now has to take account of the interests of third parties whose rights under the ECHR might be violated by disclosure [24]. This was not a case where Xs confidence could be preserved without harming others. Her allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which F may present to her or can resume her normal relationship with him. If this was an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie [30]. The impact on X meant that the states negative duty to avoid subjecting her to inhuman treatment in breach of article 3 had to be taken into account [31]. However, the context in which this treatment takes place affects the severity of its impact, and here not only was the state acting in support of some important public interests, but X was currently under specialist medical practitioners who would do their utmost to mitigate any further suffering which disclosure would cause her. Thus disclosure alone would not violate Xs rights under article 3 [32]. The court still had to balance Xs rights to a respect for her private life with the interests in disclosure. Courts had no power in ordinary civil proceedings to adopt any form of closed material procedure, which would restrict disclosure of the material to a judge and special advocate for the parties, and even if there was a greater latitude in children cases, the arguments against making such an inroad into the normal principles of a fair trial remained very powerful. Moreover in a case such as this F could not effectively challenge the allegations without a minimum of information which would inevitably disclose Xs identity [34]. The only possible conclusion was that the fair trial and family life rights of A, M and F were a sufficient justification for the interference with the privacy rights of X [35]. It did not follow, however, that X would have to give evidence in person in these proceedings. Disclosure might be enough to resolve matters either way. If a hearing was required, up to date medical evidence would be obtained for X and measures to protect her from courtroom confrontation could be considered. If she was too unwell to cope with oral questioning the court might have to do its best with the record of what she has said previously, perhaps supplemented by written questions put to her in circumstances approved by her doctor. The only concern of the court in family proceedings was to get at the truth [36].

This appeal concerns the interpretation and application of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act). The appellant is a patient detained in the State Hospital at Carstairs who made an application to the Mental Health Tribunal for Scotland (the tribunal) for an order under section 264(2) of the Act, declaring that he was being detained under conditions of excessive security and specifying a period during which the duties under section 264(3) and (5) should be performed. His application was refused. An appeal to the Court of Session against that decision, under section 322 of the Act, was also refused ([2011] CSIH 55; 2012 SC 138). He now appeals to this court. For the reasons I shall explain, the appeal must be dismissed. It has however provided an opportunity to clarify the nature of decision-making under section 264(2), and the factors which are relevant to the proper application of that section and of other provisions of the Act. The background to the Act It may be helpful to begin by considering the general background to the Act. Until its enactment, the statutory framework for the treatment in Scotland of persons suffering from mental disorders was contained in the Mental Health (Scotland) Act 1984, a consolidation Act which drew together a body of older legislation. That legislation had become increasingly out of step with current thinking about the treatment of mental disorders, the rights of patients, and the relationship between patients and the wider community. One important development was the influence of the European Convention on Human Rights, particularly after it was given effect in domestic law by the Scotland Act 1998 and the Human Rights Act 1998. In particular, the Convention necessitated a more robust system of judicial protection of the rights of patients than had previously existed, and greater involvement of patients and their families and carers in decisions concerning treatment. Another important development concerned the treatment of the mentally ill, with many more patients being treated outside hospitals, fewer patients requiring long-term hospital care, and a marked reduction in the number of hospital beds available for the treatment of mental illness. A third development was an increasing recognition of the desirability of eliminating the stigma which had long been associated with mental illness. All these developments, and others, necessitated a fundamental review of Scottish mental health law. The Committee stated in the report that it was fundamental to its approach that a new Act should be based on principles stated on the face of the Act itself (Introduction, para 3): as I shall explain, that is reflected in section 1 of the Act. A particular problem identified by the Committee, which in due course section 264 of the Act sought to address, was discussed in Chapter 27: 82. We have received evidence from the State Hospital and the Mental Welfare Commission that there are significant numbers of entrapped patients. These are patients who no longer require the level of security afforded by the State Hospital, but for whom appropriate local services are not available. The State Hospitals Board suggested that there is currently little incentive for local health boards and trusts to arrange secure psychiatric services. The local public is unlikely to welcome such services (indeed quite the reverse), and funding arrangements do not create incentives to develop such services. The Board strongly advocated that an explicit statutory duty be placed on health boards to commission local services to address the need for a range of medium and low security services for mentally disordered offenders. 83. We have considerable sympathy with the position of the State Hospital on this point. However, we have decided that, in terms of our core remit of reviewing the Mental Health (Scotland) Act 1984, it would be more appropriate for us to propose another means of addressing this problem, which is more directed at the rights of individual patients. This is that patients should have a continuing right to appeal against the level of security to which they are subjected. 84. It seems to us that to detain a patient unnecessarily in conditions of high security is inconsistent with respect for the patient's rights, and our general principle of Least restrictive alternative. Furthermore, the proposed development of medium secure units would seem to make it more likely that such an appeal right would be practicable. The Committee discussed how such a right of appeal might be made effective. In order to provide care at a lower level of security, arrangements would have to be made by the responsible health board. The provision of such arrangements could involve practical difficulties which might be beyond the health boards control. If the necessary arrangements were not put in place, it would be undesirable that a patient who was still assessed as requiring some degree of secure care should simply be discharged. On the other hand, the proposed right of appeal would be meaningless unless it led to an order which was capable of being enforced. Following consultation on this issue, the Committee concluded that a staged approach was appropriate: We therefore suggest that, should a patient successfully appeal to a tribunal against the level of security, it should set a time within which the necessary provision should be arranged by the responsible health board. The time limit might be of the order of three months. Should arrangements not be made at the expiry of that period, representatives of the health board should be required to appear before the tribunal to explain the position, and to confirm whether there is a prospect of a placement being found within a reasonable period. The tribunal should be able to extend the time limit for a further period of no more than three months. If, at the end of that period, no provision has been made, the tribunal could order that arrangements must be put in place to accommodate the patient within 14 days. (Chapter 27, para 89) In a subsequent White Paper, Renewing Mental Health Law Policy Statement (2001), the Scottish Executive broadly accepted the Committees recommendations as the framework for a future Bill, although rejecting or modifying some of the recommendations concerned with mentally disordered offenders. As introduced, the Bill did not contain any provision reflecting the recommendations in relation to appeals against levels of security. There was at that time only one specialist medium secure unit in Scotland, namely the Orchard Clinic in Edinburgh. The provisions which became sections 264 to 273, giving effect to the Committees recommendations, were however introduced by amendment during the passage of the Bill through Parliament. Commencement provisions in section 333(2) allowed the entry into force of sections 264 to 273 to be delayed until 1 May 2006, so as to allow sufficient time for additional facilities for affected patients to be commissioned. Section 1 of the Act Section 1 of the Act is a provision of particular importance. It sets out principles to be applied by persons discharging certain functions under the Act. The principles are set out in, or incorporated into, subsections (2) to (4). The circumstances in which they apply are defined by subsection (1), which provides: (1) Subsections (2) to (4) below apply whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years. The tribunal does not fall within subsection (7). Subsections (2) to (4) therefore apply to the tribunal whenever it is discharging a function by virtue of the Act in relation to a patient who is over 18. One of the functions discharged by the tribunal under the Act, to which subsections (2) to (4) therefore apply, is that of taking decisions under section 264(2). Section 1(2) provides: (2) In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged. Subsection (9) is not relevant to the present case, and need not be considered further. Subject only to that provision, the tribunal is under a statutory duty to have regard to the matters mentioned in subsection (3) so far as they are relevant to the function being discharged: such as, in the present case, the taking of decisions under section 264(2). Section 1(3) provides: (3) The matters referred to in subsection (2) above are - (a) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (b) the views of [the patients named person, carer, guardian and welfare attorney, if any], which are relevant to the discharge of the function; (c) the importance of the patient participating as fully as possible in the discharge of the function; (d) the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (c) above; (e) the range of options available in the patient's case; (f) the importance of providing the maximum benefit to the patient; (g) the need to ensure that, unless it can be shown that it is justified in the circumstances, the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation; (h) the patient's abilities, background and characteristics, including, without prejudice to that generality, the patient's age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group. Paragraphs (a), (c) and (d) reflect the importance of respect for the patients autonomy and the consequent need to enable the patient to participate in the exercise of functions concerning him or her, so far as possible. The Millan Committee had identified in its discussion of general principles (Chapter 3, para 13) a need to broaden the extent to which those principles were reflected in mental health law. Paragraph (b) is similar in purpose to paragraph (a), and applies the same general principle to carers and others closely involved with the patient. Paragraphs (e) and (f) reflect the importance of ensuring that functions exercised under the Act should be discharged in the most beneficial way possible for the patient. As the Committee had noted, that principle was reflected in the older legislation concerned with children and with adults with incapacity, but not in mental health law generally. Paragraph (g) gives expression to the principle of non-discrimination in relation to persons with mental disorders: the term patient is defined by section 329(1) of the Act as meaning a person who has, or appears to have, a mental disorder. The Committee had noted that this concept of equality had come to the fore in recent years. Paragraph (h) reflects the principle of respect for diversity. The Committee had observed that such a principle added to the principle of equality by making a positive statement of the requirement to reflect individual needs. Before considering section 1(4), it is necessary to consider section 1(5) and (6), which list further matters to which regard must be had in particular circumstances. Section 1(5) provides: (5) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act (other than the making of a decision about medical treatment) in relation to a patient, the person shall have regard, in so far as it is reasonable and practicable to do so, to - (a) the needs and circumstances of any carer of the patient which are relevant to the discharge of the function and of which the person is aware; and (b) the importance of providing such information to any carer of the patient as might assist the carer to care for the patient. As I have explained, the tribunal does not fall within subsection (7); and a decision under section 264(2) is not a decision about medical treatment. It is therefore a decision to which section 1(5) applies. Section 1(6) provides: (6) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a person who is, or has been, subject to - (a) detention in hospital authorised by [an emergency detention certificate]; (b) detention in hospital authorised by a [short-term detention certificate]; (c) [a compulsory treatment order]; or (d) [a compulsion order], the person who is discharging the function shall have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to the certificate or order concerned (including, without prejudice to that generality, the provision of continuing care when the person is no longer subject to the certificate or order). Since section 264 applies where a patients detention in a state hospital is authorised by inter alia a compulsory treatment order or a compulsion order, it follows that section 1(6) can apply when the tribunal is taking a decision under section 264. It did so in the present case, the appellant being subject to a compulsion order. Returning to section 1(4), it provides: (4) After having regard to - (a) the matters mentioned in subsection (3) above; (b) if subsections (5) and (6) below apply, the matters mentioned there; and (c) such other matters as are relevant in the circumstances, the person shall discharge the function in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Section 1(4) is of a different nature from subsections (3), (5) and (6). It does not specify matters to which the person in question must have regard. It applies after the person has had regard to all the matters to which he or she is required to have regard, including, under paragraph (c), the residual category of such other matters as are relevant in the circumstances. It requires the person then to discharge the function in a particular manner, namely the manner which appears to the person to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances. This broadly but not precisely reflects the Millan Committees general principle of the least restrictive alternative (Chapter 3, para 13), and Principle 9.1 of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, adopted by the UN General Assembly on 17 December 1991 (A/RES/46/119). The concept of restriction on freedom is not defined, and must be considered broadly. A persons freedom has many aspects, and can be restricted in many different ways. To some extent, whether a particular aspect or effect of the detention of a patient is regarded as a restriction of his freedom may depend on the characteristics of the patient. There may be room for debate as to whether one course of action will involve greater restriction of a patients freedom than another. One course of action may, for example, involve relatively greater restriction on freedom than another for a period of time, but relatively less restriction subsequently. One course of action may involve one kind of restriction on freedom, while another may involve a different type of restriction. For all these reasons, the person discharging the function must have a wide power of judgment in making his or her assessment under section 1(4), and may not be able to reach any clear conclusion. Section 1(4) does not prioritise the freedom of the patient over other considerations, such as the importance of providing the maximum benefit to the patient or, where relevant, the protection of the public, or the safety of other patients: it requires the minimum restriction on the freedom of the patient that is necessary in the circumstances. The judgment of what is necessary in the circumstances is to be made by the person discharging the function. Section 1 thus sets out an overarching approach to the discharge of functions under the Act. The person discharging the function must have regard to the matters specified in subsection (3), so far as relevant, to the matters specified in subsections (5) and (6) where applicable, and to such other matters as may be relevant in the particular circumstances. The person must then discharge the function in the manner that appears to him or her to involve the minimum restriction on the freedom of the patient that is necessary in those circumstances. Section 1(4) will not however be determinative of all the decisions falling within its scope. Some functions discharged under the Act do not impinge upon the freedom of patients. In other cases, there may be a number of ways in which the function might be discharged, none of which appears to the person in question to impose a greater restriction on the freedom of the patient than is necessary in the circumstances. Section 264 of the Act Section 264 applies, in terms of subsection (1), where a patients detention in a state hospital is authorised by any of a number of specified orders and directions, including a compulsion order. As I have explained, the appellants detention in the State Hospital is authorised by such an order, and therefore comes within the scope of section 264. Section 264(2) provides: (2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order - (a) declaring that the patient is being detained in conditions of excessive security; and (b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed. The patient is among the persons mentioned in subsection (6), and is therefore entitled to make such an application. Section 264(2) confers a discretion (the Tribunal may make an order), subject to a pre-condition (if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital). The function conferred upon the tribunal by section 264(2) therefore involves two distinct stages. First, the tribunal has to decide whether it is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital: that is to say, whether the statutory condition for the admission of a patient to a state hospital (under, for example, sections 57A(6) or 59A(6) of the Criminal Procedure (Scotland) Act 1995 as amended) is no longer satisfied. If the tribunal is not so satisfied, then it will refuse the application. If on the other hand it is so satisfied, then it may make an order under the subsection. The second stage of the tribunals function is therefore to decide whether to exercise its discretion to make such an order. If it decides to do so, then it must also decide the length of the period within which the duties under subsections (3) to (5) are to be performed, subject to a maximum period of three months. The duties imposed by an order made under section 264(2) are set out in subsections (3) to (5). Section 264(3) provides: (3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital (a) which is not a state hospital; (b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and (c) in which accommodation is available for the patient. Section 264(4) makes analogous provision in relation to patients who are not relevant patients. A relevant patient is defined by section 273 as one whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order, or one whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction. The appellant falls into the first of these categories and is therefore a relevant patient. Section 264(5) provides that, where the tribunal makes an order under subsection (2), the relevant health board shall, as soon as practicable after identifying a hospital under subsection (3) or (4), notify the managers of the state hospital of the name of the hospital so identified. It is relevant to note the terms of sections 265 to 267 and 272. Section 265 provides an enforcement mechanism in relation to orders which have been made under section 264(2) and have not been recalled under section 267. In terms of section 265(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order, under section 265(3), of a similar nature to the order originally made under section 264(2). The order made under section 265(3) must specify either a further period of 28 days, or a longer period of up to three months, within which the health board must perform its duties. Section 266 provides a further enforcement mechanism in relation to orders made under section 265(3) which have allowed the health board a further period of more than 28 days to perform its duties, and have not been recalled under section 267. In terms of section 266(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order under section 266(3) of a similar nature to the order originally made under section 264(2), specifying a further period of 28 days within which the health board must perform its duties. Under section 267, an application can be made to the tribunal by the health board (and, in the case of a relevant patient, by the Scottish Ministers) for the recall of an order made under section 264(2), 265(3) or 266(3). The tribunal is required to recall the order if it is satisfied that the patient requires to be detained under conditions of special security that can be provided only in a state hospital, and also has a discretion to recall the order on any other grounds. Under section 272(1), an order made under section 264(2), or an order made under section 265(3) which allows the health board a period of more than 28 days to perform its duties, cannot be enforced by proceedings for specific performance. Such orders can therefore be enforced only by means of the procedures laid down in sections 265 and 266 respectively. On the other hand, under section 272(2), an order under section 265(3) which specifies a period of 28 days, and an order under section 266(3), are enforceable by proceedings for specific performance. One implication of these provisions is that orders made by the tribunal under section 264(2), and orders made under section 265(3) allowing the health board more than 28 days, are not enforceable. In particular, following the making of an order under section 264(2), the tribunal is required to review the position at one or possibly two further hearings before the health board can be compelled by civil proceedings to identify a suitable hospital and notify the managers of the state hospital. The period of time allowed to the health board to make suitable arrangements, before civil proceedings can be taken to compel it to do so, can therefore be substantial: up to three months in terms of the order made under section 264(2), a further three months in terms of the order made under section 265(3), and a further 28 days in terms of the order made under section 266(3). Further time will be required to deal with applications under each of those three sections, there being in each case a requirement to afford an opportunity of making representations and of leading evidence, and to hold a hearing. In the present case, an application under section 264 alone took more than 19 months to be decided by the tribunal. Returning to section 264(2), I have explained the two stages of the exercise which the tribunal has to carry out. At the first stage, it has to decide whether it is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital. What constitute such conditions will be a question of fact for the tribunal, the answer to which may vary from time to time. Having identified those conditions, the tribunal has to decide whether the patient requires to be detained under them. If he does not, then the decision at stage one will be favourable to him. It is to be noted that the tribunal is not concerned at stage one with the question whether accommodation is available for the patient in some other hospital in which he could be detained in appropriate conditions. If the tribunal is satisfied at stage one, it then has to perform its function at stage two: that is to say, it has to decide whether to exercise its discretion to make an order. As I have explained, the tribunals discharge of its function under section 264(2) falls within the scope of the general provisions set out in section 1 of the Act. The tribunal must therefore have regard to the matters to which it is required to have regard under that section, and to such other matters as are relevant in the circumstances, in accordance with section 1(4)(c). In the present case, for example, a relevant consideration was that the State Hospital had no female patients, whereas there were such patients in medium secure hospitals. Another was the risk posed by the appellant to the safety of women. As I have explained, the tribunal is required by section 1(4) to exercise its discretion at stage two in the manner that appears to [it] to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. That test employs a different concept from section 264(2): conditions of security are not synonymous with restrictions on freedom. For example, the security conditions at the State Hospital include a perimeter security fence which prevents patients from having uncontrolled access to the wider community. Within the perimeter, however, the movements and activities of a patient may be subject to relatively few restrictions. Medium secure hospitals on the other hand typically have less secure perimeters. In consequence, patients posing a risk to the public may require to be subject to relatively onerous restrictions on their movements and activities, which may not only prevent them from having uncontrolled access to the wider community but may also restrict their freedom within the hospital itself. For reasons such as these, it is possible that fewer restrictions on the freedom of a particular patient may be necessary under conditions of security that are available only in a state hospital than if the patient were detained elsewhere. Thus an analysis of the implications of an order under section 264(2) for the daily regime of the patient and for his progress through the system may, depending on the circumstances, result in the conclusion that the refusal of the order will result in the minimum restriction necessary in the circumstances. It is also possible that no clear conclusion will be reached as to whether the patient will be subject to greater restrictions on his freedom if he is detained in a state hospital or elsewhere. The tribunal should in any event exercise its discretion in such a way as to promote the policy and objects of the Act, and of section 264 in particular. As I have explained, the mischief which section 264 was intended to address is the entrapment of patients who no longer require the level of security afforded by the State Hospital. Given that intention, Parliament can be taken to have envisaged that if the tribunal were to conclude at stage one that the patient no longer required to be detained under conditions of special security that could be provided only in a state hospital, it would then make an order under section 264(2) unless it considered that there was some good reason not to do so. In that regard, the unavailability of accommodation in a medium secure hospital in which the patient could be detained in appropriate conditions cannot have been intended to preclude the making of an order under section 264(2): otherwise, Parliaments intention in enacting section 264 could be frustrated by mere inertia on the part of health boards, and the arrangements made by sections 264 to 266 and 272, preventing the immediate enforcement of orders under section 264(2), and allowing health boards substantial periods of time where necessary to make appropriate arrangements, would be supererogatory. Those provisions take account of the potential practical difficulties identified by the Millan Committee, while also guarding against the connection between entrapment and the absence of incentives for health boards to address the problem. It is implicit in section 264(3), (4) and (5) that an order can be made by the tribunal under subsection (2) at a time when no hospital has been identified, other than a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for the patient. At the same time, the unavailability of accommodation in medium secure hospitals where the patient could be detained in conditions appropriate to his particular needs, including appropriate facilities for treatment, may in some circumstances be relevant to the tribunals performance of its duty to have regard to the importance of providing the maximum benefit to the patient, in accordance with section 1(3)(f). It may also be relevant to the tribunals duty to have regard to the importance of the provision of appropriate services to the patient, in accordance with section 1(6). To make an order under section 264(2) where medical or other evidence demonstrated that appropriate conditions were not available outside a state hospital, or where clinically superior conditions were available in a state hospital, might be incompatible with providing the maximum benefit to the particular patient. As I shall explain, the present case provides an example of such a situation. Furthermore, to make an order where the tribunal was satisfied that there was no conceivable possibility that the patient could be accommodated in a medium secure hospital in appropriate conditions within any realistic timescale, and where an application for recall could not therefore be refused, would be unreasonable. The view expressed in Lothian Health Board v BM 2007 SCLR 478, that the availability of accommodation in a medium secure hospital where the patient could be detained in appropriate conditions, including appropriate facilities for treatment, can never be relevant to the question whether an order should be made under section 264, and can only be raised by way of an application for the recall of the order under section 267, therefore goes too far. The present case In 1998 the appellant appeared before the High Court of Justiciary on charges of rape, assault and breach of the peace. He was acquitted on the ground of insanity and made the subject of orders under which he was detained at the State Hospital. Although those orders were made under earlier legislation, they are now deemed to be a compulsion order and a restriction order within the meaning of the Criminal Procedure (Scotland) Act 1995 as amended. In 2008 the appellant applied for an order under section 264(2) of the Act. In 2009 the tribunal issued its decision, refusing the application. In its decision, the tribunal described the security conditions at the State Hospital, and explained how they differed from those in hospitals of lesser security. It found that the appellant had in recent times been subject to the lowest level of security in the State Hospital. He continued to pose some risk of sexual violence. The best way of managing that risk could only be determined following his undertaking and completing satisfactorily a course of psychological treatment for sexual offending. The tribunal found that the appellant had in the past been offered such treatment at the State Hospital, on a group basis, but had declined to take part. He had recently indicated his willingness to engage in such treatment on a one to one or one to two basis. After a delay for which there was no satisfactory explanation, the provision of appropriate treatment for him was currently under consideration by the clinical psychologists at the State Hospital. The psychology department there was the best resourced in any secure hospital in Scotland. It was capable of providing appropriate treatment in a variety of forms, including one to one or one to two. It had assessed the appellant and was best placed to decide how to meet his needs. There was uncertainty as to the time scale for undertaking such treatment in a medium secure hospital. The tribunal correctly identified that decision-making under section 264(2) involved two stages, and it correctly understood what those stages were. At the first stage, it concluded that the appellant did not require to be detained under conditions of special security that could be provided only in a state hospital. On the facts which it had found, it was entitled to reach that conclusion: it found that the appellant could be managed within a medium secure hospital, although only subject to considerable restrictions until he had completed a course of treatment for sexual violence. If the appellant could be detained elsewhere in appropriate conditions of security, then he did not require to be detained under conditions of special security that could be provided only in a state hospital. At the second stage of its decision, the tribunal had regard to section 1 of the Act. It referred in particular to the importance of providing the maximum benefit to the patient (section 1(3)(f)), and to the least restrictive option (section 1(4)). It made no express mention of the other provisions of section 1(3), (5) or (6). In reaching its decision at the second stage, the tribunal noted the medical witnesses agreement that the appellant had to undertake an appropriate course of treatment before he could be allowed greater contact with women. If transferred to a medium secure hospital, he would have greater contact with women: although this was not explained by the tribunal, we were informed that the State Hospital has no female patients, whereas medium secure hospitals have patients of both sexes. If transferred before completing such treatment, he would pose a risk to any woman with whom he formed a relationship, in the event that he felt rejected or came under the influence of alcohol or drugs. The tribunal also shared the concern expressed by certain of the medical witnesses that the appellant was less likely to engage in such treatment in a medium secure hospital. There was therefore a significant risk that he would become entrapped in the medium secure system: although this was not explained by the tribunal, we were informed that this was because the progression of patients to lower levels of security depends on assessments of risk, and one of the purposes of such treatment is to provide the information necessary for that assessment process. Because of the risk he posed to women, he would require to be subject to restrictions on his movements in a medium secure hospital which were much greater than those to which he was subject in the State Hospital, unless and until he successfully completed such treatment. There was a significant risk of consequential problems for his mental health. In relation to the least restrictive alternative, the tribunal stated that if the appellant moved to a medium secure hospital then he would have to endure greater restrictions on his movements than currently experienced at the State Hospital, until a treatment course was satisfactorily completed. Such a course could take 12 to 18 months. The tribunal concluded that it was of maximum benefit to the appellant that he should remain at the State Hospital and undertake appropriate treatment there. It stated that accordingly in the exercise of its discretion, the application should be refused. The challenge to the tribunals decision On behalf of the appellant, it was submitted to this court that the tribunals decision was vitiated by a number of errors. In the first place, it was argued that the tribunal had failed to exercise its discretion in accordance with the purpose of section 264. Since the purpose was to avoid patients being detained in state hospitals when adequate security arrangements were available elsewhere, section 264(2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage two, where a decision favourable to the patients application had been reached at stage one. Secondly, the tribunal had been influenced at stage two by the risk posed by the appellant to women. Risk was however an irrelevant consideration at stage two: the tribunal only reached stage two after it had already decided at stage one that the patient could be managed within a medium secure hospital. Thirdly, the tribunal had placed weight on a finding that the State Hospital offered better resources for the treatment of the appellant than were available in the medium secure estate. The unavailability of suitable resources elsewhere was not however a relevant factor: otherwise, the provisions of sections 265 and 266 would be otiose. Fourthly, the tribunal had failed to have regard to the wishes and feelings of the appellant, and to the need to avoid discrimination against patients, contrary to section 1(3)(a) and (g) respectively. Fifthly, the tribunal had misunderstood the relationship between section 1(3) and section 1(4). It had elevated the importance of providing maximum benefit to the patient (section 1(3)(f)) above the least restrictive alternative principle (section 1(4)), thus inverting the proper approach. I shall consider each of these contentions in turn. The width of the discretion exercised at stage two If the tribunal reaches a conclusion favourable to the patients application at stage one, it must then exercise its discretion whether to grant the application in accordance with the principles set out in section 1 and in accordance with the policy underlying section 264. Putting the matter broadly, if the patient does not require to be detained under conditions of special security available only in a state hospital, this approach should lead to the granting of the application unless in the particular circumstances there is some good reason to refuse it. It would therefore be potentially misleading to describe the tribunals discretion as unqualified: the range of matters which it may take into account is not subject to any express restriction, and is necessarily wide, but its discretion must nevertheless be exercised in a manner which is consistent with the intention of Parliament. On the other hand, it would also be wrong to say that it is only in exceptional circumstances that an application should be refused at stage two: it is impossible to say a priori whether the circumstances in which an application may properly be refused will be exceptional or not. There is no legal reason why they need be. Indeed, exceptional circumstances cannot be a legal test: circumstances can be described as exceptional only by reference to a criterion, rather than exceptionality being a criterion in itself. The relevance of risk at stage two The risk posed by the patient to the safety of others is plainly relevant to the tribunals assessment at stage one, since the conditions of security under which the patient requires to be detained are dependent upon the nature and extent of any risk which he poses. If the tribunal concludes at stage one that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it is by implication finding that the conditions of security that can be provided elsewhere are equally capable of addressing the risk posed by the patient. The tribunal cannot rationally exercise its discretion at stage two on a basis which is inconsistent with that conclusion. In those circumstances, the tribunal was correct to consider one aspect of the issue of risk namely, the necessity for security arrangements available only in a state hospital - at stage one, and other aspects namely, the risk to female patients in a medium secure hospital, and the implications of that risk for restrictions on the appellants freedom in that setting, and consequently for the appellants mental health - at stage two. The relevance of the quality of the resources available in medium secure hospitals As I have explained, when the tribunal is taking a decision under section 264(2), the unavailability of accommodation for the patient at another hospital where he could be detained in appropriate conditions does not preclude the granting of the application. That does not however entail that the quality of treatment available at other hospitals, as compared with the treatment available at the State Hospital, is irrelevant to the tribunals exercise of its discretion. There is nothing in section 264 which expressly or implicitly bars the tribunal from taking such a clinical comparison into account. Under section 1, the quality of the treatment available elsewhere may be a relevant consideration, notably under section 1(3)(f) and section 1(6), both of which were relevant in the present case. Furthermore, the quality of treatment available in a medium secure hospital, and in particular the availability of the particular form of treatment required by the patient, may affect the risk posed by the patient in that setting. The potential raising of the level of risk is in itself a matter to which the tribunal is entitled to have regard, under section 1(4)(c), and it may have consequences which are also relevant to the tribunals decision, for example under section 1(3)(f) or section 1(4). In the present case, the tribunals focus was upon the availability of the most suitable treatment for the appellants particular needs in the State Hospital and in a medium secure hospital, the likelihood of his accepting appropriate treatment in each of those settings, and the implications of those matters for the risk which he would pose in each of those settings, for the necessary restrictions on his movement and for his mental health. Although the tribunal might have given a fuller explanation of its factual findings in relation to these matters, its approach to them did not involve any error of law. The tribunals failure to refer to section 1(3)(a) and (g) The tribunal made no express mention of section 1(3)(a), and did not refer in terms to the appellants wishes or feelings in the reasons it gave for its decision. It is nevertheless clear that the tribunal had regard to the appellants wishes and feelings so far as relevant, as required by section 1(3)(a). In particular, it took account of his wish to be transferred to a medium secure hospital, and it considered his attitude towards different forms of treatment. I am unable to accept the submission on behalf of the tribunal, seemingly endorsed by the Inner House at para 14 of the opinion delivered by Lord Bonomy, that the non-discrimination principle set out in section 1(3)(g) is irrelevant to the tribunals discharge of its function under section 264, since a patient is not comparable to a person of full capacity: on the contrary, section 1(3)(g) is undoubtedly relevant, most obviously to the way in which the patient is treated by the tribunal in its procedures. In the present case, it was argued that section 1(3)(g) required the tribunal to respect the appellants right to decline to accept the most beneficial form of treatment. No reference was made to section (1)(3)(g) by the tribunal. In reaching its decision, however, the tribunal bore in mind that the appellant might decline to participate in an appropriate course of treatment if transferred to a medium secure hospital. It was partly for that reason that it concluded that his application should be refused. Generally, in relation to this aspect of the appellants contentions, it is necessary to have regard to general guidance relevant to the duty of tribunals to give reasons for their decisions, such as that given by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, 49-50; [1997] 1 WLR 1447, 1464-1465. Applied in the present context, that guidance does not require a formulaic rehearsal of every matter referred to in section 1 of the Act, regardless of its importance in the particular case. It is also necessary to bear in mind general guidance given to courts scrutinising the reasoning of expert tribunals, such as that given by Baroness Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678, para 30 and that given by Sir John Dyson in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65, para 45. In the present case, the reasons given by the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. That was enough. The relationship between section 1(3)(f) and section 1(4) It is not readily apparent from the tribunals decision that it understood the structure of section 1, and the potential significance of section 1(4) in particular. On the facts of the present case, however, it does not appear that any misunderstanding can have affected the substance of the tribunals decision, as opposed to the manner in which it was expressed. The tribunal considered section 1(4), which it referred to as the least restrictive option. It stated that if the appellant moved to a medium secure hospital, then until a psychotherapy course was satisfactorily completed he would have to endure greater restrictions on his movements than currently experienced in the State Hospital. Such a course could take 12 to 18 months. If the implication of that statement is that the tribunal considered that the refusal of the application would result in the minimum restriction on the appellants freedom that was necessary in the circumstances, then it could have stopped there: that would have been a proper basis for refusing the application. It appears more likely however that the tribunal did not reach a clear conclusion as to the least restrictive option, perhaps because of the uncertainties as to the appellants likely attitude to treatment in a medium secure hospital, and as to the timescale and outcome of such treatment. In those circumstances it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. It concluded that it would be of maximum benefit to the appellant to undertake the necessary course of treatment at the State Hospital, because (1) the State Hospital had carried out the necessary groundwork to offer him such treatment, and was best placed to offer him the most suitable treatment for his needs, (2) he was less likely to undertake such treatment at a medium secure hospital, (3) he would have to endure greater restrictions on his movements at such a hospital until he completed such treatment, because of the risk to women in that setting, (4) such treatment could take 12 to 18 months to complete, and (5) the restrictions on his movements until the treatment was completed would place his mental health at risk. On that basis, it exercised its discretion to refuse the application. In the light of the matters to which it referred, all of which were relevant, its decision cannot be regarded as unreasonable. Conclusion For these reasons, and those given by Lady Hale, I would dismiss the appeal. A fundamental modernisation of the system for detaining and treating mental patients took place in Scotland under the Mental Health (Scotland) Act 1960 and in England and Wales under the Mental Health Act 1959. The aim was to integrate and normalise the treatment of mental patients within the mainstream National Health Service. But there remained the high security institutions, in Scotland the state hospital at Carstairs and in England and Wales what were then known as the special hospitals at Broadmoor, Rampton, Moss Side and Park Lane (which at that stage were not run as part of the NHS but now are). It soon became clear that there were many patients detained in the high security hospitals who did not need to be there but who could not be transferred to other settings and thus became trapped. There were many reasons for this. These patients were most unlikely to be able to move directly from the highly structured setting of the special hospital into a community setting. Many would be unable to move directly into an ordinary psychiatric hospital or unit. But there was a lack of facilities with an intermediate level of security which could enable the patient to move on without endangering either his own health or safety or that of others. There was also some reluctance among hospital staff, as well as local communities, to having former special hospital patients in their midst. The problem was recognised as long ago as 1974, when the Butler Committee on Mentally Abnormal Offenders published an Interim Report (1974, Cmnd 5698), ahead of its main recommendations, urging the setting up of secure units in each NHS region. This became government policy, and eventually medium and low secure units were established and became an attractive if challenging area of forensic psychiatric practice. According to the Care Quality Commission, 11% of all psychiatric hospital inpatients in England and Wales on census day in 2010 were on medium or high security wards, compared with 76% in general wards and 13% on low security wards (Count me in 2010, p 27). The proportions of detained patients on high, medium or low security wards are likely to be double that, as something over half of all inpatients are detained. This was achieved through government policy and professional commitment rather than through asserting the individual rights of patients. Mr Ashingdane was a Broadmoor patient who was deemed ready for transfer back into his local hospital, but was denied a bed there because the nurses trade union operated a ban on taking special hospital patients. He launched proceedings against the trade union branch secretaries, the Secretary of State and the area health authority. We shall never know whether his claim against the Secretary of State and the local health authority might have succeeded on the grounds that it was unlawful for them to take the union ban into account, because at that stage both were virtually immune from suit under section 141 of the 1959 Act and so his claim was struck out (see Ashingdane v Department of Health and Social Security [1981] CLY 175u). He then complained to the European Court of Human Rights that, among other things, his detention in Broadmoor did not fall within the lawful detention of persons of unsound mind permitted by article 5(1)(e) of the Convention, because he did not need to be in Broadmoor. The Court held that there had to be a relationship between the grounds of detention and the place and conditions of detention, so that a person detained because of mental disorder had to be kept in some sort of hospital or clinic appropriate to that purpose (Ashingdane v United Kingdom (1985) 7 EHRR 528). But beyond that article 5 is not concerned with the conditions under which a patient is detained; keeping him in Broadmoor longer than he needed to be there did not change the character of his detention and was not a violation of article 5. Since then, beyond the very remote possibility of judicial review, patients in England and Wales have been unable to complain that they are being detained in conditions of excessive security. It was therefore progressive and far-sighted of the Millan Committee to recommend that individual patients in Scotland should have the right to challenge the place of their detention on that basis and of the Scottish Parliament to pass what became sections 264 to 273 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Despite all the recent changes to the Mental Health Act 1983 (which consolidated the 1959 Act with later amendments), the law in England and Wales still lags behind the law in Scotland in this respect. No doubt those with an interest in the subject south of the border will be keeping a close eye on experience with the Scottish jurisdiction. It would obviously defeat the object of the legislation if the authorities were able simply to say that no bed was available in another, less secure, hospital. It must be the case, as Lord Reed observes (para 38), that this is irrelevant to the first stage: deciding whether (in the case of a state hospital patient) he requires to be detained under conditions of special security that can be provided only in a state hospital (section 264(2)) or (in the case of a patient in another hospital) he is being subject to a level of security that is excessive in his case (section 268(2)). It must also be the case, as Lord Reed says (paras 41 and 54), that having decided that question in favour of the patient, the expectation is that the tribunal will make an order unless in the particular circumstances of the case there is some good reason not to do so. More difficult is whether the non-availability of a bed constitutes a good reason at the second stage, the exercise of the tribunals discretion in the light of the guidance given in section 1(2), (3), (4), (5) and (6) of the 2003 Act. I agree with Lord Reed (para 43) that it would be unreasonable to make an order under section 264, or indeed section 268, if there were no conceivable possibility of an appropriate bed being found elsewhere. But that is a conclusion which a tribunal should be slow to reach. I would add that the search for an appropriate bed need not be confined to Scotland. If there are appropriate facilities in England, Wales or Northern Ireland, then the patient can be transferred there. The difficult case is the one like this, where the patient is not being denied a bed in a medium secure unit, but it is said that the conditions and treatment there will not be appropriate to his particular needs. These are not for the high level of security which can only be provided at the state hospital, but to be kept away from unsupervised contact with women until he has properly addressed the problem which brought him into the hospital in the first place. One can easily see how such a case could develop into an unseemly contest between the state hospital doctors, who wish their patient to move on, and the medium secure unit doctors who consider their facilities unsuitable. A principal object of giving patients individual rights is to stimulate the authorities into providing appropriate facilities for them, so it is important to ask whether such facilities could be provided in less secure settings. There is the further problem in a case like this, that the reason why the experts do not consider a medium secure unit suitable is that the patient has not undergone a particular course of treatment. One must beware the Catch 22 where the patient does not need a high level of security, but the facilities offered are not in fact suitable to the level of security he does need, and the reason for that is the lack of appropriate work which has been done with him in the state hospital. This is akin to the problem of those post-tariff life or indeterminate sentence prisoners who are denied the opportunity of demonstrating that they are safe to be moved on or out by the lack of appropriate courses for them: see R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1 AC 553 and James v United Kingdom (2012) 56 EHRR 399. If Ashingdane is right, this does not engage article 5(1) in the way it was said to be engaged in James. Nevertheless, being denied the opportunity of moving on because the state hospital has not provided the treatment which would enable the patient to move on is likely to engender a sense of injustice which might, at the very least, be considered anti- therapeutic. Fortunately, it looks as if this patients treatment needs are now being addressed in a way which he can accept. I confess to having found this case a troublesome one. Is it a case in which the authorities could provide the appropriate facilities outside the state hospital if they chose to do so? If it is, then in my view the tribunal should at least make an order at the first hearing, even if the search eventually proves fruitless so that the order has to be recalled. Alternatively, is it a case where the patients therapeutic needs will genuinely be better met in the state hospital than they would be outside it? This is obviously relevant to factor (f) in section 1(3) (para 14 above), the importance of providing the maximum benefit to the patient, and to section 1(6) (para 21), the importance of the provision of appropriate services to the [patient]. Those are factual matters for the tribunal, but I agree with Lord Reed that the evidence that the forensic psychology facilities at the state hospital were better than anywhere else, and that the patient would be more inclined to engage with them if he were still there (and thus had the incentive to demonstrate that he was ready to move on), was highly relevant to that question. So in my view the tribunal was entitled to take the view that the patients therapeutic needs would be better met in the state hospital. As Lord Reed has made clear (para 23), the obligation in section 1(4) is of a different nature from the obligation to consider the various matters listed in section 1(3), (5) and (6). It is not a matter to be taken into account. It is the manner in which the discretion is to be exercised, that is, the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Generally speaking, one would expect that if a patient does not need to be detained with the level of security that can only be provided at the state hospital, the minimum restriction on the patients freedom that is necessary in the circumstances will be found elsewhere. Once again, the object of the legislation would be defeated if the authorities were able to say that they had chosen to provide medium secure facilities in such a way as to make it difficult for people like this patient to move on. They might, for example, provide single sex accommodation where patients would not come into unsupervised contact with women until they were ready. However, I agree with Lord Reed (para 56) that risk, whether to the patient or others, is not irrelevant to the exercise of the tribunals discretion. It is inherent in factors 1(3)(f) and 1(6). This in turn feeds into what is necessary for the purpose of section 1(4). So the tribunal could conclude that, in the light of the patients treatment needs and the risks he posed either to himself or others, the restrictions on his freedom which would be necessary in a medium secure unit would in fact be greater than those entailed in staying in the state hospital. But I would hope that among the factors it considers when reaching that conclusion are the wishes and feelings of the patient (section 1(3)(a)). It could be that a patient is willing to accept a greater restriction on his freedom for the sake of the opportunity to leave the state hospital. It is therefore with a degree of reluctance that I conclude, for the reasons given by Lord Reed, that the tribunal was entitled to reach the conclusion that they did and that therefore this appeal must be dismissed. It has, however, provided the court with a useful opportunity, both to clarify how these provisions are meant to work, and to sound some warning bells as to how they should not work.

UK-Abs

This appeal concerns provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act) designed to address the problem of entrapped patients, namely those who no longer require the level of security afforded by the state hospital but for whom appropriate local services are not available [3 11]. The appellant, G, was tried for rape, assault and breach of the peace in 1998 and acquitted on the ground of insanity. He is detained at the state hospital at Carstairs under a compulsion order and a restriction order. G made an application under section 264(2) of the Act. It provides that the mental health tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only at the state hospital, make an order (a) declaring that he is being detained in conditions of excessive security, and (b) specifying a period not exceeding 3 months during which certain duties shall be performed [28 29]. These include the identification of a hospital, which is not a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for him [31]. Decisions under section 264(2) are among those functions that must be discharged having regard, insofar as relevant, to the matters set out at section 1(3) of the Act. These include the wishes and feelings of the patient (s.1(3)(a)), the importance of providing the maximum benefit to him (s.1(3)(f)), and the need to ensure that, unless it can be justified, he is not treated less favourably than a non patient in a comparable situation would be (s.1(3)(g)) [12 18]. Section 1(4) provides that the function must be discharged in the manner that appears to the person discharging it to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances, after having regard to matters including those in section 1(3) and such other matters as are relevant in the circumstances [22]. Gs application was refused. At the first stage of its section 264(2) analysis, the tribunal found G did not require to be detained under conditions of special security that could be provided only at the State Hospital. At the second stage, when considering whether to exercise its discretion to make an order, it had regard to section 1, referring in particular to maximum benefit (section 1(3)(f)) and to the least restrictive option (s.1(4)). It did not expressly mention the other provisions of section 1(3), (5) or (6). It found [47 53] that he had recently been subject to the lowest level of security at Carstairs. He continued to pose some risk of sexual violence towards women and the best way of managing it could only be determined once he had undertaken and completed satisfactorily a course of psychological treatment for sexual offending. The psychology department at Carstairs was best placed to deliver this treatment, and the tribunal was concerned that G was less likely to engage in it in a medium secure hospital. Consequently, there was a significant risk that he would become trapped in the medium secure system. The risk he posed meant he would need to be subject to greater restrictions on his movements in a medium secure hospital than at Carstairs unless and until he completed the necessary treatment, which could take 12 to 18 months. There was a significant risk of consequential mental health problems. The tribunal found that it was of maximum benefit to G that he remain at Carstairs. Gs appeal to the Court of Session was refused. Before the Supreme Court, he argues that the tribunal: (i) failed to exercise its discretion in accordance with the purpose of section 264: subsection (2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage 2 where a decision favourable to the application had been reached at stage 1; (ii) was influenced at stage 2 by the risk G posed to women, when consideration of risk ought to have been confined to stage 1; (iii) placed weight on the unavailability of suitable resources elsewhere an irrelevant factor; (iv) failed to have regard to his wishes and feelings and to the need to avoid discrimination; and (v) elevated the importance of providing maximum benefit (s.1(3)(f)) above the least restrictive alternative principle (s.1(4)). The Supreme Court unanimously dismisses the appeal. Lord Reed, with whose judgment the other Justices agree, addresses each ground of appeal as follows: (i) The tribunal understood that section 264(2) involved two stages and what those stages were. Once stage 1 is satisfied, the application should be granted unless there is some good reason to refuse it [41]. The range of matters the tribunal may take into account is necessarily wide but its discretion must be exercised consistently with the intention of Parliament. There is no legal reason why it is only in exceptional circumstances that an application should be refused at stage 2 [55]. (ii) Given the nature of a section 264 decision, risk is plainly relevant at each stage of the process. The increased risk to women which might result from a transfer to a medium secure hospital where there would be female patients was a relevant matter falling within section 1(4)(c). The finding that the risk would result in greater restrictions in the medium secure unit was plainly relevant to the tribunals section 1(4) assessment, and it was also entitled to have regard, under section 1(3)(f), to the consequential risk to Gs mental health [57]. (iii) Although the unavailability of accommodation does not preclude the granting of an application [38; 42], this does not mean the comparative quality of treatment available at other hospitals is irrelevant. The tribunal is not prevented from taking into account a clinical comparison [59 61]. (iv) Whilst it did not mention them, it is clear that the tribunal had regard to Gs wishes and feelings insofar as relevant, in particular his wish to be transferred to a medium secure hospital and his attitude towards different forms of treatment. In relation to section 1(3)(g). Lord Reed rejects the argument that the provision is irrelevant to the discharge of the section 264 function since a patient is not comparable to a person of full capacity. It is undoubtedly relevant, but it was enough that the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. A formulaic rehearsal of every matter in section 1 was not required [64]. It is not readily apparent that the tribunal understood the structure of section 1. On the facts of this (v) case, however, this cannot have affected the substance of its decision. It appears most likely that it did not reach a clear conclusion on section 1(4). In those circumstances, it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. Its conclusion that it would be of maximum benefit for G to remain in the State Hospital was reasonable [65 67]. In a short concurring judgment, Lady Hale agrees with a degree of reluctance that the appeal should be dismissed. She shares Lord Reeds view [43] that it would be unreasonable to make a section 264 order where there was no conceivable possibility of an appropriate bed being found elsewhere, but stresses that such a conclusion is one that a tribunal should be slow to reach. One must beware the Catch 22 where the patient does not need a high level of security but the facilities offered are not suitable to the level of security he does need by reason of a lack of appropriate work done with him in the state hospital. In this case she agrees with Lord Reed that the tribunal was entitled to reach the factual conclusion that the patients therapeutic needs would be better met in the state hospital.

This appeal concerns the proper ambit of the offence of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994 (the 1994 Act). That section provides, so far as material: (1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect (a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity, (b) of obstructing that activity, or (c) of disrupting that activity (2) Activity on any occasion on the part of a person or persons on land is lawful for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land The present case concerns trespassers who wished to make a protest, as do some other reported cases upon this section. But the offence is not limited to such people. Those who trespass and obstruct the activity of others might include many in different situations, such as for example business rivals or those engaged in a personal dispute, as maybe between neighbours. By definition, trespass is unlawful independently of the 1994 Act. It is a tort and committing it exposes the trespasser to a civil action for an injunction and/or damages. The trespasser has no right to be where he is. Section 68 is not concerned with the rights of the trespasser, whether protester or otherwise. References in the course of argument to the rights of free expression conferred by article 10 of the European Convention on Human Rights were misplaced. Of course a person minded to protest about something has such rights. But the ordinary civil law of trespass constitutes a limitation on the exercise of this right which is according to law and unchallengeably proportionate. Put shortly, article 10 does not confer a licence to trespass on other peoples property in order to give voice to ones views. Like adjoining sections in Part V of the 1994 Act, section 68 is concerned with a limited class of trespass where the additional sanction of the criminal law has been held by Parliament to be justified. The issue in this case concerns its reach. It must be construed in accordance with normal rules relating to statutes creating criminal offences. Under the section there are four elements to this offence: i) the defendant must be a trespasser on the land; ii) there must be a person or persons lawfully on the land (that is to say not themselves trespassing), who are either engaged in or about to engage in some lawful activity; iii) iv) which is intended by him to intimidate all or some of the persons on the land out of that activity, or to obstruct or disrupt it. the defendant must do an act on the land; The present case concerns the second element and in particular the meaning of any lawful activity. Given that by subsection (2) an activity is lawful if those on the land may engage in it without committing a criminal offence, what connection if any is required between any offence which may be committed and the activity which the defendant is said to have intentionally disrupted (etc)? Is any offence committed on the land, however remote from or incidental to the occupants activity, or however technical, a bar to the conviction of the invading trespasser? The defendants mounted a non violent but determined protest in a London shop. They objected to the shop because its wares were connected with an Israeli owned business in the West Bank. The shop specialised in selling beauty products derived from Dead Sea mineral material. Not all the products sold in the shop originated from the Dead Sea but the vast majority did. The defendants objection was grounded in the facts that (i) those products were produced by an Israeli company, in an Israeli settlement adjacent to the Dead Sea in the West Bank, that is to say in the Occupied Palestinian Territory (OPT) and (ii) the factory was said to be staffed by Israeli people who had been encouraged by the Government of Israel to settle there. The defendants arrived at the shop on a trading day, equipped with a heavy concrete tube. With the help of colleagues they connected their arms through the tube anchored by a chain secured by a padlock to which they said they had no key. The district judge found that they had no intention of buying anything; rather, their intention was to disrupt the shops trading. When asked to leave they failed to do so. They succeeded in their aim because the manager concluded that trading was impossible and closed the shop. She called the police. The police found the defendants polite and co operative except in refusing to free themselves. It was necessary for tools to be used to break through the concrete. When the defendants had thus been released, they were arrested and in due course charged with the offence contrary to section 68. The Crown case was that the lawful activity which they had intentionally disrupted was retail selling. The defendants had no defence to elements (i), (iii) and (iv) of the offence. They contested the charge on the basis that the activity being carried on in the shop was not lawful. They asserted that it involved the commission of criminal offences for one or more of four reasons. i) The company running the shop was guilty of aiding and abetting the transfer by the Israeli authorities of Israeli citizens to a territory (the OPT) under belligerent occupation; the transfer was said to be contrary to article 49 of the Fourth Geneva Convention of August 1949, and aiding and abetting it to be an act ancillary to a war crime, made a criminal offence in England and Wales by sections 51 and 52 of the International Criminal Court Act 2001. ii) The products sold in the shop were criminal property, as the product of this offence of aiding and abetting a war crime; accordingly the company running the shop, which at least suspected this, was guilty of the offence of using or possessing criminal property, contrary to section 329 of the Proceeds of Crime Act 2002. iii) The products had been imported into the UK as if covered by an EC Israeli Association Agreement, which conferred certain tax or excise advantages. But the European Court of Justice has ruled that products originating in the OPT do not qualify for this treatment. Accordingly, it was said, the company running the shop was guilty of the offence of cheating the Revenue. iv) The products sold in the shop were labelled Made by Dead Sea Laboratories Ltd, Dead Sea, Israel. This was said to be false or misleading labelling because the OPT is not recognised internationally or in the UK as part of Israel. Accordingly the company running the shop was guilty of one or both of two labelling offences, contrary to the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) or the Cosmetic Products (Safety) Regulations 2008 (SI 2008/1284). The district judge convicted the defendants in the magistrates court. Their appeal by case stated was dismissed by the Divisional Court of Queens Bench. One part of the district judges reasoning was not upheld by the Divisional Court, for he had held that only the activity of a natural person fell within section 68, and that neither the shop manageress nor the sales assistants were even arguably guilty of any offence. The Divisional Court rightly held that section 68 plainly included a company within the expression person engaging in (lawful activity). Its conclusions on that issue are not challenged and no more need be said about it. The live issue relates to the meaning of the expression lawful activity and in particular to when the commission of a criminal offence by the occupant whose activity is targeted by the trespasser has the effect of making unlawful the occupants activity. The question certified by the Divisional Court was: Should the words lawful activity in section 68 Criminal Justice and Public Order Act 1994 be limited to acts or events that are integral to the activities at the premises in question? Lawful activity The meaning of the expression lawful activity in section 68(2) has received some previous attention from the courts. Three propositions were not in dispute in argument in the present case. i) Section 68 is concerned only with a criminal offence against the law of England and Wales. The House of Lords so held in R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136. Thus a defendant trespassing at a military base was not entitled to assert that the ordinary activities of the base were unlawful because the UK Government was, or might be, committing an act of international aggression in preparing to despatch military hardware to Iraq. ii) In a prosecution under section 68 the Crown is not required to disprove the commission of every criminal offence which could conceivably be committed by the occupant(s) of the land. A specific offence or offences must be identified by the defendant and properly raised on the evidence. The Divisional Court so held in Ayliffe v Director of Public Prosecutions [2005] EWHC 684 (Admin), [2006] QB 227, see particularly para 50. Thus a bare assertion by trespassers at military bases that the Government may have aided and abetted a war crime did not raise the issue. iii) Where, however, the issue of a relevant specific criminal offence by the occupant(s) of the land is fairly raised by evidence, the onus lies upon the Crown to disprove it to the criminal standard of proof, in order for it to prove, to that standard, that the defendant trespasser has committed the offence contrary to section 68. This follows from Ayliffe and from the language of the statute. Two other cases give some assistance on the question of whether any criminal offence committed by the occupants has the effect of making the activity unlawful. In Hibberd v Director of Public Prosecutions (unreported) 27 November 1996 the Divisional Court was concerned with a trespasser who set out to stop the clearance of land for the construction of a new by pass. He gave evidence that one or more of the tree fellers was using a chainsaw but not wearing gloves and suggested that that raised the real possibility that he was committing an offence contrary to the Management of Health and Safety at Work Regulations 1992 (SI 1992/2051) in not using equipment provided for him by his employers. Without investigating whether any such offence was or was not made out, the Divisional Court held that even if it had been it could not affect the lawful nature of the activity which the defendant had disrupted, namely the clearance of the site. That was lawful in the sense that it was properly authorised. The activity of the occupants could not be defined simply to extend to the actions of the particular chainsaw operator(s) spotted. Two years later in Nelder v Director of Public Prosecutions The Times, 11 June 1998 a different Divisional Court considered the case of hunt saboteurs who set out to disrupt a hunt. They adduced evidence that at the outset of the hunt, two whippers in had strayed from the land over which the hunt had permission to ride and had taken the hounds onto adjacent land where they had no such permission. The trespassing defendants had actively disrupted the actions of all the hunt, not confined to the strayers, and had continued to do so after the latter had rejoined the main body of hunters. In this case the relevant part of section 68 was the concluding words of section 68(2), trespassing occupants rather than occupants committing a criminal offence, but the two limitations upon the concept of lawful activity are clearly in similar case. The court held that the fact that some few members of the hunt had acted unlawfully by trespassing on adjoining land did not affect the lawfulness of the activity which the defendants had disrupted. Simon Brown LJ offered the suggestion that it might have been otherwise if either the hunts central objective had been to hunt over land where it had no authority to be, or the defendants had confined their disruption to activity by the strayers. Each of those cases illustrates the problem posed by the wording of section 68(2). Part of the difficulty arises from the use of the word may in the definition of lawful activity: Activityis lawfulif he or they may engage in the activitywithout committing an offence or trespassing on the land. For the Crown, Mr Penny revived, although not at the heart of his submissions, the argument previously ventilated in Ayliffe, that this means that an activity remains lawful even if an offence is committed, providing that the activity could have been accomplished without the offence. It may be noted that if that were the correct construction it would have provided a complete answer to the appeals in both Hibberd and Nelder. Although this might on the face of the statutory language be a possible construction, it would deprive the defence of most of its force; it would mean that even if the occupants were engaged in a thorough going criminal act which represented their central purpose in being on the land, the defence would not operate if they could have altered the way they did things so as to do them lawfully. It would have the effect of treating as lawful something which was anything but lawful, and of examining not the activity which was actually carried out, but an activity which was not. That construction was rejected by the Divisional Court in Ayliffe at para 52, and also by the Divisional Court in the present case, at para 29. The true meaning of section 68 must be found despite the use of the word may, which was perhaps employed because the section has to apply to activity by the occupant which has not yet commenced. The true meaning lies in examining the activity which was (or was to be) carried out on the land. In argument in the present case, neither side contended that every criminal offence committed on the land provides the defendant with an escape from the section. For the appellants, Mr Southey QC accepted that if, for example, it had turned out that in the present case there was an employee in the shop who was paid something less than the national minimum wage, that would not render the activity of the shop unlawful for the purposes of section 68. Such a merely collateral offence would not provide the defendants with a fortuitous defence. His proposed solution to the problem was that the section defines activity by reference to the particular feature of the occupants acts against which the defendant was protesting or objecting. So, he contended, if the defendant made his objection to low wages, the fact that the whole of the rest of the shops activity was entirely lawful would matter not, but unless this was the defendants focus, the collateral offence against wage regulation would be irrelevant. That, however, is to turn section 68 upside down. True it is that section 68(1) requires the defendants act to be done with the intention of disrupting (etc) the lawful activity of the occupant, but it calls first for a finding as to the lawful activity, and only then asks whether that is what the defendant intended to disrupt (etc). The section cannot be read in the way suggested. Mr Southeys contention suggests an enquiry not into what the defendant intends, for he clearly intends to disrupt the whole activity, but rather into his motive or ulterior purpose for intending it. Moreover, this suggested construction is open to an objection similar to that lying against the one rejected in Ayliffe (para 11 above); it would direct the court away from the activity actually carried out by the occupants, in this case into the mind of the defendant. Just as the argument rejected in Ayliffe would enable the Crown or the occupant to choose which activity to rely upon, however remote from what he was actually doing, so this construction would bestow a similar bounty upon the defendant. The intention of the section is plainly to add the sanction of the criminal law to a trespass where, in addition to the defendant invading the property of someone else where he is not entitled to be, he there disrupts an activity which the occupant is entitled to pursue. Section 68(2) therefore must mean that the additional criminal sanction is removed when the activity which is disrupted is, in itself, unlawful, which may be either because the occupant is himself trespassing, or because his activity is criminal. Mr Southeys realistic concession is correct, for not every incidental or collateral criminal offence can properly be said to affect the lawfulness of the activity, nor to render it criminal. It will do so only when the criminal offence is integral to the core activity carried on. It will not do so when there is some incidental or collateral offence, which is remote from the activity. The decisions in Hibberd and Nelder are both consistent with this approach. The certified question ought thus to be answered Yes. This was the general approach of the Divisional Court in this case, as the terms of the certified question show. However, as may occur in an extempore judgment, some of its language ranged more widely than required. To the extent that it spoke in para 29 of the defence being confined to the case where the activity is patently unlawful, that latter expression needs to be understood to mean that the criminal offence must be integral to the core activity of the occupant and not collateral to or remote from it. It does not mean that the illegality must be so obvious as not to call for more than the barest enquiry. The Divisional Court was also concerned at the potential breadth of enquiry which might be required of the court of trial, usually the magistrates court, especially where, as here, the defence raises potentially far reaching questions concerning international political events. That found expression in para 27 as follows: As Waller LJ said in Ayliffeit is enough for the prosecution to show that the activity in question is apparently lawful. If then the defendant seeks to raise an issue to the contrary within the section 68 proceedings he mustdo so by reference to facts or events inherent in the activity itself. He cannot rely on the assertion of extraneous facts whose effective investigation would travel into contexts and controversies which are markedly remote from what is actually being done by way of the activities in question. It is correct that section 68(2) does not arise in the case of an apparently lawful activity unless and until it is raised on the evidence (Ayliffe). It is also correct that a criminal offence, if raised on the evidence, will be relevant to section 68(2) only if it is integral to the core activity in question. But if it is, it may yet involve investigation of extraneous events. The Divisional Court expressly, and correctly, accepted at para 30 that guilt of a war crime might in theory at least qualify. Other less grave alleged offending may also involve investigation of the assertion that it has occurred. It does sometimes fall to magistrates to examine matters of complexity and occasionally of international import; so long as the issue is not a non justiciable one such as the nations foreign policy as in Jones, there is no inhibition on their doing so and they will no doubt constitute themselves appropriately if necessary. Nor should the court of trial be inhibited from doing so, if the case requires it, by consideration of the fact that a finding may be made against the occupant of the land, such as the shopkeeper here, who is not a party to the trial. The only finding that might be made is that the Crown has not made out its case because there appears to have been an activity on the land which is not proved to have been lawful. That is not a conviction of the absent shopkeeper, nor in any sense a finding binding upon him. Decisions may sometimes have to be made in all manner of criminal proceedings which involve consideration of the actions of non parties an obvious case is where the defendant blames a third party for the offence. The application of these principles to the present case demonstrates that the conclusions of both the district judge and the Divisional Court were correct and that the defendants were rightly convicted. The war crime argument Section 51 of the International Criminal Court Act 2001 renders genocide, a war crime and a crime against humanity domestic offences against the criminal law of England and Wales. It applies wherever the offence was committed if the offender was resident in the UK. Section 52 of the same Act does the same for conduct ancillary to such a crime, and such conduct includes, via section 55, aiding, abetting, counselling or procuring the commission of the principal offence. A war crime is defined in article 8(2)(b) of Schedule 8 to the Act to include: (viii) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies That offence derives, as the defendants said, from the Fourth Geneva Convention of August 1949 relating to the protection of civilians in time of war. If therefore a person, including the shopkeeper company, had aided and abetted the transfer of Israeli civilians into the OPT, it might have committed an offence against these provisions. There was, however, no evidence beyond that a different company, namely the manufacturing company, had employed Israeli citizens at a factory in the West Bank and that the local community, which held a minority shareholding in that manufacturing company, had advertised its locality to prospective Israeli settlers. It is very doubtful that to employ such people could amount to counselling or procuring or aiding or abetting the Government of Israel in any unlawful transfer of population. Such an employer might be taking advantage of such a transfer, but that is not the same as encouraging or assisting it. Even if that company could have been aiding and abetting such transfer, that cannot amount to an offence by the separate retailing company, whatever the corporate links between the two companies. And even if the companies had been the same, such a crime of assistance was not an integral part of the activity carried on at the shop, which was retail selling. On the contrary, it was antecedent to, and remote from, the selling. The selling was perfectly lawful. The defendants, for their own reasons, elected to trespass and to stage a sit in which was intended to (and did) stop that lawful activity in its tracks. They thereby committed the offence under section 68. The supplemental contention that the shopkeeper company was committing a money laundering offence fails for the same reasons. The suggested money laundering is the possession and use (by selling) of the products of the West Bank factory. Those products were said to be criminal property because they were the benefit of the criminal conduct of the factory owning company and thus within section 326(4) of the Proceeds of Crime Act 2002. If, however, there was no aiding and abetting of the unlawful movement of population, the products of the factory could not be property obtained by or in return for criminal conduct (section 242 of the Proceeds of Crime Act 2002). Even if there had been aiding and abetting, and assuming that it could properly be said that the shopkeeping company suspected this to be the case, the criminal property offence could not be said to be integral to the activity of selling; it was on any view a collateral matter which did not render selling unlawful. The cheating the Revenue argument For similar reasons it is clear that even if the shops stock had been imported into the UK under favourable terms reserved for goods properly deriving from Israel as distinct from those produced in the OPT (as to which there is no evidence), this could not render their subsequent sale in the shop unlawful. At most, it means that the importer is liable to repay the Revenue any duty which ought to have been paid but was not. This is a classic example of a collateral, and in this case an antecedent and remote, offence which does not affect the lawfulness of the core activity of the shop, namely retail selling. On the assumption that it was committed by the shop company, it would provide the defendants with no defence to the offence under section 68. The argument from labelling offences The principal offence relied upon was one contrary to the Consumer Protection from Unfair Trading Regulations 2008. These were made to transpose the EU Unfair Commercial Practices Directive 2005/29/EC. The relevant offence is under regulation 9, and consists of engaging in a commercial practice which is a misleading action as defined by regulation 5. In its turn, regulation 5 provides that a commercial practice is a misleading action if (inter alia): (2)(a) it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and (b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise. The paragraph 4 relevant matters include the geographical or commercial origin of the product. Thus the argument before the district judge was that the products sold in the shop were mislabelled as to geographical origin in that they were labelled as Made by Dead Sea Laboratories Ltd, Dead Sea, Israel. That amounted, it was said, to representing that they came from Israel when they did not, because they came from the OPT. This regulation does not, it should be observed, make the selling of mislabelled goods an offence. If the offence is committed, the seller is guilty, but the sale is not itself an offence; rather it is the application of the misleading description. That suggests that the offence is collateral to the activity of selling, rather than integral to it. However, of the offences postulated by the defendants, this one comes closest to the core activity of selling undertaken by the shop on the occasion of the defendants trespass. In the event, it is not necessary to resolve the question whether this offence is integral to the activity of selling or not. The district judge found that even if the other elements of the offence were made out the additional condition required by regulation 5(2)(b) could not be established. There was no basis for saying that the average consumer would be misled into making a transactional decision (ie into buying the product) when otherwise she would not have done, simply because the source was described as being constitutionally or politically Israel when actually it was the OPT: the source was after all correctly labelled as the Dead Sea. The district judge found that: Whether or not the information given is falseI consider that the number of people whose decision whether or not to buy a supposedly Israeli product would be influenced by knowledge of its true provenance would fall far below the number required for them to be considered as the average consumer. If a potential purchaser is someone who is willing to buy Israeli goods at all, he or she would be in a very small category if that decision were different because the goods came from illegally occupied territory. That finding was clearly open to the district judge on the evidence and is fatal to the contention that the offence was committed. The Cosmetic Products (Safety) Regulations 2008 were made to transpose a different EU Directive (76/768/EEC as amended). Regulation 12(1)(a) provides that no person shall supply a cosmetic product unless the following information is displayed in indelible and legible lettering: the name or style and the address or registered office of the manufacturer or the person responsible for marketing the cosmetic product who is established within the EEA. Where the cosmetic product is manufactured outside the EEA, the country of origin must also be specified. As the district judge found, the objective of these Regulations is clearly safety of the consumer. They require the provision of information about the manufacturer, so that the consumer knows whom to pursue in the event of complaint. Within the EEA the name of the manufacturer is enough. If the manufacturer is outside the EEA, then the country must also be identified. These products were accurately labelled as coming from the Dead Sea and it is not suggested that the manufacturer was not identified. The alleged inaccuracy relates to the political status of the Dead Sea area from which they are identified as coming. As the district judge rightly said, the Regulations are not directed at disputed issues of territoriality, however important those may be in other contexts. It is doubtful that any offence under these Regulations was shown, but if it was, there can be no doubt that it was not integral to the activity of the shop in selling the products, but at most collateral to it. Conclusion Should the words lawful activity in section 68 Criminal Justice and Public Order Act 1994 be limited to acts or events that are integral to the activities at the premises in question? It should be answered yes. The appeal must in consequence be dismissed. It follows that of the postulated offences all were either not demonstrated to have been committed by the occupants of the shop at the time of the defendants trespass or were at most collateral to the core activity of selling rather than integral to that activity. The occupants of the shop were, accordingly, engaged in the lawful activity of retail selling at the time and section 68(2) provided no defence to the defendants. The certified question was as follows:

UK-Abs

Ahava was a shop in Covent Garden, London, which mainly sold beauty products processed from Dead Sea mineral materials. The products were factory produced by an Israeli company, in an Israeli settlement located in the West Bank and therefore within the Occupied Palestinian Territory (OPT). It was said that the factory was staffed by Israeli citizens encouraged by the Government of Israel to settle there. Mr Richardson and Ms Wilkinson (the Defendants) sought to disrupt the activities of Ahava. On 2 October 2010 they entered the shop (together with other helpers) carrying a concrete tube. They connected their arms through the tube anchored by a chain, secured by a padlock to which they claimed to have no key. They were asked to leave the shop by an Ahava employee, but failed to do so. The employee called the police and, after some time, closed the shop. Tools were used to release the Defendants from the tube. On their release, they were arrested for aggravated trespass contrary to section 68 Criminal Justice and Public Order Act 1994 (the 1994 Act). That offence criminalises the conduct of a person A who (i) trespasses on land, (ii) where there is a person or persons B lawfully on the land who is engaged in or about to engage in a lawful activity, (iii) and A does an act on the land, (iv) intended by A to intimidate all or some Bs from engaging in that activity, or to obstruct or disrupt that activity. In the magistrates court, the Defendants contested the charge on point (ii). They argued that Ahavas activities were not lawful since they involved the commission of one or more of four criminal offences. Firstly, they said that Ahava was guilty of aiding and abetting the transfer by Israeli authorities of Israeli citizens to the OPT, a territory under belligerent occupation. This was argued to be contrary to Article 49 of the Fourth Geneva Convention 1949, which constituted a war crime. Ahavas actions in aiding and abetting the transfer, if true, would constitute an offence under sections 51 52 of the International Criminal Court Act 2001 (the war crimes offence). Secondly, they said that since Ahava was aiding and abetting a war crime, Ahava must know or suspect that the products sold in the shop were the products of that offence. Ahava was therefore, they argued, guilty of the offence of using or possessing criminal property (the criminal property offence). Thirdly, they argued that the products had been imported into the UK purportedly under the EC Israeli Association Agreement, which conferred tax or excise advantages. However, since the Court of Justice of the European Union has ruled that products originating in the OPT do not fall under this Agreement, they asserted that Ahava was guilty of the offence of cheating the revenue (the revenue offence). Fourthly, they emphasised that the products sold were labelled Made by Dead Sea Laboratories Ltd, Dead Sea, Israel. The OPT is not recognised as part of Israel. Therefore, they argued, Ahava was guilty of labelling offences under the Consumer Protection from Unfair Trading Regulations 2008 and the Cosmetic Products (Safety) Regulations 2008 (the labelling offences). The district judge in the magistrates court convicted the Defendants. They appealed, on the grounds above, to the Divisional Court. The Divisional Court upheld the conviction, but certified as a matter of general public importance the question whether the words lawful activity in section 68 of the 1994 Act should be limited to acts or events integral to the activities at the premises in question. The Supreme Court unanimously dismisses the appeal. An activity is unlawful for the purposes of section 68 only if it involves a criminal offence integral to the core activity carried on, not when any criminality is only incidental, collateral to, or remote from the activity. Applying that to the facts of this case, none of the offences alleged by the Defendants are integral to Ahavas activities. The judgment of the Court is given by Lord Hughes. The effect of section 68 of the 1994 Act is to add the sanction of the criminal law to particular acts which already constitute the civil wrong of trespass. It is not specifically aimed at individuals wishing to protest, and is to be construed in accordance with the normal rules of statutes creating criminal offences [2 4]. In order to argue that an activity is not lawful, the Defendant has to show a specific criminal offence against the law of England and Wales, which is properly raised on the evidence before the court. Once that evidential burden has been satisfied, the burden of proof lies on the Crown to disprove that offence to the criminal standard [9]. The Defendants had accepted that a merely collateral offence would not suffice to prove the defence. They argued that the activity could be defined as the particular feature of Bs acts against which A was protesting or objecting: if that particular feature was unlawful, this would suffice for section 68. This, however, turns the section upside down. To apply the section, it is necessary first to consider what Bs lawful activity is, and then to ask whether that is the activity which A intends to disrupt. The Defendants argument involves considering As motive, rather than As intent: A intends to disrupt the whole activity [12]. The true purpose of section 68 is to add the sanction of the criminal law to a trespass where A disrupts an activity that B is entitled to pursue. The no lawful activity defence must therefore apply when the criminal offence is integral to the core activity carried on, not merely incidental or collateral to that activity [13]. However, if a criminal offence integral to the core activity is raised, the court must consider that question even if it involves assessing extraneous facts, or the conduct of third parties [14 15]. Applying those principles to this case, none of the offences raised by the Defendants are made out. The war crimes offence: The only evidence raised by the Defendants was that a different company (the manufacturing company) had employed Israeli citizens at a West Bank factory and that the local community, which held a minority shareholding in that manufacturing company, had advertised the settlement to prospective settlers. It is very doubtful that the manufacturing companys actions could amount to aiding and abetting the transfer of Israeli citizens to the OPT, but even if it did, this could not amount to an offence by Ahavas retailing arm. Moreover, any such assistance is not an integral part of the activity carried out by Ahava, which was retail selling [17]. The criminal property offence: If, for the reasons above, there is no aiding and abetting of any unlawful movement of population, the products cannot be the products of a criminal offence. In any event, the criminal property offence cannot be said to be integral to the activity of selling [18]. The revenue offence: This is a purely collateral offence. Even if proven, the importer is only liable to repay to the Revenue duty which should have been paid [19]. The labelling offences: These are the principal offences relied on. The first Regulation criminalises misleading commercial practices, including labelling. However, it is necessary to show that, as a result of the misleading labelling, the average consumer would buy something that he/she otherwise would not have done. In this case the district judge had found that a consumer willing to buy Israeli products would be very unlikely not to buy Israeli products because they were produced in the OPT. Therefore, the offence could not have been committed [20 22]. The second Regulation criminalises the supply of cosmetic products which do not state (among other things) the country of origin. The aim of this is clearly to protect consumers, and stating that the products derive from the Dead Sea is sufficient: the Regulation is not aimed to reflect disputed questions of territoriality. Even if an offence had been shown, it would not have been integral to the sale activity [23].

These appeals arise out of a dispute between British Telecommunications Plc, whom I shall call BT, and four mobile network operators. The dispute is about the termination charges which BT is entitled to charge to mobile network operators for putting calls from the latters networks through to BT fixed lines with associated 08 numbers. The dispute is a highly technical one, both factually and legally, and like most such disputes involves a surfeit of acronyms. But it raises issues of great importance to the telecommunications industry, to its regulator, and indirectly to millions of consumers. The following summary is a gross over-simplification but is sufficient for present purposes. In principle, the cost of a call is charged to the caller by the originating communications provider to which he subscribes (a CP, in the jargon of the business). Out of its charges to the caller, the originating CP must pay charges to the terminating network or to an intermediate carrier if there is one. 08 numbers are known as non-geographic numbers. They are allocated to fixed line subscribers, and automatically translated into the appropriate geographic number in the course of transmission. Where the call originates from another fixed line, an 08 number allows the subscriber to whom that number has been allocated to receive it on the basis that the caller will be charged at a standard, and generally reduced, charge. Calls to 080 numbers are free to fixed line callers except where charges are notified at the beginning of the call. Calls to 0845 numbers are charged to fixed line callers by the originating CP at its standard local call rate. Calls to 0870 numbers are charged to fixed line callers by the originating CP at its standard national call rate except where different charges have been published. In each case, the terminating CP will collect a termination charge from the CP from which it received the call. However, where calls originate from a mobile network operator, that operator will commonly charge the caller for a call to a 080 number, or charge him more than the standard local or national rate for a call to a 0845 or 0870 number. In 2009 BT notified mobile network operators of a revised scheme of termination charges for 08 numbers. The defining feature of the new scheme was that mobile network operators would be charged at a rate which varied according to the amount which the originating network charged the caller. The higher the charges to the caller, the greater the termination charge. The new scheme was rejected by the four mobile network operators party to these appeals. The issue was submitted to the Office of Communications (Ofcom) under a statutory dispute resolution procedure. Appeal lies from Ofcom to the Competition Appeal Tribunal, and from them on points of law only to the Court of Appeal. Ofcom decided that BT should not be allowed to introduce the new charging scheme. The Competition Appeal Tribunal overturned that decision and decided that they should. The Court of Appeal restored the original decision of Ofcom. The legal framework The sector is regulated under a pan-European regulatory scheme known as the Common Regulatory Framework. The objective of the scheme is to ensure end- to-end connectivity on a common basis throughout the EU, without distortions arising from anti-competitive behaviour or restrictions arising from national law or practices. It is contained in a number of Directives, all issued on 7 March 2002. Two of these are important for present purposes. They are Directive 2002/21/EC, known as the Framework Directive and Directive 2002/19/EC known as the Access Directive. They were amended in 2009, with a deadline for transposition in 2011, after the time which is relevant for the present appeal. I shall refer to them below in their unamended form. They refer to each other, and have to be construed together. The Directives The background to the Directives, and previous Directives on the same subject, is the progressive liberalisation of the European telecommunications market which had previously been dominated by state-controlled monopolies. The Framework Directive recites, at Recital (1), that the current regulatory framework under previous Directives has been successful in creating the conditions for effective competition in the telecommunications sector during the transition from monopoly to full competition. Recital (25) records that it may still be necessary to impose ex ante obligations on CPs to ensure the development of a competitive market, where CPs exceed a given threshold of market power, but that the relevant threshold should now correspond to the concept of dominance as defined in the case-law of the Court of Justice, i.e. the possession of significant power enabling a CP to operate unconstrained by competitive pressure. Recital (27) recites: (27) It is essential that ex ante regulatory obligations should only be imposed where there is not effective competition, i.e. in markets where there are one or more undertakings with significant market power, and where national and Community competition law remedies are not sufficient to address the problem. Subject to ex ante regulation in circumstances where there is not effective competition, the scheme of the Directives is permissive. The Access Directive recites: (5) In an open and competitive market, there should be no restrictions that prevent undertakings from negotiating access and interconnection arrangements between themselves, in particular on cross-border agreements, subject to the competition rules of the Treaty. In the context of achieving a more efficient, truly pan-European market, with effective competition, more choice and competitive services to consumers, undertakings which receive requests for access or interconnection should in principle conclude such agreements on a commercial basis, and negotiate in good faith. (6) In markets where there continue to be large differences in negotiating power between undertakings, and where some undertakings rely on infrastructure provided by others for delivery of their services, it is appropriate to establish a framework to ensure that the market functions effectively. National regulatory authorities should have the power to secure, where commercial negotiation fails, adequate access and interconnection and interoperability of services in the interest of end-users. In particular, they may ensure end-to-end connectivity by imposing proportionate obligations on undertakings that control access to end-users. (14) Directive 97/33/EC laid down a range of obligations to be imposed on undertakings with significant market power, namely transparency, non-discrimination, accounting separation, access, and price control including cost orientation. This range of possible obligations should be maintained but, in addition, they should be established as a set of maximum obligations that can be applied to undertakings, in order to avoid over-regulation. (20) Price control may be necessary when market analysis in a particular market reveals inefficient competition. The regulatory intervention may be relatively light, such as an obligation that prices for carrier selection are reasonable as laid down in Directive 97/33/EC, or much heavier such as an obligation that prices are cost oriented to provide full justification for those prices where competition is not sufficiently strong to prevent excessive pricing. In particular, operators with significant market power should avoid a price squeeze whereby the difference between their retail prices and the interconnection prices charged to competitors who provide similar retail services is not adequate to ensure sustainable competition. The general objectives of the scheme are identified by Articles 7.1 and 8 of the Framework Directive (as in force at the relevant time). They provide: Article 7 Consolidating the internal market for electronic communications 1. In carrying out their tasks under this Directive and the Specific Directives, national regulatory authorities shall take the utmost account of the objectives set out in Article 8, including in so far as they relate to the functioning of the internal market. Article 8 Policy objectives and regulatory principles 1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, in particular those designed to ensure effective competition, national regulatory authorities take the utmost account of the desirability of making regulations technologically neutral. National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism. 2 The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia: (a) ensuring that users, including disabled users, derive maximum benefit in terms of choice, price, and quality; (b) ensuring that there is no distortion or restriction of competition in the electronic communications sector; (c) encouraging efficient investment in infrastructure, and promoting innovation; 4. The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia: (a) ensuring all citizens have access to a universal service specified in Directive 2002/22/EC (Universal Service Directive); (b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved; Detailed provision for the terms of interconnection between CPs is contained in the Access Directive. Article 1 provides: Article 1 Scope and aim 1. Within the framework set out in Directive 2002/21/EC (Framework Directive), this Directive harmonises the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities. The aim is to establish a regulatory framework, in accordance with internal market principles, for the relationships between suppliers of networks and services that will result in sustainable competition, interoperability of electronic communications services and consumer benefits. The key element of the system for achieving these objects is the legal relationship between CPs. This is embodied in interconnection terms agreed between them, generally in a series of bilateral contracts. The relevant provisions of the Access Directive are Articles 4 and 5. Article 4 Rights and obligations for undertakings 1. Operators of public communications networks shall have a right and when requested by other undertakings so authorised, an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services throughout the Community. Operators shall offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the national regulatory authority pursuant to Articles 5, 6, 7 and 8. Article 5 Powers and responsibilities of the national regulatory authorities with regard to access and interconnection 1. National regulatory authorities shall, acting in pursuit of the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, and gives the maximum benefit to end-users. In particular, without prejudice to measures that may be taken regarding undertakings with significant market power in accordance with Article 8, national regulatory authorities shall be able to impose: (a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case; 3. Obligations and conditions imposed in accordance with paragraphs 1 and 2 shall be objective, transparent, proportionate and non- discriminatory, and shall be implemented in accordance with the procedures referred to in Articles 6 and 7 of Directive 2002/21/EC (Framework Directive). 4 With regard to access and interconnection, Member States shall ensure that the national regulatory authority is empowered to intervene at its own initiative where justified [or, in the absence of agreement between undertakings, at the request of either of the parties involved,] in order to secure the policy objectives of Article 8 of Directive 2002/21/EC (Framework Directive), in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of Directive 2002/21/EC (Framework Directive). The words in square brackets in Article 5.4 were removed by Directive 2009/140/EC. Articles 9 to 13 of the Access Directive represent the most intrusive parts of the regulatory scheme. They require member states to ensure that national regulatory authorities are empowered to impose obligations of transparency, non- discrimination, accounting separation, access to and use of specific network facilities, and price control and accounting obligations in certain cases. Article 8.3 provides that without prejudice to (among other provisions) Article 5.1, national regulatory authorities shall not impose the obligations set out in Articles 9 to 13 on operators that have not been designated in accordance with paragraph 2. Operators are designated in accordance with paragraph 2 of Article 8 if they have been shown to have significant market power in a specific market by a market analysis carried out in accordance with Article 16 of the Framework Directive. Significant market power is defined by Article 14.2 of the Framework Directive: 2. An undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers. BT has not been designated as having significant market power in the market relevant to this case, and the present appeal has nothing to do with Articles 9 to 13 of the Access Directive, which are relevant only by way of background. The scheme of the Directives has been considered on a number of occasions by the Court of Justice of the European Union, notably in Case C-227/07 Commission of the European Communities v Republic of Poland [2008] ECR I-8403 and Case C-192/08 TeliaSonera Finland Oyj [2009] ECR I-10717. It can fairly be summarised as follows. The objectives of the scheme are set out in Article 8 of the Framework Directive, and in particular in Article 8.2, which assumes that consumer welfare will generally be achieved by competition and requires national regulatory authorities to promote both. The telecommunications sector is assumed to have become competitive except in those cases where a CP can be identified as having significant market power in a relevant market. In a competitive market, the objectives in Article 8 of the Framework Directive are to be achieved through the terms of the interconnection agreements between CPs. CPs operating in such a market are left to negotiate their own interconnection terms in good faith, with the minimum of regulatory interference. But they are required by Article 4.1 of the Access Directive to offer interconnection terms consistent with the obligations imposed by the national regulatory authority pursuant to Articles 5, 6, 7 and 8. Under Article 5.4 of the Access Directive, these obligations of the regulator include its obligation to secure the policy objectives in Article 8 of the Framework Directive. The result is that interconnection terms consistent with the objectives in Article 8 of the Framework Directive must be available to any CP which asks for them. Reserve powers are required to be conferred on national regulatory authorities by Article 5 of the Access Directive to impose objective, transparent, proportionate and non-discriminatory terms calculated to achieve the objectives in Article 8 of the Framework Directive. In summary, these powers are exercisable where it is necessary to do so in order (i) to achieve end-to-end connectivity in a case where the parties have failed to agree interconnection terms (Articles 5.1 and 5.4 of the Access Directive); or (ii) to achieve the objectives in Article 8 of the Framework Directive, in a case where interconnection terms have been agreed but are not calculated to achieve those objectives (Article 5.4 of the Access Directive); or (iii) in order to impose certain kinds of term on parties with significant market power (Articles 8 to 13 of the Access Directive). It should be noted that the promotion of efficient and competitive markets is one of the overarching objectives in Article 8.2 of the Framework Directive, and is therefore potentially relevant in all three cases. Although price control may not be imposed by regulation on CPs without significant market power, this does not mean that competition considerations are irrelevant in a competitive market. As the Court of Justice pointed out in Case C-192/08 TeliaSonera [2009] ECR I-10717, para 55, a national regulatory authority may intervene to prevent the imposition by a CP of interconnection terms likely to hinder the emergence of a competitive market even if that CP does not have significant market power. This is a point of some practical importance, because a CP without significant market power nevertheless has a monopoly of access to its current customers. Dispute resolution Arrangements for dispute resolution are an integral part of the scheme. I have already referred to Article 5.4 of the Access Directive, which deals with the resolution of disputes about access and connectivity and cross-refers to Article 20 of the Framework Directive. Article 20 contains the principal provision governing dispute resolution. It provides so far as relevant: Article 20 Dispute resolution between undertakings 1. In the event of a dispute arising in connection with obligations arising under this Directive or the Specific Directives between undertakings providing electronic communications networks or services in a Member State, the national regulatory authority concerned shall at the request of either party, and without prejudice to the provisions of paragraph 2, issue a binding decision to resolve the dispute in the shortest possible time frame and in any case within four months except in exceptional circumstances. The Member State concerned shall require that all parties cooperate fully with the national regulatory authority. 2 Member States may make provision for national regulatory authorities to decline to resolve a dispute through a binding decision where other mechanisms, including mediation, exist and would better contribute to resolution of the dispute in a timely manner in accordance with the provisions of Article 8. The national regulatory authority shall inform the parties without delay. If after four months the dispute is not resolved, and if the dispute has not been brought before the courts by the party seeking redress, the national regulatory authority shall issue, at the request of either party a binding decision to resolve the dispute in the shortest possible time frame and in any case within four months. 3 In resolving a dispute, the national regulatory authority shall take decisions aimed at achieving the objectives set out in Article 8. Any obligations imposed on an undertaking by the national regulatory authority in resolving a dispute shall respect the provisions of this Directive or the Specific Directives. Article 4 of the Framework Directive requires that there should be a right of appeal from any decision of a national regulatory authority, whether under its regulatory or its adjudicatory powers. This is not just a right of judicial review. The appeal must ensure that the merits of the case are duly taken into account. The Communications Act 2003 Effect is given to the Directives in the United Kingdom by the Communications Act 2003. Under the Act, Ofcom is the national regulatory authority for the purposes of the scheme. Since it is common ground that the Directives are accurately transposed in the Act, it will generally be convenient to refer to the European rather than the domestic legislation. It is, however, appropriate to refer to section 190 of the Act of 2003, which deals with the resolution of disputes by Ofcom. Section 190(2) provides: (2) Their main power is to do one or more of the following- (a) to make a declaration setting out the rights and obligations of the parties to the dispute; (b) to give a direction fixing the terms or conditions of transactions between the parties to the dispute; (c) to give a direction imposing an obligation, enforceable by the parties to the dispute, to enter into a transaction between themselves on the terms and conditions fixed by Ofcom; and (d) for the purpose of giving effect to a determination by Ofcom of the proper amount of a charge in respect of which amounts have been paid by one of the parties of the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment. Sections 3 and 4 provide, in terms corresponding to the Directives, for the matters to which Ofcom must have regard in performing its functions generally. Section 3(3) reflects the permissive character of the regulatory scheme, by providing that Ofcom must have regard, in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed (emphasis added). The contract BT provides connection services to other CPs on the terms of its Standard Interconnect Agreement. Clause 12 of this document deals with BT charges. It provides: 12. BT SERVICES 12.1 For a BT service or facility the Operator shall pay to BT the charges specified from time to time in the Carrier Price List. 12.2 BT may from time to time vary the charge for a BT service or facility by publication in the Carrier Price List and such new charge shall take effect on the Effective Date, being a date not less than 28 calendar days after the date of such publication, unless a period other than 28 calendar days is expressly specified in a Schedule. 12.5 As soon as reasonably practicable following an order, direction, determination or consent by Ofcom of a charge (or the means of calculating that charge) for a BT service or facility, BT shall make any necessary alterations to the Carrier Price List so that it accords with such determination. 12.9 If there is a difference between a charge for a BT service or facility specified in the Carrier Price List and a charge determined by Ofcom, the charge determined by Ofcom shall prevail. A change in BT charges is notified to the counterparties by a Network Charge Change Notice (or NCCN). The reference in Clause 12 to determinations by Ofcom is to determinations under Clause 26, which reflects the terms of Article 20 of the Framework Directive. It provides that subject to any other mode of dispute resolution available to the parties, disputes are to be resolved as far as possible by agreement, but failing agreement either party may refer the dispute to Ofcom. The combined effect of Clauses 12 and 26 is that variations to BTs charges are introduced unilaterally by BT and take effect automatically from the date proposed, subject to the counterpartys right to object. If agreement cannot be reached, the dispute is referred to Ofcom for determination, unless both parties elect some other form of dispute resolution. Meanwhile, the variation is treated as provisionally valid. The Change Notices On 3 June 2009, BT issued Network Charge Change Notice 956 in respect of calls to 080 numbers. This was on its face an exercise by BT of the powers of variation conferred on BT by Clause 12.2 of the Interconnection Agreement. The revised tariffs proposed in the Change Notice provided for BT to make a payment to the originating network if that network charged zero for the call. If the originating network charged the caller, there were no charges either way provided that the charge was below a given threshold. Above that threshold, the CP interconnecting with BT was required to pay a progressively rising termination charge depending on the band into which the charge to the caller fell. On 2 October 2009, BT issued corresponding notices numbered 985 and 986 relating to calls to 0845 and 0870 numbers. These provided for BT to charge CPs a variable proportion of the charge made by the originating network to the caller, again depending on the band into which the charge to the caller fell. All of these notices were disputed and referred by one or more mobile network operators to Ofcom. Ofcoms determinations Ofcom issued a final determination dated 5 February 2010 in relation to 080 numbers, and a second final determination dated 10 August 2010 in relation to 0845 and 0870 numbers. For present purposes, it is possible to concentrate on the determination relating to 0845 and 0870 numbers, because it is common ground that that determination may be taken to represent Ofcoms position in relation to all three number ranges. Ofcom decided that it would permit the changes to be made only if they were fair and reasonable, judged by three governing principles. Principle 1 was that mobile network operators should be able to recover their efficient costs of originating calls to the relevant numbers. Principle 2 was that the new charges should (i) provide benefits to consumers, and (ii) not entail a material distortion of competition. Principle 3 was that implementation of the new charges should be reasonably practicable. All three principles can be related to objectives set out in Article 8.2 of the Framework Directive. No one has challenged this as an appropriate analytical framework. Ofcom found that Principle 1 was satisfied. It found that Principle 3 was not satisfied, but it was overruled on that point by the Competition Appeal Tribunal, and there has been no appeal against its decision on that point. Accordingly the outcome of this appeal turns on the application of Principle 2. Ofcom found that Principle 2 was not sufficiently likely to be met. As regards Principle 2(i), which is known as the welfare test, Ofcom distinguished between three potential effects on consumers: the direct effect, essentially the effect on consumer prices for calls to 08 numbers; the indirect effect, which referred to the possibility that revenue gains by BT would feed back to the consumer in the form of lower charges or higher standards of service by service providers who use 08 numbers; and the mobile tariff package effect (or waterbed effect), by which it meant the potential for mobile network operators deprived of one revenue stream to try to compensate themselves by seeking to raise prices elsewhere. It thought that the direct effect was likely to be positive for consumers, because a tariff based on the originating networks charge to the caller was likely to lead mobile network operators to reduce their charges to callers, although it could not say by how much. It thought that the indirect effect was also likely to be positive, because over time some of the benefits to BT would be passed on to service providers using the 08 numbers in question, although callers to 08 numbers would not necessarily benefit. Ofcoms concern was about the mobile tariff package effect. It thought that this was likely to be negative because mobile network operators would probably try to recoup the higher termination charges by raising charges for other services. Taking the three effects together, Ofcoms conclusion was as follows: 9.30 As set out above, there is uncertainty about the sizes of each of the Direct, Indirect and Mobile tariff package effects. However, as shown in Table 9.1, the overall effect on consumers depends on the relative sizes of these offsetting effects (even though we place more weight on the Direct effect than the Mobile tariff package effect, because of our policy preference for 0845/0870 prices to be aligned with geographic call prices). 9.31 Our judgement in respect of Principle 2 is therefore finely balanced. We recognise the possibility that consumers could benefit from NCCNs 985 and 986. However, we also recognise the risk of harm to consumers from NCCNs 985 and 986, particularly in light of our conclusions on the Mobile tariff package effect. 9.32 Given the uncertainty which we have identified as to whether BT's NCCNs would result in a net benefit or net harm to consumers, and in light of our overriding statutory duties to further the interests of consumers, we consider it is appropriate for us to place greater weight on this potential risk to consumers from NCCNs 985 and 986. Turning to the competition test at Principle 2(ii), Ofcom concluded that while there were some concerns on this count, the risk of a material distortion of competition arising from the changes was relatively low. Taking the welfare test and the competition test together, Ofcom concluded that Principle 2 was not satisfied, because BT could not positively demonstrate that the proposed tariff changes would be beneficial to consumers. In summary, what Ofcom decided was that although the direct and the indirect effect of BTs proposed price changes could be expected to result in lower prices for consumers, BT should not be allowed to make the changes because it was not possible to forecast how far mobile network operators would be able to compensate themselves by increasing other charges. The decision of the Competition Appeal Tribunal Under section 192 of the Communications Act 2003, an appeal to the CAT is an appeal on the merits. It is a rehearing, and is not limited to judicial review or to points of law. This reflects the requirements of Article 4 of the Framework Directive. The CAT allowed BTs appeals. The tribunal agreed with the approach embodied in Ofcoms three principles, but they had a different starting point. In their view, BT was prima facie entitled to change its charges for three reasons. I list them in the order in which they will be addressed below. The first was that BT had a contractual right to vary its charges, subject to Ofcoms determination if the dispute resolution procedure was operated. The second was that the introduction of innovative charging structures was itself a mode of competing, and that interference with it would restrict competition. The third was that price control is an intrusive form of control which elsewhere in the 2003 Act can only be introduced by SMP condition (para. 442). It was therefore inappropriate for Ofcom to use its dispute resolution powers as a way of controlling the charges of a CP like BT which did not have significant market power in a relevant market. Summarising their view of these points, the CAT said: 396. The crucial question is what is a regulator to do in the context of such uncertainty? Essentially, the regulator has two choices: (1) To prevent change unless it can be demonstrated that the change is beneficial- in which case it may well be said that the dead hand of regulation is constraining behaviour which may actually be beneficial to consumers. We stress that our conclusion regarding Principle 2(i) was that the welfare assessment was inconclusive, not that consumers would be harmed. (2) Alternatively, to allow change despite the uncertainty, even though there is a risk that the change may result in a disbenefit to consumers, recognising that an undue fetter on commercial freedom is itself a disbenefit to consumers. It followed that, if Principles 1 and 3 were satisfied (as they were), Ofcom could reject a proposed change in a CPs termination charges only if the welfare test distinctly showed that they would adversely affect consumer welfare. The CAT reached substantially the same conclusions about the welfare test as Ofcom did, namely that it was inconclusive. They expressed their conclusion as follows at paragraph 379: Fundamentally, the welfare analysis is inconclusive, due to a lack of empirical evidence. Even with the assistance of the simplifying assumptions that we have described, a reliable assessment of elasticity of demand is not possible. Whilst it is possible to conclude that prices for 080, 0845 and 0870 calls will, on balance, fall, it cannot be said how far they will fall, nor what volumes of calls there will be at any given price. Equally, the extent of the Mobile Tariff Package Effect is essentially unknown. An inconclusive welfare test could not in the CATs view be enough. The CATs conclusion on this point is conveniently summarised at paragraphs 447-448 of their judgment: 447. If, therefore, the test to be applied is whether the NCCNs can be shown to provide benefits to consumers, then that test is not met. However, we do not consider this to be the correct test in the circumstances of the present case, because it places undue importance on Ofcom's policy preference, at the expense of the two other relevant factors that we have identified as forming a part of Principle 2 (namely Principle 2(ii) [the risk of a distortion to competition arising from restricting CP's commercial freedom to price] and BT's private law rights. 448 We consider that whilst Ofcom's welfare analysis could override these other factors, it should only do so where it can clearly and distinctly be demonstrated that the introduction of the NCCNs would act as material disbenefit to consumers. In short, given the presence of the two other factors that we have identified, it is not enough for the welfare analysis to be simply inconclusive. The welfare analysis must demonstrate, and demonstrate clearly, that the interests of consumers will be disadvantaged. The decision of the Court of Appeal Appeal lies from the CAT to the Court of Appeal on a point of law only. The Court of Appeal (Lloyd, Etherton and Elias L.JJ) overruled the CAT and restored the decision of Ofcom. The leading judgment was given by Lloyd LJ, with whom both the other members of the Court agreed. In summary, Lloyd LJ rejected the CATs starting point. In the first place, he held that the tribunal had been wrong to treat BT as having a prima facie right to change its charges, which needed to be displaced. It had no more than a right to do so subject to the determination of Ofcom if the counterparty objected. Secondly, he held that they had been wrong to attach weight to their view that a restraint on BTs freedom to set its own charges would itself distort competition. Thirdly, he held that the CAT had been wrong to attach weight to the fact that BT, not having significant market power in a relevant market, was not subject to ex ante control of its prices on competition grounds. Having disposed of the three considerations that led the CAT to put the burden of justifying their objection to the new charges on the mobile network operators, Lloyd LJ held that it was for BT to justify its charges as being fair and reasonable. This, he thought, required them to establish positively that consumers would benefit by them, something which the inconclusive outcome of the welfare test made it impossible for them to do. The function of Ofcom in resolving disputes Lloyd LJ attached considerable importance to the nature of the function which Ofcom is performing when it resolves disputes about charges under an interconnection agreement. He considered (para 63) that dispute resolution is a form of regulation in its own right, to be applied in accordance with its own terms. In his view, the terms of the Interconnection Agreement were of little if any relevance because their effect was that any new charges introduced by BT were liable to be overridden by Ofcom in the exercise of its regulatory powers. This led him to regard interconnection charges as an essentially regulatory construct. Much of the rest of his analysis follows from these premises. Because Ofcoms determination of the dispute was a regulatory function, Lloyd LJ considered that the balancing of the various factors relevant to Principle 2 was a value judgment for it. Since it was not shown to have erred in principle, its decision should be restored. The dispute resolution functions of Ofcom have often been described as regulatory, notably by the CAT in T-Mobile (UK) Ltd v Office of Communications [2008] CAT 12. It is unquestionably true that the dispute resolution functions of national regulatory authorities are part of the regulatory scheme, and that in exercising those functions the regulator is required by Article 20.3 of the Framework Directive to promote the overarching objectives set out in Article 8, just as it is required to do in exercising its other functions. But the description of dispute resolution as a form of regulation in its own right is apt to mislead without some analysis of what is meant by it. As a national regulatory authority charged with the resolution of disputes, Ofcom has both regulatory and adjudicatory powers. Article 20.1 of the Framework Directive requires national regulatory authorities to have power to resolve disputes between CPs in connection with obligations arising under this Directive or the Specific Directives between undertakings. Article 5.4 of the Access Directive requires national regulatory authorities to have a power of intervention in a dispute about access and interconnection in accordance with (inter alia) the procedures in Article 20 of the Framework Directive, in order to secure the policy objectives of Article 8 of the Framework Directive. The combined effect of these provisions is that the dispute resolution function extends to disputes of different kinds. A dispute may arise (i) under the existing interconnection terms, or (ii) because the parties have been unable to agree terms and one of them wants the regulator to impose them, or (iii) because there are binding terms but they do not satisfy (or no longer satisfy) Article 5.3 of the Access Directive or the policy objectives in Article 8 of the Framework Directive. In case (i) it may perform an adjudicatory or a regulatory role or a combination of the two. The existence side by side of both adjudicatory and regulatory functions follows from the scheme of the Directives, but is particularly clearly spelled out in section 190 of the Communications Act, which I have already quoted. The section distinguishes between Ofcoms powers in the course of dispute resolution to declare the rights and obligations of the parties (section 190(2)(a)), to fix the terms of transactions between the parties (section 190(2)(b)) and to impose an obligation to enter into a transaction on terms fixed by Ofcom (section 190(2)(c)). The first of these powers is plainly adjudicatory. The second and third are regulatory. As I have pointed out above, the scheme of the Directives depends critically on the agreed interconnection terms. This is a feature of the scheme which is fundamental to its essentially permissive character. It reflects the consistent emphasis in the Directives on respecting freely negotiated interconnection terms in a competitive market: see in particular Recital (5) of the Access Directive. In the ordinary case, the interconnection terms will have been negotiated between the parties, within the constraints imposed by law, namely that the result must be consistent with the objectives in Article 8 of the Framework Agreement. If, however, they were imposed or modified by Ofcom under Article 5.1, the effect is the same, namely to create a contract or something that will be treated as legally equivalent to a contract. When Ofcom is resolving a dispute about a proposed variation of charges under an existing agreement, it is performing a mixture of adjudicatory and regulatory functions. The terms of the interconnection agreement are the necessary starting point for this process. If there is no contractual right to vary the charges, it is difficult to see how Ofcom can approve a variation unless it is necessary to achieve end-to-end connectivity (for example to enable operators to recover their efficient costs) or to achieve the Article 8 objectives. If there is a contractual right to a variation, but the proposed variation is not consistent with the Article 8 objectives, Ofcom may reject the variation. It may also modify any terms which created an entitlement inconsistent with the Article 8 objectives. If there is a contractual right to a variation which is consistent with the Article 8 objectives, Ofcoms function when the right is challenged is to give effect to it. The contractual effect of the interconnection terms will of course depend on their proper law, and in some respects this may vary from one member state to another. But as far as the Article 8 objectives are concerned, there will be commonality between every member state because all of them have the same obligation to ensure that interconnection agreements are framed and applied in a manner consistent with those objectives, and the same obligation to require their national regulatory authorities to give effect to those objectives both in imposing or modifying terms and in resolving disputes about them. Clause 12 of the Interconnection Agreement Clauses 12.1 and 12.2 of BTs Standard Interconnect Agreement confer a power on BT unilaterally to fix or vary its charges. Although the mobile network operators did argue in the CAT that their unilateral character was a reason why they should not be given weight, neither they nor Ofcom argued in the CAT that clause 12 should be modified. The manner in which English law ensures that contractual effect is given to the Article 8 objectives is by treating BTs discretion under Clause 12 as limited. As a general rule, the scope of a contractual discretion will depend on the nature of the discretion and the construction of the language conferring it. But it is well established that in the absence of very clear language to the contrary, a contractual discretion must be exercised in good faith and not arbitrarily or capriciously: Abu Dhabi National Tanker Company Ltd v Product Star Shipping Ltd (No 2) [1993] 1 Lloyds Rep 397, 404 (Leggatt LJ); Gan Insurance Company Ltd v Tai Ping Insurance Company Ltd (No 2) [2001] 2 All ER (Comm) 299, para 67 (Mance LJ); Paragon Finance Plc v Nash [2002] 1 WLR 685, paras 39-41 (Dyson LJ). This will normally mean that it must be exercised consistently with its contractual purpose: Ludgate Insurance Company Ltd v Citibank NA [1998] Lloyds Rep (I&R) 221, para 35 (Brooke LJ); Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459 (Lord Steyn), 461 (Lord Cooke of Thorndon). Interconnection agreements are made in a regulated environment. The regulatory scheme may change, quite possibly after interconnection terms have been agreed (as it did in this case). But the intention of the parties must be to comply with the scheme as it stands from time to time so far as the contract permits. That intention necessarily informs the scope and operation of any contractual discretions. In my opinion, it is entirely clear that the discretion conferred by clause 12 of the Standard Interconnect Agreement is limited by reference to the purposes set out in Article 8 of the Framework Directive. It follows that contractually BT was entitled to set its own charges, but only within limits which are fixed by those objectives. By virtue of clause 12.5, BTs power to set its own charges within those limits is subject to any order, direction, determination or consent of Ofcom. But this does not mean that Ofcom can do what it likes. It is bound to start from the parties contractual rights and may override them only if that is required by the Article 8 objectives. However, under Clause 12 of the Interconnection Agreement, this is a conflict which cannot arise, because BT has no contractual right to require a price variation which is not consistent with the Article 8 objectives. In this case, therefore, Ofcoms function was to determine whether BTs proposed charges exceeded the limits of its contractual discretion. That depends on whether they were in fact consistent with the Article 8 objectives. This is where the three principles applied by Ofcom, including the welfare test and the competition test, come in. Clause 13 of the Interconnection Agreement At this point, it is necessary to make a short excursion into Clause 13 of the Interconnection Agreement. Whereas Clause 12 is concerned with charges for BT services, Clause 13 deals with charges payable by BT to the Operator for Operator services. It provides by Clause 13.1 that the charges are to be those specified from time to time in the Carrier Price List. The remainder of Clause 13 is concerned with variations to the Operators charges in the Carrier Price List proposed by the Operator. But it works in a different way from the corresponding provisions of Clause 12 relating to variations proposed by BT. In particular, there is no direct equivalent of Clause 12.2. The Operator has no unilateral right to introduce a variation. He must request one. If the request is rejected by BT and the parties fail to agree upon a modified version of the proposed variation, the issue is referred to Ofcom. Under Clause 13, the variation is not treated as provisionally valid pending a determination. The Court of Appeal attached importance to these differences because it considered that the way in which Ofcom determined a dispute about pricing must be the same whether the issue arose under Clause 12 or Clause 13. It drew attention to the fact that the bottom rung of BTs proposed 080 pricing ladder involved a payment by BT to the CP and might therefore be said to represent an Operator service, and that at the next rung up no payment was due either way, which made it difficult to say whether it represented an Operator service or a BT service. It might, thought Lloyd LJ, be a matter of chance which clause applied. He regarded this as a reason for treating BTs right to vary its charges under Clause 12.2 as being of very limited importance. Mr Daniel Beard QC, who appeared for BT, declined to go into this question at all, and there was little argument upon it even after the Court called for further submissions on the point. In my opinion we need not enter into it either, because it is irrelevant. Clause 12 is concerned with variations proposed by BT to charges for a BT service. The fact a variation proposed by BT comprises a tariff in which some payments for the BT service are negative or nil while others are positive does not alter the character of the tariff as a scheme of charges for the BT service, or take it outside Clause 12. The only variations before us are those proposed by BT under Clause 12. We are not concerned with the effect of Clause 13. There is no obvious reason why Ofcoms treatment of the two cases should necessarily be the same notwithstanding differences between the relevant contractual provisions. I am therefore disinclined to attach much practical importance in the present case to the differences between them. Difficult questions may arise in a case where the Article 8 objectives neither preclude nor require a variation and the relevant party has no contractual right to require one. The resolution of those questions must await a case in which they arise. The welfare test Leaving aside Principle 3, which it is now common ground was satisfied, the sole basis on which Ofcom rejected the new charges was that the welfare test having been inconclusive, it had not been demonstrated that BTs new schedule of charges would produce consumer benefits. In my opinion, this was wrong in principle, for substantially the reasons given by the CAT. BT were contractually entitled to vary their charges unless the proposed variations were inconsistent with the Article 8 objectives, including the objective of ensuring consumer benefit in accordance with Article 8.2(a). Ofcom have not found that they were inconsistent with those objectives. They have found that they would produce direct and indirect consumer benefits of unquantifiable value, and that these benefits might or might not be exceeded by disbenefits arising from the attempts of mobile network operators to increase revenue in other directions. The latter factor was found by the CAT to be essentially unknown. In my opinion, it is not consistent with either the contract or the scheme of the Directives for Ofcom to reject charges simply because they might have adverse consequences for consumers, in the absence of any reason to think that they would. It is not consistent with the contract because it prevents BT from exercising its discretion to alter its charges in circumstances where there is no reason to suppose, and Ofcom has not found, that the limits of that discretion have been exceeded. It is inconsistent with the scheme of the Directives because it involves applying an extreme form of the precautionary principle to a dynamic and competitive market, in a manner which is at odds with the Directives market-oriented and essentially permissive approach. Logically, given the inherent difficulty of forecasting the extent of any direct or indirect effects, and the practical impossibility of forecasting the mobile tariff package effect, it would rule out any increases in termination charges other than those justified by reference to underlying costs. On this point, therefore, I think that the CAT were right and that the Court of Appeal were wrong to overturn them. In its submissions on the appeal, Ofcom submitted that the degree of risk which is acceptable must be related to the gravity of the adverse effect if the risk materialises. It expressed concern that it should not, for example, be inhibited from blocking a price variation which on a balance of probabilities was unlikely to be adverse, but which if things went wrong would be catastrophic. I agree. This would be an example of a case where the existence of the risk was itself adverse to the interests protected by Article 8. But on the facts found by Ofcom and the CAT, we are a long way from that kind of situation in the present case. It is right to add that if and when sufficiently adverse effects were to materialise at some point in the future, Ofcom has power to intervene to address them at that stage. Anti-competitive effect of price control The Court of Appeals second reason for thinking that it was for BT to demonstrate positively that there would be consumer benefits from the proposed changes to their charging structure was that they disagreed with the CATs emphasis on the anti-competitive effect of preventing the introduction of innovative charging structures. The Court of Appeal did not suggest that it was economically mistaken. But they considered that too much weight had been attached to it by the CAT. In their view, this was a matter of regulatory policy. Since Ofcom was the regulator and it was exercising a regulatory function in resolving the present dispute, the CAT should not have interfered with their conclusion unless Ofcom erred in principle. The Court of Appeal thought that since the CAT substantially agreed with Ofcoms conclusion on the welfare test, there was no error of principle. I think that in this respect also, the Court of Appeal was wrong. In the first place, as I have explained, in resolving this particular dispute, Ofcom was not exercising a regulatory function, but resolving a dispute under the unchallenged terms of an existing agreement. But the main problem about the Court of Appeals view is a more fundamental one. According to the CATs analysis, the effect of not allowing BT to introduce innovative charging structures was itself anticompetitive because innovative pricing structures are an effective mode of competing. This was clearly a relevant consideration, even if it was not a conclusive one: see Article 8.2(b) of the Framework Directive. It was not a consideration taken into account by Ofcom. Since the right to introduce the proposed pricing package brought benefits for competition, the mobile network operators should have to justify their demand that the package should be rejected by pointing to some countervailing detriments to consumers disclosed by the welfare test if it were to be accepted. An inconclusive welfare test could not be enough for this purpose. The CAT was hearing an appeal by way of rehearing on the merits. Their conclusion about the anti-competitive effects of restricting price changes and the weight to be attached to it was a factual judgment which it was perfectly entitled to make. It was, moreover, an economic judgment by an expert tribunal which had received a substantial amount of additional evidence, including economic evidence. Since appeal lay to the Court of Appeal only on points of law, the CATs findings on the distortion of competition liable to result from the rejection of the new charging structure were not open to rejection on appeal. Inappropriateness of restricting prices in the absence of significant market power These considerations are enough to resolve the present dispute in favour of BT. It is therefore unnecessary to consider the CATs third reason for requiring the mobile network operators to show a distinct disbenefit to consumers in order to justify rejecting a proposed change to interconnection charges. This was that the rejection of BTs proposed charges amounted to imposing price control on an entity such as BT which had not been designated as having significant market power in a relevant market. This, it was argued, was wrong in principle because there was no power under the Directives and the Act to regulate the prices of a firm without such power. BT put this point at the forefront of their submissions. For reasons which were never entirely clear but may have to do with their commercial and regulatory strategies, they were anxious to avoid relying on BTs rights under the Interconnection Agreements or adopting those parts of the CATs reasoning which were based on them, and instead sought to obtain a ruling that the Common Regulatory Framework can never authorise Ofcom to reject a price variation unless it would leave an efficient operator unable to cover its costs. I will only say that as at present advised I am not convinced by this. It seems to me to be irrelevant to the question on which this appeal turns, namely whether BT must positively demonstrate consumer benefit if they are to justify their proposed charges. Moreover, the fact that BT does not have significant market power in a relevant market does not mean that the promotion of competition, which is included among the Article 8 objectives, is irrelevant to a dispute about charges. It only means that Ofcom may not exercise its regulatory power to control prices. Ofcom has not purported to do this. There is an important difference between (i) exercising a regulatory power to impose price control in order to correct market failure or control the abuse of a dominant economic position, and (ii) deciding whether a particular proposed tariff change advances consumer welfare for the purpose of determining whether there is a right to introduce it. A hypothetical alternative analysis It will be apparent that I do not accept the basic conceptual framework within which the Court of Appeal reviewed these questions. It is, however right, in view of the way that the argument went and in the light of suggestions that there should be a reference to the Court of Justice of the European Union, to point out that the result would have been the same even if Lloyd LJ had been right to regard Ofcoms dispute resolution functions as purely regulatory and the interconnection terms as being unimportant. The whole scheme of the Directives is to leave the arrangements for interconnection to the parties unless there are grounds for regulatory intervention. The permissible grounds of regulatory intervention in the case of a CP without significant market power are that the interconnection terms have been framed or are being operated in a manner which is inconsistent with end-to-end connectivity or conflicts with the Article 8 objectives. If the result of the welfare test and the competition test is that there is no positive reason to believe that the effects will be adverse, there is no justification for regulatory intervention. Reference to the Court of Justice of the European Union If this appeal turned on the point about the absence of significant market power which BT put at the forefront of their submissions (see paragraphs 47-8 above), it would in my view have been appropriate to refer that point to the CJEU before determining it. As it is, I would decide the appeal on less controversial grounds, and I do not consider that a reference is appropriate. The recognition that the interconnection terms are the starting point does not itself warrant a reference, since the centrality of the interconnection terms in the scheme of the Directives is obvious and no convincing reason has been put forward by any of the parties or interveners for ignoring them. In any event, for the reasons that I have given, the outcome would be the same even on a purely regulatory analysis. Leaving aside Mr Beards argument about the absence of significant market power, there is no dispute about the Article 8 criteria themselves. Ultimately, the problem which the Respondents have faced on this appeal is that the CATs economic analysis of the facts was that there was no reason to anticipate a net adverse effect engaging that Article. Conclusion In my opinion there was no justification for the Court of Appeal to set aside the careful analysis of the CAT on a matter lying very much within its expertise. I would accordingly allow this appeal. Counsel will be invited to make written submissions on the form of order unless this can be agreed. In my opinion there was no justification for the Court of Appeal to set aside the careful analysis of the CAT on a matter lying very much within its expertise. I would accordingly allow this appeal. Counsel will be invited to make written submissions on the form of order unless this can be agreed.

UK-Abs

These appeals arise out of a dispute between British Telecommunications Plc (BT), and four mobile network operators. The dispute is about the termination charges which BT is entitled to charge to mobile network operators for putting calls from the latters networks through to BT fixed lines with associated non geographic numbers beginning in 08. In 2009 BT notified mobile network operators of a proposal of a revised scheme of termination charges for 08 numbers. The defining feature of the new scheme was that mobile network operators would be charged at a rate which varied according to the amount which the originating network charged the caller. The higher the charges to the caller, the greater the termination charge. The new scheme was rejected by the four mobile net operators party to these appeals. The issue was submitted to the Office of Communications (Ofcom) under a statutory dispute resolution procedure. A decision of Ofcom can be appealed to the Competition Appeal Tribunal (CAT). Appeals from the CAT to the Court of Appeal can be brought on points of law only. Ofcom decided that BT should not be allowed to introduce the new charging scheme because the charges were not fair and reasonable. This conclusion was based on Ofcoms view that the proposed changes were not sufficiently likely to provide benefits to consumers (the welfare test). The CAT overturned Ofcoms decision and decided that BT should be able to introduce the new regime. The Court of Appeal restored the original decision of Ofcom. The Supreme Court unanimously allows the appeal and restores the order of the CAT. Lord Sumption gives the judgment of the court. The Court of Appeal, finding that it was for BT to justify its charges, had rejected the CATs determination for three reasons, each of which the Supreme Court addresses in its judgment. First, the Court of Appeal held that the CAT had been wrong to treat BT as having a prima facie right to change its charges, which needed to be displaced. It found that BT had no more than a right to do so subject to the determination of Ofcom if another party objected [30]. The Supreme Court notes that where, as in this case, Ofcom is resolving a dispute about a proposed variation of charges under an existing interconnection agreement, it is performing a mixture of adjudicatory and regulatory functions. The terms of the interconnection agreement are the necessary starting point for this process. Where the terms of the contract permit variation, Ofcom should give effect to that variation unless it would be inconsistent with its regulatory objectives, including under the welfare test [31 34]. Clause 12 of BTs Standard Interconnect Agreement confers a discretion on BT to unilaterally fix or vary its charges, but only within the limits fixed by the objectives of the regulatory environment imposed on it [3637]. BTs power to set its own charges is subject to any order, direction, determination or consent of Ofcom. However, Ofcom could not just do what it liked. Its function was to determine whether BT had exceeded the limits of its contractual discretion [38]. In this case, Ofcom has not found that the variation to the charges was inconsistent with the regulatory objectives, including the welfare test. Ofcom cannot reject the proposed charges simply because they might have adverse consequences for consumers, in the absence of any reason to think that they would [4244]. Secondly, the Court of Appeal held that the CAT had been wrong to attach weight to their view that a restraint on BTs freedom to set its own charges would itself distort competition. The Supreme Court disagrees with the Court of Appeal for three reasons. First, Ofcom was not exercising a regulatory function, but resolving a dispute under the unchallenged terms of an existing agreement. Secondly, the CAT was entitled to attach weight to the value of innovative charging structures as a form of competition. Thirdly, the CATs conclusion about the anti competitive effects of restricting price changes was a factual judgment. Since appeal lay to the Court of Appeal only on points of law, the CATs findings on the distortion of competition liable to result from the rejection of the new charging structure were not open to appeal [4647]. The Court of Appeal held that the CAT had been wrong to attach weight to the fact that BT, not having significant market power in a relevant market, was not subject to ex ante control of its prices on competition grounds. Given the reasoning on the other points, the Supreme Court considers it unnecessary to address this point in detail. It does however note that the fact that BT does not have significant market power in a relevant market does not mean that the promotion of competition is irrelevant to a dispute about charges. It only means that Ofcom may not exercise its regulatory power to control prices [4849].

These appeals raise issues as to the respective duties of the Secretary of State and the First tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, more particularly as to the operation of the so called one stop procedures. The Master of the Rolls (para 40), echoing words of Jackson LJ, described the law in this field as an impenetrable jungle of intertwined statutory provisions and judicial decisions. It is difficult to disagree, although on this occasion the judiciary must share some of the blame. The Patels Mr Patel and his wife arrived from India in the United Kingdom on 24 March 2009. He had been granted leave to enter as a working holiday maker until 6 March 2011, and she as his dependent wife. Their only child was born here in 2010. On 26 February 2011, they applied for further leave to remain in the UK, relying on article 8 of the European Convention on Human Rights, and rule 395C of the Immigration Rules. Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the United Kingdom. They had a right of appeal to the First tier Tribunal, but that was dismissed on 14 July 2011. The merits of the refusal on the issues there raised are no longer in dispute. On further appeal to the Upper Tribunal they took a new point. This was that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484, followed in Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm AR 254, the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument, which failed before the Upper Tribunal and the Court of Appeal, is the principal issue in this court. Mr Alam Mr Alam, a citizen of Bangladesh, entered the country on 26 August 2007, as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies. On 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old, and therefore did not, as required by the guidance under the Points Based System, show that he had held the necessary level of funds for a consecutive period ending no more than one month before the application. By the time of the hearing before the tribunal, on 10 June 2011, he had produced the appropriate bank statements. The tribunal held that, for the purposes of his appeal under the rules, this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had come into effect between the date of his appeal and the date of the hearing). However, the immigration judge held that this did not prevent him taking it into account in the appeal under article 8 of the Convention, on the basis that, since he clearly meets the requirements of the rules, it was not proportionate to the aims of immigration control to refuse his application. The Upper Tribunal reversed that decision, holding that the judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8. The tribunal accepted that the appellant having been in the country undertaking studies for some four years had thereby formed some sort of protected private life for the purposes of article 8. But no other aspect of his life in this country was relied on. His family ties were all with his native Bangladesh, to which he wished to return after his studies. Although the new evidence was not directly relevant under article 8, it took account of the unusual circumstances in which the right to prove compliance with the rules had been lost: I have considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings. Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules. If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate. As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State. (para 22) Mr Anwar Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to remain as a student until 1 April 2011. On 31 March 2011 he applied to extend his leave as a Tier 4 student to enable him to complete his course. The application was supported by a Confirmation of Acceptance for Studies (CAS), which recorded that he had been assessed by reference to a document entitled ACCA examination Financial Accounting (F3). The F3 document itself was not included with the application. On 10 May 2011 the Secretary of State refused the application because, contrary to the relevant guidance, it had not included a document referred to in the CAS, and accordingly no points had been awarded for the CAS. On his appeal to the First tier Tribunal the appellant produced the relevant document, claiming that it had in fact been sent with his application form. The tribunal allowed his appeal, but their decision was set aside by the Upper Tribunal, which held that on the balance of probabilities he had not sent the relevant document with his application. That factual finding is not now in dispute. Although there was a reference to the European Convention in the grounds of appeal to the First tier tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together, and dismissed them both on 13 July 2012. The arguments were wide ranging, summarised by Sullivan LJ under eight grounds. Most are no longer in issue. The issues According to the agreed statement, the following issues are said to arise in the appeals to this court: Patel i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individuals application for variation of leave to remain in the United Kingdom. ii) Whether there is an obligation on the Secretary of State to issue a one stop notice under section 120 of the 2002 Act when refusing an individuals application for variation of leave to remain in the United Kingdom. iii) Whether the Secretary of States refusal to vary an individuals leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one stop notice or a decision to remove. Alam/Anwar iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct. v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to additional grounds under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act. vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non compliance with the Immigration Rules, whether the nature and degree of the non compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant. While these issues were agreed between the parties, and they conveniently identify the main matters on which we heard submissions, it will be necessary to consider in due course the extent to which they do properly arise for decision on these appeals. For example, the question of an obligation to serve notices under section 120 (issue (ii)) does not arise in any of the three cases, since such notices were in fact served in all of them. The statutory provisions The Immigration Act 1971, and the rules made under it, constitute the principal statutory framework for the control of immigration, and the Secretary of States functions in that respect. Both the statute and the rules have been subject to frequent amendment and addition. The issues in the present appeals turn principally on the provisions of the Nationality, Immigration and Asylum Act 2002 which established a new statutory code relating to appeals against immigration decisions, including the so called one stop notices under section 120. In relation to the Secretary of States powers of removal, it will be necessary also to consider the Immigration and Asylum Act 1999 section 10, and the Immigration, Asylum and Nationality Act 2006 section 47. The starting point is section 3 of the 1971 Act. It provides that a person who is not a British citizen may not enter the United Kingdom except with leave under the Act. Where leave is given for a limited period, it may be varied by restricting, enlarging or removing the limit on its duration (section 3(3)). Section 3C (added by the 2002 Act) is entitled Continuation of leave pending variation decision. It applies where a person with limited leave applies, before the leave expires, for a variation of the leave. Subsection (2) has the effect that the leave is extended during any period when (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the 2002 Act could be brought while the appellant is in the United Kingdom, or an appeal brought while the appellant is within the United Kingdom is pending. By section 3C(4), a person may not make a further application for variation of his leave while it is extended under this section, but that does not prevent a variation of the application already made. It is common ground that such a variation may include grounds unrelated to those in the initial application. This provision needs to be understood also in the context of section 92 of the 2002 Act. That makes clear that for most categories of immigration decision, other than asylum or human rights claims made from within the United Kingdom and those decisions listed in subsection (2), an appeal must be brought from outside the country. Section 3C provides a limited exception for applications to extend existing leave made before its expiry. Section 82(1) of the 2002 Act confers a right of appeal to the tribunal in respect of an immigration decision. By section 82(2) immigration decision is defined as including (inter alia) a refusal to vary leave to enter or remain if the result of the refusal is that the person has no leave to remain (para (d)); and a decision that a person is to be removed by way of directions under either section 10 of the 1999 Immigration and Asylum Act or section 47 of the Immigration, Asylum and Nationality Act 2006 (paras (g), (ha)). Section 84 enumerates the possible grounds of appeal which include: (a) that the decision is not in accordance with immigration rules; (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights. Section 85 is headed Matters to be considered. Its present form, along with section 85A, is derived from amendments made by the UK Borders Act 2007, which were brought into effect, subject to transitional provisions, on 23 May 2011. It provides: (1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1). (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced. (4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But subsection (4) is subject to the exceptions in section 85A. The exceptions in section 85A include the following: (3) Exception 2 applies to an appeal under section 82(1) if (a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d), (b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a Points Based System, and (c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f). (4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it (a) was submitted in support of, and at the time of making, the application to which the immigration decision related, (b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c), (c) is adduced to prove that a document is genuine or valid, or (d) is adduced in connection with the Secretary of States reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of points under the Points Based System. This provision, which is relevant to the Alam and Anwar appeals, needs a little unravelling. It is not in dispute that exception 2 applied to both appeals, because the applications had fallen to be considered under the Points Based System. Accordingly, (under subsection (4)(a)) the tribunal was unable to consider the new evidence in support of the case under the rules. It could only consider it (under subsection (4)(b)) in so far as it related to grounds other than those specified in (3)(c), that is grounds other under section 84(1)(a), (e) or (f). Such other grounds include the human rights grounds under section 84(1)(c) and (g). Accordingly, consideration of the new evidence so far as relevant to such grounds, in particular article 8 of the Convention, was not excluded. Section 86 deals with the determination of the appeal. The tribunal is required to determine any matter raised as a ground of appeal and any matter which section 85 requires it to consider. It must allow the appeal in so far as it thinks that a decision against which the appeal is brought or is treated as being brought was not in accordance with the law. It may also allow the appeal on the grounds that a discretion exercised in making such a decision should have been exercised differently (section 86(3)(b)), but refusal to depart from the immigration rules is not treated as the exercise of a discretion for these purposes (section 86(6)). One stop notice Section 120 of the 2002 Act applies to a person (a) who has made an application to enter or remain in the UK, or (b) in respect of whom an immigration decision has been taken or may be taken. By subsection (2): The Secretary of State or an immigration officer may by notice in writing require the person to state: (a) his reasons for wishing to enter or to remain in the United Kingdom, (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom. There is no express provision dealing with the form of the response, nor imposing on the Secretary of State any express duty to consider it or determine the issues raised by it. Under section 85(2) as already noted, the tribunal, hearing an existing appeal under section 82(1), is required to consider any matter raised in the section 120 statement if it constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. Furthermore, by section 96, the section 120 notice opens the way for the Secretary of State to issue a certificate limiting the scope for subsequent appeal. Thus section 96(2) precludes an appeal against an immigration decision (the new decision) in respect of a person where the Secretary of State or an immigration officer certifies: (a) that the person received notice under section 120 by virtue of a decision other than the new decision, (b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement in response to that notice. Removal decisions The Secretary of States powers of removal are defined by section 10 of the 1999 Act and section 47 of the 2006 Act. The former provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; By subsection (9) the reasonable costs of complying with the direction must be met by the Secretary of State. Section 47 of the 2006 Act, as originally enacted, provided: (1) Where a persons leave to enter or remain in the United Kingdom is extended by section 3C(2)(b), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends. Again the costs of compliance must be met by the Secretary of State (section 47(4)). For completeness, I note that on 8 May 2013 (after the time relevant for the present appeals) a new form of the section was inserted, providing for notice of a pre removal decision (which includes the decision on an application to vary leave to remain) to be given at the same time as the removal direction under section 47. This change was designed to deal with a practical problem arising from Sapkota which had been highlighted by a subsequent decision of the Upper Tribunal (upheld by the Court of Appeal). It is not directly material to the present appeals. The Patel appeals There is no dispute now as to the merits of the refusal of leave to remain in the Patel cases, under either the rules or the Convention. The sole issue is one of law relating to the form in which the decision was made, more particularly its segregation (the word used in some of the cases) from the decision to direct removal. The failure to issue such a direction, it is said, was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain. A similar issue in relation to service of a section 120 notice, although identified in the agreed statement, does not arise on the facts of the case, since such a notice was in fact served. In support of this argument, Mr Malik relies principally on the decisions of the Court of Appeal in the cases of Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254 to which I have already referred. It was held, in summary, (in Mirza) that a policy of separating the refusal of leave to remain from the decision to remove was contrary to the policy and objectives of the 2002 Act to deal compendiously with all issues on the lawfulness of a persons residence in the United Kingdom; and consequently (in Sapkota) that an unjustified deferral of the removal decision would mean that the actual immigration decision was not in accordance with the law. Those judgments, and the subsequent Court of Appeal authorities, are discussed in detail in the judgment of the Master of the Rolls in the present case. Without disrespect to the judges involved in those decisions, or to Mr Maliks determined arguments in support of them, I do not propose to add materially to the voluminous discussion which this issue has already generated. It is sufficient to say that I am in entire agreement with the reasons of the Court of Appeal for not following them. The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that powers. Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control. Any extra protection provided to an appellant is incidental. Neither section can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision. As Burnton LJ said in the Court of Appeal [2013] 1 WLR 63, para 73: This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty. For the court to do so is to amend the legislation, not to interpret it. The contrary argument depends to my mind on a misapplication of the so called Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Under that principle, it is clear that discretionary powers conferred by statute must not be used in such a way as to thwart or run counter to the policy or objects of the Act (per Lord Reid, at p 1030C D)). It can no doubt be said that one of the purposes of the 2002 Act was to reduce the scope for repeat appeals, and that, as Laws LJ observed, the legislation leans in favour of what are called one stop appeals (JM (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 23). It may be also, as Mr Malik submits, that the exercise of the Secretary of States powers has the incidental effect in some cases of adding to the range of matters an appellant is able to raise by way of appeal during the period that his leave is extended under section 3C. However, neither such general observations nor such incidental effects can be translated into an overriding policy requiring the Secretary of State to act in a particular way, nor into a right for the appellant to insist that he does so. It is to be borne in mind also that exercise of the powers to direct removal, which alone are at issue in the Patel case, is likely to involve both public cost and personal hardship or indignity. The Secretary of State does not thwart the policy of the Act if she proceeds in the first instance on the basis that unlawful overstayers should be allowed to leave of their own volition (as on the evidence the great majority do). The Upper Tribunal observed in the present case, commenting on its concerns at the implications of the decision in Sapkota: For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful. Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law. (para 32) It follows that the Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by the failure to do so. In so far as the decisions of the Court of Appeal in the cases of Mirza and Sapkota indicate the contrary, they were in my view wrongly decided. It is unnecessary to consider whether the Court of Appeal was entitled as a matter of precedent to depart from them. No such inhibition affects this court. The Alam/Anwar appeals I have set out above the agreed issues said to arise in these appeals. The practical problem faced by the appellants arises from their failure to produce relevant information as required under the Points Based System at the relevant time. Each appellant was able to adduce the relevant evidence in response to the section 120 notice, but was barred by exception 2 of section 85A from relying on it directly in support of his appeal. The issue in short is whether an indirect route could be found to achieve a favourable result. The proposed route depends on using the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain, relying not on the rules, but on human rights grounds (article 8 of the Convention), and thus taking it outside the scope of exception 2. This in turn depends on two propositions: first, that the tribunal was obliged to consider the new evidence in that context (scope of appeal), and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 (merits of appeal). I would accordingly dismiss the Patel appeals. Scope of appeal The first issue was the subject of detailed discussion in AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385. The Court of Appeal by a majority held that section 85(2) was to be construed as imposing a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it was not directly related to the issues considered by the Secretary of State in the original decision. In AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833; [2011] Imm AR 832), it was held that majoritys approach did not require consideration of events subsequent to the Secretary of States decision. That issue does not arise in the present cases, where the new evidence related to material which was available at the time of the decisions. Turning to the judgments in AS itself, it would be difficult to expand on or improve the depth of legal and contextual analysis to be found in the judgments of all three judges. The fact that the analysis led such experienced judges to opposite conclusions suggests that the path to enlightenment will not be found by attempting a similar exercise in this judgment. The problem lies in the drafting of the relevant provisions, which defies conventional analysis. It is not only obscure in places and lacking in detail, but contains pointers in both directions. On the one hand, the words against the decision appealed against in section 85(2) suggest a focus on the content of the original decision. As Arden LJ said: A ground of appeal is not a ground of appeal against the decision appealed against if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted. (para 30) On the other hand the first ground of appeal under section 84(1) is that the immigration decision is not (not was not) in accordance with the Rules; and in considering that question the tribunal is specifically empowered (subject to the exceptions in section 85A) to have regard to evidence concerning a matter arising after the date of appeal. Moore Bick LJ (with whom Sullivan LJ agreed) thought that the reference to the decision appealed against did not imply a limitation to the original grounds. Having decided that the decisions referred to sections 85(1) and (2) were immigration decisions of the kind identified in section 82(1), he said at para 79: . the natural meaning of these provisions is to impose on the tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of a kind identified in section 82 that affects his immigration status. On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal. There was a similar lack of agreement on the effect of section 85(4), and in particular of the reference to matters relevant to the substance of the decision appealed against. That seems a curiously ambiguous term, which can fairly be read as referring either to the substantive effect of the decision or to the substantive reasons underlying it. Arden LJ took the latter view, which she saw as supporting her interpretation of section 85(2) (paras 31 2). At para 30 she adopted as plainly correct the approach of the Asylum and Immigration Tribunal (EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013), which had read these words as meaning that the new evidence had to be relevant to the decision actually made, and had added at para 6 that: a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the rule in question in the context of an application that that person has made. Sullivan LJ took the opposite view, seeing section 85(4) as consistent with his view that the tribunals consideration was not limited to the grounds considered by the Secretary of State: Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to the decision appealed against must be a reference to the decision to refuse to vary leave to remain under rule x, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82 (2). Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to the substance of the decision. (para 113) Moore Bick LJ thought that section 85(4) itself had little bearing on the issues before the court, since it was concerned only with the evidence which the tribunal could consider (para 83). However, his understanding of the word substance in this context, agreeing with that of Sullivan LJ, is apparent from his earlier discussion of the appropriate response to a section 120 notice. He saw its purpose as to impose on the appellant a duty to put forward any grounds he may have for challenging the substance of the decision made against him, rather than simply the grounds on which it was made (para 80, emphasis added). The broader approach of the majority seems to me to gain some support from the scheme of section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the section. Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or rules under which the application is initially made. The same approach can be applied to the decision on that application, the identity or substance of which in the context of an appeal is not dependent on the particular grounds first relied on. It is of interest that, at an earlier stage, the broader approach seems to have accorded with the reading of those responsible within the Home Office for advice to immigration officers. The Immigration Directorates Instructions, issued in September 2006, noted that it was not possible under section 3C to make a second application, but continued: On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new. A student application can be varied so as to include marriage grounds. If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application. (para 3.2 emphasis added) The same approach is supported by the current edition of Macdonalds Immigration Law & Practice 8th ed (2010) para 19.22 (under the heading The tribunal as primary decision maker). The only implicit criticism made of the majority approach in AS is that it did not go far enough. They observe that even without a section 120 notice the tribunal should be free to consider any matter including a matter arising after the decision which is relevant to the substance of the decision regardless of whether a one stop notice has been served. The substance of the decision is not the decision makers reasoned response to the particular application or factual situation that was before it but is one of the immigration decisions enumerated in section 82 and a matter includes anything capable of supporting a fresh application to the decision maker Whether or not such an extension of the majoritys reasoning can be supported, that passage indicates that the broader approach in itself is not controversial. In the end, although the arguments are finely balanced, I prefer the approach of the majority in AS. Like Sullivan LJ, I find a broad approach more consistent with the coherence of this part of the Act. He noted that the standard form of appeal, echoing the effect of the section 120 notice, urged appellants to raise any additional ground at that stage, on pain of not being able to do so later, and observed: . it seems to me that appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward. (para 99) Merits of appeal The second issue is the materiality to the human rights case of evidence that the appellant could in fact have complied with the rules, even though he failed to do so. The argument is that, if it is shown that the appellant could have met the substantive requirements of the rules, the failure to do so should be regarded as purely formal, and that accordingly, in the proportionality balance required by article 8, the objectives of immigration control should carry relatively less weight. A variant of this argument, referred to as the near miss principle, is that the degree of failure to meet the requirements of the rules may be relevant in the proportionality balance. Support for such an approach is said to be found in the judgment of Sedley LJ (agreed by Rimer and Sullivan LJJ) in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376. The main issue in that case was the extent to which it was permissible for mandatory criteria relevant to the Points Based System to be contained in guidance rather than rules submitted to Parliament under section 3(2) of the 1971 Act. That issue has since been considered in the Supreme Court in R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33; [2012] 1 WLR 2208 and R (New College London Ltd) v Secretary of State for the Home Department (Migrants Rights Network intervening) [2013] UKSC 51, [2013] 1 WLR 2358. However Sedley LJ also considered the application of article 8 under such a system. He said at paras 45 46: There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here. That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having 800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route. The court can be seen in that passage to have endorsed the view that, at least in relation to financial criteria, a near miss (a marginal or momentary shortfall) might affect the consideration of proportionality under article 8. That view did not affect the results in any of the cases before it. In the only one to which it might have been relevant (Mrs Maleckia), it was held that there was in any event no prospect of success under article 8 (para 53). Mr Malik also relies on other cases, before and since, which have adopted a similar approach without reference to Pankina. In SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28, the court when allowing an appeal against the tribunals decision on other grounds agreed with them that the fact that the appellant only just failed to qualify for admission was a fact to be counted in her favour. Ward LJ, at para 30, adopted the observation of Collins J in Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin) para 38 that: one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter. Ward LJ added: That seems to us to be the right approach. As Simon Brown L.J. said in Ekinci at paragraph 16: Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights. (I note in passing that those comments of Simon Brown LJ were made with reference to the rather different appeal provisions of the Immigration and Asylum Act 1999, and were directed specifically to a case with an obvious article 8 dimension.) More recently, in R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), Blake J, sitting on this occasion in the Administrative Court, held that on the facts the interference with the applicants family life was such as to make it disproportionate under article 8 to remove her, notwithstanding that she was unable to satisfy a relevant criterion in the rules. He said, at para 35 (without specific reference to Pankina): the terms of the immigration rules are not a legitimate aim in their own right A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim. The mere fact a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that is otherwise to be respected. The opposite approach is supported by the judgment of Stanley Burnton LJ (agreed by Maurice Kay and Lewison LJJ) in Miah v Secretary of State for the Home Department [2013] QB 35. In that case the applicant was refused leave to remain as a Tier 2 (General) Migrant at a time when he was two months short of the five years continuous residence necessary to support a case for indefinite leave to remain under the rules. It was argued that, in assessing whether his removal should be permitted under article 8.2 of the Convention, the weight to be given to the maintenance of immigration controls should be diminished because he had missed satisfying the rules by only a small margin. Burnton LJ observed that, as formulated in the skeleton submissions of Mr Malik (appearing for the appellant in that case as in the present), the argument was not so much near miss as sliding scale, by virtue of which There is an inverse relationship between the degree to which there is compliance with the rules and the immigration policy imperative which demands that unsuccessful applicants be removed (paras 9 10). In rejecting that argument, Burnton LJ referred to a passage in the speech of Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which he discussed the long established and central role of the immigration rules in determining those to whom leave to enter or remain should be granted. Although the near miss argument as such was not in issue in that case, Burnton LJ thought it inconsistent with Lord Binghams approach. He said at para 14: I find Lord Bingham's reference in para 6 to rules, to be administratively workable, [requiring] that a line be drawn somewhere and in para 16 to the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory to be helpful and generally inconsistent with a near miss principle. He referred to two previous Court of Appeal judgments (not cited in Pankina) in which similar arguments had been rejected: Mongoto v Secretary of State for the Home Department [2005] EWCA Civ 751, and R (Rudi) v Secretary of State for the Home Department [2007] EWCA Civ 1326. In the latter case, citing Mongoto, I said of the near miss argument: 28. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of the policy does not excuse the decision maker from due consideration of cases falling outside it. However, the law knows no near miss principle. There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason. Faced with the conflict between the approach taken in these authorities and that of Pankina Burnton LJ had no difficulty in preferring the former, which he regarded as binding on the court (paras 21 25). He could see no principled basis for distinguishing, as Sedley LJ had proposed, between rules to which the near miss principle did and did not apply. In particular he disagreed with Sedley LJ that a financial criterion has in itself no meaning, and could therefore be distinguished from other rules, such as those relating to academic qualifications, in respect of which a miss is as good as a mile. In conclusion he said at paras 25 26: Finally, quite apart from authority, I prefer the approach stated in Mongotos case and Rudis case. A rule is a rule. The considerations to which Lord Bingham referred in Huangs case require rules to be treated as such. Moreover, once an apparently bright line rule is regarded as subject to a near miss penumbra, and a decision is made in favour of a near miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined. For these reasons, I would dismiss the appeal in relation to the near miss argument. In my judgment, there is no near miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the tribunal, must assess the strength of an article 8 claim, but the requirements of immigration control are not weakened by the degree of non compliance with the Immigration Rules. The difference between the two positions may not be as stark as the submissions before us have suggested. The most authoritative guidance on the correct approach of the tribunal to article 8 remains that of Lord Bingham in Huang. In the passage cited by Burnton LJ Lord Bingham observed that the rules are designed to identify those to whom on grounds such as kinship and family relationship and dependence leave to enter should be granted, and that such rules to be administratively workable, require that a line be drawn somewhere. But that was no more than the starting point for the consideration of article 8. Thus in Mrs Huangs own case, the most relevant rule (rule 317) was not satisfied, since she was not, when the decision was made, aged 65 or over and she was not a widow. He commented at para 6: Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative. Thus the balance drawn by the rules may be relevant to the consideration of proportionality. I said much the same in Rudi. Although I rejected the concept of a near miss principle, I did not see this as inconsistent with the Collins Js words in Lekstaka: Collins J's statement, on which the court relied [in SB], seems unexceptionable. It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment. He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them. (para 31(ii)) (My reference to exceptional treatment needs to be read now in the light of Huang para 20 in which Lord Bingham made clear that, contrary to previous Court of Appeal case law, there was no separate test of exceptionality.) Although the context of the rules may be relevant to the consideration of proportionality, I agree with Burnton LJ that this cannot be equated with a formalised near miss or sliding scale principle, as argued for by Mr Malik. That approach is unsupported by Strasbourg authority, or by a proper reading of Lord Binghams words. Mrs Huangs case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8. Conversely, a near miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of States discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJs call in Pankina for common sense in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above). However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8. The present appeals I have discussed the respective arguments on this point in some detail because of its general importance and the conflicting statements found in some of the judgments. However, I can deal relatively shortly with the two cases before us. The near miss argument was not advanced in the same form before the Court of Appeal, apparently because it was thought to be precluded by Miah. Even if otherwise well founded, it is not in my view available to Mr Anwar, since no separate human rights grounds were advanced on his behalf before either tribunal. So the issue as to whether the tribunal would have been obliged to consider them, and with what effect, did not arise. In Mr Alams case the human rights case was considered at both levels, but ultimately failed before the Upper Tribunal on its merits. The Upper Tribunal fairly gave some weight to the unusual circumstances in which he had lost his ability to rely on the new evidence (as a result of a change in the rules after the start of the appeal). But there was little or nothing to weigh on the other side of the balance, apart from the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. I see no error in the approach of the Upper Tribunal. Conclusion For these reasons, I would dismiss all three appeals. LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree) I would also dismiss these appeals for the reasons given by Lord Carnwath. Anything that we say about AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385 is obiter, since in the case of Anwar no separate human rights ground was advanced in either tribunal and in the case of Alam the Upper Tribunal held correctly that there is nothing in any human rights point that was raised. If we were to disagree with the majority approach in AS, that would raise a problem of precedent for lower courts, but since I would on balance also favour leaving the majority view undisturbed, that problem does not arise. In fact, it appears that the whole area of appeals is likely to be reshaped by the Immigration Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we express about the correct approach are likely to become irrelevant in future cases. The issue arising under section 85(2) of the Nationality, Immigration and Asylum Act 2002 which was addressed in AS is undoubtedly a difficult and very arguable one, and the arguments for and against the rival approaches are comprehensively discussed in AS. As I see it, the essential question was well defined by Sullivan LJ at paras 111 113. It is whether the decision appealed against to which section 85(2) refers is the generic decision to refuse leave to remain (i.e. in the present cases, within section 82(2)(d)), or the particular decision to refuse leave under a particular head, for example under a particular rule of the Immigration Rules or on a Human Rights ground. The majority approach in AS does not mean that section 85(2) enables an appellant, who has sought leave to remain, to go outside the scope of a leave to remain application by adding or substituting an appeal under a different head of section 82(2), e.g. by asserting a wrongful refusal of entry clearance or of a certificate of entitlement: see sections 82(2)(b) or (c)). To that extent, it seems to me that the majority approach is not open to the criticism that it amounts to re reading section 85(2) as if it used the words against a decision of a kind listed in section 82(2) or omitted the words against the decision appealed against altogether. Where the Secretary of State chooses to give a section 120(2) notice, the aim is to flush out any new (a) reasons for wishing to enter or remain and/or (b) grounds for being permitted to enter or remain and/or (c) grounds for not being removed or required to leave the UK. The statement in response need not repeat reasons or grounds set out in the existing application or decision which is the occasion for giving the notice: section 120(3). When section 85(2) requires the Tribunal to consider any matter raised in the [section 120] statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against, it is therefore referring to new reasons or grounds not previously covered by the decision appealed against. So long as they [constitute] a ground of appeal of a kind listed in section 84(1), they can be relied upon. By inference, it can be said, it is or becomes legitimate to treat them as constituting a ground of appeal, even though they were not raised before or decided by the Secretary of State. So, instead of relying on the Immigration Rules to justify leave to remain, an appellant can rely on a Human Rights ground, as Alam sought to do. And in AS itself, it would follow that the majority was correct to hold that an appellant could invoke a different Immigration Rule to justify leave to remain in the case of AS herself: that she qualified under the International Graduate Scheme, rather than as a person intending to establish herself in business, in the other case of NV, on the basis that she had ten years residence, rather than on the basis that she was a student. Section 3C(4) of the 1971 Act certainly provides some forceful arguments to the contrary of the majority conclusion in AS. But I am inclined to think that Moore Bick and Sullivan LJJ deal sufficiently in their paras 84 86 and 102 with the problem of reconciling their conclusion with section 3C(4). Essentially, it is up to the Secretary of State to decide whether to serve a section 120 notice. It is true that the majority approach to section 85(2) means that an applicant may open up issues which would otherwise be closed, at least until conclusion of the existing appeal (after which the applicant, if unsuccessful in the appeal, would be an overstayer). But it does at the same time close down some further applications which the appellant might, whether as an overstayer or from abroad, make. The fact that the Tribunal will, in a wider area, become primary decision maker appears to me relatively indecisive, bearing in mind that it anyway acts as decision maker in some significant areas. The overlap argument advanced by Sullivan LJ at para 106 also seems to me relevant, if one is considering the advantages and disadvantages of each solution. help identify at what level of detail that decision is to be considered. On the other hand, I am not persuaded that there is anything in the substance point based on section 85(4). Moore Bick LJ (para 83), rather than Sullivan LJ (para 113) was in my view right on this. Section 85(4) is dealing only with evidence which goes to the substance (heart) of the decision, but does not

UK-Abs

These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependant wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].

These appeals raise issues as to the respective duties of the Secretary of State and the First tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, more particularly as to the operation of the so called one stop procedures. The Master of the Rolls (para 40), echoing words of Jackson LJ, described the law in this field as an impenetrable jungle of intertwined statutory provisions and judicial decisions. It is difficult to disagree, although on this occasion the judiciary must share some of the blame. The Patels Mr Patel and his wife arrived from India in the United Kingdom on 24 March 2009. He had been granted leave to enter as a working holiday maker until 6 March 2011, and she as his dependent wife. Their only child was born here in 2010. On 26 February 2011, they applied for further leave to remain in the UK, relying on article 8 of the European Convention on Human Rights, and rule 395C of the Immigration Rules. Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the United Kingdom. They had a right of appeal to the First tier Tribunal, but that was dismissed on 14 July 2011. The merits of the refusal on the issues there raised are no longer in dispute. On further appeal to the Upper Tribunal they took a new point. This was that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484, followed in Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm AR 254, the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument, which failed before the Upper Tribunal and the Court of Appeal, is the principal issue in this court. Mr Alam Mr Alam, a citizen of Bangladesh, entered the country on 26 August 2007, as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies. On 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old, and therefore did not, as required by the guidance under the Points Based System, show that he had held the necessary level of funds for a consecutive period ending no more than one month before the application. By the time of the hearing before the tribunal, on 10 June 2011, he had produced the appropriate bank statements. The tribunal held that, for the purposes of his appeal under the rules, this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had come into effect between the date of his appeal and the date of the hearing). However, the immigration judge held that this did not prevent him taking it into account in the appeal under article 8 of the Convention, on the basis that, since he clearly meets the requirements of the rules, it was not proportionate to the aims of immigration control to refuse his application. The Upper Tribunal reversed that decision, holding that the judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8. The tribunal accepted that the appellant having been in the country undertaking studies for some four years had thereby formed some sort of protected private life for the purposes of article 8. But no other aspect of his life in this country was relied on. His family ties were all with his native Bangladesh, to which he wished to return after his studies. Although the new evidence was not directly relevant under article 8, it took account of the unusual circumstances in which the right to prove compliance with the rules had been lost: I have considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings. Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules. If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate. As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State. (para 22) Mr Anwar Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to remain as a student until 1 April 2011. On 31 March 2011 he applied to extend his leave as a Tier 4 student to enable him to complete his course. The application was supported by a Confirmation of Acceptance for Studies (CAS), which recorded that he had been assessed by reference to a document entitled ACCA examination Financial Accounting (F3). The F3 document itself was not included with the application. On 10 May 2011 the Secretary of State refused the application because, contrary to the relevant guidance, it had not included a document referred to in the CAS, and accordingly no points had been awarded for the CAS. On his appeal to the First tier Tribunal the appellant produced the relevant document, claiming that it had in fact been sent with his application form. The tribunal allowed his appeal, but their decision was set aside by the Upper Tribunal, which held that on the balance of probabilities he had not sent the relevant document with his application. That factual finding is not now in dispute. Although there was a reference to the European Convention in the grounds of appeal to the First tier tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together, and dismissed them both on 13 July 2012. The arguments were wide ranging, summarised by Sullivan LJ under eight grounds. Most are no longer in issue. The issues According to the agreed statement, the following issues are said to arise in the appeals to this court: Patel i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individuals application for variation of leave to remain in the United Kingdom. ii) Whether there is an obligation on the Secretary of State to issue a one stop notice under section 120 of the 2002 Act when refusing an individuals application for variation of leave to remain in the United Kingdom. iii) Whether the Secretary of States refusal to vary an individuals leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one stop notice or a decision to remove. Alam/Anwar iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct. v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to additional grounds under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act. vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non compliance with the Immigration Rules, whether the nature and degree of the non compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant. While these issues were agreed between the parties, and they conveniently identify the main matters on which we heard submissions, it will be necessary to consider in due course the extent to which they do properly arise for decision on these appeals. For example, the question of an obligation to serve notices under section 120 (issue (ii)) does not arise in any of the three cases, since such notices were in fact served in all of them. The statutory provisions The Immigration Act 1971, and the rules made under it, constitute the principal statutory framework for the control of immigration, and the Secretary of States functions in that respect. Both the statute and the rules have been subject to frequent amendment and addition. The issues in the present appeals turn principally on the provisions of the Nationality, Immigration and Asylum Act 2002 which established a new statutory code relating to appeals against immigration decisions, including the so called one stop notices under section 120. In relation to the Secretary of States powers of removal, it will be necessary also to consider the Immigration and Asylum Act 1999 section 10, and the Immigration, Asylum and Nationality Act 2006 section 47. The starting point is section 3 of the 1971 Act. It provides that a person who is not a British citizen may not enter the United Kingdom except with leave under the Act. Where leave is given for a limited period, it may be varied by restricting, enlarging or removing the limit on its duration (section 3(3)). Section 3C (added by the 2002 Act) is entitled Continuation of leave pending variation decision. It applies where a person with limited leave applies, before the leave expires, for a variation of the leave. Subsection (2) has the effect that the leave is extended during any period when (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the 2002 Act could be brought while the appellant is in the United Kingdom, or an appeal brought while the appellant is within the United Kingdom is pending. By section 3C(4), a person may not make a further application for variation of his leave while it is extended under this section, but that does not prevent a variation of the application already made. It is common ground that such a variation may include grounds unrelated to those in the initial application. This provision needs to be understood also in the context of section 92 of the 2002 Act. That makes clear that for most categories of immigration decision, other than asylum or human rights claims made from within the United Kingdom and those decisions listed in subsection (2), an appeal must be brought from outside the country. Section 3C provides a limited exception for applications to extend existing leave made before its expiry. Section 82(1) of the 2002 Act confers a right of appeal to the tribunal in respect of an immigration decision. By section 82(2) immigration decision is defined as including (inter alia) a refusal to vary leave to enter or remain if the result of the refusal is that the person has no leave to remain (para (d)); and a decision that a person is to be removed by way of directions under either section 10 of the 1999 Immigration and Asylum Act or section 47 of the Immigration, Asylum and Nationality Act 2006 (paras (g), (ha)). Section 84 enumerates the possible grounds of appeal which include: (a) that the decision is not in accordance with immigration rules; (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights. Section 85 is headed Matters to be considered. Its present form, along with section 85A, is derived from amendments made by the UK Borders Act 2007, which were brought into effect, subject to transitional provisions, on 23 May 2011. It provides: (1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1). (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced. (4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But subsection (4) is subject to the exceptions in section 85A. The exceptions in section 85A include the following: (3) Exception 2 applies to an appeal under section 82(1) if (a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d), (b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a Points Based System, and (c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f). (4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it (a) was submitted in support of, and at the time of making, the application to which the immigration decision related, (b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c), (c) is adduced to prove that a document is genuine or valid, or (d) is adduced in connection with the Secretary of States reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of points under the Points Based System. This provision, which is relevant to the Alam and Anwar appeals, needs a little unravelling. It is not in dispute that exception 2 applied to both appeals, because the applications had fallen to be considered under the Points Based System. Accordingly, (under subsection (4)(a)) the tribunal was unable to consider the new evidence in support of the case under the rules. It could only consider it (under subsection (4)(b)) in so far as it related to grounds other than those specified in (3)(c), that is grounds other under section 84(1)(a), (e) or (f). Such other grounds include the human rights grounds under section 84(1)(c) and (g). Accordingly, consideration of the new evidence so far as relevant to such grounds, in particular article 8 of the Convention, was not excluded. Section 86 deals with the determination of the appeal. The tribunal is required to determine any matter raised as a ground of appeal and any matter which section 85 requires it to consider. It must allow the appeal in so far as it thinks that a decision against which the appeal is brought or is treated as being brought was not in accordance with the law. It may also allow the appeal on the grounds that a discretion exercised in making such a decision should have been exercised differently (section 86(3)(b)), but refusal to depart from the immigration rules is not treated as the exercise of a discretion for these purposes (section 86(6)). One stop notice Section 120 of the 2002 Act applies to a person (a) who has made an application to enter or remain in the UK, or (b) in respect of whom an immigration decision has been taken or may be taken. By subsection (2): The Secretary of State or an immigration officer may by notice in writing require the person to state: (a) his reasons for wishing to enter or to remain in the United Kingdom, (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom. There is no express provision dealing with the form of the response, nor imposing on the Secretary of State any express duty to consider it or determine the issues raised by it. Under section 85(2) as already noted, the tribunal, hearing an existing appeal under section 82(1), is required to consider any matter raised in the section 120 statement if it constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. Furthermore, by section 96, the section 120 notice opens the way for the Secretary of State to issue a certificate limiting the scope for subsequent appeal. Thus section 96(2) precludes an appeal against an immigration decision (the new decision) in respect of a person where the Secretary of State or an immigration officer certifies: (a) that the person received notice under section 120 by virtue of a decision other than the new decision, (b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement in response to that notice. Removal decisions The Secretary of States powers of removal are defined by section 10 of the 1999 Act and section 47 of the 2006 Act. The former provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; By subsection (9) the reasonable costs of complying with the direction must be met by the Secretary of State. Section 47 of the 2006 Act, as originally enacted, provided: (1) Where a persons leave to enter or remain in the United Kingdom is extended by section 3C(2)(b), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends. Again the costs of compliance must be met by the Secretary of State (section 47(4)). For completeness, I note that on 8 May 2013 (after the time relevant for the present appeals) a new form of the section was inserted, providing for notice of a pre removal decision (which includes the decision on an application to vary leave to remain) to be given at the same time as the removal direction under section 47. This change was designed to deal with a practical problem arising from Sapkota which had been highlighted by a subsequent decision of the Upper Tribunal (upheld by the Court of Appeal). It is not directly material to the present appeals. The Patel appeals There is no dispute now as to the merits of the refusal of leave to remain in the Patel cases, under either the rules or the Convention. The sole issue is one of law relating to the form in which the decision was made, more particularly its segregation (the word used in some of the cases) from the decision to direct removal. The failure to issue such a direction, it is said, was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain. A similar issue in relation to service of a section 120 notice, although identified in the agreed statement, does not arise on the facts of the case, since such a notice was in fact served. In support of this argument, Mr Malik relies principally on the decisions of the Court of Appeal in the cases of Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254 to which I have already referred. It was held, in summary, (in Mirza) that a policy of separating the refusal of leave to remain from the decision to remove was contrary to the policy and objectives of the 2002 Act to deal compendiously with all issues on the lawfulness of a persons residence in the United Kingdom; and consequently (in Sapkota) that an unjustified deferral of the removal decision would mean that the actual immigration decision was not in accordance with the law. Those judgments, and the subsequent Court of Appeal authorities, are discussed in detail in the judgment of the Master of the Rolls in the present case. Without disrespect to the judges involved in those decisions, or to Mr Maliks determined arguments in support of them, I do not propose to add materially to the voluminous discussion which this issue has already generated. It is sufficient to say that I am in entire agreement with the reasons of the Court of Appeal for not following them. The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that powers. Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control. Any extra protection provided to an appellant is incidental. Neither section can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision. As Burnton LJ said in the Court of Appeal [2013] 1 WLR 63, para 73: This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty. For the court to do so is to amend the legislation, not to interpret it. The contrary argument depends to my mind on a misapplication of the so called Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Under that principle, it is clear that discretionary powers conferred by statute must not be used in such a way as to thwart or run counter to the policy or objects of the Act (per Lord Reid, at p 1030C D)). It can no doubt be said that one of the purposes of the 2002 Act was to reduce the scope for repeat appeals, and that, as Laws LJ observed, the legislation leans in favour of what are called one stop appeals (JM (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 23). It may be also, as Mr Malik submits, that the exercise of the Secretary of States powers has the incidental effect in some cases of adding to the range of matters an appellant is able to raise by way of appeal during the period that his leave is extended under section 3C. However, neither such general observations nor such incidental effects can be translated into an overriding policy requiring the Secretary of State to act in a particular way, nor into a right for the appellant to insist that he does so. It is to be borne in mind also that exercise of the powers to direct removal, which alone are at issue in the Patel case, is likely to involve both public cost and personal hardship or indignity. The Secretary of State does not thwart the policy of the Act if she proceeds in the first instance on the basis that unlawful overstayers should be allowed to leave of their own volition (as on the evidence the great majority do). The Upper Tribunal observed in the present case, commenting on its concerns at the implications of the decision in Sapkota: For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful. Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law. (para 32) It follows that the Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by the failure to do so. In so far as the decisions of the Court of Appeal in the cases of Mirza and Sapkota indicate the contrary, they were in my view wrongly decided. It is unnecessary to consider whether the Court of Appeal was entitled as a matter of precedent to depart from them. No such inhibition affects this court. The Alam/Anwar appeals I have set out above the agreed issues said to arise in these appeals. The practical problem faced by the appellants arises from their failure to produce relevant information as required under the Points Based System at the relevant time. Each appellant was able to adduce the relevant evidence in response to the section 120 notice, but was barred by exception 2 of section 85A from relying on it directly in support of his appeal. The issue in short is whether an indirect route could be found to achieve a favourable result. The proposed route depends on using the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain, relying not on the rules, but on human rights grounds (article 8 of the Convention), and thus taking it outside the scope of exception 2. This in turn depends on two propositions: first, that the tribunal was obliged to consider the new evidence in that context (scope of appeal), and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 (merits of appeal). I would accordingly dismiss the Patel appeals. Scope of appeal The first issue was the subject of detailed discussion in AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385. The Court of Appeal by a majority held that section 85(2) was to be construed as imposing a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it was not directly related to the issues considered by the Secretary of State in the original decision. In AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833; [2011] Imm AR 832), it was held that majoritys approach did not require consideration of events subsequent to the Secretary of States decision. That issue does not arise in the present cases, where the new evidence related to material which was available at the time of the decisions. Turning to the judgments in AS itself, it would be difficult to expand on or improve the depth of legal and contextual analysis to be found in the judgments of all three judges. The fact that the analysis led such experienced judges to opposite conclusions suggests that the path to enlightenment will not be found by attempting a similar exercise in this judgment. The problem lies in the drafting of the relevant provisions, which defies conventional analysis. It is not only obscure in places and lacking in detail, but contains pointers in both directions. On the one hand, the words against the decision appealed against in section 85(2) suggest a focus on the content of the original decision. As Arden LJ said: A ground of appeal is not a ground of appeal against the decision appealed against if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted. (para 30) On the other hand the first ground of appeal under section 84(1) is that the immigration decision is not (not was not) in accordance with the Rules; and in considering that question the tribunal is specifically empowered (subject to the exceptions in section 85A) to have regard to evidence concerning a matter arising after the date of appeal. Moore Bick LJ (with whom Sullivan LJ agreed) thought that the reference to the decision appealed against did not imply a limitation to the original grounds. Having decided that the decisions referred to sections 85(1) and (2) were immigration decisions of the kind identified in section 82(1), he said at para 79: . the natural meaning of these provisions is to impose on the tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of a kind identified in section 82 that affects his immigration status. On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal. There was a similar lack of agreement on the effect of section 85(4), and in particular of the reference to matters relevant to the substance of the decision appealed against. That seems a curiously ambiguous term, which can fairly be read as referring either to the substantive effect of the decision or to the substantive reasons underlying it. Arden LJ took the latter view, which she saw as supporting her interpretation of section 85(2) (paras 31 2). At para 30 she adopted as plainly correct the approach of the Asylum and Immigration Tribunal (EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013), which had read these words as meaning that the new evidence had to be relevant to the decision actually made, and had added at para 6 that: a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the rule in question in the context of an application that that person has made. Sullivan LJ took the opposite view, seeing section 85(4) as consistent with his view that the tribunals consideration was not limited to the grounds considered by the Secretary of State: Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to the decision appealed against must be a reference to the decision to refuse to vary leave to remain under rule x, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82 (2). Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to the substance of the decision. (para 113) Moore Bick LJ thought that section 85(4) itself had little bearing on the issues before the court, since it was concerned only with the evidence which the tribunal could consider (para 83). However, his understanding of the word substance in this context, agreeing with that of Sullivan LJ, is apparent from his earlier discussion of the appropriate response to a section 120 notice. He saw its purpose as to impose on the appellant a duty to put forward any grounds he may have for challenging the substance of the decision made against him, rather than simply the grounds on which it was made (para 80, emphasis added). The broader approach of the majority seems to me to gain some support from the scheme of section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the section. Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or rules under which the application is initially made. The same approach can be applied to the decision on that application, the identity or substance of which in the context of an appeal is not dependent on the particular grounds first relied on. It is of interest that, at an earlier stage, the broader approach seems to have accorded with the reading of those responsible within the Home Office for advice to immigration officers. The Immigration Directorates Instructions, issued in September 2006, noted that it was not possible under section 3C to make a second application, but continued: On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new. A student application can be varied so as to include marriage grounds. If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application. (para 3.2 emphasis added) The same approach is supported by the current edition of Macdonalds Immigration Law & Practice 8th ed (2010) para 19.22 (under the heading The tribunal as primary decision maker). The only implicit criticism made of the majority approach in AS is that it did not go far enough. They observe that even without a section 120 notice the tribunal should be free to consider any matter including a matter arising after the decision which is relevant to the substance of the decision regardless of whether a one stop notice has been served. The substance of the decision is not the decision makers reasoned response to the particular application or factual situation that was before it but is one of the immigration decisions enumerated in section 82 and a matter includes anything capable of supporting a fresh application to the decision maker Whether or not such an extension of the majoritys reasoning can be supported, that passage indicates that the broader approach in itself is not controversial. In the end, although the arguments are finely balanced, I prefer the approach of the majority in AS. Like Sullivan LJ, I find a broad approach more consistent with the coherence of this part of the Act. He noted that the standard form of appeal, echoing the effect of the section 120 notice, urged appellants to raise any additional ground at that stage, on pain of not being able to do so later, and observed: . it seems to me that appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward. (para 99) Merits of appeal The second issue is the materiality to the human rights case of evidence that the appellant could in fact have complied with the rules, even though he failed to do so. The argument is that, if it is shown that the appellant could have met the substantive requirements of the rules, the failure to do so should be regarded as purely formal, and that accordingly, in the proportionality balance required by article 8, the objectives of immigration control should carry relatively less weight. A variant of this argument, referred to as the near miss principle, is that the degree of failure to meet the requirements of the rules may be relevant in the proportionality balance. Support for such an approach is said to be found in the judgment of Sedley LJ (agreed by Rimer and Sullivan LJJ) in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376. The main issue in that case was the extent to which it was permissible for mandatory criteria relevant to the Points Based System to be contained in guidance rather than rules submitted to Parliament under section 3(2) of the 1971 Act. That issue has since been considered in the Supreme Court in R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33; [2012] 1 WLR 2208 and R (New College London Ltd) v Secretary of State for the Home Department (Migrants Rights Network intervening) [2013] UKSC 51, [2013] 1 WLR 2358. However Sedley LJ also considered the application of article 8 under such a system. He said at paras 45 46: There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here. That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having 800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route. The court can be seen in that passage to have endorsed the view that, at least in relation to financial criteria, a near miss (a marginal or momentary shortfall) might affect the consideration of proportionality under article 8. That view did not affect the results in any of the cases before it. In the only one to which it might have been relevant (Mrs Maleckia), it was held that there was in any event no prospect of success under article 8 (para 53). Mr Malik also relies on other cases, before and since, which have adopted a similar approach without reference to Pankina. In SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28, the court when allowing an appeal against the tribunals decision on other grounds agreed with them that the fact that the appellant only just failed to qualify for admission was a fact to be counted in her favour. Ward LJ, at para 30, adopted the observation of Collins J in Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin) para 38 that: one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter. Ward LJ added: That seems to us to be the right approach. As Simon Brown L.J. said in Ekinci at paragraph 16: Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights. (I note in passing that those comments of Simon Brown LJ were made with reference to the rather different appeal provisions of the Immigration and Asylum Act 1999, and were directed specifically to a case with an obvious article 8 dimension.) More recently, in R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), Blake J, sitting on this occasion in the Administrative Court, held that on the facts the interference with the applicants family life was such as to make it disproportionate under article 8 to remove her, notwithstanding that she was unable to satisfy a relevant criterion in the rules. He said, at para 35 (without specific reference to Pankina): the terms of the immigration rules are not a legitimate aim in their own right A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim. The mere fact a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that is otherwise to be respected. The opposite approach is supported by the judgment of Stanley Burnton LJ (agreed by Maurice Kay and Lewison LJJ) in Miah v Secretary of State for the Home Department [2013] QB 35. In that case the applicant was refused leave to remain as a Tier 2 (General) Migrant at a time when he was two months short of the five years continuous residence necessary to support a case for indefinite leave to remain under the rules. It was argued that, in assessing whether his removal should be permitted under article 8.2 of the Convention, the weight to be given to the maintenance of immigration controls should be diminished because he had missed satisfying the rules by only a small margin. Burnton LJ observed that, as formulated in the skeleton submissions of Mr Malik (appearing for the appellant in that case as in the present), the argument was not so much near miss as sliding scale, by virtue of which There is an inverse relationship between the degree to which there is compliance with the rules and the immigration policy imperative which demands that unsuccessful applicants be removed (paras 9 10). In rejecting that argument, Burnton LJ referred to a passage in the speech of Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which he discussed the long established and central role of the immigration rules in determining those to whom leave to enter or remain should be granted. Although the near miss argument as such was not in issue in that case, Burnton LJ thought it inconsistent with Lord Binghams approach. He said at para 14: I find Lord Bingham's reference in para 6 to rules, to be administratively workable, [requiring] that a line be drawn somewhere and in para 16 to the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory to be helpful and generally inconsistent with a near miss principle. He referred to two previous Court of Appeal judgments (not cited in Pankina) in which similar arguments had been rejected: Mongoto v Secretary of State for the Home Department [2005] EWCA Civ 751, and R (Rudi) v Secretary of State for the Home Department [2007] EWCA Civ 1326. In the latter case, citing Mongoto, I said of the near miss argument: 28. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of the policy does not excuse the decision maker from due consideration of cases falling outside it. However, the law knows no near miss principle. There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason. Faced with the conflict between the approach taken in these authorities and that of Pankina Burnton LJ had no difficulty in preferring the former, which he regarded as binding on the court (paras 21 25). He could see no principled basis for distinguishing, as Sedley LJ had proposed, between rules to which the near miss principle did and did not apply. In particular he disagreed with Sedley LJ that a financial criterion has in itself no meaning, and could therefore be distinguished from other rules, such as those relating to academic qualifications, in respect of which a miss is as good as a mile. In conclusion he said at paras 25 26: Finally, quite apart from authority, I prefer the approach stated in Mongotos case and Rudis case. A rule is a rule. The considerations to which Lord Bingham referred in Huangs case require rules to be treated as such. Moreover, once an apparently bright line rule is regarded as subject to a near miss penumbra, and a decision is made in favour of a near miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined. For these reasons, I would dismiss the appeal in relation to the near miss argument. In my judgment, there is no near miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the tribunal, must assess the strength of an article 8 claim, but the requirements of immigration control are not weakened by the degree of non compliance with the Immigration Rules. The difference between the two positions may not be as stark as the submissions before us have suggested. The most authoritative guidance on the correct approach of the tribunal to article 8 remains that of Lord Bingham in Huang. In the passage cited by Burnton LJ Lord Bingham observed that the rules are designed to identify those to whom on grounds such as kinship and family relationship and dependence leave to enter should be granted, and that such rules to be administratively workable, require that a line be drawn somewhere. But that was no more than the starting point for the consideration of article 8. Thus in Mrs Huangs own case, the most relevant rule (rule 317) was not satisfied, since she was not, when the decision was made, aged 65 or over and she was not a widow. He commented at para 6: Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative. Thus the balance drawn by the rules may be relevant to the consideration of proportionality. I said much the same in Rudi. Although I rejected the concept of a near miss principle, I did not see this as inconsistent with the Collins Js words in Lekstaka: Collins J's statement, on which the court relied [in SB], seems unexceptionable. It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment. He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them. (para 31(ii)) (My reference to exceptional treatment needs to be read now in the light of Huang para 20 in which Lord Bingham made clear that, contrary to previous Court of Appeal case law, there was no separate test of exceptionality.) Although the context of the rules may be relevant to the consideration of proportionality, I agree with Burnton LJ that this cannot be equated with a formalised near miss or sliding scale principle, as argued for by Mr Malik. That approach is unsupported by Strasbourg authority, or by a proper reading of Lord Binghams words. Mrs Huangs case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8. Conversely, a near miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of States discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJs call in Pankina for common sense in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above). However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8. The present appeals I have discussed the respective arguments on this point in some detail because of its general importance and the conflicting statements found in some of the judgments. However, I can deal relatively shortly with the two cases before us. The near miss argument was not advanced in the same form before the Court of Appeal, apparently because it was thought to be precluded by Miah. Even if otherwise well founded, it is not in my view available to Mr Anwar, since no separate human rights grounds were advanced on his behalf before either tribunal. So the issue as to whether the tribunal would have been obliged to consider them, and with what effect, did not arise. In Mr Alams case the human rights case was considered at both levels, but ultimately failed before the Upper Tribunal on its merits. The Upper Tribunal fairly gave some weight to the unusual circumstances in which he had lost his ability to rely on the new evidence (as a result of a change in the rules after the start of the appeal). But there was little or nothing to weigh on the other side of the balance, apart from the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. I see no error in the approach of the Upper Tribunal. Conclusion For these reasons, I would dismiss all three appeals. LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree) I would also dismiss these appeals for the reasons given by Lord Carnwath. Anything that we say about AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385 is obiter, since in the case of Anwar no separate human rights ground was advanced in either tribunal and in the case of Alam the Upper Tribunal held correctly that there is nothing in any human rights point that was raised. If we were to disagree with the majority approach in AS, that would raise a problem of precedent for lower courts, but since I would on balance also favour leaving the majority view undisturbed, that problem does not arise. In fact, it appears that the whole area of appeals is likely to be reshaped by the Immigration Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we express about the correct approach are likely to become irrelevant in future cases. The issue arising under section 85(2) of the Nationality, Immigration and Asylum Act 2002 which was addressed in AS is undoubtedly a difficult and very arguable one, and the arguments for and against the rival approaches are comprehensively discussed in AS. As I see it, the essential question was well defined by Sullivan LJ at paras 111 113. It is whether the decision appealed against to which section 85(2) refers is the generic decision to refuse leave to remain (i.e. in the present cases, within section 82(2)(d)), or the particular decision to refuse leave under a particular head, for example under a particular rule of the Immigration Rules or on a Human Rights ground. The majority approach in AS does not mean that section 85(2) enables an appellant, who has sought leave to remain, to go outside the scope of a leave to remain application by adding or substituting an appeal under a different head of section 82(2), e.g. by asserting a wrongful refusal of entry clearance or of a certificate of entitlement: see sections 82(2)(b) or (c)). To that extent, it seems to me that the majority approach is not open to the criticism that it amounts to re reading section 85(2) as if it used the words against a decision of a kind listed in section 82(2) or omitted the words against the decision appealed against altogether. Where the Secretary of State chooses to give a section 120(2) notice, the aim is to flush out any new (a) reasons for wishing to enter or remain and/or (b) grounds for being permitted to enter or remain and/or (c) grounds for not being removed or required to leave the UK. The statement in response need not repeat reasons or grounds set out in the existing application or decision which is the occasion for giving the notice: section 120(3). When section 85(2) requires the Tribunal to consider any matter raised in the [section 120] statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against, it is therefore referring to new reasons or grounds not previously covered by the decision appealed against. So long as they [constitute] a ground of appeal of a kind listed in section 84(1), they can be relied upon. By inference, it can be said, it is or becomes legitimate to treat them as constituting a ground of appeal, even though they were not raised before or decided by the Secretary of State. So, instead of relying on the Immigration Rules to justify leave to remain, an appellant can rely on a Human Rights ground, as Alam sought to do. And in AS itself, it would follow that the majority was correct to hold that an appellant could invoke a different Immigration Rule to justify leave to remain in the case of AS herself: that she qualified under the International Graduate Scheme, rather than as a person intending to establish herself in business, in the other case of NV, on the basis that she had ten years residence, rather than on the basis that she was a student. Section 3C(4) of the 1971 Act certainly provides some forceful arguments to the contrary of the majority conclusion in AS. But I am inclined to think that Moore Bick and Sullivan LJJ deal sufficiently in their paras 84 86 and 102 with the problem of reconciling their conclusion with section 3C(4). Essentially, it is up to the Secretary of State to decide whether to serve a section 120 notice. It is true that the majority approach to section 85(2) means that an applicant may open up issues which would otherwise be closed, at least until conclusion of the existing appeal (after which the applicant, if unsuccessful in the appeal, would be an overstayer). But it does at the same time close down some further applications which the appellant might, whether as an overstayer or from abroad, make. The fact that the Tribunal will, in a wider area, become primary decision maker appears to me relatively indecisive, bearing in mind that it anyway acts as decision maker in some significant areas. The overlap argument advanced by Sullivan LJ at para 106 also seems to me relevant, if one is considering the advantages and disadvantages of each solution. help identify at what level of detail that decision is to be considered. On the other hand, I am not persuaded that there is anything in the substance point based on section 85(4). Moore Bick LJ (para 83), rather than Sullivan LJ (para 113) was in my view right on this. Section 85(4) is dealing only with evidence which goes to the substance (heart) of the decision, but does not

UK-Abs

These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependant wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].

The issue on this appeal is whether claims against Morgan Advanced Materials plc (formerly Morgan Crucible Co plc) (the appellant) for loss allegedly suffered by reason of a cartel infringing article 81(1) TEC (now article 101 TFEU) are time barred. The issue links with important substantive questions about the nature of the decisions of the European Commission (or European Court of Justice) which bind domestic courts as to the existence of such a cartel. It has been very well argued by counsel on both sides. Article 81(1) prohibited all agreements between undertakings . and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. The appellant and others operated an illegal cartel in the sector of electrical and mechanical carbon and graphite products. The appellant as whistle blower disclosed the existence of the cartel to the Commission and a Commission Decision finding that article 81(1) had been infringed by the members of the cartel was issued on 3 December 2003. The appellant escaped any fine. The other cartel members received heavy fines. Most of the cartel members appealed to the General Court, contending that it should annul the Decision or substantially reduce the fines. The General Court dismissed their appeals on 8 October 2008, and the time for any further appeal to the Court of Justice against the finding of infringement expired on 18 December 2008. Two of the companies lodged further appeals against their fines, but their appeals were dismissed by the Court of Justice on 12 November 2009, and are of no materiality to this appeal: BCL Old Co Ltd v BASF plc [2012] UKSC 45; [2012] 1 WLR 2922. On 15 December 2010, Deutsche Bahn AG and others (the respondents) filed with the Competition Appeal Tribunal claims for damages for loss alleged to have resulted from the cartel. The claims were follow on claims, that is claims made under section 47A of the Competition Act 1998 in reliance upon the European Commissions finding (upheld in fact in all respects on the various appeals) that article 81(1) TEC had been infringed. Section 47A(4) assigns such claims to the Competition Appeal Tribunal, while section 47A(5) provides that . no claim may be made in such proceedings i) until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and ii) otherwise than with the permission of the Tribunal, during any period specified in subsection (7) or (8) which relates to that decision. Section 47A(6) states that The decisions which may be relied on for the purposes of proceedings under this section are . (d) a decision of the European Commission that the prohibition in article 81(1) or article 82 of the Treaty has been infringed; . Section 47A(8) provides that The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are i) the period during which proceedings against the decision or finding may be instituted in the European Court; and ii) if any such proceedings are instituted, the period before those proceedings are determined. The inference from section 47A(8) is that, if and to the extent that a Commission decision upon which reliance could otherwise be placed under section 47A(6)(d) is set aside on appeal, there ceases to be any such decision for that purpose. The advantage of follow on proceedings (as opposed to independent High Court proceedings for infringement of article 81(1), or now article 101) is that, by section 47A(9) of the 1998 Act: In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed. A potential disadvantage is that rule 31 of the Competition Appeal Tribunal Rules 2003 (SI 2003/1372) introduces a two year period for the bringing of any follow on claim. Rule 31 defines that period as beginning on the later of two dates, being the end of the period defined by section 47A(8) of the 1998 Act or the date on which the cause of action accrued. The issue thus arises whether the decision to which the above provisions refer is the Commission Decision viewed as a decision made against and not appealed by the appellant, or the Commission Decision viewed as a decision made against all the cartel members, appealed by most of them and finally upheld as to liability by the General Court. On the former approach the two year limitation period began on 13 February 2004 when time expired for an appeal by the appellant to the General Court, and the present follow on claims issued on 15 December 2010 were brought too late. On the latter approach it began only on 18 December 2008 when time expired for an appeal to the Court of Justice by those who had appealed to the General Court, and the follow on claims were in time. The appellant therefore argue for the former approach, the respondents for the latter. The Tribunal (Marcus Smith QC, Mrs Margot Daly and Mr Dermot Glynn) by judgment of 25 May 2011 accepted the appellants case, and so struck out the respondents claims. The Court of Appeal (Mummery, Etherton and Sullivan LJJ) by a judgment dated 31 July 2012 ([2012] EWCA Civ 1055; [2013] Bus LR 125) accepted the respondents case and so restored their claims. The appeal comes to the Supreme Court with its permission. Section 47A(9) of the 1998 Act reflects a general principle of European law, that domestic courts cannot take decisions running counter to a Commission decision finding an infringement of article 81 TEC or now article 101 TFEU. Domestic courts must therefore accept a Commission decision that a prohibited agreement or practice exists: Case C 344/98 Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I 11369; Case C 199/11 Europese Gemeenschap v Otis NV [2013] 4 CMLR 141, para 65. In contrast, the existence of any loss and of a direct causal link between any loss and the agreement or practice in question are matters for the national court: Otis, para 65. So too are the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness): Joined Cases C 295/04 to C 298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I 6619, para 62. Likewise, it is for the domestic legal system of each member state to prescribe the limitation period for seeking compensation for harm caused by an agreement or practice prohibited under article 81 EC, provided that the principles of equivalence and effectiveness are observed: Manfredi, para 81. In the present case, after reasons extending over 364 paras, the Commission Decision concluded by an operative part adopting a Decision consisting of four simple articles. The first declared that six named undertakings including the appellant have infringed article 81(1) . by participating, for periods separately stated in the case of each, in a complex of agreements and concerted practices in the sector of electrical and mechanical carbon and graphite products. The second imposed separately specified fines (or in the appellants case no fine) for the infringements referred to in article 1, to be paid within three months to a specified bank account. The third required the immediate termination of the infringements and prohibited their repetition, and the fourth recited that the Decision was addressed to each of the members of the cartel, giving names and addresses, including the appellants. The operative part ended with a statement that the Decision was enforceable under article 256 TEC. In accepting the respondents case, the Court of Appeal (in a judgment given by Mummery LJ with which his colleagues agreed) was influenced by considerations falling under three main heads. First, the issue was essentially one of domestic law: the claim was for private law damages, unrelated to the penalties or fines which sanction breaches of European law; section 47A was a domestic provision regulating (amongst other matters) limitation, a matter left to domestic law (paras 100 103), although section 47A was not in this respect to be compared with ordinary domestic limitation periods (paras 104 106). The objectives and scheme of section 47A were different, because, inter alia, the period it prescribes only impacts on certain aspects of the claims. Liability for infringement has already been established in the Commission Decision and is binding on the parties and the Tribunal. Only issues of causation and quantum are left to be determined by the Tribunal (para 105). Section 47A was therefore more about the allocation and distribution of judicial business within the system of domestic courts and specialist tribunals than concerned with the normal limitation policy of barring stale claims (para 106). However, it had also to provide for the possibility that the Commission Decision might not actually be final or binding as regards civil claims, because it might be partially or completely set aside on appeal to the European Court of Justice (para 107). Second, the Court of Appeal saw the statutory references to a decision establishing that the prohibition has been infringed as quite general in their natural and ordinary meaning, and as not referring to a decision against, or as regards, a particular party or particular addressee of the Commission Decision (para 110). It saw a decision that a cartel exists as a decision relating to a single and continuous infringement based on common evidence and interdependent facts (para 116). It saw the appellate process before the European Court of Justice as directed to the same base decision that there had been infringement, rather than to any decision against any particular party or addressee (para 112). Once infringement was found, it was true that the Commission had necessarily to levy individual fines on individual addressees, but appeals against fines were irrelevant to civil proceedings for damages (paras 114 115 see also para 3 above). Thirdly, the Court of Appeal regarded practical considerations as militating in favour of its interpretation (paras 118 119). It thought it more sensible that any follow on claim should be postponed until the final decision on infringement was known, so that all questions of causation, quantum and contribution could be resolved at the same time (para 119). It noted that, on the appellants case, the appellant would itself have had no defence to liability for a single and continuous infringement by all the undertakings to which the Commission Decision had been addressed, even if all their alleged fellow cartel members had successfully appealed to the European Court of Justice and had the finding of infringement set aside (para 18). The Court of Appeal saw that as a consequence against which the appellant, in other contexts, would have been likely to dispute (para 17). As to the Court of Appeals first head, section 47A is a provision of domestic law, and the procedures and limitation period governing civil claims for breach of article 81 (or now article 101) are matters assigned by European law to domestic law. But section 47A contains critical cross references to a matter determined by European law. The decision establishing that article 81(1) has been infringed, to which section 47A(5) and (9) refer, is taken under European law by the Commission (subject to any appeal to the European Court of Justice). Further, it is a decision which is, under European law and not merely under section 47A(9), binding on domestic courts and tribunals. Under European law, it only leads to fines and an order to terminate the infringement. These are matters outside the scope of domestic Tribunal proceedings, just as an award of civil compensation is a matter for the Tribunal or High Court, outside the jurisdiction of the European Court of Justice. The Court of Appeal deduced from this distinction that European law is irrelevant to the nature of the decision to which section 47A refers. That was in my opinion an error. The decision to which section 47A refers is the decision taken by the Commission under European law (here upheld by the European Court). The fact that it gives rise at the European level to fines and injunctive relief, and not to civil remedies, is beside the point. It is the only decision which there is. To understand its nature, regard must necessarily be had to European law. Article 249 TEC provides A decision shall be binding in its entirety upon those to whom it is addressed, and article 288 TFEU is in very similar terms. But such terms leave open whether a decision operates on a unitary basis against all addressees, or as against each addressee separately. The nature of a decision under article 81(1) (now article 101(1)) has in this respect been explained by the European Court of Justice in Case C 310/97 P AssiDomn Kraft Products AB v Commission of the European Communities [1999] ECR I 5363. There, the Commission had by Decision dated 19 December 1984 found forty wood pulp producers to have been party to a cartel. Article 1(1) of the operative part of the Decision found concertation in the prices for wood pulp deliveries to the European Economic Community in 1975 to 1981, article 1(2) found concertation on actual transaction prices charged in certain Community countries, while article 1(5) found a practice of including in contracts for wood pulp sales clauses prohibiting the export or resale of the wood pulp purchased by customers. The Commission fined thirty six of the forty producers, including nine established in Sweden, substantial sums. Twenty eight of the addressees of the Decision (none of them Swedish) filed appeals seeking annulment of the Decision and of the consequent fines. The European Court of Justice by judgment of 31 March 1993 (Joined Cases C 89/85 and others, Ahlstrm (A) Osakeyhti v Commission of the European Communities [1993] ECR I 1307) annulled both article 1(1) of the operative part of the Commission Decision, holding that the conduct relied upon by the Commission does not evidence concertation (para 126) and article 1(2), holding that the addressees had not had an opportunity effectively to defend themselves in the administrative procedure against the allegation. It upheld the finding of practice made in article 1(5). Having annulled the finding of certain of the infringements, the Court then annulled or reduced the fines imposed by the Commission, and further annulled the undertakings imposed in consequence of the Commissions findings of infringements which had now been annulled. After delivery of the Courts judgment, the Swedish addressees of the Commission Decision asked the Commission to re examine their legal situation and to refund them the fines they had paid, to the extent to which they had been imposed for infringements founds in articles 1(1) and 1(2) of the Decision which had been annulled by the Court. The Commission having declined to do this on 4 October 1995, the Swedish addressees brought proceedings on 15 December 1995, claiming that the Court should annul the Commissions Decision of 4 October 1995 and order repayment of such fines. The Court of First Instance (now the General Court) on 10 July 1997 concluded that, although the Commission Decision must be treated as a bundle of individual decisions, it would be contrary to the principle of legality for the Commission not to have to review its initial decision, and that the fines should be repaid. On further appeal, the Court of Justice set aside the Court of First Instances decision. The Court of Justice identified the issue as follows: 49 Essentially, the appeal raises the question whether, where several similar individual decisions imposing fines have been adopted pursuant to a common procedure and only some addressees have taken legal action and obtained annulment, the institution which adopted them must, at the request of other addressees, re examine the legality of the unchallenged decisions in the light of the grounds of the annulling judgment and determine whether, following such a re examination, the fines paid must be refunded. The Courts answer included the following instructive passages: 52 First, since it would be ultra vires for the Community judicature to rule ultra petita . the scope of the annulment which it pronounces may not go further than that sought by the applicant. 53 Consequently, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the Community judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the Community judicature. 54 Furthermore, although the authority erga omnes exerted by an annulling judgment of a court of the Community judicature . attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the Community judicature but alleged to be vitiated by the same illegality. 55 The only purpose of considering the grounds of the judgment which set out the precise reasons for the illegality found by the Community Court . is to determine the exact meaning of the ruling made in the operative part of the judgment. The authority of a ground of a judgment annulling a measure cannot apply to the situation of persons who were not parties to the proceedings and with regard to whom the judgment cannot therefore have decided anything whatever. 57 It is settled case law that a decision which has not been challenged by the addressee within the time limit laid down by article 173 of the Treaty becomes definitive as against him . 63 Where a number of similar individual decisions imposing fines have been adopted pursuant to a common procedure and only some addressees have taken legal action against the decisions concerning them and obtained their annulment, the principle of legal certainty underlying the explanations set forth in paras 57 to 62 above therefore precludes any necessity for the institution which adopted the decisions to re examine, at the request of other addressees, in the light of the grounds of the annulling judgment, the legality of the unchallenged decisions to determine, on the basis of that examination, whether the fines paid must be refunded. The essential principle derived from these statements was recently repeated in Case T 462/07 Galp Energa Espaa SA v European Commission (unreported) 16 September 2013. Again, only some of the addressees of a Commission Decision had appealed, but they sought annulment of the Decision as against all its addressees. The General Court said: 89 Principally, the applicants submit claims seeking annulment of the contested decision in its entirety and not in so far as it concerns them. 90 However, a decision adopted in a competition matter with respect to several undertakings, although drafted and published in the form of a single decision, must be seen as a set of individual decisions finding that each of the addressees is guilty of the infringement or infringements of which they are accused and imposing on them, where appropriate, a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the European Union judicature, and remains binding on those addressees which have not applied for its annulment (Joined Cases C 238/99 P, C 244/99 P, C 245/99 P, C 247/99 P, C 250/99 P to C 252/99 P and C 254/99 P Limburgse Vinyl Maatschappij v Commission [2002] ECR I 8375, paras 99 and 100). 91 Accordingly, the applicants are not entitled to seek the annulment of the contested decision in so far as it concerns other addressees. The judgments in AssiDomn and Galp Energa establish that a Commission Decision regarding the existence of a cartel constitutes a series of decisions addressed to its individual addressees, which remain binding or not according to the lodging and outcome of any individual appeals. A successful appeal by one addressee, establishing that there was no cartel, has no effect on the validity and effects of the Decision determining that there was such a cartel and levying a fine as against another addressee who has not appealed. This is so although article 81(1) (and now article 101(1)) applies to agreements and concerted practices (concepts which postulate the involvement of more than one party), and although a Commission Decision, such as that in question on this appeal, addresses in a single document all addressees by reference to one or more particular agreements or practices found to exist between all of them. It follows in the present case that, even if the appeals against infringement by alleged cartel members other than the appellant had succeeded, that would in European law have made no difference to the findings as to the existence and scope of the complex of agreements and concerted practices in the relevant sector to which the Commission Decision found the appellant to have been party. The Commission Decision would have remained as against the appellant in full force and effect. That being the (only) Decision against the appellant in European law, it is also the only decision to which section 47A(5) and (9) apply. The respondents submission that a successful appeal by other alleged cartel members either nullifies or pro tanto modifies the existence of the relevant decision for the purpose of section 47A(5) would mean that there existed at one and the same time an unmodified decision for European purposes and an annulled or modified decision for domestic law purposes. That is the opposite of what section 47A postulates. The Tribunal, in dealing with civil claims, would not be bound by the European legal decision establishing that the prohibition had been infringed, as section 47A(9) contemplates, but by a different scheme developed in domestic law inconsistently with European law. The refusal under that domestic scheme of civil relief against the addressees who had not appealed would on its face infringe the European principles that domestic law should reach results consistent with legal rulings binding at the European level and that there should be an effective domestic remedy for breaches of European law established at the European level (see paras 10 and 11 above). Reference was made to other provisions of the Competition Act 1998, such as sections 32, 36 and 46, dealing with the Office of Fair Tradings powers to make a decision that an agreement infringes the prohibition in Chapter I of that Act, and enabling any party to such an agreement to appeal to the Tribunal. These provisions may well raise a similar issue to the present in a purely domestic context (especially bearing in mind the provisions of section 58A paralleling section 47A), but, however that may be, they cannot in my opinion affect its answer in the context of section 47A. More generally, there is nothing surprising in domestic law about the proposition that a successful appeal by only one defendant held liable at first instance in conspiracy leaves unaffected the liability of another defendant also held liable at first instance for the same conspiracy, in the absence of any appeal by that other defendant. The Court of Appeal recognised under its first head that section 47A proceeds on the basis that liability for infringement would already have been established in the Commission Decision and that only issues of causation, quantum and contribution would remain for the Tribunal or domestic courts to decide (see para 13 above, and paras 105 and 108 of the Court of Appeals judgment). But this assumes that the Commission Decision will have decided all issues regarding the scope of the cartel. Otherwise, substantial issues regarding the nature of the infringement would remain for the Tribunal or domestic courts. That assumption is not easy to reconcile with the Court of Appeals reasoning in its second main head, that the references to a decision establishing that the prohibition has been infringed are quite general in their natural and ordinary meaning, and do not refer to a decision against, or as regards, a particular party or particular addressee of the Commission Decision (see para 14 above). The assumption is however clearly correct. The decision referred to in section 47A cannot be a decision in the air that there was an unspecified infringement. It must be a decision that a cartel existed between specified parties during specified periods, that is, the decision in the operative part of a Commission Decision to which the Court of Justice referred in AssiDomn, paras 53 55. It is the decision found in the present case in article 1 of the operative part of the Commission Decision. As the Court of Appeal put it in a decision cited by Mr Jon Turner QC in his submissions for the respondents, section 47A has the effect that the defendant cannot deny that it has committed whatever infringement the regulator has found and that the decision that there was an infringement, and a particular infringement, is conclusive: Enron Coal Services Ltd v English Welsh and Scottish Railway Ltd (No 2) [2011] EWCA Civ 2, [2011] UKCLR 303, paras 50 and 53. Further, What the Tribunal cannot adjudicate on, in a claim for damages, is whether there has been any, and if so what, infringement: Enron, para 142. Finally, however, contrary to the Court of Appeals reasoning in its second head, the Commission Decision is addressed separately to each addressee, so that a successful appeal by one addressee has no effect on its validity against another addressee who has not appealed. The third head of the Court of Appeals reasoning proceeds to a considerable extent upon a basis which begs the essential issue. It is only possible to speak of awaiting a final decision on infringement to be given on an appeal to the European Court of Justice by another addressee of the Commission Decision, if that appeal is capable of affecting the Commission Decision in so far as it impacts on an addressee who has not appealed. As regards the Commission Decision on the scope of the cartel, on the basis of which questions of causation and quantum will fall to be decided as against an addressee who has not appealed, this will not be the case. Only as regards contribution could it be the case, in so far as a successful appeal by another addressee will deprive an addressee who has not appealed of a potential contributing party. In practice, it may therefore be appropriate to adjourn the determination of contribution proceedings, until all appeals by other addressees have been determined. But it remains the case that, as against a non appealing addressee, the Commission Decision that there has been a cartel involving all addressees stands, even though some of them may and do appeal successfully. That the appellant would, in other circumstances, have been likely to argue the opposite sheds no doubt on this. In the respondents submission, the practical difficulties or incongruities do not end there. If (as in AssiDomn) only some addressees appeal, and are successful on appeal in having a finding that there was a cartel annulled, how, the respondents ask, could or would the Tribunal or High Court determine questions of causation or quantum as against an addressee who had not appealed? The answer in my opinion is that the Tribunal or High Court would have to determine all such questions on the basis that there was a cartel as the Commission had held, bindingly, against the non appealing addressee of its Decision. In the result, therefore, a non appealing addressee of a Commission Decision may, at least theoretically, find itself carrying full civil liability (without any fellow cartel members from which it may seek contribution) in respect of a cartel, the existence of which has been negatived on appeal by its alleged fellow cartel members. All that can be said is that, if there was really no cartel (or a more limited cartel than found by the Commission Decision), it might be difficult for a claimant to prove that it had suffered any loss caused thereby. Further, in the case of a whistle blower like the present appellant, a hypothesis of no cartel is self evidently unreal. Finally, of course, the situation is likely to remain hypothetical in most cases, as it did in the present. In the result, none of the heads of the Court of Appeals reasoning is in my opinion sustainable. A Commission Decision establishing infringement of article 81 (now article 101) constitutes in law a series of individual decisions addressed to its individual addressees. The only relevant decision establishing infringement in relation to an addressee who does not appeal is the original Commission Decision. Any appeal against the finding of infringement by any other addressee is irrelevant to a non appealing addressee. Under section 47A(5), the relevant decision establishing that article 81 had been infringed is thus in the present case the Commission Decision dated 3 December 2003, and, once the time for the appellant to appeal against that Decision had expired on 13 February 2004, the respondents had under section 47A(8) two years within which to bring a follow on claim. The follow on claim for civil damages which the respondents in fact only made on 15 December 2010 was thus out of time. The appeal falls accordingly to be allowed, the Court of Appeals judgment must be set aside, and the Tribunals judgment dated 25 May 2011 striking out the respondents claim restored.

UK-Abs

In breach of Article 81 of the EC Treaty (TEC) (now Article 101 of Treaty on the Functioning of the European Union (TFEU)), the appellants participated in an illegal cartel in electrical and mechanical carbon and graphite products. The appellants disclosed the existence of the cartel to the European Commission and a Commission Decision finding that article 81(1) had been infringed by the members of the cartel was issued on 3 December 2003. The appellants, as whistle blowers, escaped any fine. The other cartel members received heavy fines. A number of the other cartel members appealed the Commission Decision to the General Court of the Court of Justice of the European Union. The General Court dismissed the appeals, and the time limit for pursuing any further appeal to the Court of Justice expired on 18 December 2008. On 15 December 2010, the respondents filed claims for damages with the Competition Appeal Tribunal for loss alleged to have resulted from the operation of the cartel. These claims are follow on claims brought under section 47A of the Competition Act 1998 (the 1998 Act). Follow on claims are based on a prior Commission decision that an infringement has occurred, which is treated as binding on the domestic Tribunal. Section 47A(8) of the 1998 Act provides that no follow on claim may be brought during the period up to the expiry of the time limit for pursuing any appeal against the relevant Commission decision or the determination of any such appeal if pursued. The relevant Tribunal rules state that the time limit for bringing any follow on claim is two years from the end of the period specified in section 47A(8). The issue before the Supreme Court is whether the respondents follow on claim against the appellant should be struck out for being brought more than two years after the end of the period for appealing the Commission Decision. This, in turn, depends on whether the Commission Decision is viewed: (i) as a decision made against the appellants, which they chose not to appeal; or (ii) as a decision made against all the cartel members, appealed by most of them, and finally upheld by the General Court. On the former approach the two year limitation period began on 13 February 2004 (when time expired for an appeal by the appellants) and expired before the follow on claims were brought on 15 December 2010. On the latter approach it began only on 18 December 2008 (when time expired for an appeal to the Court of Justice by those who had appealed to the General Court) and the follow on claims were brought in time. The Court of Appeal, overturning the decision of the Competition Appeal Tribunal, preferred the latter approach and held that the claim against the appellant could proceed. The Supreme Court unanimously allows the appeal. Lord Mance (with whom Lord Neuberger, Lord Sumption, Lord Toulson and Lord Hodge agree) gives the only judgment. The decision to which section 47A of the 1998 Act refers is the Commission Decision, the nature of which is a matter determined by European Law [16]. Decisions of the Court of Justice establish that a decision by the Commission regarding the existence of a cartel constitutes a series of decisions addressed to its individual addressees, which remain binding against an individual addressee who does not appeal even if there is a successful appeal by another addressee [1721]. The only relevant decision establishing infringement in relation to an addressee who does not appeal is the original Commission decision [22, 2425]. That decision, in relation to the appellant, is the Commission Decision made on 3 December 2003, in respect of which the time period to appeal expired on 13 February 2004 [28]. Therefore, the claim by the respondents was brought more than two years after the relevant decision and is out of time. The detailed rules governing the recovery of any loss resulting from the operation of an illegal cartel are matters of domestic law, so long as they comply with the general principles of European law. It is a general principle of European law that domestic courts cannot take decisions running counter to a Commission decision finding that a prohibited agreement or practice exists. This is reflected in section 47A of the 1998 Act, which contains important cross references to a decision by the Commission made under European law. To understand the nature of that decision, regard must necessarily be had to European law. [1011, 16] The relevant provisions of the treaties (Article 249 TEC and now article 288 TFEU) leave open whether a decision operates as a single decision against all addressees, or as a decision against each addressee separately. However, the European Court of Justice has determined this question in Case C 310/97 AssiDomn Kraft Products AB v Commission of the European Communities, holding that a decision which has not been challenged by the addressee within the time limit becomes definitive as against him, regardless of any appeal that may be brought by another addressee. The same principle was recently reiterated by the General Court in Case T 462/07 Galp Energa Espaa SA v Commission. [17 21] It follows that, even if the appeals by the other cartel members had succeeded, the Commission Decision would have remained in full force and effect against the appellants. That being the only decision against the appellants in European law, it is also the only decision to which section 47A of the 1998 Act can refer. [2225]

On 3 December 1973, the appellant, Martin Corey, was convicted of the murder of two police officers. He was sentenced to life imprisonment. He remained in prison until 26 June 1992 when the Secretary of State for Northern Ireland released him on licence, pursuant to section 23(1) of the Prison Act (Northern Ireland) 1953. Following his release in 1992 the appellant remained at liberty for almost 18 years. On 13 April 2010 the Secretary of State wrote to the parole commissioners referring Mr Coreys case to them under article 9(1) of the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564 (NI 2)) and seeking a recommendation on whether the licence on which appellant had been released should be revoked. Article 9(1) provides that, if recommended to do so by the commissioners, in the case of a life prisoner who has been released on licence, the Secretary of State may revoke his licence and recall him to prison. On 14 April 2010, a single commissioner recommended that the licence of Mr Corey should be revoked. That recommendation was based on material which had been supplied by the Secretary of State. The material included a confidential file containing intelligence information which had been provided by the security services. After that recommendation had been received, a minister of state, acting on behalf of the Secretary of State, revoked the appellants licence on 15 April 2010. Mr Corey was taken into custody again on 16 April 2010 and has remained in prison since then. By virtue of article 9(4) of the 2001 Order, a prisoner recalled to prison must have his case referred to the parole commissioners. After he had been recalled to prison, therefore, Mr Coreys case was duly referred. Initially it was considered by a single commissioner. She gave provisional directions under the Parole Commissioners Rules (Northern Ireland) 2009 (SRNI 2009/82). Part of the material which had been supplied to the commissioners in April 2010 had been certified as confidential information under rule 9(1) of the 2009 Rules. And rule 9(3) requires that a gist of such information should be served on the commissioners and the prisoner. On 7 June 2010 the Secretary of State provided a dossier of material in relation to Mr Coreys case. In compliance with rule 9(3) it was accompanied by a statement of evidence which set out the gist of the confidential information. This was considered by the single commissioner. She also examined the confidential material itself. She recommended, pursuant to rule 19, that the Advocate General for Northern Ireland should appoint a special advocate to represent Mr Coreys interests. The commissioner also recommended that the appellants case should be dealt with by a panel of commissioners, rather than by a single commissioner considering it alone. A panel was duly convened. On 9 November 2010, following a directions hearing, the chairman of the panel ordered that a statement of all open and closed material relevant to the case, including the product of any exculpatory matter that undermined the Secretary of State's case, should be served on the panel and the special advocate. It was ordered that a similar statement in respect of the open material be served on the prisoner's representatives. They were not to receive the closed material, of course. A closed hearing took place on 25 January 2011 to consider the material which had been served on the panel and the special advocate. The panel heard submissions on behalf of the Secretary of State. The special advocate also made representations to the panel about the adequacy of the disclosure of the closed material. The commissioners gave a ruling on these submissions on 7 February 2011. Hearings before the panel were then conducted into Mr Coreys case. These took place between 29 and 31 March and 23/24 May 2011. Open and closed evidence was received. Counsel appeared for Mr Corey and the Secretary of State at the open hearings. The special advocate represented the appellants interests during closed hearings. On 15 August 2011 the panel gave its decision. This comprised both a closed and an open judgment. In a detailed ruling which formed part of the open judgment, the panel stated that it was satisfied that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and that he was in a position of leadership in that organisation from 2008 until his recall to prison. It was concluded that the appellant posed a risk of serious harm to the public at the time of his recall. Under article 6(4) of the 2001 Order the commissioners are forbidden to direct that a life prisoner be released unless they are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined. Since the commissioners were not so satisfied in relation to Mr Corey, they refused to direct his release. The appellant sought judicial review of the commissioners decision on the grounds (among others) that inadequate material had been disclosed in the gist and that the refusal to direct his release had been based solely or to a decisive degree on the closed material and was, on that account, in breach of Mr Coreys rights under article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Secretary of State was a notice party to the application for judicial review. In a judgment delivered on 9 July 2012, Treacy J held that the commissioners decision was indeed based solely or decisively on the closed material. He further found that the allegations contained in the open material were not sufficiently specific to enable the appellant to provide his lawyers and the special advocate with information to refute them. The hearing which the commissioners had conducted into the appellants case constituted, on that account, a breach of the appellants right to procedural fairness under article 5(4) of the Convention. Instead of quashing the decision of the commissioners, however, Treacy J decided, pursuant to section 21 of the Judicature (Northern Ireland) Act 1978, to remit the matter to them with a direction that they reconsider the case and reach a decision in accordance with his ruling. The judge also decided to admit the appellant to bail pending reconsideration of his case by the parole commissioners. The Secretary of State immediately applied for a stay of Treacy Js order and within a short time thereafter lodged an appeal against the judges decision. Although the commissioners also lodged an appeal, this was not pursued and they participated as a notice party in the appeal proceedings brought by the Secretary of State. The Court of Appeal convened an early hearing to consider that part of the judges order by which he had directed the appellants release. On 11 July 2012 it decided that the judge did not have power to grant bail. The Court of Appeal therefore stayed enforcement of that part of Treacy Js order which had admitted the appellant to bail. Delivering the judgment of the court, Morgan LCJ said that the determining issue was whether there had been a break between the sentence [of life imprisonment] and the continued detention of the [appellant] (para 8). Since there was no such break, the judge did not have power to grant bail. An application for permission to appeal the decision of the Court of Appeal on the question of the High Courts jurisdiction to grant bail was lodged with this court on 27 September 2012. Permission to appeal was granted on 13 December 2012. In the meantime, the appeal by the Secretary of State against that part of Treacy Js decision in relation to the breach of article 5(4) (which had been deferred in July 2012) was heard by the Court of Appeal on 26 October and 26 November 2012. In a judgment delivered on 21 December 2012 the appeal was allowed: [2012] NICA 57. The Court of Appeal concluded that the material provided to the appellant and his advisers was sufficient to allow him to give effective instructions to those representing him. There was therefore no breach of article 5(4) of the Convention. Application was made to this court for permission to appeal the Court of Appeals decision on the issue of breach of article 5(4). That application was refused. In these circumstances, the appellants appeal on the question whether the High Court had an inherent jurisdiction to grant him bail or otherwise order his interim release is, strictly speaking, academic. Because of the importance of the issue, however, this court considered that the appellants appeal on this question should be allowed to proceed. The appellants arguments Ms Quinlivan QC made three principal arguments on behalf of the appellant. Firstly, she submitted that, when determining a judicial review challenge to the commissioners refusal to release a recalled prisoner, the High Court had power to order the discharge of the prisoner as part of its inherent jurisdiction. Secondly, she argued that the Human Rights Act 1998 afforded an applicant whose Convention rights were found to have been violated the right to an effective remedy. Where breach of the appellants article 5(4) rights had occurred, the effective remedy for that breach must include entitlement to be admitted to bail. Finally, she contended that the continued detention of the appellant some two years and three months after revocation of his licence, without there having been an article 5(4) compliant hearing at which the legal propriety of his detention was reviewed, amounted to a breach of article 5(1) of the Convention; alternatively, his continued detention was arbitrary. In either event, the High Court had power to direct that the appellant should be released. The third and final of these arguments had not been addressed to Treacy J. Nor had it been at least in the terms in which it is now made advanced to the Court of Appeal. Article 5(1) of the Convention, in its material part, provides that Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court For the first time before this court, Ms Quinlivan sought to argue that the delay in holding an article 5(4) compliant inquiry into the appellants detention had rendered that detention unlawful. The inherent jurisdiction of the High Court of Northern Ireland The Supreme Court of Judicature Act (Ireland) 1877 (40 & 41 Vict c 57) replaced the existing court structure in Ireland. It created a Supreme Court of Judicature which comprised a High Court of Justice and a Court of Appeal. The 1877 Act replicated the reform of the courts of England and Wales under the Judicature Acts of 1873 and 1875. As in England and Wales, the High Court in Ireland inherited the same inherent jurisdiction as had been enjoyed by the pre 1877 superior courts of common law and equity. The Government of Ireland Act 1920 abolished the Supreme Court of Judicature which had been created by the 1877 Act. Separate High Courts for Northern Ireland and the remainder of the island of Ireland (later to become the Republic of Ireland) were brought into existence. They continued to function in much the same way as previously but as separate entities. In Northern Ireland a new Supreme Court of Judicature was created by the Judicature (Northern Ireland) Act 1978. Under this Act, the basic court structure remained largely unchanged. In particular, the general jurisdiction of the High Court was preserved. Section 16(2)(a) provided that all such jurisdiction as was capable of being exercised previously by the High Court of Justice in Northern Ireland would continue to be exercisable. There can be no doubt, therefore, that the Northern Ireland High Court has an inherent jurisdiction. The nature of inherent jurisdiction Sir Jack Jacob in his authoritative work, The inherent jurisdiction of the Court [1970] CLP 23, 25 27 has said that the historical development of inherent jurisdiction has proceeded along two paths, firstly by way of punishment for contempt of court and secondly as a means of regulating the practice of the court and preventing abuse of its process. On the latter aspect, Sir Jack said that the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. The power to control the courts proceedings and process has a number of aspects: the regulation of proceedings; dealing with abuse of process; and compelling observance of the courts orders and directions. Ultimately, however, these are geared to the same aim viz ensuring the effective delivery and enforcement of the courts decisions. Approached in that way, the issue in the present case can be expressed thus: Is it necessary for the effective disposal of the appellants claim that the court should have power to order his release pending reconsideration of his case by the commissioners? The fact that the release of life sentence prisoners is governed by the 2001 Order does not, per se, inhibit the exercise of an inherent jurisdiction. As Sir Jack Jacob put it, at p 24, the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute. But he added an important rider. Recourse to an inherent jurisdiction, he said, must not contravene any statutory provision. One may go further, however. Using an inherent jurisdiction in a way that runs counter to the purpose or spirit of legislation is not permissible. The present case exemplifies the point. It could not be right to purport to exercise an inherent jurisdiction in a way that would undermine the intended operation of the statute. And therefore to direct the release of a recalled prisoner where the statutory safeguards surrounding a decision to restore liberty to such a prisoner are not in place could not be justified by invoking the inherent jurisdiction. Did the High Court have inherent jurisdiction to grant bail in this instance? The gravamen of the appellants case on this question was that the common law in relation to inherent jurisdiction is both flexible and versatile. It can and should respond to changing needs and circumstances. Although it was primarily a means of controlling procedure, it should be adapted to meet the requirement of ensuring that the courts decision is fully effective. This argument has as its corollary the claim that, to be effective, the remedy for the breach of a recalled prisoners article 5(4) rights must include the opportunity to seek from the court his release from prison in vindication of the right. Article 5(4) provides: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. It is important to recall that in the present case, the lawfulness of the appellants detention on foot of his recall to prison was not directly in issue in the judicial review proceedings before Treacy J. The focus of the appellants challenge was to the commissioners failure to direct his immediate release and the manner in which their determination was made. The appellants had not made a substantive challenge to the lawfulness of his detention under article 5(1) of the Convention. As the judge said in para 58 of his judgment: This court is concerned only with the fairness of the determination and the process used to come to it (emphasis added) The decision to grant bail in the present case was not founded, therefore, on the conclusion that the appellants detention was unlawful. The judge did not address that issue. He based his decision on the manner in which the commissioners review of the appellants case had been conducted. The claim that the court had inherent jurisdiction to order his release must be viewed against that backdrop. The same applies to the claim that the finding of a breach of article 5(4), to be practical and effective, required that the court should be able to order the appellants release. Put shortly, the critical question is whether it was necessary that, in order to give meaningful and realistic effect to the finding that the review into the appellants detention had not been conducted lawfully, the court should have power to order the appellants release. In my view it is clear that the judges decision did not require that underpinning. His order that the review of the appellants detention had not been conducted lawfully and that it should be reconsidered was, on its own terms, a full vindication of the right which the appellant had asserted. On that ground alone, I consider that the judge did not have power to order the appellants release. That conclusion makes it unnecessary to deal with the submission made on behalf of the appellant that the decision in Ex parte Blyth [1944] KB 532, that the High Court did not have jurisdiction to grant bail post conviction, should not be followed. Ms Quinlivan had relied on the decisions in R v Secretary of State for Home Department, Ex p Turkoglu [1998] QB 398 and R (Sezek) v Secretary of State for the Home Department [2002] 1 WLR 348 in support of the claim that a more expansive approach to the scope of inherent jurisdiction was warranted. In Turkoglu the applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the judge, considering that he had no further jurisdiction in the matter, refused bail pending an appeal. On his appeal against the refusal of bail it was held that, unless there was statutory provision or judicial precedent to the contrary, the High Court seized of a civil matter had jurisdiction to grant bail. In Sezek the applicant, a Turkish national, had been granted indefinite leave to remain in the United Kingdom but his subsequent application for British citizenship had been refused for failing to declare previous criminal convictions. A deportation order was made in April 1999 which included authorisation for his detention. He applied for judicial review of that decision which was dismissed. He appealed the dismissal and applied to the Court of Appeal for bail pending the hearing of his appeal. It was held that the High Court had power in judicial review proceedings to make an ancillary order temporarily releasing on bail an applicant detained pursuant to the Immigration Act 1971. The Court of Appeal, it was decided, also had power to order the appellants release by virtue of section 15(3) of the Supreme Court Act 1981 but, in that instance, the court was exercising an original jurisdiction. These cases, Ms Quinlivan argued, illustrated the versatility of the law and its responsiveness to the requirements of the liberty of the individual. A similar approach was, she suggested, appropriate in this case. It should be noted, firstly, that in both Turkoglu and Sezek it was accepted by the Secretary of State that the relevant courts had power to grant bail. It should also be remembered that in Sezek the Court of Appeal considered that it was by recourse to an original, as opposed to inherent, jurisdiction, that the grant of bail might be made. All that aside, the principal difficulty with Ms Quinlivans argument is that in both cases the applicants were asserting their right to liberty. If their claims were upheld, they were entitled not to be detained, whereas what Mr Corey claims is the right to have his valid recall to prison reviewed in a way that is compliant with article 5(4) of the Convention. A power to grant bail ancillary to the declaration that the appellant was entitled to that particular form of relief was not only unnecessary in order to make the grant of relief practical and effective, it was unrelated to it. Quite apart from the inaptness of recourse to an inherent jurisdiction for the purpose of making the judges order practically and meaningfully effective, to recognise an inherent jurisdiction to order release in the circumstances of this case would run directly counter to the operation of the 2001 Order. One of the principal philosophies underlying the Order is expressed in article 6(4) which provides: The Commissioners shall not give a direction [that the prisoner should be released] unless (a) (b) the Commissioners are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined. That philosophy has received the endorsement of the court in Strasbourg. In Stafford v United Kingdom (2002) 35 EHRR 1121, para 80 the European Court of Human Rights said Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness . A statement to like effect is to be found in the later case of von Blow v United Kingdom (2004) 39 EHRR 16, para 43. As Mr Simpson QC for the Secretary of State reminded us, the 2001 Order prominently required, in article 3(2), that a miscellany of experts drawn from a variety of fields be appointed to be life sentence commissioners (the predecessors of parole commissioners). That requirement was replicated in later legislation. Under paragraph 1 of Schedule 4 to the Criminal Justice (Northern Ireland) Order 2008 (SI 2008/1216) the Secretary of State is enjoined to ensure that at least one of the commissioners is a person who holds or has held judicial office; one must be a medical practitioner who is a psychiatrist; one a chartered psychologist; one who has experience of working with victims of crime; and one who has made a study of the causes of delinquency or the treatment of offenders. This requirement reflects the need to have available a range of specialists who can contribute to what must often be a difficult debate as to whether the rigorous test set out in article 6(4)(b) is satisfied. It would be inconsistent with the protection of the public (which is such a central feature of the legislation) that a judge should order the release of a life sentence prisoner by reason only of a failure to conduct an article 5(4) compliant review, where the intense examination, contemplated by article 6(4)(b), of whether his detention is no longer necessary has not taken place. Put simply, the legislature has placed in the hands of a panel of experts the difficult decision as to when a life sentence prisoner should be released. Their role should not be supplanted by a judge who does not have access to the range of information and skills available to the commissioners. In this connection it should be noted that Ms Quinlivan sensibly accepted that, even if the High Court had inherent jurisdiction to release a life sentence prisoner on bail, it should not do so unless satisfied that he would pose no risk of serious harm to the public. The hearing before the Court of Appeal It appears that the case for the appellant in the Court of Appeal took a distinctly different turn from that which had been presented to Treacy J. In para 5 of his ex tempore judgment delivered on 11 July 2012, Morgan LCJ observed that the court had been referred to extensive authorities in relation to the lawfulness of the detention of the [appellant]. So far as one can tell from the understandably brief judgment, the focus seems no longer to have been on whether there had been a review of the appellants detention that was compliant with article 5(4) of the Convention but on whether his detention had become unlawful because of a break between the sentence and the continued detention (para 8). In deciding that there was no such break the Court of Appeal considered the decision of the House of Lords in R (James) v Secretary of State for Justice (reported as R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1AC 553). That case was concerned with indeterminate sentences for public protection (IPP) which had been introduced by section 225 of the Criminal Justice Act 2003. Such sentences comprise a tariff period (which must be served before the prisoner is considered for release by the Parole Board) and a post tariff period which ends when the Parole Board concludes that it would no longer be dangerous for the prisoner to be released. There had been a systemic failure to provide courses for the prisoners in the James case. It was argued that, if they had completed such courses successfully, they could have demonstrated to the Parole Board their suitability for release. Among other claims, the appellants asserted that they were, in consequence, unlawfully detained under article 5(1) of the Convention. It was unanimously held that the absence of material to enable the Parole Board to form a view as to the safety of the appellants release did not make their detention unlawful. Relying on the decision of the Strasbourg court in Weeks v United Kingdom (1987) 10 EHRR 293 para 42, the House of Lords held that, for a prisoners detention to be justified under article 5(1), there had to be sufficient causal connection between his conviction and the deprivation of liberty: [2010] 1AC 553, para 38. Such a link, the House held, might be broken by a prolonged failure to enable the prisoner to demonstrate that he was safe for release but the delay in the appellants case was not such as to give rise to a breach of article 5(1). This was the burden of the two principal opinions given by Lord Brown of Eaton under Heywood and Lord Judge CJ. In para 42, Lord Brown considered whether the objectives of an IPP included not only the continued detention of the prisoner until he could be safely released but also his reform and rehabilitation. At para 49 he said that the IPP legislation went no further than providing the government with the opportunity to introduce treatment courses but the provision of rehabilitative treatment necessary to obviate the risk was not among the specific legislative objectives. If it was not possible to assess the prisoners dangerousness because he had been unable to undertake courses which might demonstrate that he no longer posed a risk to the public detention beyond the tariff period is justified because the sentencing court decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence; the necessary predictive judgment will have been made. (para 50) Lord Judge was also of the view that the purposes of the 2003 Act did not include the rehabilitation of prisoners (see para 126). He expressed the same opinion as Lord Brown as to the enduring effect of the decision on dangerousness made by the trial judge at the time of sentencing. At para 103 he said: As the court is required to make an informed predictive assessment at the date of sentence, and the justification for detention beyond the tariff period is found in the judgment of the court that an IPP is indeed necessary, I respectfully disagree with the views expressed by Laws LJ in the Divisional Court in R (Wells) v Parole Board [2008] 1 All ER 138, para 46 that what he described as further detention after the expiry of the tariff period was not at all justified by or at the time of sentence, for the very reason that the extent to which, or the time for which, the prisoner will remain a danger is unknown at the time of sentence . The justification for detention during the tariff period is of course spent; it is spent the moment the tariff expires. For the same reasons I am unable to accept the observations of Moses LJ in R (Lee) v Secretary of State for Justice in the Administrative Court [2008] EWHC 2326, para 22, no doubt reflecting the earlier judgment of Laws LJ, that the position of a prisoner whose level of dangerousness cannot be ascertained is the same as one who ceases to be a danger. The original justification for the sentence, namely his dangerousness, has ceased to exist. In my judgment detention beyond the tariff period is justified just because the sentencing court has decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence. The necessary predictive judgment will have been made. On one view the opinions of Lord Brown and Lord Judge as expressed in these passages suggest that the judgment, made at the time of sentencing that an IPP was required in order to protect the public, was not to be dislodged and remained fully effective until displaced by positive evidence, accepted by the Parole Board, that this was no longer the position. On that view, the circumstance that courses (which were the only means by which the prisoner might demonstrate his lack of dangerousness) had not been provided was neither here nor there. A softening of such a rigid stance can be detected, however, in other passages from the speeches of Lord Hope of Craighead, Lord Brown and Lord Judge. At para 51 Lord Brown said this: In my opinion, the only possible basis upon which article 5(1) could ever be breached in these cases is that contemplated by the Court of Appeal [2008] 1 WLR 1977, paras 61, 69 of their judgment namely after a very lengthy period without an effective review of the case. The possibility of an article 5(1) breach on this basis is not, I think, inconsistent with anything I said either in R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284 or in R (Cawser) v Secretary of State for the Home Department [2004] UKHRR 101. Cawser, it is important to appreciate, was a case all about treating the prisoner to reduce his dangerousness, rather than merely enabling him to demonstrate his safety for release. To my mind, however, before the causal link could be adjudged broken, the Parole Board would have to have been unable to form any view of dangerousness for a period of years rather than months. It should not, after all, be forgotten that the Act itself provides for two year intervals between references to the Parole Board. And at para 15 Lord Hope had said this: It is just possible to conceive of circumstances where the system which the statutes have laid down breaks down entirely, with the result that the Parole Board is unable to perform its function at all. In that situation continued detention could be said to be arbitrary because there was no way in which it could be brought to an end in the manner that the original sentence contemplated. At para 128 Lord Judge echoed the remarks of Lord Brown quoted at para 40 above when he said: I should perhaps add that, like Lord Brown, I should not exclude the possibility of an article 5(1) challenge in the case of a prisoner sentenced to IPP and allowed to languish in prison for years without receiving any of the attention which both the policy and the relevant rules, and ultimately common humanity, require. James v United Kingdom When the Court of Appeal gave judgment in the present case, the House of Lords decision in James was the most recent judicial pronouncement on whether a failure to provide courses by which prisoners might demonstrate their suitability for release could give rise to a breach of article 5(1). Two months after the Court of Appeal ruling, the European Court of Human Rights (ECtHR) handed down its judgment in James v United Kingdom (2012) 56 EHRR 399. The court did not agree with the finding of the House of Lords that the purposes of the 2003 Act did not include the rehabilitation of prisoners. At para 209 of its judgment the court said: The court is satisfied that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection. In the case of the IPP sentence, it is in any event clear that the legislation was premised on the understanding that rehabilitative treatment would be made available to those prisoners on whom an IPP sentence was imposed, even if this was not an express objective of the legislation itself. Indeed, this premise formed the basis upon which a breach of the Secretary of State's public law duty was found and confirmed (see paras 31, 104 and 107 above).The court accordingly agrees with the applicants that one of the purposes of their detention was their rehabilitation. Since the applicants in James did not have the opportunity to embark on rehabilitative courses, successful completion of which was indispensable to their establishing their suitability for release, their continued detention was found to be arbitrary. Significantly at para 221 the court said this: following the expiry of the applicants' tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses their detention was arbitrary and therefore unlawful within the meaning of article 5(1)1 of the Convention. The arbitrariness (and, on that account, the unlawful nature) of the continued detention stemmed from their detention while the means of bringing it to an end remained elusive for the prisoners. This was not directly related to the question of the causal link between the detention and the original sentence, however. The causal link survived. The sentence was imposed because of the perception that the prisoners posed a threat to the public if released. (The perception was grounded, at least to a certain extent, on a presumption built into the statute but it is unnecessary for present purposes to go into that). Until the risk of danger to the public could be dispelled the causal link with that part of the sentence which required the detention of the prisoner remained intact. It was because there was no means of ascertaining whether the danger had dissipated that the detention had become arbitrary. Logically, therefore, so soon as a means of assessing the risk of danger to the public became available through the courses which the prisoner was able to undertake, in order to demonstrate that he no longer constituted such a danger, the detention was no longer to be regarded as arbitrary. Thus, the court said in para 221 that until steps were taken to progress [the prisoners] through the prison system (emphasis added) with a view to enabling them to undertake courses that would reduce or eliminate the danger that they presented and until, thereby, they were able to demonstrate their suitability for release, their detention remained arbitrary. When the necessary steps were taken, detention which had until then been arbitrary, was no longer so. This analysis stands apart from the question of the causal link between the original sentence and the reasons for continued detention. The original sentence is premised on the existence of a danger to the public which must be extinguished before release is to be ordered. Until that extinguishment can be demonstrated, the reasons for the original sentence (and therefore the causal link) endure. But if one deprives the prisoner of the opportunity to show that the danger no longer obtains the detention is arbitrary, not because the causal link does not continue, but because the prisoner cannot show that the risk on which it is founded is no longer present. The lawfulness of the appellants detention is not to be approached, therefore, solely in terms of whether the causal link between his original sentence and his current detention has been broken. The essential question is whether he has had an opportunity to demonstrate that the reasons that he was considered to present a threat to society no longer apply. If he does not have such an opportunity, then clearly, on the authority of James v United Kingdom, his continued detention is arbitrary. Whether it follows that he must, therefore, be released is an altogether different question. In the present case it is clear that the appellant did indeed have an opportunity to show that he no longer posed a risk to the public. The Court of Appeals judgment dismissing his claim that the review of his detention was not compliant with article 5(4) disposes conclusively of that issue. He has had what has been found to be a fully ample chance to show that he can be safely released. There is, therefore, no question of his continued detention being arbitrary. Moreover, the review of the panels decision, foreshadowed in their ruling, is already under way and we were informed in the course of the hearing that this is likely to be completed soon. The more problematic, although, in terms of this case, academic, question is whether, if it is shown that a prisoner has not had a chance to demonstrate that his continued detention is no longer necessary and if, for that reason, that detention constitutes a violation of article 5(1) and he is therefore unlawfully detained, he must be released. In James v United Kingdom the ECtHR found that a detention which was arbitrary and unlawful could be restored to a condition of lawfulness by making accessible the courses whose unavailability were the cause of the arbitrary and unlawful detention. What is not completely clear from the judgment is whether, during the period that the detention was unlawful, the prisoners were entitled to be released. Observations made in para 217 of the courts judgment are somewhat ambiguous on the question whether release is the automatic consequence of a finding of violation of article 5(1): The court acknowledges that the IPP sentence was intended to keep in detention those perceived to be dangerous until they could show that they were no longer dangerous. The Government have suggested that, in these circumstances, a finding of a violation of article 5(1) as a result of the lack of access to appropriate treatment courses would allow the release of dangerous offenders who had not yet addressed their risk factors. The court accepts that where an indeterminate sentence has been imposed on an individual who was considered by the sentencing court to pose a significant risk to the public at large, it would be regrettable if his release were ordered before that risk could be reduced to a safe level. It is not immediately obvious whether the court was there indicating that such a regrettable eventuality should be avoided or that the outcome, although unwelcome, was inescapable. Since there was no violation of article 5(1) in this case and it is therefore unnecessary to reach a final conclusion on it, I would prefer to leave the decision on this vexed question for a future occasion when the issue arises directly. I would dismiss the appeal. I agree that this appeal must be dismissed for the reasons given by Lord LORD MANCE (with whom Lord Clarke, Lord Hughes and Lord Toulson agree) I add some words on the decision of the Fourth Section of the European Court of Human Rights in James v United Kingdom (2012) 56 EHRR 399, which, as Lord Kerr remarks, leaves at least one question problematic. On a straightforward reading of the European Convention on Human Rights, article 5(1) establishes the right to liberty and addresses the circumstances in which a person may be deprived of liberty, while article 5(4) provides that anyone deprived of his liberty has the right to speedy access to court and to a decision whether such deprivation was in circumstances permitted under article 5(1). James, like the present case, concerned prisoners whose detention was justified by the authorities on the ground that it constituted the lawful detention of a person after conviction by a competent court within article 5(1)(a). But, after the expiry of their tariff period, their continued detention also depended under domestic law upon whether or not they could satisfy the Parole Board that such detention was no longer necessary for the protection of the public. In the absence of appropriate available courses, they could not hope to satisfy the Parole Board of this. Nonetheless, under the relevant domestic law, the result was on the face of it that they remained lawfully detained under the original court sentence. Equally, nothing was stopping them going to court to test the validity of their detention, but it would not on the face of it have done them any good to do so. What they could and did in James do was seek by judicial review orders that they be provided with the courses that they needed. The House of Lords in James [2010] 1 AC 553 (sub nom R (Walker) v Secretary of State for Justice (Parole Board intervening)) recognised that prisoners in this invidious position had a public law entitlement to such orders by way of judicial review, but held that they had no complaint by reference to the Human Rights Convention rights. The European Court of Human Rights in finding that the circumstances also constituted a cause of complaint under the Convention had to locate the violation somewhere in the Convention. It located it in article 5(1): see paras 221 and 231 and holding (3). It did so on the basis that the detention was arbitrary and therefore unlawful under article 5(1) during the relevant periods of delay that is, during the periods after expiry of the relevant tariffs and before steps were taken to progress the prisoners through the system by moving them to first stage prisons where courses would be available, and also, in the case of Lee, during a subsequent period when he was still not offered any course: para 231. Two further issues were raised before the Court of Human Rights in James, under respectively articles 5(4) and 13. Under article 5(4), all three applicants complained that, because there had been no meaningful review of the legality of [the prisoners] post tariff detention as a result of the failure to operate a system [of courses] properly, there had been a violation of article 5(4): para 223. The court held that the complaint under article 5(4) gave rise to no separate issue, and said that it followed that it could not make any award in respect of the alleged violation of article 5(4): paras 226 and 243. It is not clear to me whether or not that means that the court thought that article 5(4) had been breached. The second further issue was raised under article 13 by Mr Wells and Mr Lee, but the court regarded article 5(4) as a lex specialis in relation to the more general requirements of article 13, and so dealt with this issue also under article 5(4): para 229. The complaint was that the obstacle under primary legislation to the prisoners release until they satisfied the Parole Board that they were no longer a public danger meant that, even if they had succeeded in their challenge to their detention, they would not have had any effective remedy in respect of the violation: para 224. In dealing with this, the court noted that Mr Wells and Mr Lee had been able to commence judicial review proceedings to obtain orders that they be provided with the relevant courses and that their commencement of such proceedings had led to their speedy transfer to first stage prisons for that purpose. Accordingly, they had failed to establish that the combination of the Parole Board and judicial review proceedings could not have resulted in an order for their release and, so, there had been no violation in this regard: para 232. This reasoning does not explicitly address the further five month delay in actually providing courses which Mr Lee suffered. But the underlying thinking may again be that Mr Lee could have commenced further judicial review proceedings which, in combination with the Parole Boards power to release once satisfied that he no longer presented a public danger, constituted an effective remedy. The courts reference in James to the detention as unlawful under article 5(1) during periods when courses were not being duly provided is problematic. It suggests that the circumstance identified in article 5(1)(a) that is the lawful detention of a person after conviction by a competent court had ceased to exist. If that were so, then logically that implies that the prisoner should have been at once released. In its forensic endeavour to persuade the Strasbourg Court not to find any violation of article 5(1), the United Kingdom Government itself suggested that a finding of such a violation would allow [logically, require] the release of dangerous offenders who had not yet addressed their risk factors: para 217. The court did not face up directly to the logic of this submission, but contented itself with saying that it would be regrettable if . release were ordered before that risk could be reduced to a safe level, adding only that However, this does not appear to be the case here: para 217. Although the submissions before the court took this extreme form, which much of the courts description of the issues echoed (see paras 175 onwards), I doubt whether it follows axiomatically from the courts judgment that a prisoner who was not being given appropriate courses could assert a right to release until such courses became available. The suggestion that this follows would lose its basis, if the court were to be understood as implying into article 5 an ancillary duty on the state to provide the courses which would enable prisoners to progress towards release in accordance with domestic law. That is in substance what the court was doing in, for example, para 206, where it said that it would be irrational to have a policy of making release dependent on a prisoner undergoing a treatment course without making reasonable provision for such courses. There are, I think, some other indications in the courts judgment in James that, if the matter had to be decided, the court would not expect that prisoners should be released during periods when courses were not being duly provided. First, the court said that the detention was only arbitrary and in breach of article 5(1) during the periods in which the prisoner were not progressed in their sentences (para 231) and that, once they had access to relevant courses their detention once again became lawful: para 244. It is difficult to think that the court would expect prisoners to be released for a period, eg until appropriate first stage prison places and courses were available, and then, by some mechanism, recalled. Second, there is the way in which the court dealt with Mr Wells and Mr Lees complaint that the pre condition to their release introduced by primary legislation, constituted by the requirement to satisfy the Parole Board that they were no longer a public danger, prevented them having an effective remedy under article 13. The court said nothing to question the legitimacy of this requirement during periods when courses were not available. On the contrary, it recited that Pursuant to the 1997 and 2003 Acts, the release of a prisoner sentenced to an IPP could be ordered by the Parole Board, having satisfied itself that the individual was no longer dangerous: para 231. It is however true that the court in its further reasoning was only concerned with, and accepted, the effectiveness of the judicial remedy available through the combination of the Parole Board and the judicial review proceedings which Mr Wells and Mr Lee actually took: para 232. Third, I find significant the courts reasoning in rejecting the claims to recover in respect of the violation of article 5(1) any damages over and above sums for distress and frustration: para 244. The court rejected such claims because, it said, it cannot be assumed that, if the violations in the present cases had not occurred, the applicants would not have been deprived of their liberty: para 244. That reasoning makes good sense, if the obligation to progress prisoners towards courses, which could facilitate their release, was an obligation ancillary to their continued detention. They would not be entitled to release, but they could claim damages for the ancillary and arbitrary failure to enable them to progress towards release. However, any damages claimed for loss of liberty (as distinct from damages for distress and frustration on account of the delays in providing courses) would depend upon showing that, had they been moved earlier to first stage prisons and given courses sooner, they would in fact have been released sooner. That, the court in effect said, had not been shown, and could not be assumed: para 244. This explanation of the courts reasoning loses force if the court thought that the prisoners should have been released during any periods when they were not being duly progressed through the prison system. On that basis, the prisoners continued detention would simply be illegitimate, and, as such, damages for wrongful detention should follow. It is not normally possible for a public authority, after a wrongful arrest or imprisonment, to argue that, if it had not been guilty of a wrongful arrest or imprisonment, then it could and would have taken different steps which would have achieved a rightful arrest or imprisonment. And, even if such an argument were possible, the onus would surely be on the public authority to show that it could and would have taken those different steps with that result. It would not be sufficient to put the onus on the wrongfully detained prisoners to show that the public authority could not or would not have taken such steps. So the courts statement that it cannot be assumed (para 244) that the prisoners would not anyway have been detained would not have been appropriate. obligation to progress the prisoners through the prison system arising by implication from, rather than directly under the terms of, article 5(1). Such a breach would not mean that the prisoners were entitled to be released, but would entitle them to recover any damages which they could show had been suffered as a result of that breach. If this were to be regarded as the correct analysis, then their continuing detention would continue to be legitimate under the Convention as well as under domestic law, until the Parole Board was satisfied that their detention was no longer necessary for the protection of the public. For these reasons, despite the courts description in para 221 of the detention as arbitrary and unlawful under article 5(1), I believe it to be well arguable that what was in truth being identified was a breach of an ancillary

UK-Abs

This appeal is about the jurisdiction of the High Court to grant bail. In 1973 Martin Corey was sentenced to life imprisonment for murdering two police officers. The respondent, the Secretary of State for Northern Ireland, released him on licence in 1992. The Secretary of State referred Mr Coreys case to the parole commissioners on 13 April 2010 to ask whether his licence should be revoked. The next day a single parole commissioner recommended that it should be. That recommendation was based on material the Secretary of State supplied, including confidential information from the security services. The Secretary of State accordingly revoked Mr Corys licence on 15 April 2010. Mr Corey was taken into custody the next day and has been in prison since then. Mr Coreys case was then referred, as required, to the commissioners. The Secretary of State provided information including a gist of material he had certified as confidential. The single commissioner who initially considered the case read these and the confidential material itself. In accordance with her recommendation, a full panel of commissioners considered Mr Coreys case at a closed hearing on 25 January 2011. His interests were represented by a special advocate, who, like the panel, was entitled to see a statement of all open and closed material relevant to the case, including anything undermining the Secretary of State's case. Mr Cory and his own legal representatives were allowed to see a similar statement in respect of the open material, but not of the closed material. On 15 August 2011 the panel gave both closed and open judgments. In the open judgment, they stated that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and was in a position of leadership in it from 2008 until his recall to prison. Since the panel were satisfied that Mr Corey posed a risk of serious harm to the public, they were required to refuse to direct his release. Mr Cory sought judicial review of the commissioners decision on the grounds (among others) (1) that the gist disclosed inadequate information and (2) that the refusal to direct his release had been based solely or to a decisive degree on the closed material and so breached article 5(4) of the European Convention on Human Rights. Article 5(4) provides, Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Mr Justice Treacy held on 9 July 2012 that the commissioners decision was indeed based solely or decisively on the closed material. He further found that the allegations in the open material were not specific enough to allow Mr Corey, through his lawyers and the special advocate, to refute them. The commissioners hearing therefore breached his right to procedural fairness under article 5(4). Instead of quashing the commissioners decision, however, Mr Justice Treacy directed them to reconsider the case in accordance with his ruling. He also gave Mr Corey bail pending their decision, since his detention would be in the meantime unlawful. The Secretary of State immediately applied for a stay of that order and appealed it. On 11 July 2012 the Court of Appeal decided that the judge did not have power to grant bail, and so stayed that grant. This Court granted Mr Corey permission to appeal on the bail issue. Meanwhile, the Court of Appeal allowed the Secretary of States appeal on the article 5(4) issue, which had been heard separately. The Court of Appeal concluded that the material which had been provided allowed Mr Corey to instruct his advisers effectively, and so article 5(4) was complied with. This Court refused Mr Corey permission to appeal on that issue. Whether the High Court could grant him bail is therefore academic, but important enough that this Court allowed the appeal to proceed on that issue. The Supreme Court unanimously dismisses Mr Coreys appeal. Lord Kerr, with whom the other Justices agree, concludes that the High Court in Northern Ireland has an inherent jurisdiction to grant bail [1819], provided certain conditions are met. The question is whether those conditions are met in this case. They are that it is (a) necessary for the effective disposal of Mr Coreys claim and (b) not contrary to the purpose or spirit of the legislation in question that the court should have power to order his release pending reconsideration of his case by the commissioners [2122]. The judges order that the review of Mr Coreys detention had not been conducted lawfully and that it should be reconsidered was, on its own terms, a full vindication of the right which the appellant had asserted. On that ground alone, the judge did not have power to order Mr Coreys release [27]. It is important to bear in mind that in the present case the lawfulness of Mr Coreys detention on foot of his recall to prison was not directly in issue. The focus of his challenge was to the commissioners failure to direct his immediate release and the manner in which their determination was made [25]. In any event, an inherent jurisdiction to order release in the circumstances of this case would run directly counter to the operation of the legislation in question in this case: the Life Sentences (Northern Ireland) Order 2001. One of the principal philosophies underlying the Order is expressed in article 6(4) which provides that the commissioners shall not direct a prisoners release unless satisfied that his confinement is no longer necessary to protect the public from serious harm. And article 3(2) requires that the commissioners have expertise from a variety of fields: one must hold or have held judicial office; one must be a psychiatrist; one must be a chartered psychologist; one must have experience of working with victims of crime; and must have expertise in the causes of delinquency or the treatment of offenders. This requirement reflects the need to have available a range of specialists who can contribute to what must often be a difficult debate as to whether the rigorous test set out in article 6(4) is satisfied. Put simply, the legislature has placed in the hands of a panel of experts the difficult decision as to when a life sentence prisoner should be released. Their role should not be supplanted by a judge who does not have access to the range of information and skills available to the commissioners [3133]. Lord Kerr notes in passing the European Court of Human Rights recent judgment in James v United Kingdom (2012) 56 EHRR 399, which appeared to suggest that, if a prisoner has not had a chance to take the steps necessary to meet the conditions for release, his detention would breach article 5(1) of the European Convention during those periods. Article 5(1) allows states to imprison people only when justified by law, and requires prisoners not lawfully detained to be released. Since it is unnecessary to decide the question in this case, Lord Kerr would defer decision on it until necessary. Lord Mance, with whom the remaining Justices agree, suggests that James should be interpreted as arising only from a secondary obligation, implied by article 5(1), to progress prisoners through the prison system. Such a breach would not require a prisoner to be released, but would entitle him to damages. These observations do not form part of the reasoning on which the judgment in this case was based.

These proceedings arise out of a fatal accident in Germany. On 21 May 2004, Major Christopher Cox, an officer serving with H.M. Forces in Germany, was riding his bicycle on the verge of a road near his base when a car left the road and hit him, causing injuries from which he died. The driver was Mr Gunther Kretschmer, a German national resident and domiciled in Germany. He was insured by the respondent, a German insurance company, under a contract governed by German law. The appellant, Major Coxs widow Katerina, was living with him in Germany at the time of the accident. After the accident, she returned to England where she has at all relevant times been domiciled. Since then, she has entered into a new relationship and has had two children with her new partner. It is common ground that the liabilities of Mr Kretschmer and his insurer are governed by German law. It is also common ground that under paragraph 3(1) of the Pflichtversicherungsgesetz, Mrs Cox had a direct right of action against Mr Kretschmers insurer for such loss as she would have been entitled to recover from him. That being so, the combined effect of articles 9 and 11 of Regulation EC 44/2001 is that she is entitled to sue the insurer in the courts of the member state where she is domiciled. She has availed herself of that right by suing the insurers in England for bereavement and loss of dependency. Liability is not in dispute, but there is a number of issues relating to damages. Their resolution depends on whether they are governed by German or English law, and if by English law, whether by the provisions of the Fatal Accidents Act 1976 or on some other basis. Mrs Cox relies on both English and German law. The question which law applies was ordered to be tried as a preliminary issue, together with other issues which are no longer in dispute. German and English law In German law, the extent of Mrs Coxs recoverable loss is governed by section 844 of the Brgerliches Gezetzbuch (or BGB). Section 844(2) provides, so far as relevant: If the person killed, at the time of the injury, stood in a relationship to a third party on the basis of which he was obliged or might become obliged by operation of law to provide maintenance for that person and if the third party has as a result of the death been deprived of his right to maintenance, then the person liable in damages must give the third party damages by payment of an annuity to the extent that the person killed would have been obliged to provide maintenance for the presumed duration of his life. Sir Christopher Holland, who decided the preliminary issues in the High Court, heard expert evidence about the effect of section 844(2) and made a number of findings: [2011] EWHC 2806 (QB). These findings have not themselves been appealed, and provide the point of departure for the questions before us. In summary, Sir Christopher held that the object of section 844 of the BGB was to restore the claimant to the financial position that she would have been in as a dependant of the deceased, but for his death, taking account of any subsequent benefits received which impact on the loss of dependancy, apart from insurance recoveries. These subsequent benefits may include the income that the claimant has made or would be likely to make by taking paid employment, together with any maintenance accruing to the claimant through her remarriage or through some other relationship following the birth of a child. Fundamental to the foregoing, he found, at para 17, is a substantive requirement of German law: the duty to mitigate, such justifying ongoing reference to her earning capacity and to benefits accruing from remarriage or from a similar relationship. Broadly speaking, German law on the damages recoverable for a fatal accident corresponds to the general principles applied at common law to the recoverability of damages in tort, which require the claimant to be put into a financial position equivalent to that which she would have been in but for the wrong. To that end, account must be taken of avoided or reasonably avoidable loss. In England, however, the law relating to liability for fatal accidents is almost entirely statutory. Before 1846, English law did not permit actions in tort for the death of a human being. This was the combined result of two rules of common law. The first was that the right of action of a person who had been tortiously injured was a personal action, which did not survive for the benefit of his estate upon his death. This rule survived until 1934, when it was abolished by the Law Reform (Miscellaneous Provisions) Act. The second rule was that [i]n a civil court, the death of a human being could not be complained of as an injury by dependants claiming in their own right: Baker v Bolton (1808) 1 Camp 493 (Lord Ellenborough). This is still the rule at common law, but it was largely superseded by the Fatal Accidents Act 1846 (Lord Campbells Act), which created a new statutory cause of action in favour of certain categories of dependant, including widows. The 1846 Act was repeatedly amended, elaborated and re enacted, and the statutory cause of action is now contained in section 1(1) and (2) of the Fatal Accidents Act 1976. These statutory provisions remain the sole legal basis on which a claim can be made for bereavement or loss of dependency in English law. The common law background explains the rather tortured form of sections 1(1) and (2) of the Fatal Accidents Act 1976. They provide: Right of action for wrongful act causing death (1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured. (2) Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person (the deceased) whose death has been so caused. For this purpose a dependant means someone falling within the categories defined in section 1(3), including the widow (or widower) of the deceased (section 1(3)(a)), a civil partner (section 1(3)(aa)), or a person who for at least two years before the death had been living with the deceased in the same household as the deceaseds spouse or civil partner (section 1(3)(b)). Lord Campbells Act contained no provisions relating to damages, but over the years such provisions have been added in the course of successive amendments and re enactments. In particular, substantial changes were made in 1976 and 1982. For present purposes, the relevant provisions relating to pecuniary loss are sections 3 and 4 of the Act of 1976, as amended by the Administration of Justice Act 1982. They provide: 3. Assessment of damages. (1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively. (3) In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re marriage of the widow or her prospects of re marriage. 4. Assessment of damages: disregard of benefits. In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded. Turning to non pecuniary loss, section 1A of the Fatal Accidents Act provides that an action under section 1(1) may consist of or include a claim for damages for bereavement by certain categories of dependent defined by section 1A(2), including a widow. Damages for bereavement are expressly excluded from the general rule of damages in section 3(1). This is because they are awarded as a lump sum, effectively a solatium, fixed by section 1A(2) and (5). These provisions are said to reflect a principle that the extent of any dependency is fixed at the moment of the death, and that anything which might otherwise be thought to affect it afterwards is legally irrelevant. For my part I would rather leave open the question whether that is a correct or helpful analysis of the Act. What is clear is that sections 3 and 4 mark a departure from the ordinary principles of assessment in English law, which can fairly be described as anomalous. They provide for what Lord Diplock in Cookson v Knowles [1979] AC 556, 568, called an artificial and conjectural exercise whose purpose is no longer to put dependants, particularly widows, in the same economic position as they would have been in had their late husband lived. Others have gone further. Atiyahs Accidents, Compensation and the Law, 8th ed (2013), described damages for bereavement as highly objectionable (p 89) and the exclusion of maintenance from a subsequent remarriage as one of the most irrational pieces of law reform ever passed by Parliament (p 133). There are two relevant respects in which an award under the Fatal Accidents Act may differ from an award under the BGB: (1) Damages awarded to a widow under the BGB will take account of any legal right to maintenance by virtue of a subsequent remarriage or a subsequent non marital relationship following the birth of a child. Section 3(3) of the Fatal Accidents Act expressly excludes remarriage or the prospect of remarriage as a relevant consideration in English law. (2) Section 844 of the BGB confers no right to a solatium for bereavement. Under section 823 of the BGB the widow may in principle be entitled to compensation for her own pain and suffering, but this would require proof of suffering going beyond normal grief and amounting to a psychological disturbance comparable to physical injury. Choice of law: the legal framework English rules of private international law distinguish between questions of procedure, governed by the law of the forum, and questions of substance, governed by the lex causae. The issue in the present case is whether Mrs Cox is entitled to rely on the provisions of sections 3 and 4 of the Fatal Accidents Act 1976. They provide for a measure of damages substantially more favourable to her than the corresponding provisions of German law, mainly because of the more favourable rule concerning the deduction of maintenance from her current partner. This issue depends on whether the damages rules in sections 1A and 3 of the Fatal Accidents Act fall to be applied (i) on ordinary principles of private international law as procedural rules of the forum, or (ii) as rules applicable irrespective of the ordinary principles of private international law. Procedure or substance? The Private International Law (Miscellaneous Provisions) Act 1995 partially codifies the law relating to the choice of law in tort. Sections 9 to 15 of that Act apply to determine the law applicable to causes of action in tort in all cases which are not governed by the Rome II Regulation EC 864/2007. Major Coxs death having occurred before the Regulation came into force, any cause of action arising out of it is governed by those provisions. The combined effect of sections 9, 11(2)(a) and 12 of the Act is that issues arising on a cause of action in respect of personal injury are to be determined according to the law of the place where Major Cox was when he suffered the injury, i.e. Germany, unless that law is displaced on the ground that the tort has substantially more significant connections with England. These rules are, however, subject to section 14(3)(b), which provides that nothing in Part III affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum. The effect of the proviso is to preserve the distinction between substance and procedure. The leading case is the decision of the House of Lords in Harding v Wealands [2006] 2 AC 1. The appeal arose out of an action in England for personal injury caused by a road accident in New South Wales. Under New South Wales law, damages were limited by the Chapter V of the Motor Accidents Compensation Act 1999 (known as the MACA). Section 123 of the MACA provided that [a] court cannot award damages to a person in a respect of a motor accident contrary to this Chapter. The Chapter then provided for a fixed limit to the damages and a number of detailed rules for awarding them. These included an exclusion of the first five days of earning capacity, an exclusion of economic loss, a specified discount rate to be used to calculate lump sum awards, and a rule requiring credit to be given for payments received from an insurer. The House rejected the view that in section 14(3)(b) of the Act of 1995, questions of procedure referred only to rules governing the manner in which proceedings were to be conducted. They distinguished between questions of recoverability (substantive) and questions of assessment (procedural). At common law the kinds of damage recoverable was a question of substance, whereas their quantification or assessment went to the availability and extent of the remedy and as such were questions of procedure for the law of the forum. The House classified all the relevant provisions of the MACA as rules of procedure. They were accordingly inapplicable to litigation in England. The leading speech was delivered by Lord Hoffmann, with whom the rest of the House agreed. Lord Hoffmann stated the principle at para 24 as follows: In applying this distinction to actions in tort, the courts have distinguished between the kind of damage which constitutes an actionable injury and the assessment of compensation (ie damages) for the injury which has been held to be actionable. The identification of actionable damage is an integral part of the rules which determine liability. As I have previously had occasion to say, it makes no sense simply to say that someone is liable in tort. He must be liable for something and the rules which determine what he is liable for are inseparable from the rules which determine the conduct which gives rise to liability. Thus the rules which exclude damage from the scope of liability on the grounds that it does not fall within the ambit of the liability rule or does not have the prescribed causal connection with the wrongful act, or which require that the damage should have been reasonably foreseeable, are all rules which determine whether there is liability for the damage in question. On the other hand, whether the claimant is awarded money damages (and if so, how much) or, for example, restitution in kind, is a question of remedy. This reflected the test previously stated by the majority of the House of Lords in Boys v Chaplin [1971] AC 356. Lord Hoffmann, following the decision of the High Court of Australia in Stevens v Head (1993) 176 CLR 433, characterised all the relevant provisions of the MACA as procedural. This seems surprising as regards some of them, such as the exclusion of economic loss, which would appear to be substantive according to Lord Hoffmanns test. This may be why in their concurring judgments Lord Woolf and Lord Rodger of Earlsferry justified this classification not only on the grounds given by Lord Hoffmann but on additional grounds. Lord Woolf at para 11 considered that because the greater part of the provisions of the MACA relating to damages were procedural, the rest which were arguably substantive should be regarded as procedural also. Lord Bingham and Lord Carswell agreed with Lord Rodger as well as Lord Hoffmann. Lord Rodger found the answer in the opening words of section 123 of the MACA. He put the point as follows at para 73: Section 122(1) of MACA explains that Chapter 5 applies to, and in respect of, an award of damages relating to death or injury in motor accidents. Section 123 provides that: A court cannot award damages to a person in respect of a motor accident contrary to this Chapter. While, of course, it may be necessary to look beneath the surface of a statutory provision to ascertain its nature, the legislature is here signalling that the provisions in Chapter 5 are directed to what a New South Wales court can award by way of damages. In other words, prima facie at least, they are concerned, not with the scope of the defendant's liability for the victims injuries as such, but with the remedy which the courts of New South Wales can give to compensate for those injuries. For purposes of private international law, prima facie they are procedural in nature. In Harding v Wealands, it was being contended that damages for a New South Wales tort should be awarded in accordance with a New South Wales statute. The present is the converse case, because what is being suggested is that damages for a German tort should be awarded in accordance with an English statute. It is therefore necessary to consider the damages rules of both laws. I consider that the relevant German damages rules are substantive. This is because they determine the scope of the liability. Sir Christopher Holland has found that the rule of German law requiring credit to be given for maintenance received from a subsequent partner, reflects the principle requiring the victim of a tort to mitigate loss and to give credit for successful mitigation. In German law this is classified as a substantive rule. Its classification in an English court is a question of English law, but English law would regard it in the same light. Questions of causation are substantive, as Lord Hoffmann pointed out in the passage which I have quoted from Harding v Wealands. Such questions include questions of mitigation, because they determine the extent of the loss for which the defendant ought fairly, reasonably or justly to be held liable. The inquiry is whether the plaintiffs harm or loss should be within the scope of the defendants liability, given the reasons why the law has recognised the cause of action in question: Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, at para 70 (Lord Nicholls of Birkenhead). The rule of German law which makes damages available for psychological distress in certain circumstances, and makes damages for bereavement as such unavailable, is also substantive. These are paradigm examples of rules governing the recoverability of particular heads of loss, the avoidance of which lies within the scope of the defendants duty. Turning to the categorisation of the relevant damages provisions of the Fatal Accidents Act, the Court of Appeal considered that they were procedural. Having arrived at this conclusion, they were much exercised by the difficulty of applying the damages rules of the Fatal Accidents Act to a cause of action under section 844 of the BGB, given the considerable differences between them; and the absence of any alternative basis for assessing damages for wrongfully causing death under English law. The majority considered that the damages rules in the Act could not be regarded as relevant to an assessment of damages for the German cause of action, because the conceptual differences between the English and German causes of action were too great. They therefore held that English law should adopt the German damages rules as its own and apply them not directly but by analogy. Dame Janet Smith dissented on the ground that in her opinion the Fatal Accidents Act applied as part of the lex fori, notwithstanding the differences between the English and German causes of action. There are certainly cases in which English law has no suitable remedy for breach of a foreign law duty. As Lord Parker CJ observed in Phrantzes v Argenti [1960] 2 QB 19, 35, to be available in support of a foreign cause of action, the remedies afforded by English law must harmonise with the right according to its nature and extent as fixed by the foreign law. But the ordinary consequence if it does not is that English law cannot give effect to the foreign cause of action at all, which was why Lord Parker declined in that case to order a father to provide the dowry to which his daughter would have been entitled under the law of Greece where the father was assumed to be domiciled. I agree with the majority of the Court of Appeal that the damages rules of the Fatal Accidents Act cannot be applied to a cause of action under section 844 of the BGB, but for an altogether simpler reason than the conceptual differences between the two laws. In my view it is unnecessary to engage in the difficult and technical task of classifying sections 1A, 3 and 4 of the Fatal Accidents Act as procedural or substantive, because these sections are irrelevant in either case. So far as they are substantive, they are irrelevant because the substantive law in this case is German law. But whether they are procedural or substantive, they do not apply under their own terms. These provisions do not lay down general rules of English law relating to the assessment of damages, even in personal injury actions, but only rules applicable to actions under the Act itself. Sections 1A, 3(3), 3(4) and 4, which include the provisions relevant to the present appeal, apply only to an action under this Act, i.e. to actions brought under section 1. The context shows that the same is true of the other provisions of section 3 (in the action). An action to enforce a liability whose applicable substantive law is German law is not an action under section 1 of the Fatal Accidents Act to which the damages provisions of the Act can apply. If the English court must apply its own rules of assessment, then what rules are these, if not those of the Fatal Accidents Act? I do not think that it is necessary to resort to analogies, because English law does provide a remedy that harmonises with the German law right, namely damages. Mr Kretschmer committed a tort under German law, and thereby incurred a substantive liability to pay financial compensation. The principal head of loss for which he was liable to compensate Major Coxs widow was the deprivation of the net financial benefit to her of her legal right to maintenance from him. This is entirely cognate with the corresponding remedy in English law. It is true, as the Court of Appeal pointed out, that because the cause of action in English law for a fatal accident is an action under section 1 of the Act, there is no non statutory measure of damages for fatal accidents. But this does not matter. If, as I consider, the particular rules of assessment in the Fatal Accidents Act do not apply as a matter of construction of the Act, then the answer must be sought in the rules of assessment which apply generally in English law in the absence of any statute displacing them. The relevant English law principle of assessment, which applies in the absence of any statute to the contrary, is that Mrs Cox must be put in the same financial position, neither better nor worse, as she would have been in if her husband had not been fatally injured. It follows that even if one assumes, for the sake of argument, that the Court of Appeal were right to regard the damages rules of the Act as procedural, in principle credit must be given for maintenance from her subsequent partner during the period since the birth of their child. This is because damages at common law are assessed on the footing that credit must be given for receipts referable to the original loss, with very limited exceptions such as insurance receipts which are not relevant in this case. The only potential difficulty concerns Mrs Coxs receipt of maintenance from her current partner during the period before they had a child, when he was under no legal obligation to maintain her either in German or in English law. It appears from Sir Christopher Hollands findings about the relevant German law that it is not just the maintenance that she would have received from Major Cox that must have been received by virtue of a legal obligation, but also the maintenance from her current partner for which she can be required to give credit. The classification of a damages rule regulating the receipts for which credit must be given in an award of damages is a difficult question which admits of no universal answer. In some cases, such a rule will be classed as part of the law of mitigation and therefore substantive. In some cases it will be regarded as a rule excluding an otherwise relevant element from a purely factual issue about quantum, which would normally be classified as procedural: see Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304, para 23, and Coupland v Arabian Gulf Oil Co [1983] 1 WLR 1136, 1149, concerning a foreign statutory rule about the deductibility of social security receipts. In the present case, the rule in question seems to me to be substantive for a reason peculiar to the nature of the German cause of action relied upon in this case. Mrs Cox is entitled as a matter of German substantive law to an award of damages for the loss of her legal right of maintenance from her late husband. German law requires credit to be given so far as she has received corresponding benefits by virtue of an alternative legal right of maintenance from someone else. This follows from the nature of the duty in German law and of the head of damages recoverable for breach of it. It is a rule of substantive law. Purely voluntary payments from someone with no legal obligation to make them cannot be regarded as an alternative to what she has lost. It follows that credit need not be given for it. It is not at all satisfactory that such significant consequences should turn on difficult and technical considerations of the kind considered in the previous paragraph. Under the law as it stood at the time of this accident, it was at least in theory possible that assessment rules of the forum could conflict with the substantive rules of the proper law. How that conflict should be resolved if it ever arose is a question on which I should prefer to express no opinion. The rational answer is that someone in Mrs Coxs position should recover in respect of a German cause of action what she would have recovered in a German court. This has now been achieved by changing the law. Section 15A of the Act of 1995 (added by amendment in 2008) applies the Rome II Regulation EC 864/2007 to causes of action arising after 11 January 2009. Article 15(c) of the Regulation applies the applicable law to the existence, the nature and the assessment of damage or the remedy claimed. Overriding effect of English law Before us, this point has enjoyed greater prominence than it had in the courts below, but I reject it as the Court of Appeal did. If my reasons for doing so are more elaborate than theirs, this is only because it has been more elaborately argued. Section 14(3)(a)(i) of the Private International Law (Miscellaneous Provisions) Act 1995 provides: Nothing in this Part. authorises the application of the law of a country outside the forum as the applicable law for determining issues arising in any claim in so far as to do so. would conflict with principles of public policy. Section 14(4) provides: This Part has effect without prejudice to the operation of any rule of law which either has effect notwithstanding the rules of private international law applicable in the particular circumstances or modifies the rules of private international law that would otherwise be so applicable. Mr Layton argued that the Fatal Accidents Act 1976 should be applied notwithstanding the ordinary rules of private international law, for two reasons. His first submission was that as a matter of construction that Act had extraterritorial effect. His second submission was that the principles enacted in Fatal Accidents Act represented mandatory rules of English law, applicable irrespective of ordinary rules of private international law. For reasons that will become apparent, I regard both submissions as raising the same issue in the circumstances of this case, and as requiring the same negative answer. Extra territorial application Whether an English statute applies extra territorially depends upon its construction. There is, however, a presumption against extra territorial application which is more or less strong depending on the subject matter. It arises from the fact that, except in relation to the acts of its own citizens abroad and certain crimes of universal jurisdiction such as torture and genocide, the exercise of extra territorial jurisdiction is contrary to ordinary principles of international law governing the jurisdiction of states. It follows, as Lord Scarman observed in Clark v Oceanic Contractors Inc [1983] 2 AC 130, 145, that unless the contrary is expressly enacted or so plainly implied that the courts must give effect to it, United Kingdom legislation is applicable only to British subjects or to foreigners who by coming to the United Kingdom, whether for a short or a long time, have made themselves subject to British jurisdiction. It is, however, important to understand what is meant when we talk of the extra territorial application of an English statute. There are two distinct questions, which are not always distinguished in the case law. The first question is what is the proper law of the relevant liability. The answer will usually depend on the extent of any connection between the facts giving rise to liability and England or English law. If the proper law of the liability is English law, no question of extra territorial application arises. In principle the exercise is no different from that which the court performs when it identifies the proper law of a non statutory tort, by reference to the connection between the facts and the various alternative systems of law. This is what Lord Hodson (at p 380) and Lord Wilberforce (at pp 390 392) did in Boys v Chaplin [1971] AC 356, when they held that liability in respect of a road accident in Malta in which only English parties were involved was governed by English law. The same basic principle has applied under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 since that Act came into force. The second question is one of extra territorial application, properly so called. It is the question posed by section 14(3)(a)(i) and 14(4) of the Private International Law (Miscellaneous Provisions) Act 1995, which had its counterpart in the common law, namely whether the choice of law arrived at in accordance with sections 11 and 12 is displaced by some mandatory rule of the forum. This is not a choice of law principle at all, but turns on the overriding rules of policy of the forum. In the present case it is common ground that the lex causae arrived at on ordinary principles of private international law is not English but German law. There is nothing in the language of the Fatal Accidents Act 1976 to suggest that its provisions were intended to apply irrespective of the choice of law derived from ordinary principles of private international law. Such an intention would therefore have to be implied. Implied extra territorial effect is certainly possible, and there are a number of examples of it. But in most if not all cases, it will arise only if (i) the terms of the legislation cannot effectually be applied or its purpose cannot effectually be achieved unless it has extra territorial effect; or (ii) the legislation gives effect to a policy so significant in the law of the forum that Parliament must be assumed to have intended that policy to apply to any one resorting to an English court regardless of the law that would otherwise apply. There is a body of case law in which the Fatal Accidents Acts have been applied to accidents outside England. In Davidsson v Hill [1901] 2 KB 606, the Fatal Accidents Act 1846 was applied to the death of a foreign seaman on a foreign ship, resulting from a collision with a British ship on the high seas. The reason was that the existence of a cause of action in favour of dependants of a person negligently killed was regarded as a universal principle which should be treated as part of the international law maritime: see Kennedy J at pp 610, 614 and Phillimore J at pp 616, 618. In The Esso Malaysia [1975] 1 QB 198, 24 Russian crewmen serving on a Latvian trawler were killed when it collided with a Panamanian tanker on the high seas. Jurisdiction was established in England by arresting a sister ship. Brandon J held, following Davidsson v Hill, that the rule which imposed liability for negligently causing a fatal injury was a universal rule of the law maritime. On that footing, the Fatal Accidents Act 1846 applied, because its effect was not to create new rules of conduct, but only to regulate the consequences of existing rules of conduct: see p 206. These cases depend, in my opinion, on (i) the existence of an international principle of liability for negligent acts, which is to be regarded as part of the law maritime, coupled with (ii) the absence of any more appropriate system of law than English law to govern the precise incidents, extent and conditions of that liability. The peculiarity of the cases about collisions in international waters lies in the absence of any relevant connection between the breach of duty and the territory of any state, or of any underlying relationship between the parties, from which some more appropriate choice of law could be derived. In Roerig v Valiant Trawlers [2002] 1 WLR 2304, sections 3 and 4 of the Fatal Accidents Act 1976 were also applied, but on a different basis. There were relevant connections with English law because the accident occurred on a British vessel with no other vessel involved, and also with Dutch law because the vessel was operating out of the Netherlands and the deceased was a Dutchman working for a Dutch company. The Dutch factors were held to be insufficiently significant to displace the lex loci delicti, which was English. These cases all, in different ways, turn on the choice of law arising from the circumstances of the case. None of them were about the extra territorial effect of any statute. Indeed, in The Esso Malaysia at p 207, Brandon J declined to consider that question. The relevant principle emerges perhaps more clearly from the case law on the application of the United Kingdoms scheme of statutory employment protection to employment with a foreign element. In Lawson v Serco Ltd [2006] ICR 250, the House of Lords heard three cases in which claims were made for unfair dismissal under section 94 of the Employment Rights Act 1996. Two of them had been brought by British nationals employed by the Ministry of Defence at overseas military bases. The third was brought by a pilot employed on international routes. His employer was a Hong Kong airline, but he was based at Heathrow airport. It was held that as a general rule the application of section 94 should depend on whether the employee was working in England when he was dismissed, but that exceptionally the Act might be applied where the employment relationship was substantially connected with the United Kingdom. This was held to be the case where a peripatetic employee was based in England, or an employee was hired in England to work in an extra territorial enclave of the United Kingdom overseas. The employee therefore succeeded in all three cases. Lord Hoffmann, with whom the rest of the House agreed, identified the relevant question at para 1: Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair? Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] ICR 1312, did not concern an extra territorial enclave of the United Kingdom. The employees were teachers employed by the Secretary of State to work in European schools abroad. But the Supreme Court treated the result in Lawson v Serco Ltd as illustrative of a broader principle that employment abroad might exceptionally have such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal. (Baroness Hale at para 16). In Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389, the employment tribunal was held to have jurisdiction to determine a claim under section 94 by an employee based in Scotland but employed for periods of 28 days at a time at oil installations in Libya. The Supreme Court, treated the result in Lawson v Serco Ltd as an example of the same broader principle. Lord Hope expressed it as follows, at para 27: the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. Like the cases about maritime torts, these cases turn on the choice of law, not on the extra territorial effect of the Employment Rights Act. The Fatal Accidents Act is an unpromising candidate for implied extra territorial effect. In the first place, the question of extra territorial application could not have been an issue at the time when the Act of 1976 and its predecessors were passed. This is because actions brought in England on a foreign tort were then subject to the double actionability rule, which was a procedural rule requiring the conduct alleged to be actionable under English law as well as by its proper law. The practical effect of the rule was not to displace the law governing the tort, but to make it pointless ever to rely on that law because the elements of the tort in English law had to be satisfied anyway. The double actionability rule had its origin in Philips v Eyre (1870) LR 6 QB 1, and was no doubt based on the tacit instinct of English judges that they should not be required to enforce values underlying the law of tort in foreign countries, which might not be acceptable in England. The Private International Law (Miscellaneous Provisions) Act of 1995 abolished the double actionability rule and introduced rules requiring English courts to apply to claims in tort the law which had the most significant connection with the wrong, subject to an altogether more limited saving for the public policy of the forum applicable only in those cases where a specific foreign law was found to be repugnant to the policy of the forum. Secondly, the whole purpose of section 1 of the Fatal Accidents Act, was to correct an anomaly in the English law of tort. There is nothing in the mischief of this legislation which requires it to be applied to fatal accidents which, being governed by foreign laws, are unlikely to exhibit the same anomaly. If there is no reason of policy to apply section 1 to foreign torts, there can be no better reason to apply sections 1A, 3 and 4, which depend on section 1. Thirdly, there is no reason whatsoever why Parliament should have intended the Fatal Accidents Act to apply to foreign fatal accidents with no connection to England or English law. Neither the terms nor the purpose of the Act depend for their effect on its having extra territorial effect. The only other basis for imputing to Parliament an intention to apply the Fatal Accidents Act internationally irrespective of ordinary rules of private international law, is that the Act, and in particular its damages rules, represent a mandatory rule. This is the expression commonly employed to describe what the Law Commissions of England and Scotland have called rules of domestic law regarded as so important that as a matter of construction or policy that they must apply in any action before a court of the forum, even where the issues are in principle governed by a foreign law selected by a foreign choice of law rule: Law Commission and Scottish Law Commission Working Paper no. 87 (1984), para. 4.5. Section 14(3)(a)(i) an 14(4) of the Private International Law (Miscellaneous Provisions) Act 1995 have the effect of saving such rules. Some foreign laws governing the availability of damages for fatal accidents may no doubt be so offensive to English legal policy that effect would not be given to them in an English court. A rule of foreign law that women or ethnic minorities should have half the damages awardable to white males similarly placed was cited as an example. But the German rules with which this case is concerned are based on a perfectly orthodox principle which is by no means unjust and is accepted in principle by English common law in every other context than statutory liability for fatal accidents. Mandatory rules It must follow from my reasons for rejecting the implied extra territorial application of the Fatal Accidents Act that Mr Laytons second submission, based on the mandatory character of the rules contained in the Fatal Accidents Act, also fails. Conclusion Since my reasons differ in some respects from those of both courts below, the declarations may require some redrafting. I would leave the exact wording to be agreed by counsel. Subject to that, I would dismiss Mrs Coxs appeal. LORD MANCE Mrs Cox claims in respect of the accident in Germany on 21 May 2004 which caused the death of her husband. The substantive law governing the relevant tort is German. But, like the claimant in Harding v Wealands [2007] 2 AC 1, Mrs Cox submits that English law more specifically the provisions of the Fatal Accidents Act 1976 (the FAA) should apply in relation to the issues of damages which arise. In the alternative, she relies on article 844 of the German Civil Code (the BGB). The relevant substantive law I agree with Lord Sumption that the principles by which damages are recoverable by Mrs Cox are those established by article 844 BGB. The decision of the Court of Appeal should be upheld, albeit by different reasoning to that which it adopted and with corresponding variation of the declarations made, as Lord Sumption indicates in para 36. I agree in particular with Lord Sumptions conclusion in paras 17 and 22 that the German rule under article 844 requiring credit to be given only for maintenance received as a matter of legal right from a subsequent partner is a rule of substantive, rather than procedural, law. The distinction between substance and procedure originated in the common law and was preserved by the Private International Law (Miscellaneous Provisions) Act 1995, which applies in this case. (The distinction has, for torts committed since 11 January 2009, been, happily, superseded by Rome II Regulation EC 864/2007, article 15(c).) The distinction was discussed, as Lord Sumption notes, in Boys v Chaplin [1971] AC 356 and Harding v Wealands [2007] 2 AC 1. It was, as Lord Rodger noted in Harding v Wealands, para 65, a distinction drawn for private international law purposes, and it had in that context a somewhat special meaning. The distinction applies in the present case when examining both the nature of the German rules under article 844 BGB and the nature of sections 3 and 4 of the FAA. For the purposes of the distinction, substance includes the identification of heads of recoverable loss, such as pain and suffering (see Boys v Chaplin itself) and loss of consortium (solatium): see MElroy v MAllister 1949 SC 110, cited in Boys v Chaplin, p 82B E, per Lord Guest, and see p 389E, per Lord Wilberforce. It further includes, as Lord Hoffmann stated in Harding v Wealands, para 24, the rules governing causation and remoteness and, as Lord Rodger accepted at para 74, traditionally also mitigation. The rules governing these matters are, as Lord Hoffmann indicated in para 24, rules which determine the scope of a defendants liability, or for what he is liable. When Lord Hoffmann referred in this connection to what he previously had occasion to say, he was clearly referring to South Australia Asset Management Sorpn v York Montague Ltd (SAAMCO) case [1996] UKHL 10, [1997] AC 191, where the House limited the scope of a surveyors liability for a negligent over valuation to such loss as flowed from the over valuation excluding, in effect, the further consequences of subsequent market fall as well as any increased risk of default. A similar description of the substantive principles on which damages fall to be awarded is found in Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883. Lord Nicholls there stated that the value judgment, concerning the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable, involves the law setting a limit to the causally connected losses for which a defendant is to be held responsible under heads such as remoteness and mitigation (para 70), and involves asking [i]n respect of what risks or damages does the law seek to afford protection by means of the particular tort (para 71). I agree with Lord Sumptions comments in para 15 on the reasoning and decision in Harding v Wealands. The House of Lords there refused in English proceedings to apply chapter 5 of the Motor Accidents Compensation Act (MACA), which would have regulated the damages recoverable had the matter been litigated in Australia. The application of the difficult distinction between substantive and procedural issues may on the facts of that case appear in some respects questionable. What is presently interesting is the acceptance by members of the House of Lords that the relevant chapter, chapter 5, contained provisions that traditionally fall on the substantive side of the line for purposes of private international law: per Lord Rodger, para 74, and see per Lord Woolf, para 11. Yet both held (paras 11 and 77), with Lords Bingham and Carswell agreeing (paras 1 and 79), that chapter 5 was a code the whole of which was to be characterised as procedural. Lord Hoffmann, with whose speech Lords Bingham and Carswell also agreed, identified in para 17 the relevant parts of chapter 5. These included a requirement that credit be given for payments made to the claimant by an insurer on its face a mitigating receipt. The most convincing explanations of the House of Lords decision that all aspects of the MACA were procedural seem to me in these circumstances either the package argument accepted by Lord Woolf (para 11) and perhaps also the argument that the MACA was a remedy intended only for use in Australian courts argument (see per Lord Rodger, para 75). Neither explanation affects the relevance or applicability of article 844 BGB as part of the relevant substantive law on the facts of this case. The Fatal Accidents Act 1976 (The FAA) Lord Sumption describes the development of English law in this area in paras 6 to 10 and the differences between an award under the FAA and under article 844 BGB in para 11. The FAA creates a new cause of action in favour of dependants (and in favour of a spouse in respect of bereavement): Seward v Vera Cruz (1884) 10 App Cas 59, 67, per Lord Selborne LC; Davidson v Hill [1901] 2 KB 606, 614. Any claim for pain, suffering or other loss suffered by the deceased before death is distinct from these new claims for loss or dependency and bereavement. This is so even though these new claims only arise where the deceased would, if death had not ensued, have had a claim for damages for any loss he or she incurred. That is a mere pre condition to the new causes of action. The Court of Appeal, as Lord Sumption notes (para 18), considered by a majority (Dame Janet Smith DBE dissenting) that a dependency claim under the FAA should be categorised as involving a different sort of action from a dependency claim under article 844, and that the FAA was irrelevant on this ground alone. That may be open to question. Classification in private international law should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing systems of law, which may have no counterpart in the others system: Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1996] 1 WLR 387, 407C, per Auld LJ, and it should, as I said in Raiffeisen Zentralbank Osterreich AG v Five Star Trading LLC [2001] QB 825, paras 26 27, be undertaken in a broad internationalist spirit. The Court of Appeal was however also of the unanimous view that the provisions of sections 3 and 4 of the FAA should under English private international law be viewed as procedural rather than substantive. In my opinion, however, it can make no difference to the outcome of this appeal whether or not the dependency claims under the FAA and German law are categorised as broadly similar or whether the provisions of sections 3 and 4 of the FAA are treated as substantive or procedural. Assuming that the dependency claims are categorised as broadly similar, the provisions of sections 3 and 4 of the FAA are, if substantive, irrelevant to a tort subject to German substantive law. If on the other hand, the provisions of sections 3 and 4 were to be treated as procedural, their application could have no effect on the outcome. This is not because I think that their impact must necessarily be confined to claims under the FAA, simply because that is their domestic context private international law may require the application of procedures developed in a purely domestic context to claims governed by foreign law. Rather it is because I do not, in this context, see any basis on which an English procedural provision could expand on a defendants liability under the substantive principles of the relevant governing law. So here an English procedural rule precluding account from being taken of re marriage or the prospects of remarriage could not override the substantive rule under article 844 BGB by which credit is required to be given for maintenance received by way of legal right from a subsequent partner. The problems arising from potential conflicts of this sort between a foreign substantive lex causae and a domestic lex fori are discussed in the context of limitation in Dicey, Morris & Collinss The Conflict of Laws 15th ed (2012), para 7 056. As proposition (ii) in that paragraph states, with reference to dicta in, inter alia, Harris v Quine (1869) LR 4 QB 653, 658: . once a substantive period of limitation of the lex causae had expired, no action could be maintained even though a procedural period of limitation imposed by the lex fori had not yet expired: in such a case there was simply no right left to be enforced. Such problems can of course be expected to, and do arise, only very infrequently. I add only that I leave open, for consideration if the need ever arises, the correctness of the dicta regarding the nature of sections 3 and 4 of the FAA to be found in Coupland v Arabian Gulf Oil Co [1983] 1 WLR 1136, 1149 and in Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304, paras 13 to 27. In Coupland the point was not argued at all, though Hodgson J asserted that it was correct to treat a Libyan law rule that social security benefits were not deductible from an award of general damages as a rule of quantification. The fuller reasoning in Roerig was unnecessary for the decision, both because Dutch law did not apply (para 12) and, as Waller LJ correctly recognised at paras 28 29, because the claim was brought under the FAA, and one cannot bring a claim under a statute without accepting its terms. Overriding effect of English law and mandatory law I agree with Lord Sumptions reasoning and conclusions on these aspects in paras 24 35 of his judgment, and have nothing to add to what he there says.

UK-Abs

These proceedings arise out of a fatal accident in Germany. On 21 May 2004 Major Cox, an officer serving with H.M. Forces in Germany, was riding his bicycle on the verge of a road near his base when a car left the road and hit him, causing injuries from which he died. The driver was Mr Kretschmer, a German national resident and domiciled in Germany. He was insured by the respondent, a German insurance company, under a contract governed by German law. The appellant, Major Coxs widow, was living with him in Germany at the time of the accident. After the accident, she returned to England where she has at all relevant times been domiciled. She has since entered into a new relationship and has had two children with her new partner. Liability is not in dispute, but there are a number of issues relating to damages. Their resolution depends on whether they are governed by German or English law, and, if by English law, whether by the provisions of the Fatal Accidents Act 1976 (the 1976 Act) or on some other basis. The question which law applies was ordered to be tried as a preliminary issue. There are two relevant respects in which an award under English Law, specifically the 1976 Act, may differ from an award under the relevant German Law, the BGB. First, damages awarded to a widow under the BGB will take account of any legal right to maintenance by virtue of a subsequent remarriage or a subsequent non marital relationship following the birth of a child. Section 3(3) of the 1976 Act expressly excludes remarriage or the prospect of remarriage as a relevant consideration in English law. Secondly, Section 844 of the BGB confers no right to a solatium for bereavement. Under section 823 of the BGB the widow may in principle be entitled to compensation for her own pain and suffering, but this would require proof of suffering going beyond normal grief and amounting to a psychological disturbance comparable to physical injury. English rules of private international law distinguish between questions of procedure, governed by the law of the forum i.e. in this case England, and questions of substance, governed by the local laws, in this case Germany. The issue in the present case is whether Mrs Cox is entitled to rely on the provisions of sections 3 and 4 of the 1976 Act. They provide for a measure of damages substantially more favourable to her than the corresponding provisions of German law, mainly because of the more favourable rule concerning the exclusion of her current partners payments of maintenance. This issue depends on whether the damages rules in sections 1A and 3 of the 1976 Act fall to be applied (i) on ordinary principles of private international law as procedural rules of the forum, or (ii) as rules applicable irrespective of the ordinary principles of private international law. The Court of Appeal held that English law should adopt the German damages rules as its own and apply them not directly but by analogy. The Supreme Court unanimously dismisses the appeal and finds that the German damages rules apply. Lord Sumption writes the leading judgment and Lord Mance writes a concurring judgment [37]. The Court finds that the relevant sections of the 1976 Act do not apply as they do not lay down general rules of English law, but only rules applicable to actions under the Act itself. An action to enforce a liability whose applicable substantive law is German law is not an action under section 1 of the 1976 Act to which the damages provisions of the Act can apply [20]. As the particular rules of assessment in the 1976 Act do not apply, then the answer must be sought in the rules of assessment which apply generally in English law in the absence of any statute displacing them. The relevant English law principle of assessment, which applies in the absence of any statute to the contrary, is that Mrs Cox must be put in the same financial position, neither better nor worse, as she would have been in if her husband had not been fatally injured. It follows that, in principle, credit must be given for maintenance from her subsequent partner during the period since the birth of their child [21]. A further issue concerns Mrs Coxs receipt of maintenance from her current partner during the period before they had a child, when he was under no legal obligation to maintain her either in German or in English law [22]. The findings at first instance about the relevant German law indicate that it is not just the maintenance that the appellant would have received from Major Cox that must have been received by virtue of a legal obligation, but also the maintenance from her current partner for which she can be required to give credit. Lord Sumption notes that the classification of a damages rule regulating the receipts for which credit must be given in an award of damages is a difficult question which admits of no universal answer but that, in the present case, the rule in question is one of substance, rather than procedure [22] (Lord Mance [39]). Lord Sumption rejects the argument that the 1976 Act should be applied notwithstanding the ordinary rules of private international law. As a matter of construction the Act does not have extraterritorial effect [32 34]. Nor do the principles enacted in the 1976 Act represent mandatory rules of English law, applicable irrespective of ordinary rules of private international law [35]. Lord Mance explains that it makes no difference to the outcome of the appeal whether or not the dependency claims under the 1976 Act and German law are categorised as broadly similar or whether the relevant provisions of the 1976 Act are treated as substantive or procedural [47]. Assuming that the dependency claims are categorised as broadly similar, the provisions of sections 3 and 4 of the 1976 Act are, if substantive, irrelevant to a tort subject to German substantive law. If on the other hand, the provisions of sections 3 and 4 were to be treated as procedural, their application could have no effect on the outcome. There is no basis on which an English procedural provision can expand a defendants liability under the substantive principles of the relevant governing law [48].

On 27 July 2016, following a hearing of this appeal, this court referred a number of questions of EU law to the Court of Justice for a preliminary ruling: Secretary of State for the Home Department v Vomero [2016] UKSC 49; [2017] 1 All ER 999. On 17 April 2018 the Court of Justice delivered its judgment: FV (Italy) v Secretary of State for the Home Department (Joined Cases C 424/16 and C 316/16) [2019] QB 126. In the light of that judgment, and the opinion of Advocate General Szpunar, this court held a further hearing of the appeal on 7 February 2019. It is now in a position to give its decision on the appeal. The facts The respondent, Franco Vomero, is an Italian national born on 18 December 1957. On 3 March 1985 he moved to the United Kingdom with his future wife, a UK national. They were married in the UK on 3 August 1985 and had five children here, for whom Mr Vomero cared, in addition to working occasionally, while his wife worked full time. Between 1987 and 2001 Mr Vomero received several convictions in the UK, two of which (in 1991 and 1992) resulted in short terms of imprisonment. In 1998 the marriage broke down. Mr Vomero left the family home and moved into accommodation with Mr Edward Mitchell. On 1 March 2001, Mr Vomero killed Mr Mitchell. Both men had been drinking, a fight ensued and Mr Vomero struck Mr Mitchell at least 20 times on the head with weapons including a hammer, and then strangled him with electrical flex from an iron. Mr Vomero was arrested on 2 March 2001 and remanded in custody until his trial. The jury reduced the charge of murder to manslaughter by reason of provocation. Mr Vomero was on 2 May 2002 sentenced to eight years imprisonment. He was released on licence on 3 July 2006 but re arrested a short time later as no hostel accommodation was available for him. He was subsequently detained under immigration powers. By decision made on 23 March 2007 and maintained on 17 May 2007, the appellant, the Secretary of State, determined to deport Mr Vomero under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). Regulation 19(3)(b) permits the Secretary of State to deport a national of the European Economic Area (EEA), or a family member of an EEA national, where the persons removal is justified on the grounds of public policy, public security or public health. Any such deportation must be in accordance with regulation 21. The latter regulation gives effect to articles 27 and 28 of Council Directive 2004/38/EC of 29 April 2004 (OJ 2004 L158, p 77) (the Directive), which are set out below. Mr Vomero challenged that decision before the Asylum and Immigration Tribunal. The decision of that tribunal was appealed to the Court of Appeal, whose decision ([2012] EWCA Civ 1199; [2013] 1 WLR 3339) has given rise to the present appeal. The proceedings were twice adjourned pending the determination of other cases, including latterly the references in Onuekwere v Secretary of State for the Home Department (Case C 378/12) [2014] 1 WLR 2420 and Secretary of State for the Home Department v MG (Portugal) (Case C 400/12) [2014] 1 WLR 2441. Mr Vomero was detained with a view to deportation until December 2007. He subsequently committed and was convicted of further offences, two of which resulted in custodial sentences. In January 2012 he was convicted of having a bladed article, battery and committing an offence while subject to a suspended sentence. He was sentenced to 16 weeks imprisonment. In July 2012 he was convicted of burglary and theft and was sentenced to a further 12 weeks imprisonment. In summary, therefore: (1) From 1985 to 2001 Mr Vomero lived in the UK, with convictions from time to time which resulted in short periods of imprisonment during 1991 and 1992. (2) From March 2001 to July 2006 he was in prison for manslaughter. (3) The decision to deport him was made in March 2007, less than nine months after his release from prison, by which time he had entered immigration detention. (4) Subsequently he was convicted again and served further short sentences during 2012. The court has no information before it as to Mr Vomeros circumstances since 2012. The Directive In Chapter III of the Directive, entitled Right of residence, articles 6 and 7 specify the conditions under which Union citizens and their family members have rights of residence in a member state other than that of which they are nationals. Under article 6, entitled Right of residence for up to three months, Union citizens have the right of residence on the territory of another member state for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport. Under article 7, entitled Right of residence for more than three months, Union citizens have the right of residence on the territory of another member state for a period of longer than three months if they meet one of the conditions set out in para 1, including if they (a) are workers or self employed persons in the host member state. In Chapter IV, entitled Right of permanent residence, article 16 states: 1. Union citizens who have resided legally for a continuous period of five years in the host member state shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III. 2. Paragraph 1 shall also apply to family members who are not nationals of a member state and have legally resided with the Union citizen in the host member state for a continuous period of five years. 3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another member state or a third country. 4. Once acquired, the right of permanent residence shall be lost only through absence from the host member state for a period exceeding two consecutive years. Legal residence is residence which satisfies the conditions laid down in the Directive, in particular those set out in article 7(1): Ziolkowski v Land Berlin (Joined Cases C 424/10 and C 425/10) [2014] All ER (EC) 314; [2011] ECR I 14035, para 46. In its application to periods of residence preceding the date for transposition of the Directive, the expression is construed as meaning residence in accordance with the earlier EU law instruments: Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group intervening) (Case C 162/09) [2011] All ER (EC) 1169; [2010] ECR I 9217, para 40. Chapter VI of the Directive, entitled Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health contains articles 27 to 33. Article 27, entitled General principles, states in paras 1 and 2: 1. Subject to the provisions of this Chapter, member states may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. Article 28, entitled Protection against expulsion, provides: 1. Before taking an expulsion decision on grounds of public policy or public security, the host member state shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his/her links with the country of origin. 2. The host member state may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member states, if they: (a) have resided in the host member state for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. Under article 40, member states were required to transpose the Directive by 30 April 2006: that is to say, during the period when Mr Vomero was serving his sentence of imprisonment for manslaughter. The Directive did not contain any transitional provisions explaining whether the right of permanent residence could be acquired immediately on 30 April 2006 on the basis of earlier periods of legal residence, or, if so, which earlier periods would qualify, in particular if they had been interrupted or had ceased at some point prior to that date. Nor did the Directive contain any provisions explaining whether periods of imprisonment might be treated as legal residence, or whether imprisonment interrupted the continuity of residence. Those and other lacunae have been filled by numerous judgments of the Court of Justice. The previous judgment of this court At the previous hearing of the appeal, the Secretary of States case, put shortly, was that since Mr Vomero was in prison between 2001 and 2006, he had not acquired a right of permanent residence under article 16 by the time the deportation order was made in March 2007. It followed that, although he enjoyed the protection of articles 27(2) and 28(1) of the Directive, he did not benefit from the protection against expulsion conferred by article 28(2). In the Secretary of States submission it also followed, contrary to the conclusion of the Court of Appeal, that Mr Vomero was not entitled to enhanced protection against expulsion under article 28(3)(a). As presented to this court, the Secretary of States case did not involve investigating events prior to 2001, but rested on the undisputed fact of Mr Vomeros imprisonment from 2001 to 2006. Lord Mance, with whose judgment the other members of the court agreed, observed at para 8 of his judgment that no right of permanent residence under the Directive could in law be acquired before 30 April 2006, when the period for transposing the Directive expired. To acquire such a right, Mr Vomero therefore required, as at 30 April 2006 or at some later date, to have resided legally for a continuous period of five years in the UK, as stipulated by article 16(1) of the Directive: Lassal, para 38. As at the date when the deportation decision was taken, Mr Vomero had completed the custodial part of his sentence less than nine months earlier, and had entered immigration detention. Lord Mance also noted at para 9 that in Onuekwere the Court of Justice held that, under the terms of article 16(2) of the Directive, periods of imprisonment cannot be taken into consideration for the purposes of the acquisition of a right of permanent residence for the purposes of that provision (para 22), and that articles 16(2) and (3) must be interpreted as meaning that continuity of residence is interrupted by periods of imprisonment in the host member state (para 32). Lord Mance observed that the same must necessarily apply in respect of a Union citizen under article 16(1). Lord Mance went on to refer in para 10 to the judgment of the Court of Justice in Secretary of State for Work and Pensions v Dias (Case C 325/09) [2012] All ER (EC) 199; [2011] ECR I 6387, which concerned a Union citizen who had resided legally in the UK for over five years between January 1998 and April 2003 (not yet acquiring a right of permanent residence, since the period ended before 30 April 2006), and then remained in the UK between April 2003 and April 2004, during which time she did not work or satisfy any other condition entitling her to reside in the UK under EU law. She then worked in the UK between April 2004 and March 2007, at which point she asserted that she had acquired a right of permanent residence. Lord Mance observed: The Court of Justice held that the rule laid down in article 16(4) regarding absences [once acquired, the right of permanent residence shall be lost only through absence from the host member state for a period exceeding two consecutive years] must be applied by analogy in relation to the period when she had not been working. Since this was for less than two years, it did not affect her acquisition of a permanent right of residence as from 30 April 2006. The Supreme Court considers it clear that the Court of Justice was here identifying a bright line rule relating to the acquisition of a permanent right of residence. Lord Mance went on to observe at para 11 that, where a person had acquired a right of permanent residence, [b]y analogy with absence, it might seem logical if a period exceeding two years spent in prison were to lead to the loss of any right of permanent residence acquired on or after 30 April 2006. Lord Mance added however that the parties were not agreed on this, and that it was unnecessary to consider the point further on the present appeal. Lord Mance concluded at para 12: It follows from paras 8 and 9 above that, as the Secretary of State rightly submits, the respondent had not acquired any right of permanent residence before the date of the decision to deport him. The respondents case on this basis has to be that this is irrelevant, and that a Union citizen with no right of permanent residence may nevertheless acquire a right to enhanced protection under article 28(3)(a). In that regard, counsel for Mr Vomero submitted at the previous hearing that the requirement in article 28(3)(a) that the Union citizen have resided in the host member state for the previous ten years involved an overall assessment of the degree of integration at the date of the decision to deport, that there must in principle have been ten continuous years of residence, but that a period of imprisonment immediately preceding the decision to deport would not necessarily mean that prior integration was lost to a degree depriving the Union citizen of enhanced protection under article 28(3)(a). That submission had been accepted by the Court of Appeal, which noted that Mr Vomero had resided in the UK for more than ten years prior to his imprisonment in 2001, and considered that his integrative link with the UK remained intact in March 2007, when the deportation decision was taken. Against that background, this court referred the following questions to the Court of Justice: (1) Whether enhanced protection under article 28(3)(a) depends upon the possession of a right of permanent residence within article 16 and article 28(2). If the answer to question (1) is in the negative, the following questions are also referred: (2) Whether the period of residence for the previous ten years, to which article 28(3)(a) refers, is (a) a simple calendar period looking back from the relevant date (here that of the decision to deport), including in it any periods of absence or imprisonment, (b) a potentially non continuous period, derived by looking back from the relevant date and adding together period(s) when the relevant person was not absent or in prison, to arrive, if possible, at a total of ten years previous residence. (3) What the true relationship is between the ten year residence test to which article 28(3)(a) refers and the overall assessment of an integrative link. The judgment of the Court of Justice (1) The courts preliminary observations Before answering the first question referred by this court, the Court of Justice made the following preliminary observations: 40. By its first question, the Supreme Court of the United Kingdom asks, in essence, whether article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence, within the meaning of article 16 and article 28(2) of that Directive. 41. As a preliminary point, it should be noted that that question is based on the premise that Mr Vomero does not have such a right of permanent residence in the United Kingdom. 42. Since the court does not have all the information necessary in order to assess the merits of that premise, it must be assumed, for the purposes of the question, that it is well founded. It is also relevant to note the preliminary observations made by Advocate General Szpunar in his opinion: 32. [T]he national court has stated that Mr Vomero has not acquired any right of permanent residence, which is a matter for that court to determine before taking a final decision with due regard to EU law as interpreted by the court. According to the national court, that finding is based on the fact that Mr Vomero was in prison between 2001 and 2006, as well as the approach taken by the court in its case law, particularly in Secretary of State for Work and Pensions v Dias (Case C 325/09) [2011] ECR I 6387; [2012] All ER (EC) 199, para 57 and Onuekweres case [2014] 1 WLR 2420, para 26. 33. However, it must be noted that, in the case of citizens of third states who fulfil the condition of minimum presence on the employment market of a member state, namely citizens whose rights are based on Association Council Decision No 1/80 of 19 September 1980 on the Development of the Association between the European Economic Community and Turkey, the court has held that their right of residence, as the corollary of the right to have access to the employment market, is not affected by imprisonment: see Cetinkaya v Land Baden Wrttemberg (Case C 467/02) [2004] ECR I 10895, paras 38 and 39 and Aydinli v Land Baden Wrttemberg (Case C 373/03) [2005] ECR I 6181, para 32. (In the context of pre trial detention followed by a criminal sentence of suspended imprisonment, also see Nazli v Stadt Nrnberg (Case C 340/97) [2000] ECR I 957, paras 40 and 41.) In taking that approach, the court referred to the wording of the provisions of that Decision, which does not permit any limitation on the right of residence except in the event of absence or on grounds of public policy, public security or public health: Cetinkayas case, para 38 and Aydinlis case, para 28. However, in Diass case, para 64, the court held that a similar provision of Directive 2004/38, namely article 16(4), may be applied by analogy to periods prior to those covered by Directive 2004/38 which do not amount to legal residence for the purpose of article 16(1) of that Directive: Diass case, para 65. In Diass case the court sought above all to address a lacuna in Directive 2004/38 and a situation which could arise only prior to that Directive: see opinion of Advocate General Trstenjak in Diass case EU:C:2011:86; [2011] ECR I 6387, point 102. The case law cited above concerns the effect of imprisonment on the enjoyment of rights acquired after presence on the employment market for a number of years, while Onuekweres case, relates to the stage at which a right is acquired. Consequently, the main reason stated by the court in Onuekweres case, para 26, according to which the taking into consideration of periods of imprisonment for the purpose of acquiring a right of permanent residence would be contrary to the aim pursued by Directive 2004/38, cannot be applied to the case of forfeiture of that right because, in some cases, it may involve a Union citizen taking advantage not of periods of imprisonment directly, but of earlier periods of residence in the member state. It will be necessary to return to these observations and to consider their significance. (2) The courts answer to the first question The Court of Justice began its consideration of the first question referred to it by explaining that article 28 provides a graduated scheme of protection against expulsion, under which the degree of protection reflects the degree of integration of the Union citizen concerned in the host member state: 44. Directive 2004/38, as is apparent from recital (24) in the Preamble, establishes a system of protection against expulsion measures which is based on the degree of integration of those persons in the host member state, so that the greater the degree of integration of Union citizens and their family members in the host member state, the greater the guarantees against expulsion they enjoy. 45. In that context, first of all, article 28(1) of Directive 2004/38 provides generally that, before taking an expulsion decision on grounds of public policy or public security, the host member state must take account in particular of considerations such as how long the individual concerned has resided on its territory, his or her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his or her links with the country of origin 46. Next, under article 28(2), Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on the territory of the host member state pursuant to article 16 of the Directive cannot be the subject of an expulsion decision except on serious grounds of public policy or public security. 47. Lastly, in the case of Union citizens who have resided in the host member state for the previous ten years, article 28(3)(a) of Directive 2004/38 considerably strengthens their protection against expulsion by providing that such a measure may not be taken except where the decision is based on imperative grounds of public security, as defined by member states 48. It thus follows from the wording and the structure of article 28 of Directive 2004/38 that the protection against expulsion provided for in that provision gradually increases in proportion to the degree of integration of the Union citizen concerned in the host member state. 49. In those circumstances, and even though it is not specified in the wording of the provisions concerned, the enhanced protection provided for in article 28(3)(a) of Directive 2004/38 is available to a Union citizen only in so far as he first satisfies the eligibility condition for the protection referred to in article 28(2) of that Directive, namely having a right of permanent residence under article 16 of that Directive. (citations omitted) The Court of Justice accordingly concluded at para 61 that the answer to the first question was that article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence within the meaning of article 16 and article 28(2) of that Directive. It followed that the second and third questions referred by this court did not require to be examined. (3) B v Land Baden Wrttemberg The Court of Justice joined the reference made by this court with another reference made by a German court, in the case of B v Land Baden Wrttemberg (Case C 316/16), which raised related questions. It is relevant to note some passages in the courts judgment in which it considered the fourth question referred to it by the German court, which it described as being in essence, at what point in time compliance with the condition of having resided in the host member state for the previous ten years, within the meaning of article 28(3)(a) of Directive 2004/38, must be assessed: para 84. The answer to that question was that whether a person satisfied that condition must be assessed at the date on which the expulsion decision is initially adopted. However, the court added the following remarks: 89. It must be noted, however, that that conclusion is without prejudice to the separate issue of when it is necessary to assess whether there are actually grounds of public policy or public security within the meaning of article 28(1) of Directive 2004/38, serious grounds of public policy or public security within the meaning of article 28(2) of that Directive, or imperative grounds of public security within the meaning of article 28(3) of that Directive, on the basis of which expulsion may be justified. In that regard, it is indeed for the authority which 90. initially adopts the expulsion decision to make that assessment, at the time it adopts that decision, in accordance with the substantive rules laid down in articles 27 and 28 of Directive 2004/38. 91. However, that does not preclude the possibility that, where the actual enforcement of that decision is deferred for a certain period of time, it may be necessary to carry out a fresh, updated assessment of whether there are still grounds of public policy or public security, serious grounds of public policy or public security or imperative grounds of public security, as applicable. 92. It must be borne in mind, in particular, that under the second sub paragraph of article 27(2) of Directive 2004/38, the issue of any expulsion measure is, in general, conditional on the requirement that the conduct of the person concerned must represent a genuine, present threat affecting one of the fundamental interests of society or of the host member state 94. Furthermore, it follows, more generally, from the case law of the court that the national courts must take into consideration, in reviewing the lawfulness of an expulsion measure taken against a national of another member state, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy or public security. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court (citations omitted) The parties submissions In the light of the preliminary observations of the Court of Justice and the Advocate General, an issue has arisen between the parties as to whether it is open to Mr Vomero to argue that he had acquired a right of permanent residence in the UK by the date of the decision to deport him. In the submissions advanced on behalf of Mr Vomero, the argument is couched in terms of whether he retained a right of permanent residence which was notionally, though not formally acquired prior to 30 April 2006. It is argued on his behalf, under reference to cases concerned with actual, not notional, rights of permanent residence, that a period of more than two years imprisonment need not result in the loss of such a right. A similar argument was presented on behalf of Mr Vomero to the Court of Justice, but was not reflected in the approach which it adopted. As it seems to me, references to a notional right of permanent residence are liable to obscure the true question. There is no indication in the judgments of the Court of Justice that EU law recognises a right of permanent residence of a merely notional character. On the contrary, the judgments of the Court of Justice in the cases concerning the Directive have drawn a distinction between the acquisition of a right of permanent residence (as in Lassal, Dias and Onuekwere) and the subsequent loss of such a right (as provided for under article 16(4) of the Directive). Before any question can arise as to whether Mr Vomero retained a right of permanent residence, it is necessary first to determine whether he had acquired such a right, not notionally but in reality: something which, as the Court of Justice has made clear (for example, in Dias, paras 40 and 57), could only occur on or after 30 April 2006. As explained earlier, Lord Mance concluded in his judgment that Mr Vomero had not acquired a right of permanent residence in the UK by the date of the decision to deport him, notwithstanding his many years residence, because his imprisonment between 2001 and 2006 had the result that he had not, as at 30 April 2006 or some later date, resided legally in the UK for a continuous period of five years prior to the decision to deport him. It is argued on Mr Vomeros behalf that this reasoning cannot be correct, given the Court of Justices statement in para 42 of its judgment (cited at para 22 above) that it did not have all the information necessary in order to assess the merits of the premise of the first question referred, namely, as the court stated in para 41, that Mr Vomero does not have such a right of permanent residence in the United Kingdom. Since, it is argued, the court had Lord Mances judgment before it, it cannot have found in Lord Mances reasoning a sufficient basis for his conclusion. In response, the Secretary of State submits that the conclusion expressed in para 12 of Lord Mances judgment is correct. He concedes, however, that when the appeal is remitted to the Upper Tribunal to be reconsidered, it will be open to Mr Vomero to argue, if he can establish it on the evidence, that he has acquired a right of permanent residence since the date of the decision to deport him, and therefore now benefits from the protection given by article 28(2) of the Directive. The parties agree that that is because the tribunal is required under domestic law to consider the position as at the date of the hearing before it, rather than the date of the decision under challenge. This is agreed to follow from section 85(4) of the Nationality, Immigration and Asylum Act 2002, together with Schedule 2, paragraph 1 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052). Given that that is a matter of agreement, this court need express no view as to whether it is legally correct. Discussion The preliminary observations made by the Court of Justice do not set out any criticism of the reasoning which led Lord Mance to the conclusion stated in para 12 of his judgment. The court properly confined itself to answering the question referred to it. It is notable that the premise which the court said that it was unable to assess was not the same as Lord Mances conclusion. That conclusion was that the respondent had not acquired any right of permanent residence before the date of the decision to deport him: that is to say, that he had not acquired such a right by 23 March 2007. The premise which the court assumed to underlie the reference was different: that Mr Vomero does not have such a right of permanent residence in the United Kingdom: that is to say, that he does not presently have such a right. This court expressed no view as to whether Mr Vomero presently has such a right. That question was not, and is not, before this court. As explained in para 32 above, the parties are in agreement that the question whether Mr Vomero has acquired a right of permanent residence since 23 March 2007 remains open for consideration by the tribunal when the case is remitted there. The Court of Justices observation that it did not have all the information necessary in order to assess whether Mr Vomero (presently) has a right of permanent residence does not, therefore, undermine Lord Mances conclusion to any extent. The preliminary observations of the Advocate General also began at point 32 (cited at para 23 above) by attributing to this court a statement that Mr Vomero has not acquired any right of permanent residence (emphasis supplied): a statement which, however, this court did not make. The Advocate Generals belief that this court had made such a statement may form the background to part of what he said in point 33. In that paragraph, the Advocate General began by referring to the approach adopted by the Court of Justice in the cases of Cetinkaya and Aydinli, which were not concerned with the Directive but with the effect of imprisonment on rights of residence acquired under Decision 1/80 of the EEC Turkey Association Council of 19 September 1980. The Advocate General contrasted that approach with the approach adopted in the case of Dias, concerned with the acquisition of the right of permanent residence under the Directive. He explained the latter approach as being designed to address a lacuna in the Directive. In this passage, the Advocate General appears to have intended to clarify the case law of the Court of Justice, or possibly to invite the court to do so. In the event, the Court of Justice did not comment on the matter: its judgment contains no mention of Cetinkaya or Aydinli, and mentioned Dias only to record that this court had referred to it. The Advocate General then went on in point 33 to contrast Cetinkaya and Aydinli, which as previously mentioned concerned the effect of imprisonment on the enjoyment of rights previously acquired, with the case of Onuekwere, which concerned the effect of imprisonment on the acquisition of a right of permanent residence. He expressed the view that the reasoning in Onuekwere could not be applied to cases concerned with the forfeiture of that right once acquired. That passage in his opinion is relevant to para 11 of Lord Mances judgment (cited at para 18 above), where Lord Mance observed, obiter, that it might seem logical if a period of more than two years imprisonment were to lead to the loss of a right of permanent residence once acquired. It does not, on the other hand, affect the reasoning which led Lord Mance to his conclusion in para 12. The preliminary observations of the Advocate General do not, therefore, place in question Lord Mances conclusion in para 12 of his judgment that Mr Vomero had not acquired a right of permanent residence in the UK by the date of the decision that he should be deported. That conclusion follows, as Lord Mance explained, from the principles laid down in the judgments of the Court of Justice in Dias and Onuekwere. The case of Dias, like the present case, concerned a situation where a Union citizen had been legally resident in the UK for a continuous period of more than five years prior to 30 April 2006: as explained earlier, she resided legally in the UK between January 1998 and April 2003. That period of continuous legal residence had, however, been followed by a period between April 2003 and April 2004 when she was not legally resident, since she did not work or satisfy any other condition entitling her to reside in the UK under the Directive, although she remained in possession of a residence permit issued under Council Directive 68/360/EEC. She then worked in the UK between April 2004 and March 2007, at which point she asserted that she had acquired a right of permanent residence. The Court of Justice held, following its judgment in the case of Lassal, that continuous periods of five years legal residence which were completed before 30 April 2006 counted towards the acquisition of the right of permanent residence, but that the right could not be acquired until that date. It then referred to article 16(4) of the Directive, under which the right of permanent residence, once acquired, is lost through absence from the host member state for a period exceeding two consecutive years. Although that provision is concerned with the loss of the right of permanent residence, rather than with its acquisition, and although it is concerned only with absence from the host member state, the Court of Justice held that the rule which it laid down had also to be applied by analogy, in the context of the acquisition of a right of permanent residence, to periods spent in the host member state during which the conditions governing entitlement to a right of residence were not satisfied, which occurred before 30 April 2006 and after a continuous period of five years legal residence completed prior to that date. In that regard, the court stated: 60. Next, the court has also held that that provision [article 16(4)] falls to be applied independently of whether the periods of residence in question were completed before or after 30 April 2006, for the reason that, since residence periods of five years completed before that date must be taken into account for the purpose of acquisition of the right of permanent residence provided for in article 16(1) of Directive 2004/38, non application of article 16(4) thereof to those periods would mean that the member states would be required to grant that right of permanent residence even in cases of prolonged absences which call into question the link between the person concerned and the host member state (see Lassals case (para 56)). 62. Such reasoning must also be applied by analogy to periods of residence completed on the basis solely of a residence permit validly issued pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having been satisfied, which occurred before 30 April 2006 but after a continuous period of five years legal residence completed prior to that date. 63. Even though article 16(4) of Directive 2004/38 refers only to absences from the host member state, the integration link between the person concerned and that member state is also called into question in the case of a citizen who, while having resided legally for a continuous period of five years, then decides to remain in that member state without having a right of residence. 64. In that regard, it should be noted, as the Advocate General has stated in points 106 and 107 of her opinion, that the integration objective which lies behind the acquisition of the right of permanent residence laid down in article 16(1) of Directive 2004/38 is based not only on territorial and time factors but also on qualitative elements, relating to the level of integration in the host member state. 65. As the situations are comparable, it follows that the rule laid down in article 16(4) of Directive 2004/38 must also be applied by analogy to periods in the host member state completed on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to a right of residence of any kind having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years legal residence completed prior to that date. The case of Dias was concerned with a period, following a continuous period of five years legal residence completed prior to 30 April 2006, during which the conditions of legal residence were not satisfied because the Union citizen was out of work. The case of Lassal was concerned with a period, following a continuous period of five years legal residence completed prior to 30 April 2006, during which those conditions were not satisfied because the Union citizen was absent from the host member state. The present case is concerned with a period, following a continuous period of five years legal residence completed prior to 30 April 2006, during which the Union citizen was in prison. The leading authority on the significance of imprisonment in relation to the acquisition of a right of permanent residence is the case of Onuekwere. It concerned a Nigerian national who became the husband of a Union citizen exercising her right of residence in the UK. The question was whether he had acquired a right of permanent residence under article 16(2) of the Directive (see para 10 above). In order to do so, he had to have resided legally with his wife in the UK for a continuous period of five years. He resided with her legally between 2000 and 2004, but was then in prison between September 2004 and November 2005. He was imprisoned again between 2008 and 2009. He then asserted that he had acquired a right of permanent residence. The court held that the periods of imprisonment could not be taken into account for the purpose of calculating the length of the claimants residence in the UK. It stated at para 26: The imposition of a prison sentence by the national court is such as to show the non compliance by the person concerned with the values expressed by the society of the host member state in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a member state of the right of permanent residence for the purposes of article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that directive in establishing that right of residence. (Emphasis supplied) The court went on to state at para 32 that article 16(2) and (3) must be interpreted as meaning that continuity of residence is interrupted by periods of imprisonment in the host member state of a third country national who is a family member of a Union citizen. The practical result was that Mr Onuekwere was unable to aggregate the periods of residence before and after his periods of imprisonment, so as to establish a period of five years continuous legal residence. Onuekwere differs from Lassal and Dias in that the decision was not based on the application by analogy of the rule in article 16(4) of the Directive, under which a right of permanent residence, once acquired, is lost where there has been a period of absence exceeding two consecutive years. Instead, it was based on the application of article 16(3), which concerns continuity of residence for the purpose of the acquisition of a right of permanent residence, and was interpreted as applying where there has been a period of imprisonment, as well as in the cases expressly set out in that provision. The reasoning in Onuekwere nevertheless resembles that in Lassal and Dias, in that it was based (as appears, for example, from paras 24 25 and 30) on the significance of imprisonment in relation to the integrative link between the offender and the host member state. As Lord Mance observed in para 9 of his judgment, the same reasoning as was applied in Onuekwere for the purposes of article 16(2) of the Directive (which applies article 16(1) to the family members of a Union citizen who are not themselves nationals of a member state) and article 16(3) (which applies for the purposes of both article 16(1) and article 16(2)) must also apply to Union citizens themselves for the purposes of article 16(1). The present case differs from Onuekwere, however, in that Mr Vomero had completed more than five years continuous legal residence in the UK before he was imprisoned in 2001. Considering whether Mr Vomero had acquired a right of permanent residence when the period for implementation of the Directive expired on 30 April 2006, the position is therefore analogous to those in Lassal and Dias: the rule in article 16(4) has to be applied by analogy. Treating imprisonment as weakening the integrative link between the person involved and the host member state in a similar way to the circumstances in Lassal and Dias, in accordance with the judgment in Onuekwere, it follows that the period of imprisonment for more than two years which Mr Vomero had undergone by 30 April 2006 prevented him from acquiring a right of permanent residence on that date, or at any subsequent time prior to 23 March 2007, when the decision to deport him was taken. The necessary period of five years continuous legal residence could not begin any earlier than 3 July 2006, when he completed the custodial part of his sentence, and would depend on his fulfilling the conditions for legal residence laid down in the Directive. If five years continuous legal residence had not been completed by the time of the periods of imprisonment in 2012, those periods would not count towards the five years required, and would interrupt the continuity of residence, in accordance with Onuekwere. Lord Mances conclusion that Mr Vomero had not acquired a right of permanent residence by the date of the decision to deport him was therefore correct. On the other hand, a question is raised by the Advocate Generals comments in the last two sentences of point 33 of his opinion in the present case in relation to the tentative suggestion made by Lord Mance in the penultimate sentence of para 11 of his judgment. As explained earlier, Lord Mance observed, obiter, that it might seem logical if a period of more than two years imprisonment were to lead to the loss of a right of permanent residence once acquired. The Advocate General, however, expressed the view that the reasoning in Onuekwere could not be applied to cases concerned with the forfeiture of that right once acquired. In the light of those comments, it would be wise for this court to refrain from expressing any view in the present case as to whether there may be a distinction between the effect of imprisonment on the acquisition of a right of permanent residence, with which Onuekwere was concerned, and its effect on the retention of such a right once obtained. Finally, as the Court of Justice made clear in paras 89 94 of its judgment in the case of B v Land Baden Wrttemberg, cited at para 28 above, it will be necessary for the tribunal, when this case is remitted to it, to consider not only whether Mr Vomero has acquired a right of permanent residence since the date of the decision to deport him, in accordance with the agreement of the parties (see para 32 above), and if so the implications of his having done so, but in any event whether there are still grounds of public policy or public security within the meaning of article 28(1) of the Directive on the basis of which his expulsion may be justified. Conclusion For the foregoing reasons, the court should in my view allow the appeal, grant a declaration that neither article 28(2) nor article 28(3) of Directive 2004/38/EC applied to Mr Vomero as at the date of the Secretary of States decision to deport him on 23 March 2007, and remit the respondents appeal against that decision to the Upper Tribunal to be reconsidered in accordance with this judgment.

UK-Abs

The Respondent, Mr Franco Vomero, is an Italian national who has lived in the United Kingdom since 1985. In 1998 his marriage to his British wife broke down, and he moved into accommodation with Mr Edward Mitchell. In 2001, he killed Mr Mitchell. In 2002 he was sentenced to eight years imprisonment for manslaughter. In 2006 he completed the custodial part of his sentence. On 23 March 2007 the Home Secretary decided to deport him under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006. Regulation 21 gives effect to articles 27 and 28 of Directive 2004/38/EC (Directive). In October 2007 the Immigration and Asylum Tribunal (IAT) dismissed Mr Vomeros appeal against the deportation decision. A Senior Immigration Judge ordered that the IATs determination be reconsidered. On reconsideration, the IAT allowed Mr Vomeros appeal. The Court of Appeal dismissed the Secretary of States appeal against the second IAT determination. The Secretary of State appealed to the Supreme Court. Following an initial hearing of his appeal in 2016, the Supreme Court referred a number of questions to the Court of Justice of the European Union (CJEU). The Supreme Courts reasons for making the reference were explained in a judgment given by Lord Mance. After the CJEU delivered its judgment on 17 April 2018, the Supreme Court held a further hearing on 7 February 2019. The Supreme Court unanimously allows the appeal. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. In the reference, the Supreme Court asked whether a right of permanent residence (RPR) is a prerequisite for enhanced protection against expulsion pursuant to article 28(3)(a) of the Directive, as the Court of Appeal had held. Pursuant to that article, an expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member states, if they have resided in the host member state for the previous ten years. The CJEU held that RPR is a prerequisite for this, because article 28 provides a graduated scheme of protection, under which the degree of protection reflects the individuals degree of integration into the host member state. [26] In the initial judgment of the Supreme Court, Lord Mance concluded that Mr Vomero had not acquired a right of permanent residence in the UK by the date of the decision to deport him, notwithstanding his many years of residence, because his imprisonment between 2001 and 2006 had the result that he had not resided legally in the UK for a continuous period of five years as at 30 April 2006, which is when the Directive was due to be implemented, or any later date before the decision to deport him. [30] It is now argued on Mr Vomeros behalf that it was wrong for the Supreme Court to conclude that he did not have RPR, because the CJEU observed in the course of its judgment that the question referred to it was based on the premise that he does not have RPR, and that it did not have all the information necessary in order to assess whether the premise was correct. In response, the Secretary of States maintains that Lord Mances conclusion was correct but concedes that it will be open to Mr Vomero to argue that he has acquired a right of permanent residence since the date of the decision to deport him. [31] [32] The proposition which the CJEU said that it was unable to assess, namely that Mr Vomero does not have RPR, is not the same as Lord Mances conclusion, namely that Mr Vomero had not acquired RPR by 23 March 2007. [33] The same is true of the Advocate Generals preliminary observations. [34] The leading authority on the significance of imprisonment in relation to the acquisition of RPR is Onuekwere v Home Secretary (Case C 378/12) [2014] 1 WLR 242, where the CJEU held that periods of imprisonment could not be taken into account for the purpose of calculating the length of the claimants residence in the UK, and interrupted the continuity of such residence. [42] The present case differs from Onuekwere in that Mr Vomero had completed more than five years of continuous legal residence in the UK before he was imprisoned in 2001. However, the period of imprisonment for more than two years which he had undergone by 30 April 2006 prevented him from acquiring a right of permanent residence on that date, in the same way as absence from the UK or being out of work for more than two years would have done, following Secretary of State for Work and Pensions v Lassal (Case C 162/09) [2001] 1 CMLR 31 and Secretary of State for Work and Pensions v Dias (Case C 325/09) [2011] 3 CMLR 40. Accordingly, the necessary period of five years continuous legal residence could not begin any earlier than when he completed the custodial part of his sentence, and five years continuous legal residence had not been completed by the time the decision to deport him was made. [45] It will be necessary for the tribunal, when this case is remitted to it, to consider not only whether Mr Vomero has acquired a right of permanent residence since the date of the decision to deport him, but also whether there still exist grounds of public policy or public security within the meaning of article 28(1) of the Directive on the basis of which his expulsion could be justified. [47]

Can a member of a Limited Liability Partnership (LLP) be a worker within the meaning of section 230(3) of the Employment Rights Act 1996 (the 1996 Act)? If she is, she may claim the benefit of the protection given to whistle blowers in sections 43A to 43L of that Act, inserted by the Public Interest Disclosure Act 1998. There are also potentially other rights involved if the member is a worker. Section 230(3) of the 1996 Act defines two sorts of worker for the purpose of that Act. Limb (a) covers an individual who has entered into, works under or has worked under a contract of employment. No one has suggested that the contract between the member and the LLP in this case was a contract of employment. The question is whether the member falls within limb (b) of section 230(3), which covers an individual who has entered into or works under or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. Section 230(5) is also relevant: In this Act, employment . (b) in relation to a worker, means employment under his contract; and employed shall be construed accordingly. Section 230(4) provides that in the Act, employer means the person by whom the worker is employed. 4. The immediate context is whether the member can claim the benefit of the protection given to whistle blowers by the 1996 Act. But limb (b) workers are also able to claim two other rights under the 1996 Act, the right not to suffer an unauthorised deduction from wages (section 13) and the right not to be subjected to a detriment for exercising rights under the Working Time Regulations (SI 1998/1833) (section 45A). The same definition of worker is also used in some other legislation, most notably the National Minimum Wage Act 1998, the Working Time Regulations 1998 (SI 1998/1833), and the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). But the rights given to this type of worker are much less extensive than those given to workers under a contract of employment. They do not, for example, include protection against unfair dismissal. The facts 5. The appellant is an English qualified solicitor. In 2005 she was employed by Shadbolt & Co LLP to develop a joint venture with a Tanzanian law firm, with whom she also had an employment contract. In 2009, Shadbolt ended their joint venture with that firm but entered into a joint venture with a different Tanzanian firm. Later in 2009, Clyde & Co LLP were negotiating to take over various parts of Shadbolts business, including the Tanzanian joint venture. On 24 December 2009, they made a formal offer to the appellant, subject to completion of the deal with Shadbolt. Under this, she would become an Equity Partner of the LLP. Her annual share of the LLP profits was fixed at 103,000 (whether or not the LLP actually made a profit). Her existing arrangements with the Tanzanian joint venture would continue. The LLP would look to propose her as a Senior Equity Partner once the results of the joint venture are able to provide a track record showing the sustainability of income and profit to satisfy our partnership process. 6. The deal with Shadbolt was completed in February 2010, when the appellant became a member of Clyde & Co LLP. She signed a Deed of Adherence to the LLPs Members Agreement. The other parties to the Deed were the LLP and each of the Members individually. Under the Members Agreement, there were two levels of membership, Equity Members and Senior Equity Members. Senior Equity Members were placed on the LLPs lockstep, each level of which conferred a certain number of profit sharing units. Equity Members received a fixed annual share of profits and such profit sharing units as the management board might determine. The rights of the Senior Equity Members were more extensive than those of the Equity Members, but they could all vote to elect the Senior Partner and the members of the management board. Members agreed that the objective of each Member shall be to carry on business for the best advantage of the LLP so as to promote the wellbeing and success of the Business for the prosperity and advantage of all Members and to that end each Member shall devote his full time and attention to the Business and that each Member shall be just and faithful to the LLP in all transactions relating to the Business and in relation to the property and other assets of the LLP. Business is defined as the business to be carried on by the LLP as set out in clause 3, which states that [t]he LLP carries on business as solicitors, foreign lawyers and registered European lawyers. 7. In November 2010, the appellant reported to the LLPs money laundering reporting officers that the managing partner of the Tanzanian law firm had admitted paying bribes to secure work and to secure the outcome of cases. She claims that these were protected disclosures within the meaning of section 43A of the 1996 Act. She also claims that she was subject to a number of detriments as a result, including suspending her, making allegations of misconduct against her and ultimately expelling her from the LLP in January 2011. These claims are denied by the LLP and have not yet been tried. 8. In February 2011, the appellant brought claims in the Employment Tribunal against the LLP and one of its Senior Equity Members under the sex discrimination provisions of the Equality Act 2010 and under the whistle blowing provisions of the 1996 Act. The respondents preliminary objection to both claims, that the Tribunal had no jurisdiction because the appellant worked primarily outside the jurisdiction in Tanzania, has been resolved in her favour. The respondents also objected to her whistle blowing claim on the ground that she was not a worker within the meaning of section 230(3) of the 1996 Act. 9. The Employment Tribunal found that she was not a worker, although she worked under a contract to do or perform personally work or services for the LLP, because she was in business in her own right receiving a share of the profits in relation to the work carried out. In the Employment Appeal Tribunal, Judge Peter Clark allowed her appeal and held that she was a worker. She was an integral part of the LLPs business, she could not offer her services to anyone else, she was in a subordinate position and the LLP was not her client. (The Court of Appeal commented that Judge Clark appears to have considered the issue of subordination in the context of determining whether the LLP was a client or customer rather than as an independent requirement in its own right: [2013] ICR 883 para 30). The LLPs appeal to the Court of Appeal was successful, but on a completely different ground from those argued in the Tribunals: [2012] EWCA Civ 1207. The decision of the Court of Appeal 10. The Court of Appeal held that the appellant could not be a worker for the purpose of section 230(3) of the 1996 Act because of section 4(4) of the Limited Liability Partnerships Act 2000. This provides: A member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership. 11. The LLP argued that employed by should be widely construed to include both types of 1996 Act worker. The appellant claimed that its natural meaning was restricted to contracts of employment. Elias LJ (with whom the other members of the court agreed) accepted that focusing simply on the language, the argument is not clear cut (para 48). But the intention seems to me to be that whatever the employment status of the partners under the 1890 Act, it should not alter as a result of incorporation. If Parliament did not intend to change their status as regards whether they were employees under limb (a), I can see no logical reason why Parliament would have adopted a different position with respect to the questions whether they may be limb (b) workers (para 48). 12. There was no previous case considering whether a partner could be a limb (b) worker. But both Ellis v Joseph Ellis & Co [1905] 1 KB 324 and Cowell v Quilter Goodison Co Ltd [1989] IRLR 392 established that a partner could not be an employee. Essentially this was because the partners were all in a contractual relationship with one another in a joint venture and thus each partner would have to be employed, inter alia, by himself. He would be both workman and employer, which is a legal impossibility (para 63). Further, [t]he very concept of employment presupposes as a matter of sociological fact a hierarchical relationship whereby the worker is to some extent subordinate to the employer . Where the relationship is one of partners in a joint venture, that characteristic is absent (para 64). These reasons applied just as much to limb (b) status as they did to employees. 13. Given that section 4(4) produced this result, Elias LJ did not have to consider whether it was an essential part of the definition of worker that one party was in a subordinate relationship to the other (para 68). He acknowledged that there is a powerful case for saying that, focusing solely on the language of section 230, the terms of the statutory definition of worker were satisfied in this case. He agreed with the EAT that the LLP could in no sensible way be said to be either the client or the customer of the claimant (para 69). But the analysis has to be more subtle than that (para 70). Underlying the statutory definition of worker is the notion that one party has to be in a subordinate relationship to the other. An LLP could not properly be described as a client or a customer but neither could it properly be described as an employer of its members (para 71). Hence he was inclined to the view that the employment judge was correct. He would be minded to hold that the member of an LLP would not by virtue of that status alone constitute either an employee or a worker (para 73). Whether they might enter into some separate employment relationship with the partnership, rather in the manner that a company director can do, would be a different question (para 73). This appeal 14. Mr Thomas Linden QC, on behalf of the appellant claimant, argues that the plain wording of section 230(3)(b) includes his client. It is common ground that she is employed under a contract personally to perform work or services for the LLP; she was an integral part of their business and the LLP was not her client or customer. There is no additional element of subordination involved in the concept of employment; but if there is, the claimant was subordinate for this purpose. Section 4(4) of the 2000 Act does not modify the 1996 Act in respect of worker status, but even if it did, she would have been a worker in a partnership. Finally, he argues that the claimants right to freedom of expression under article 10 of the European Convention on Human Rights requires that we construe the legislation so as to afford her effective protection for her rights. 15. On the statutory construction point, Mr Andrew Stafford QC, for Clyde & Co LLP, argues that the Court of Appeal were right for the reasons they gave. A partner under an ordinary partnership cannot be an employee of a partnership of which she is a member. Section 4(4) of the 2000 Act was plugging into that rule and applies just as much to the wider definition of worker as it does to employees. Under article 10, he argues that our whistle blowing protection is more advanced than that in much of Europe, the Convention right is not as extensive, and so it is not necessary to interpret section 230 of the 1996 Act so as to cover members of an LLP; and in any event it would go against the grain of the legislation as he has identified it, and thus not be within the bounds of possible readings for the purpose of section 3 of the Human Rights Act 1998. Discussion 16. The immediately striking thing about this case is how much hard work has to be done in order to find that a member of an LLP is not a worker within the meaning of section 230(3)(b) of the 1996 Act. It is common ground that the appellant worked under a contract personally to perform any work or services. It is now common ground that she provided those services for the LLP. It is also now common ground that the LLP was not her client or customer. The Court of Appeal accepted (para 69) that there was a powerful case that the definition was satisfied. How then can it be said that she was not a worker for this purpose? 17. The argument which found favour with the Court of Appeal was that section 230(3) had impliedly been modified by section 4(4) of the 2000 Act. It is, of course, the case that when passing the 1996 Act, or when amending it in 1998 to insert the whistle blowing provisions, Parliament could not have had limited liability partnerships in mind, because they did not then exist. It was not then known whether the pressure, mainly from large accountancy firms, to introduce some new form of business structure with limited liability would be heeded, or, if it was, what form such a structure might take. It might have retained the traditional form of partnership in England and Wales, in which the firm is not a separate legal personality but a group of individuals who contract with one another and collectively with others; or it might have been a completely new form, in which, although called a partnership, the entity has a separate legal personality. The latter course was eventually chosen. 18. Meanwhile, in another part of the forest, the Law Commission and Scottish Law Commission were conducting a joint project on partnership law. They published a joint consultation paper in 2000, shortly after the Limited Liability Partnerships Act 2000 received the Royal Assent (Law Commission Consultation Paper No 159, Scottish Law Commission Discussion Paper No 111). In this they pointed out that there was doubt in Scots law, which does accord separate legal personality to a partnership, whether a partnership could enter into an employment contract with one of its partners (para 23.21; referring to Allison v Alisons Trustees (1904) 6 F 496 and Fife County Council v Minister of National Insurance 1947 SC 629). They provisionally recommended that, if a partnership were to have a separate legal personality, it should be able to enter into a contract of employment with one of its partners. It may well be, therefore, that those with an interest in partnership law were already alert to the fact that, if a partnership were to become a separate legal entity, at the very least the arguments about whether partners could also be employees would be different. There is, after all, no problem at all about a majority shareholder also being, not only a Director, but also an employee of a limited company. 19. The Law Commissions published their Report on Partnership Law in 2003 (Law Com No 283, Scot Law Com No 192). This reported that the response of consultees to their suggestion that it should be possible for partners to become employees was divided. The Commissions were persuaded that the status, right and obligations of a partner were wholly different from those of an employee (para 13.52). Hence they recommended that a partnership should not be capable of engaging a partner as an employee. 20. We cannot know what prompted the inclusion of section 4(4) in the 2000 Act (and intriguingly, the Law Commissions do not refer to it either in their Consultation Paper or in their Report). We do know that section 4(4) has caused some bewilderment among English lawyers. In Tiffin v Lester Aldridge LLP [2012] 1 WLR 1887, para 31, Rimer LJ commented that [t]he drafting of section 4(4) raises problems. That is because in law an individual cannot be an employee of himself. Nor can a partner in a partnership be an employee of the partnership, because it is equally not possible for an individual to be an employee of himself and his co partners (see Cowell v Quilter Goodison Co Ltd [1989] IRLR 392). Unfortunately, the authors of section 4(4) were apparently unaware of this. He went on to conclude that what section 4(4) must have been getting at is not what it says that it is getting at, which is whether the member would be regarded as employed by the partnership if the members of the LLP were partners in a partnership; instead, in his view, it must have been getting at whether the LLP member would be regarded as a partner had the LLP been a partnership. 21. But once it is recognised that the 2000 Act is a UK wide statute, and that there is doubt about whether partners in a Scottish partnership can also be employed by the partnership, then there is no need to give such a strained construction to section 4(4). All that it is saying is that, whatever the position would be were the LLP members to be partners in a traditional partnership, then that position is the same in an LLP. I would hold, therefore, that that is how section 4(4) is to be construed. 22. The issue in Tiffin was whether a member of an LLP could make a claim for unfair dismissal against the LLP. That, of course, depends, not upon whether she is a worker in the wider sense used in section 230(3)(b) of the 1996 Act, but upon whether she is an employee under a contract of employment. On any view, employed by in section 4(4) would cover a person employed under a contract of service. 23. The question for us is whether employed by in section 4(4) bears a wider meaning than that and also covers those who undertake to do or perform personally any work or services for another party to the contract . In my view, it does not. 24. First, the natural and ordinary meaning of employed by is employed under a contract of service. Our law draws a clear distinction between those who are so employed and those who are self employed but enter into contracts to perform work or services for others. 25. Second, within the latter class, the law now draws a distinction between two different kinds of self employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The arbitrators in Hashwani v Jivraj (London Court of International Arbitration intervening) [2011] UKSC 40, [2011] 1 WLR 1872 were people of that kind. The other kind are self employed people who provide their services as part of a profession or business undertaking carried on by some one else. The general medical practitioner in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005; [2013] ICR 415, who also provided his services as a hair restoration surgeon to a company offering hair restoration services to the public, was a person of that kind and thus a worker within the meaning of section 230(3)(b) of the 1996 Act. Had Parliament wished to include this worker class of self employed people within the meaning of section 4(4), it could have done so expressly but it did not. 26. Thirdly, however, doing so would have raised the question of whether partners in a traditional partnership can also be workers for that partnership in this wider sense. That would be a very different question from whether they can be employees. If Parliament had indeed wished to exclude that possibility, which might have been a change in the law, it could be expected to do so directly and expressly, but it did not. 27. Fourthly, and perhaps most importantly, there are the provisions of section 230 of the 1996 Act itself. Section 230(1) defines an employee as an individual who has entered into, works, or has worked under a contract of employment. Section 230(2) defines a contract employment as a contract of service or apprenticeship. Section 230(5) expressly provides that, in the 1996 Act, employment means both the employment of an employee under a contract of employment and the employment of a worker under his contract. Employed is to be construed accordingly. Thus, in order to be able to use the words employed and employment in a wider sense than they would normally carry, so as to cover the employment of class (b) workers and those for whom they work, Parliament expressly enacted an extension to what would otherwise be the natural and ordinary meaning of those words. Such an extension is conspicuously lacking in the 2000 Act. With the greatest of respect to Lord Clarke, I do not consider it possible to construe the wording of the 2000 Act, the conventional meaning of which is quite clear, by reference to an extended definition in an earlier Act which was restricted to that Act. For all purposes in section 4(4) of the 2000 Act refers to all the purposes for which employment under a contract of service is relevant. 28. For all those reasons, I conclude that section 4(4) of the 2000 Act does not mean that members of an LLP can only be workers within the meaning of section 230(3) of the 1996 Act if they would also have been workers had the members of the LLP been partners in a traditional partnership. 29. This means that there is no need to consider the subsidiary but important questions which would arise had section 4(4) borne the meaning for which Clyde & Co contend: (i) is it indeed the law, as held by the Court of Appeal in Cowell v Quilter & Goodison and Tiffin v Lester Aldridge LLP that a partner can never be an employee of the partnership; and (ii) if so, does the same reasoning which leads to that conclusion also lead to the conclusion that a partner can never be a worker for the partnership? Suffice it to say that Mr John Machell QC, for the interveners, Public Concern at Work, mounted a serious challenge to the rule against dual status. Ellis v Joseph Ellis was decided before section 82 of the Law of Property Act 1925 made it clear that a person could contract with himself and others. There are some contracts which a partner may make with the members of the partnership, such as lending them money or granting them a lease or a tenancy. So why should it be legally impossible to be employed, under either type of contract, by the partnership? This question raises two subsidiary questions: (a) whether such a relationship can arise from the terms of the partnership agreement itself (as apparently suggested by Lord Clarke at para 52 of his judgment), or (b) whether it can only arise by virtue of a separate contract between the partner and the partnership (a possibility kept open by Elias LJ in the Court of Appeal, see para 13 above). As it is not necessary for us to resolve any of these issues in order to decide this case, I express no opinion upon a question which is clearly of some complexity and difficulty. 30. Having reached the conclusion that section 4(4) of the 2000 Act does not operate so as to exclude the appellant from being a worker within the meaning of section 230(3)(b) of the 1996 Act, it is necessary to consider the more subtle analysis addressed in the Court of Appeal, that underlying the statutory definition of worker is the notion that one party has to be in a subordinate relationship to the other (para 71). Elias LJ would have been minded to hold that the member of an LLP would not by virtue of that status alone constitute either an employee or a worker (para 73). If by that he meant only that there are some members of an LLP who are purely investors and do not undertake personally to work for the LLP, then of course I would agree. But if by that he meant that those members who do so undertake (whether by virtue of the membership agreement or otherwise) cannot be workers, then I respectfully disagree. 31. As already seen, employment law distinguishes between three types of people: those employed under a contract of employment; those self employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self employed but do not fall within the second class. Discrimination law, on the other hand, while it includes a contract personally to do work within its definition of employment (see, now, Equality Act 2010, s 83(2)) does not include an express exception for those in business on their account who work for their clients or customers. But a similar qualification has been introduced by a different route. 32. In Allonby v Accrington and Rossendale College (Case C 256/01) [2004] ICR 1328, the European Court of Justice was concerned with whether a college lecturer who was ostensibly self employed could nevertheless be a worker for the purpose of an equal pay claim. The Court held, following Lawrie Blum v Land Baden Wurttemberg (Case C 66/85) [1987] ICR 483 that there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (para 67). However, such people were to be distinguished from independent providers of services who are not in a relationship of subordination with the person who receives the services (para 68). The concept of subordination was there introduced in order to distinguish the intermediate category from people who were dealing with clients or customers on their own account. It was used for the same purpose in the discrimination case of Jivraj v Hashwani. 33. We are dealing with the more precise wording of section 230(3)(b). English cases in the EAT have attempted to capture the essential distinction in a variety of ways. Thus in Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667, Mr Recorder Underhill QC suggested, at para 17(4), that [t]he reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis a vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arms length and independent position to be treated as being able to look after themselves in the relevant respects. In Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, 34. Langstaff J suggested, at para 53, that . a focus on whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principals operations, will in most cases demonstrate on which side of the line a given person falls. 35. In James v Redcats (Brands) Ltd [2007] ICR 1006, Elias J agreed that this would often assist in providing the answer but the difficult cases were those where the putative worker did not market her services at all (para 50). He also accepted, at para 48, that . in a general sense the degree of dependence is in large part what one is seeking to identify if employees are integrated into the business, workers may be described as semi detached and those conducting a business undertaking as detached but that must be assessed by a careful analysis of the contract itself. The fact that the individual may be in a subordinate position, both economically and substantively, is of itself of little assistance in defining the relevant boundary because a small business operation may be as economically dependent on the other contracting party, as is the self employed worker, particularly if it is a key or the only customer. 36. After looking at how the distinction had been introduced into the sex discrimination legislation, which contained a similarly wide definition of worker but without the reference to clients and customers, by reference to a dominant purpose test in Mirror Group Newspapers Ltd v Gunning [1986] ICR 145, he concluded, at para 59: . the dominant purpose test is really an attempt to identify the essential nature of the contract. Is it in essence to be located in the field of dependent work relationships, or is it in essence a contract between two independent business undertakings? . Its purpose is to distinguish between the concept of worker and the independent contractor who is on business in his own account, even if only in a small way. 37. The issue came before the Court of Appeal in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005, [2013] ICR 415, a case which was understandably not referred to in the Court of Appeal in this case; it was argued shortly before the hearing in this case, but judgment was delivered a few days afterwards. The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the Hospital Medical Group for whom he performed hair restoration surgery. The Court of Appeal considered that these were three separate businesses, quite unrelated to one another, and that he was a class (b) worker in relation to the Hospital Medical Group. 38. Maurice Kay LJ pointed out (at para 18) that neither the Cotswold integration test nor the Redcats dominant purpose test purported to lay down a test of general application. In his view they were wise not to lay down a more prescriptive approach which would gloss the words of the statute. Judge Peter Clark in the EAT had taken the view that Dr Westwood was a limb (b) worker because he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations. That was the right approach. The fact that Dr Westwood was in business on his own account was not conclusive because the definition also required that the other party to the contract was not his client or customer and HMG was neither. Maurice Kay LJ concluded, at para 19, by declining the suggestion that the Court might give some guidance as to a more uniform approach: I do not consider that there is a single key with which to unlock the words of the statute in every case. On the other hand, I agree with Langstaff J that his integration test will often be appropriate as it is here. For what it is worth, the Supreme Court refused permission to appeal in that case. 47. The issues in this appeal depend essentially upon the true construction of section 230(3)(b) of the Employment Rights Act 1996 (the ERA) and section 4(4) of the Limited Liability Partnerships Act 2000 (the LLPA). I agree with Lady Hale that, on the true construction of section 230(3)(b) of the ERA, construed without reference to the LLPA (if that were possible), the appellant could properly be described as a limb (b) worker because she would satisfy the terms of the sub section. In short, for the reasons given by Lady Hale, by the terms of the appellants contract with the respondent LLP (Clyde & Co), she undertook to perform personally certain work or services for it and its status was not by virtue of the contract that of a client or customer. 48. That question could not however have fallen for consideration before the LLPA came into effect because until then there was no such entity as an LLP. The status of a person working for an LLP must now be determined by reference both to the ERA and to the LLPA. As Lady Hale observes at para 10, the Court of Appeal held that the appellant could not be a worker for the purposes of section 230(3) of the ERA because of section 4(4) of the LLPA, which provides: A member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership. 49. I appreciate that this is a minority view in this Court but it seems to me, as it has seemed to me throughout, that the effect of section 230(3) and (5) of the ERA and section 4(4) of the LLPA, read together, is that a person who is a limb (b) worker within section 230(3) is a person regarded for any purpose as employed by the LLP within section 4(4) of the LLPA. This is in part because of section 230(5) of the ERA, which provides: In this Act, employment (b) in relation to a worker, means employment under his contract; and employed shall be construed accordingly. 50. I entirely understand that at common law employment has traditionally had a narrow meaning and means, in effect employment under a contract of employment. However, under the ERA it has been given a wider meaning and extends to a limb (b) worker, who is by definition working under any other contract, that is any contract other than a contract of employment. There cannot I think be any doubt that the appellant was a member of an LLP. Moreover, for the reasons given by Lady Hale she was a worker within section 230(3)(b). 51. As I see it, the question is whether, on these facts, the appellant is being regarded for any purpose as employed by the limited liability partnership. I would answer that question in the affirmative because she is being so regarded by the express terms of section 230(5) of the ERA. I appreciate that section 230(5) defines the meaning of employment in this Act, that is the ERA but this to my mind a purpose which falls within the expression for any purpose in section 4(4). 52. If that were correct it would follow that, whether the appellant was employed as a worker by the LLP for the purposes of the ERA would depend upon whether if [she] and the other members were partners in a partnership [ie an 1890 Act partnership] [she] would be regarded for that purpose as employed by the partnership. This raises the question which Lady Hale describes at para 29 as of some complexity and difficulty. There is to my mind much to be said for the view that, if the appellant had been a partner in an 1890 Act partnership, she would now be treated as employed by the partnership, especially in the light of section 82 of the Law of Property Act 1925. As Lady Hale asks rhetorically, why should it be legally impossible to be employed, under either type of contract, by the partnership? If the answer to that question is that there is no good reason why the appellant 53. would not be regarded as employed by the partnership within the meaning of the last part of section 4(4) of the LLPA, so that section 4(4) does not prevent the appellant from being regarded for the purpose of the ERA as employed as a worker, the whole provision (as I see it) makes sense because its underlying purpose is, at any rate in this respect, to treat partners in both types of partnership in the same way. 54. Notwithstanding those points, the question remains, as Lady Hale says, of some complexity and difficulty. In these circumstances, it is desirable that it should be determined in a case in which it is necessary for it to be decided. That being the position, at any rate so long as I remain in the minority on the first point, it would be better for me to refrain from expressing an opinion on the second point. LORD CARNWATH 55. I agree that the appeal should be allowed for the reasons given by Lady Hale. I would emphasise that this conclusion turns on the special characteristics of a limited liability partnership, which is something of a hybrid as between a conventional 1890 Act partnership and a limited company. It does not necessarily have any direct relevance to the resolution of equivalent issues in relation to other forms of partnership, under English or Scottish law. 56. I would only add a short comment in relation to the alternative argument of Mr Machell QC, which Lady Hale found it unnecessary to address (para 29). This challenged the traditional view that a partner cannot be an employee of his own firm. That view is put in strong terms in the current (19th) edition of Lindley & Banks on Partnerships (2010). Commenting critically on the second part of section 4(4) of the Limited Liability Partnerships Act 2000, the editors say: Note that the drafting of this sub section is wholly defective Partnership and employment are, of course, mutually exclusive concepts and there are no circumstances under English law where a partner could be regarded as employed by his own firm. (para 2 40 n 145, their emphasis) That comment is cross referenced to a later paragraph headed Partner or Employee? (para 5.55) which discusses the criteria for deciding whether a salaried partner is to be regarded as a partner or an employee, and adds: What is certain is that if the salaried partner is held to be and treated as a partner in law, he cannot also be an employee in the firm. Cases referred to include Ellis v Joseph Ellis & Co [1905] 1 KB 324 and Cowell v Quilter Goodison Co Ltd [1989] IRLR 392, cited by Lady Hale (para 12). 57. As far as concerned English law, that was also the basis on which the Law Commissions proceeded in their recent review of Partnership Law, mentioned by Lady Hale. It does not appear to have been questioned by anyone during the consultation. As she notes (para 18 19), the Commissions recognised possible doubts as to whether that was also the position under Scots law. But they resolved them by recommending that, in both jurisdictions, a partnership should not be capable of engaging a partner as an employee (para 13.43; draft bill cl 7(4)). 58. Mr Machell relies in particular on section 82(1) of the Law of Property Act 1925 which provided: Any covenant, whether express or implied, or agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone. Of the cases cited by Lindley, he observes that Ellis was decided before the enactment of section 82(1), which as he puts it, abolished the two party rule; Cowell was a decision on its own facts. He offers no academic support for this submission. Nor does he explain how the point has apparently been overlooked for so long by practitioners and academics. By way of analogy, he asserts that a partnership can take a lease of premises owned by one or more of the partners, for which proposition he cites inter alia Rye v Rye [1962] AC 496 and, Lindley & Banks para 10.45. 59. Although I agree with Lady Hale that it is unnecessary for us to decide this issue, for my part I am currently unpersuaded by Mr Machells submissions. Whatever may be the position or legal analysis in respect of leases (on which the authorities to which he refers are not conclusive), section 82 does not assist him in the present context in my view. A contract treated as being between a particular partner and the other members of his firm may be effective in law for many practical purposes. But it cannot be equated with a contract between the partner and the firm as such, since each partner is an essential part of the firm. Furthermore, the reasoning of the Court of Appeal in Ellis v Joseph Ellis does not turn simply on the lack of capacity to contract. As Lord Collins MR said, the particular arrangements made in that case in relation to payment for work did not affect the workers relation to the other partners, which was that of co adventurers and not employees. In my view this was a statement of principle about the fundamental difference between the relationship of partners and that of employer and employee, a difference which is not bridged by section 82. 39. I agree with Maurice Kay LJ that there is not a single key to unlock the words of the statute in every case. There can be no substitute for applying the words of the statute to the facts of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of subordination to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves. As Elias J recognised in Redcats, a small business may be genuinely an independent business but be completely dependent upon and subordinate to the demands of a key customer (the position of those small factories making goods exclusively for the St Michael brand in the past comes to mind). Equally, as Maurice Kay LJ recognised in Westwood, one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to ones bow, and still be so closely integrated into the other partys operation as to fall within the definition. As the case of the controlling shareholder in a company who is also employed as chief executive shows, one can effectively be ones own boss and still be a worker. While subordination may sometimes be an aid to distinguishing workers from other self employed people, it is not a freestanding and universal characteristic of being a worker. 40. It is accepted that the appellant falls within the express words of section 230(3)(b). Judge Peter Clark held that she was a worker for essentially the same reasons that he held Dr Westwood to be a worker, that she could not market her services as a solicitor to anyone other than the LLP and was an integral part of their business. They were in no sense her client or customer. I agree. Human Rights 41. I have reached that conclusion without the help of the European Convention on Human Rights. But it may be worth noting that that conclusion is entirely consistent with the appellants rights under article 10, whereas a different conclusion would pose more problems. Article 10 provides for a qualified right to freedom of expression. In Heinisch v Germany [2011] IRLR 922, that right was held to extend to a geriatric nurse in a nursing home who reported her employers to the prosecuting authorities because of the understaffing. The European Court of Human Rights held that her dismissal without notice on the ground that she had lodged a whistleblowing complaint against her employer and the failure of the domestic courts to order her reinstatement had violated her rights under article 10. Her right to impart information could be restricted if this was in accordance with the law, pursued a legitimate aim (in this case to protect the rights and reputation of the employer), and was proportionate to that aim. The court considered a number of factors relevant to the proportionality calculation, bearing in mind the duty of loyalty owed by an employee to her employer. It was important to establish whether the employee was acting in good faith and had reasonable grounds for the complaint, whether the information disclosed was in the public interest, and whether there was any more discreet means of remedying the wrongdoing; proportionality also required a careful analysis of the severity of the penalty imposed upon the whistle blower and its consequences (see paras 62 to 70). Hence article 10 operates as a protection for whistle blowers who act responsibly. 42. In Heinisch, the court also recalled, at para 44, that article 10 applies to the workplace in general: Kudeshkina v Russia, Application no 29492/05, judgment of 26 February 2009 shows that a professional person such as a judge is entitled to the freedom to criticise the judicial system. It also applies when relations between employer and employee are governed by private law: the state has a positive obligation to protect it even in the sphere of relationships between private persons: see Fuentes Bobo v Spain (2000) 31 EHRR 1115. 43. Hence it is argued that, if the appellants claims as to the reasons for her dismissal are made good, it would be incompatible with her convention rights for the law to deny her a remedy. If the whistle blowing provisions of the 1996 Act apply to her, she would have such a remedy. Those provisions are consistent with the proportionality calculation carried out in Heinisch. The expectation is that disclosure will first be made to the employer or the person responsible for the wrong doing or to a prescribed regulator (see sections 43C, 43E, 43F). Disclosure may only be made to other persons in more limited circumstances (see sections 43G, 43H), for example where the worker reasonably believes that she will be subject to a detriment if she discloses to her employer, and it must be reasonable in all the circumstances of the case. If those provisions do not apply to the appellant, then it is difficult to see what other protection she would have, given that she is not entitled to protection from unfair dismissal. Hence it is our duty under section 3 of the Human Rights Act 1998 to interpret the 1996 Act so as to give her that protection. 44. This argument raises what might be a difficult question. Under section 3(1) of the Human Rights Act 1998, we have a duty to read and give effect to legislation in a way which is compatible with the convention rights (and this means that it may have a different meaning in this context from the meaning it has in others). While it is comparatively easy to see how this may be done in order to prevent the state from acting incompatibly with a persons convention rights, in other words, to respect the negative obligations of the state, it is a little more difficult to assess whether and when this is necessary in order to give effect to the positive obligations of the state and thus to afford one person a remedy against another person which she would not otherwise have had. It is at this point that the respondents argument that the 1996 Act gives better protection than is required under the Convention might be relevant. 45. Fortunately, however, as the appellant already has that protection under the 1996 Act as interpreted in a completely conventional way, it is not necessary for us to decide whether her convention rights would require and permit us to interpret it compatibly. Conclusion 46. In my view, the appellant clearly is a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996 and entitled to claim the protection of its whistle blowing provisions. That conclusion is to my mind entirely consistent with the underlying policy of those provisions, which some might think is particularly applicable to businesses and professions operating within the tightly regulated fields of financial and legal services. The appeal must be allowed and the case remitted to the employment tribunal to determine her claim under those provisions along with her sex discrimination claim. LORD CLARKE

UK-Abs

The appellant is an English qualified solicitor. In February 2010, she became a member of Clyde & Co Limited Liability Partnership (LLP). She signed a Deed of Adherence to the LLPs Members Agreement. The other parties to the Deed were the LLP and each of the Members individually. In November 2010, the appellant reported to the LLPs money laundering reporting officers that the managing partner of the Tanzanian law firm, with whom the LLP were doing business, had admitted paying bribes to secure work and to secure the outcome of cases. She claims that these were protected disclosures within the meaning of section 43A of the 1996 Employment Rights Act (the 1996 Act). She also claims that she was subject to a number of detriments as a result, including suspending her and ultimately expelling her from the LLP in January 2011. These claims are denied by the LLP and have not yet been tried. In February 2011, the appellant brought claims in the Employment Tribunal against the LLP and one of its Senior Equity Members under the whistle blowing provisions of the 1996 Act. The respondents objected to her whistle blowing claim on the ground that she was not a worker within the meaning of section 230(3) of the 1996 Act and, as such, does not benefit from the protection given to whistle blowers. There are two definitions of worker for the purpose of that Act. Limb (a), not relevant to this case, covers an individual who has entered into, works under, or has worked under a contract of employment and Limb (b) of section 230(3) covers an individual who has entered into or works under or worked under any other contractwhereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer. The main question in this appeal is whether a member of a LLP can be a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996? The Employment Tribunal found that she was not a worker. The Employment Appeal Tribunal held that she was a worker. The LLPs appeal to the Court of Appeal was successful, but on a completely different ground from those argued in the Tribunals. The Court of Appeal, cited section 4(4) of the Limited Liability Partnership Act 2000 (the 2000 Act), which states that a member of a limited liability partnership shall not be regardedas employed by the [LLP] unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership. The Court of Appeal held that the phrase employed by included limb (b) contracts and, thus, the appellant was not a worker. The Supreme Court unanimously allows the appeal and holds that the appellant is a worker within the meaning of the 1996 Act. As such, she is entitled to claim the protection of its whistle blowing provisions. Lady Hale gives the lead judgment. The Court finds that there is no need to give such a strained construction to section 4(4). It is saying that, whatever the position would be if the LLP members were partners in a traditional partnership, then that position is the same in an LLP. The Court holds that that is how section 4(4) is to be construed [21]. The phrase employed by in section 4(4) covers a person employed under a contract of service [22]. The Court holds, however, that it does not also cover those who undertake to do or perform personally any work or services for another party to the contract. Section 4(4) of the 2000 Act does not mean that members of an LLP can only be workers within the meaning of section 230(3) of the 1996 Act if they would also have been workers had the members of the LLP been partners in a traditional partnership [23 28]. Next the Court considers the analysis of the Court of Appeal that underlying the statutory definition of worker is the notion that one party has to be in a subordinate relationship to the other. The Court of Appeal suggested that a member of a LLP would not by virtue of that status alone constitute either an employee or a worker. If by this, the Court of Appeal meant that those members who undertake personally to work for the LLP cannot be workers, then this Court does not agree. While subordination may sometimes be an aid to distinguishing workers from other self employed people, it is not a freestanding and universal characteristic of being a worker [30 40]. As the appellant has protection under the 1996 Act as interpreted in a conventional way, the Court does not find it necessary to decide whether her convention rights would require and permit it to interpret the Act compatibly [41 45]. In a concurring judgment, Lord Clarke agrees with Lady Hale that by the terms of the appellants contract with the respondent LLP, she undertook to perform personally certain work or services for it and her status was not by virtue of the contract that of a client or customer [47]. Lord Clarke adds that, in his opinion, the effect of the relevant provisions of the 1996 Act and the 2000 Act, read together, is that a person who is a limb (b) worker within section 230(3) is a person regarded for any purpose as employed by the LLP within the 2000 Act [49 54]. In a concurring judgment, Lord Carnwath emphasises that, in his view, the conclusion in this case turns on the special characteristics of a LLP, which is something of a hybrid as between a conventional 1890 Act partnership and a limited company. It does not necessarily have any direct relevance to the resolution of equivalent issues in relation to other forms of partnership, under English or Scottish law [55 59]. The main judgment leaves open the question of what the position would be in a traditional partnership.

This appeal arises out of divisions which have arisen within a Sikh sect associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and High Wycombe. It raises two questions arising out of the trusts on which the Gurdwaras are held. The questions are (i) the extent to which it is open to trustees to alter, or restrict, the terms of the trusts upon which they hold property, and (ii) the extent to which the court can and should refuse to determine issues of religion or religious belief in legal proceedings. The Court of Appeal confined itself to issue (ii). They decided that the whole dispute was non justiciable and ordered a permanent stay of the entire proceedings, thus making it unnecessary to deal with issue (i). The factual background On 22 April 1987, fourteen men, all Sikhs living in or near Birmingham, attended a meeting at which certain decisions were passed unanimously according to a memorandum (the April 1987 memorandum). An unchallenged translation of the April 1987 memorandum records that it was decided that: under the guardianship of His Holiness Brahamgiani, revered 108 Sant Maharaj Baba Gian Singh Ji of Nirmal Kutia Johal, and on his orders, wishes and instructions, another Gurdwara be established in the Midlands area of England for the benefit and forever success of the Sikh faith, brotherhood and the devotee congregations . His Holiness there referred to was the then holder of the office of Holy Saint, and known for the purpose of these proceedings as the First Holy Saint. The First Holy Saint had succeeded the original Holy Saint (who had died in 1971), as the religious head of the abode of saints at Nirmal Kutia in the Indian village of Johal. The memorandum also recorded that it was decided that another large gathering be called on 17 May 1987. A meeting duly took place on 17 May 1987, which was attended by twenty eight men, and which resulted in decisions which were recorded in another memorandum (the May 1987 memorandum). This memorandum, again in an unchallenged translation, records a number of decisions. First, that, under the Supreme Authority of the First Holy Saint (referred to in the memorandum as His Holiness), a Gurdwara be established in the Midlands area, which was to be similar to a Gurdwara which had been acquired in Bradford in 1982. Secondly, that this Gurdwara be established in Birmingham under the discipline and headship of His Holiness. Thirdly, that the Gurdwara and all services shall always be conducted according to the orders and wishes of His Holiness. The fourth decision was that only adherents of Sikh faith could be a trustee or on the management committee. Fifthly, it was decided to look for a building for the Gurdwara and to purchase it according to orders from His Holiness. Finally, a committee of nineteen men was recorded as formed to serve. Meanwhile, donations were being collected from devotees, and a property at Oldbury, Birmingham (the Birmingham Gurdwara) was found and, on 17 September 1987, it was inspected by the First Holy Saint. According to a memorandum (the September 1987 memorandum) of that date, he gave his approval with delight to its purchase. The memorandum records that he gave the responsibility of managing [the Birmingham] Gurdwara to five men, of whom four, the first, second and third respondents and Tarlochan Singh (the original trustees) were described as trustees. The September 1987 memorandum also stated that only Maharaj Sri 108 Sant Maharaj Baba Gian Singh Ji Nirmal Kutia, Johlan will have the authority to change any trustee, management member and the whole management system of the Gurdwara Sahib in any form at any time. The Birmingham Gurdwara was then purchased with a combination of the donations collected from devotees and loans, which were subsequently discharged from further donations. The Birmingham Gurdwara was transferred to the original trustees by a transfer dated 19 November 1987 (the transfer). The transfer referred to the original trustees as Trustees of the Gurdwara Amrit Parchar Dharmik Diwan (UK) Birmingham (to whom we will refer generically as the Birmingham trustees), and to the property transferred as know[n] for identification only as an Office Block but which is to be known as a Sikh Temple. The transfer contained a covenant by the original trustees with the transferor that for ten years the property would not be used other than as a Temple, Synagogue or Church. On 15 January 1991, the original trustees executed a Deed of Trust (the 1991 Deed), under which they declared in clause 1 that they were the duly appointed trustees of the Gurdwara Amrit Parchar Dharmik Diwan (UK) Birmingham, which they defined as the Society (Amrit Parchar refers to a form of baptism). The Society was described in clause 1 as a religious organisation preaching and practising the Sikh faith, following the teachings of [the First Holy Saint] resident at Nirmal Kutia (the Saint) or his successor. Clause 2 referred to the Birmingham Gurdwara (defined as the property), and in clause 3 the original trustees declared that they held it as Trustees for the Society to be dealt with as may be directed in writing by the Saint or his successor. In Clause 4, the original trustees declared that the trust for sale on which the property was held would not be exercised without the consent in writing and the direction of the Saint or his successor. Clause 5 empowered the Saint or his successor at any time [to] remove the Birmingham trustees or any of them and appoint new trustees. Clause 7 provided that, in the event of the Society being wound up or ceasing to exist, the property and all other assets in the hands of the Birmingham trustees shall be held in trust for the Saint or his successor. At around this time, on 24 February 1991, the Constitution of the Society (the 1991 constitution) was drawn up and signed by a number of men including the first, second, third and fourth respondents. The 1991 constitution applied to the communities which worshipped at both the Bradford and the Birmingham Gurdwaras. It described the Societys aims and objects as including [t]o preach Sikhism, doctrine of Holy Shri Guru Granth Sahib and teachings of Ten Gurus from Guru Nanak Dev Ji to Guru Gobind Singh Ji, as well as others, including encouraging ceremonial baptism, discouraging the use of alcohol and smoking, encouraging Panjabi education, and establishing a Sikh information centre and libraries. Clause 10 of the 1991 constitution stated that changes in the Societys management committee could only be made by [the first Holy Saint] or his successor, and, at the end of the constitution there was added PS Word successor in the above text means Sant Harbhajan Singh Ji (Brakat), who was at that time the assistant to the first Holy Saint (hereinafter Sant Harbhajan Ji). On 20 September 1993, a property was acquired at High Wycombe (the Wycombe Gurdwara) with the assistance of donations and loans from devotees. The transfer was made to the sixth and eighth appellants and the fifth and sixth respondents (the Wycombe trustees), who were described as holding the property upon the trusts declared by a Deed of even date herewith. By that Deed, the Wycombe trustees declared that they held the Wycombe Gurdwara in accordance with [the Societys] constitution. At that time, or shortly afterwards, the 1991 constitution was replaced by a new constitution (the 1993 constitution) which applied to the communities which worshipped at the Bradford, Birmingham and Wycombe Gurdwaras (the three Gurdwaras). The 1993 constitution was in very similar terms to the 1991 constitution and, in particular, it included the same clause 10 and PS as the 1991 constitution. On 31 August 2001, the First Holy Saint appointed the third appellant as one of the Birmingham trustees in place of Tarlochan Singh. Three months later, the First Holy Saint died and was succeeded by Sant Harbhajan Ji, who died a few months later in March 2002. It is the appellants pleaded case that, on 20 March 2002, the ninth appellant, Saint Sant Jeet Singh Ji Maharaj (Sant Jeet Singh), was then recognised as the head of Nirmal Kutia Johal in India, and thereby became the Third Holy Saint, as confirmed by a formal written resolution signed by 24 saints and eleven dignitaries. On 13 July 2003, at a joint meeting of the management committees of the three Gurdwaras, Sant Jeet Singh was recognised as the Third Holy Saint, in a resolution signed by a number of men, including the first, second, third, fourth, fifth and sixth respondents. On 31 December 2003, a revised Constitution (the 2003 constitution) for the three Gurdwaras was agreed in Nirmal Kutia, and it was signed by various men, including the six respondents. This 2003 constitution was quite similar to the 1991 and 1993 constitutions, but it had somewhat more aims and a few further provisions. It referred to the consent of Sant Jeet Singh and his successor being required for certain changes in personnel, and contained a NOTE at the end stating that [t]he word successor means His Holiness Sant Baba Jaspal Singh . New trust deeds were prepared in respect of each of the Birmingham and Bradford Gurdwaras. That in respect of the Bradford Gurdwara was executed on 13 February 2004. However, the first, second and third respondents (as three of the four Birmingham trustees) refused to execute the new trust deed in respect of the Birmingham Gurdwara. By deeds executed on 8 June 2004 and 20 June 2006, Sant Jeet Singh purported to remove the first, second, third and fourth respondents as Birmingham trustees, and to replace them with the second, third, fourth and fifth appellants. By another deed dated 12 June 2008, Sant Jeet Singh purported to remove the fifth and sixth respondents as Wycombe trustees, and to replace them with the sixth, seventh and eighth appellants and two other men. On 8 October 2008, the first, second and third respondents (as the other three Birmingham trustees) purported to remove the third appellant as a trustee and to replace him with the fourth respondent. The procedural history On 25 June 2008, the appellants issued proceedings in the High Court seeking various heads of relief, including removal of the first, second, third and fourth respondents as Birmingham trustees, and as members of its management committee, and for connected relief (as well as for relief in connection with the Wycombe Gurdwara). Paras 3 6 of the particulars of claim explained that Birmingham Gurdwara was a place of Sikh worship, that Sikhism involves worshipping ten successive Gurus, that the Nirmalas are a sect of the Sikh religion founded by the tenth Guru, Gobind Singh Ji, that the original Holy Saint started preaching in about 1920, and that Nirmal Kutia is the abode of the saints of Nirmal, a sect which is distinguished by its adherence to baptism and strict adherence to Rehet Maryada, the Sikh code of conduct. In para 28, it was stated that the three Gurdwaras were religious endowments having the purpose of the advancement of tenets of the Holy Saints of Nirmal sect. Although the particulars of claim were rather long, the essence of the claim in relation to the trusteeship of the Birmingham Gurdwara was that Sant Jeet Singh, as the successor of the First Saint, had the right to remove and appoint trustees under the 1991 Deed, and that he had validly removed the first, second, third and fourth respondents as Birmingham trustees and as management committee members in June 2004. They sought similar relief in respect of the trusteeship and management committee of the Wycombe Gurdwara. The Defences of the respondents did not admit paras 3 5 and denied para 28, of the particulars of claim. More specifically, it was alleged in the Defences that the Second Holy Saint died in March 2002 without appointing a successor, and, in any event, the expression successor in the 1991 Deed only applied to the Second Holy Saint. The respondents contended that the 1991 Deed could not validly extend the power to remove or appoint trustees to anyone other than the First Holy Saint. The respondents also raised counterclaims, which included a claim for declarations that the first, second, third and fourth respondents were the Birmingham trustees, and that Sant Jeet Singh had no power of removal or appointment of Birmingham trustees or any other power in relation to the Birmingham Gurdwara or its management. The appellants wished to amend their particulars of claim, and the respondents not only opposed this on the ground that the claim had no realistic prospect of success, but sought to strike out the claim as it raised issues which were said to be unjusticiable. Those two issues came before His Honour Judge David Cooke, sitting as a judge of the High Court in the Birmingham District Registry. On 12 September 2011, he gave the appellants permission to amend their particulars of claim, and dismissed the respondents application to strike out the claim [2011] EWHC 2442 (Ch). He gave the respondents permission to appeal on the latter point. The amended particulars of claim were served a week later. The respondents appealed to the Court of Appeal on the issue of justiciability and also on the permission to amend (for which they obtained permission to appeal from the Court of Appeal). The Court of Appeal allowed their appeal for reasons contained in a judgment given by Mummery LJ (with whom Hooper and Pitchford LJJ agreed) [2012] PTSR 1697. He held that there were no judicial or manageable standards by which the issues could be judged, because they turned on the question who is the successor of the original founder of the temple trusts, which was an issue which depends on the religious beliefs and practices of Sikhs generally and the Nirmal Kutia Sikh institution in particular, and which is not justiciable by the English courts see para 77. The appellants now appeal to this Court. When considering the arguments, it is only necessary to deal with those which relate to the Birmingham Gurdwara and the Birmingham trustees, as there are no different arguments which relate to the Wycombe Gurdwara and the Wycombe trustees. The issues During the course of the argument before us, four issues emerged as likely to be in dispute, if this case were to go to trial on the basis that all issues were justiciable. It may be that there would be other issues, but, as far as this appeal is concerned, we should concentrate on the four issues. The first issue is whether the respondents are right in suggesting that the 1991 Deed was invalid if and in so far as it purported, by clause 5, to confer the power to appoint and dismiss trustees on anyone other than the First Holy Saint. The second issue, which only arises if the appellants are right on the first issue, is whether the reference to the successor of the First Holy Saint in the 1991 Deed is to be read as limited to Sant Harbhajan Ji, ie the anticipated, and actual, immediate successor to the First Holy Saint, as the respondents contend, or whether it extended to each subsequent successor, as the appellants argue. The third issue, which only arises if the appellants are right on the first and second issues, is whether Sant Jeet Singh is indeed a successor to the First Holy Saint ie whether he is indeed the Third Holy Saint as the appellants contend and the respondents deny. During argument, it appeared that the respondents wished to raise a fourth issue, albeit that it may be an aspect of the third issue, namely that Sant Jeet Singh has departed from the tenets of mainstream Sikhism and is on character grounds unfit to be the successor. It is regrettable that this issue, even if it is only relied on as an aspect of the third issue, should only have become apparent during the hearing of an appeal in the Supreme Court against a pre trial decision of the Court of Appeal based on the parties respective pleaded cases. We required the respondents to give written particulars of their case in connection with the fourth issue, to which the appellants responded, but that all had to take place after the hearing had concluded. Before considering these issues, it is right to say that it is very hard to see how the decision of the Court of Appeal to stay the proceedings generally could possibly have been justified in the light of the first two issues, especially as they should logically be considered first. The question whether the original trustees, who were apparently resident in England and held property in England, had the power to execute a document such as the 1991 Deed, turns solely on the English law of trusts, and cannot conceivably involve an unjusticiable issue. As to the second issue, it turns on a question of interpretation of the 1991 Deed, and it would be more than strange if a pure question of interpretation of a trust deed executed in England relating to property in England and clearly intended to be governed by English law, could not be resolved by an English court. If the respondents succeed on either of these two issues, the claim would fail. On the other hand, it is at least understandable why it might be said that the third and fourth issues are not justiciable. In those circumstances, the sensible approach to adopt is to deal with the first two issues in turn, then to deal with the principles of non justiciability, and decide whether the Court of Appeal was right at least in relation to those issues, and finally to mention two procedural points. The first issue: was clause 5 of the 1991 Deed invalid? The respondents case on the first issue relies on the points that the terms of the trust on which the Birmingham Gurdwara was acquired, and the basis upon which donations were sought and paid for the purpose of acquiring the Birmingham Gurdwara (and, no doubt, the basis upon which any further donations were paid to the original trustees until the 1991 Deed was executed) were those set out in the April 1987 memorandum, the May 1987 memorandum and the September 1987 memorandum (together the 1987 memoranda). In these circumstances, runs their argument, it was not open to the original trustees to vary the terms of the trust as they purported to do in clause 5 of the 1991 Deed by extending the right to appoint and dismiss trustees from the First Holy Saint to his successor . The appellants answer to this has two prongs. First, it is said that there is a general principle that, where money or other property is made over to trustees for somewhat indefinite charitable purposes, it is open to the trustees (indeed it may be incumbent on them) to ensure the preparation of a more formal and more specific document setting out the terms of the trust. Secondly, the appellants contend that the relevant respondents (ie those concerned with the Birmingham Gurdwara rather than the Wycombe Gurdwara), as trustees and/or as active management committee members, cannot challenge the validity of the 1991 Deed, especially as they have for many years acted as if they held office under its terms. In support of both arguments, Mr Mark Herbert QC relied on the reasoning of Sir Herbert Cozens Hardy MR in Attorney General v Mathieson [1907] 2 Ch 383. In that case, the Rev John Wilkinson, who appears to have run various charities in the Stoke Newington area of London, including the Mildmay Mission to the Jews, received 1350 from a lady, who lived in the area and suggested to him that the money might be used for a convalescent home. When he pointed out that the provision of a home and school for children was more pressing, she said Use it for that or any other way you like, and he then used it to purchase a property, Cromwell Lodge, in his own name, and without any declaration of trust. He then used the remainder of the money to fit out and equip Cromwell Lodge, which he then used as a school and home for Jewish children. A year later, in September 1885, a trust deed was executed conveying Cromwell Lodge, together with other property, to trustees (including Mr Wilkinson) on trust for the purposes of the Mission, namely to preach the Gospel to Jews in Great Britain and Ireland (and also in foreign parts if it is deemed desirable), employing in the prosecution of the work activities including homes for destitute children, agencies for procuring employment and assisting emigration, night schools , sewing classes, and for promoting the salvation of souls. The 1885 Deed contained various other provisions, relating to matters such as the trustees powers of sale, investment and appointment of a director (inevitably, Mr Wilkinson). The question before the Court of Appeal in Mathieson was whether the Attorney Generals consent to the proposed sale of Cromwell Lodge was required under the Charitable Trusts Act 1853, which turned on the question whether the 1885 Deed was binding on the trustees, or whether, as Kekewich J had held, the 1885 Deed made no difference to Mr Wilkinsons powers see at p 387. If the former view was correct then the trustees could not apply the proceeds of sale of Cromwell Lodge as income; if the latter view was right, they could do so only with the consent of the Attorney General. The Court of Appeal disagreed with Kekewich J, and held that the latter view was right. Sir Herbert Cozens Hardy MR said at p 394 that the trustees appointed under the 1885 Deed: do not, and cannot, challenge the validity of the trust deed under which they are acting, and it is plain that it would be a breach of trust to apply the proceeds of the sale of the house as income. Even if Mr Wilkinson could originally have done this, they are now bound to treat the proceeds of sale as capital, and invest it accordingly. Sir Herbert then continued: There is, moreover, a further difficulty in the way of the trustees. When money is given by charitable persons for somewhat indefinite purposes, a time comes when it is desirable, and indeed necessary, to prescribe accurately the terms of the charitable trust, and to prepare a scheme for that purpose. In the absence of evidence to the contrary, the individual or the committee entrusted with the money must be deemed to have implied authority for and on behalf of the donors to declare the trusts to which the sums contributed are to be subject. If the individual or the committee depart from the general objects of the original donors, any deed of trust thus transgressing reasonable limits might be set aside by proper proceedings instituted by the Attorney General, or possibly by one of the donors. But unless and until set aside or rectified, such a deed must be treated as in all respects decisive of the trusts which, by the authority of the donors, are to regulate the charity. And it is irrelevant to urge that the donors did not originally give any express directions on the subject Thus, there were two strands to the decision in Mathieson. The first is that trustees who have been appointed under the terms of a trust deed cannot challenge the validity of the deed. That would presumably be justified on the ground that the only basis upon which they have any title to involve themselves in the affairs of the trust is as trustees, and they cannot therefore impugn the very document under which they achieved that status. They would be almost tantamount to denying their own title. The second strand in the decision is that, where a charitable trust is initially created by donors in general or vague terms, it is open to the trustee to execute a more specific deed which limits the terms of the trust, provided it does not conflict with the terms on which the donors made their donations and that a challenge to any terms of the specific deed must be made by the Attorney General (or possibly by the donors). There does not appear to have been much discussion or development of the principles laid down in Mathieson, either in the textbooks or in the cases. Counsel have drawn our attention to two subsequent first instance decisions where the second strand of the decision was considered. In In re Orphan Working School and Alexandra Orphanages Contract [1912] 2 Ch 167, Parker J followed the second strand of the decision, although, as he said, the subsequent trust deed in his case widened rather than narrowed the trusts on which the property in question was held see at p 180. However, he upheld the validity of the deed on the ground that the committee of the charity concerned were the agents for declaring the trusts, and what they declare is prima facie to be considered as carrying out the intention of the donors. The second strand of the decision in Mathieson was also considered by Walton J in the unreported decision of Jeeves v Imperial Foods Ltd, Pension Scheme (unreported, 27 January 1986). As he explained, there may be many occasions in law in which a fund is held on trust, but at the particular point there is no final definitive trust deed. He went on to say that it may very well be that a person who had contributed to the fund in question would be in a position to object to some provision which was never contemplated, but which was put or attempted to be put into the final trust deed. On behalf of the respondents, Mr Mark Hill QC suggested that we could decide this first issue in the respondents favour, on two grounds namely (i) the 1991 Deed plainly went further than the donors would have envisaged, or the terms of the 1987 memoranda permitted, and (ii) the original trustees did not, as a matter of general trust law, have the ability to allocate the right to appoint or dismiss trustees in any event. We would reject the contention that we should accept ground (i), at any rate at this interlocutory stage. It is questionable whether the respondents, or at least those who were appointed as Birmingham trustees, can get round the first strand of the decision in Mathieson. It is true that they did not become trustees as a result of the 1991 Deed, as they became trustees when they purchased the Birmingham Gurdwara. But if that prevents the first strand in Mathieson applying, it would appear to mean that, in Mathieson itself, Mr Wilkinson could have impugned the 1885 Deed which he prepared and executed, as he had become a trustee when the money was handed over to him in 1884. It seems to us questionable whether the Master of the Rolls would have envisaged that Mr Wilkinson was in a different position in this connection from the other trustees. Like Mr Wilkinson, the first, second and third respondents declared that they were trustees of the relevant trust, and set out the terms of that trust, in the relevant Deed and signed it. As to the second strand in Mathieson, the precise status of the 1987 memoranda is not entirely clear, but, even assuming in the respondents favour that the 1987 memoranda do govern the terms of the trust as far as they go and that clause 5 goes further than those memoranda, it is not inconsistent with what is contained in them. On the respondents case, the 1987 memoranda limit the power of appointment and dismissal of trustees to the First Holy Saint and are silent as to that power after his death; if that is right, then according that power to his successors was merely an administrative extension of, and not inconsistent with, what was in the memoranda. Certainly, there is nothing in clause 5 which is, at least on the face of it, inconsistent with any provision of the 1987 memoranda, or which appears, in the words of the Master of the Rolls, to depart from the general objects of the original donors. Subject at any rate to Mr Hills ground (ii), clause 5 of 1991 Deed may well be the sort of provision which could have been perfectly properly included in a definitive deed of the type which Sir Herbert Cozens Hardy MR and Parker J respectively sanctioned in Mathieson and Orphan Working School respectively, namely to prescribe accurately the terms of the charitable trust. Quite apart from this, again subject to ground (ii), in view of what was said towards the end of the second passage quoted from Mathieson, we have considerable doubts whether anyone other than the Attorney General (or, conceivably, any of the original donors) would be entitled to raise the point. In any event, we note that the 1991 Deed has been expressly treated as valid at least on one occasion in August 2001 when a new trustee was appointed, and was not challenged for twelve years, and that may provide another difficulty for the respondents. Mr Hills ground (ii) is based on the proposition that the trust in this case was formed before 1991, namely (at the latest) when the Birmingham Gurdwara was transferred to the original trustees. On that basis, he contends that at that point the power to appoint (and dismiss) trustees was crystallised in accordance with section 36(1) of the Trustee Act 1925, which limits the power to: (a) the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or (b) if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee. In these circumstances, runs the respondents argument, section 36(1)(a) applied so long as the First Holy Saint lived, and, when he had died, section 36(1)(b) came into effect, and it was not open to the trustees to delegate their power of appointment thereunder for the future to anybody else. It is true that the power of trustees of a fully constituted charitable trust do not include the right to delegate the power to dismiss or appoint trustees to a third party, unless of course the trust deed gives them that power see the discussion in Underhill and Hayton, Law of Trusts and Trustees (18th edition, 2010) paras 51(1)(b) and 51(11). However, where the principle in Mathieson applies, it seems to us that trustees must have the power to include new provisions in the trust deed which they would not normally have the power to impose in the case of a fully constituted trust. Accordingly, it is at least arguable that, where the terms of a trust are so sparse that the trustees have implied authority for and on behalf of the donors to declare the trusts to which the sums contributed are to be subject, that authority extends to including a provision such as clause 5 of the 1991 Deed. It is worth noting that the 1885 deed of trust in Mathieson provided that the trustees could delegate their management powers to a director, and that the first director, Mr Wilkinson, should have power to appoint his successor see at p 386. We have expressed our views on the various points raised by the first issue in an intentionally tentative basis, as we consider that, if the respondents wish to pursue this first issue at trial, they should be free to do so. It would not be right for us to decide any of the various points at this interlocutory stage, given that (i) the law in this area is surprisingly undeveloped, (ii) the issue, and the points to which it gives rise, have not been fully pleaded even now, (iii) the resolution of those issues is very likely indeed to be fact sensitive, (iv) the facts of this case are both unusual and unclear, (v) the arguments of the parties have changed as the proceedings have progressed, and (vi) the various points have not been considered by Judge Cooke or by the Court of Appeal. Mr Herbert did not press us to rule in the appellants favour on the issues: indeed, it was his case that we ought not to determine them. We think that that was a wise decision. The second issue: the meaning of successor The question is whether the reference in the 1991 Deed to his successor is to the Second Holy Saint, or whether it includes all subsequent Holy Saints. On the face of the 1991 Deed, it appears to us that, as a matter of language, his successor could be limited to the immediate next Holy Saint, or it could extend to each successive Holy Saint. It is true that it is expressed in the singular, but the effect of section 61(c) of the Law of Property Act 1925 provides that [i]n all deeds, unless the context otherwise requires, [t]he singular includes the plural and vice versa. Given that there is no indication that the trusts declared by the 1991 Deed were intended to be limited in time, and indeed the natural implication is very much the other way, we can see great difficulties for the respondents argument on this second issue. However, we do not think it right to resolve the second issue either. The factual matrix is always important when construing a document, and, while it by no means always justifies live evidence when an issue of interpretation of a document is contested, it does so in this case for reasons (iii) to (vi) set out in para 34 above. In addition, although the force of the point is blunted by the fact that even the earliest Constitution, the 1991 Constitution, was signed after the 1991 Deed, it is conceivable that the respondents may be able to derive some assistance from the PS at the end of the 1991 and 1993 Constitutions and the Note at the end of the 2003 Constitution. Those words may have been included not to limit the meaning of successor in the Constitutions, but merely to identify the current successor, or for some other reason, but their natural meaning could be to limit the meaning of successor in the 1991 and 1993 Constitutions to the Second Holy Saint, and in the 2003 Constitution to Sant Baba Jaspal Singh as successor to Sant Jeet Singh. However, the absence of any such PS or Note from the 1991 Deed could well prove a problem for the respondents as could the fact that a time limited constitution would seem to be a less implausible concept than a time limited charitable trust deed. The third and fourth issues: non justiciability generally The third and fourth issues raise the questions whether Sant Jeet Singh is indeed the third Holy Saint, and whether the doctrines to which he and the appellants subscribe and/or his personal qualities comply with the religious aims and purposes underlying the 1991 Deed. It was such issues which the Court of Appeal held were unjusticiable, and it is to the question of non justiciability to which we now turn. Mummery LJ took as his starting point the decision of the House of Lords in Buttes Gas and Oil Co. v Hammer (No 3) [1982] AC 888, which he described at para 26 as the clearest and most authoritative guidance that can be found in the authorities about the basis on which a line is drawn between justiciable and non justiciable issues. Buttes Gas arose out of an action for slander whose real object was to obtain a decision of the English court about the boundary between the territory of three Gulf states, a question upon which the validity of the parties off shore drilling rights depended. The House held that issue to be non justiciable, and struck out the proceedings. The single reasoned speech was delivered by Lord Wilberforce. The case is so well known that we may perhaps be forgiven for summarising his reasons quite shortly. Lord Wilberforce, with the support of the rest of the House, considered that there was a general principle in English law of judicial restraint or abstention that the courts will not adjudicate upon the transactions of foreign sovereign states. This was not, in his view, a principle of discretion but a principle of law inherent in the very nature of the judicial process (pp 931 932). Having summarised the allegations in the case before the House, Lord Wilberforce said this at p 938: Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there areto follow the Fifth Circuit Court of Appeals no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no mans land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were unlawful under international law. Mummery LJ regarded this statement as authority for the proposition that in the absence of objective juridical standards (judicial or manageable standards) by which to decide an issue, a court must regard it as non justiciable. He put the present case in the same category because he considered that the same principle applied when the acts complained of were guided by religious beliefs whose justification was incapable of objective assessment. Even assuming that that is an accurate classification of the issues in this action, it seems to us that Mummery LJ misunderstood the reasoning of Buttes Gas. Lord Wilberforces reference to judicial and manageable standards was a quotation from the decision of the Fifth Circuit Court of Appeals in the United States litigation between the same parties upon substantially the same issues. That was in turn based on the celebrated decision of the United States Supreme Court in Underhill v Hernandez (1897) 168 US 250 about the act of state doctrine. The reason why the Fifth Circuit Court of Appeals regarded the issue as non justiciable was not that judges were incapable of deciding questions of international law. Nor was that why Lord Wilberforce agreed with them. Quite apart from the fact that he was himself an international lawyer of some distinction, he points out at p 926F that English courts had on a number of occasions decided issues about the international boundaries of sovereign states without difficulty. The issue was non justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political. Both points are made in the short passage from the Fifth Circuit Court of Appeals decision cited at p 936 of Lord Wilberforces speech. As can be seen from Lord Wilberforces summary of the facts at pp 922 925 and 937, this was because the dispute arose out of the way in which the four states concerned had settled the issue of international law by a mixture of diplomacy, political pressure and force in a manner adverse to the interests of Occidental Petroleum. Occidental wished to obtain a judicial decision that that settlement had been the result of an unlawful conspiracy. This involved assessing decisions and acts of sovereign states which had not been governed by law but by power politics. It is difficult to imagine that such a conclusion could have been reached in any other context than the political acts of sovereign states, for the acts of private parties, however political, are subject to law. The actors are answerable to municipal courts of law having jurisdiction over them and applying objective, external legal standards. There is a number of rules of English law which may result in an English court being unable to decide a disputed issue on its merits. Some of them, such as state immunity, confer immunity from jurisdiction. Some, such as the act of state doctrine, confer immunity from liability on certain persons in respect of certain acts. Some, such as the rule against the enforcement of foreign penal, revenue or public laws, or the much criticised rule against the determination by an English court of title to foreign land (now circumscribed by statute and by the Brussels Regulation and the Lugano Convention) are probably best regarded as depending on the territorial limits of the competence of the English courts or of the competence which they will recognise in foreign states. Properly speaking, the term non justiciability refers to something different. It refers to a case where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter. Such cases generally fall into one of two categories. The first category comprises cases where the issue in question is beyond the constitutional competence assigned to the courts under our conception of the separation of powers. Cases in this category are rare, and rightly so, for they may result in a denial of justice which could only exceptionally be justified either at common law or under article 6 of the Human Rights Convention. The paradigm cases are the non justiciability of certain transactions of foreign states and of proceedings in Parliament. The first is based in part on the constitutional limits of the courts competence as against that of the executive in matters directly affecting the United Kingdoms relations with foreign states. So far as it was based on the separation of powers, Buttes Gas and Oil Co. v Hammer (No 3) [1982] AC 888, 935 937 is the leading case in this category, although the boundaries of the category of transactions of states which will engage the doctrine now are a good deal less clear today than they seemed to be forty years ago. The second is based on the constitutional limits of the courts competence as against that of Parliament: Prebble v Television New Zealand Ltd [1995] 1 AC 321. The distinctive feature of all these cases is that once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable. Where the non justiciable issue inhibits the defence of a claim, this may make it necessary to strike out an otherwise justiciable claim on the ground that it cannot fairly be tried: Hamilton v Al Fayed [2001] 1 AC 395. The basis of the second category of non justiciable cases is quite different. It comprises claims or defences which are based neither on private legal rights or obligations, nor on reviewable matters of public law. Examples include domestic disputes; transactions not intended by the participants to affect their legal relations; and issues of international law which engage no private right of the claimant or reviewable question of public law. Some issues might well be non justiciable in this sense if the court were asked to decide them in the abstract. But they must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable. The best known examples are in the domain of public law. Thus, when the court declines to adjudicate on the international acts of foreign sovereign states or to review the exercise of the Crowns prerogative in the conduct of foreign affairs, it normally refuses on the ground that no legal right of the citizen is engaged whether in public or private law: R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin); R (Al Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910. As Cranston J put it in the latter case at para 60, there is no domestic foothold. But the court does adjudicate on these matters if a justiciable legitimate expectation or a Convention right depends on it: R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76. The same would apply if a private law liability was asserted which depended on such a matter. As Lord Bingham of Cornhill observed in R (Gentle) v Prime Minister [2008] 1 AC 1356, para 8, there are issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This is not to say that if the claimants have a legal right the courts cannot decide it. The defendants accept that if the claimants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude. In Bruker v Marcovitz [2007] 3 SCR 607, the Supreme Court of Canada had to deal with very similar questions in the context of religious beliefs. A wife whose marriage had been dissolved by the courts of Quebec sued her ex husband for damages for refusing to give her a get. This would have enabled her to contract a second marriage which would be lawful as a matter of Jewish religious law. The parties had agreed at the time of their separation to appear before the rabbinical court to obtain a get when their civil divorce became final. The Court of Appeal had declined to decide the claim on the ground that the substance of this obligation was religious and moral in nature, and not justiciable. The Supreme Court disagreed. Citing Syndicat Northcrest vs Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47 at para 50, they accepted that the courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, obligation, precept, commandment, custom or ritual. But this did not prevent them from giving effect to the civil consequences of religious acts. So, while a court could not enforce the husbands religious obligations as such, their religious nature was consistent with their being enforced as a civil contract. The court was divided, the minority (Deschamps and Charron JJ) taking the view that the wifes inability to obtain a purely religious benefit, namely the right to a religious remarriage, was incapable of giving rise to a claim for civil damages. But they accepted the essential position adopted by the majority, that a court is thus not barred from considering a question of a religious nature, provided that the claim is based on the violation of a rule recognized in positive law (para 122). The third and fourth issues: religious doctrine This distinction between a religious belief or practice and its civil consequences underlies the way that the English and Scottish courts have always, until recently, approached issues arising out of disputes within a religious community or with a religious basis. In both jurisdictions the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust. We consider each circumstance in turn. The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs. The courts will not adjudicate on the decisions of an associations governing bodies unless there is a question of infringement of a civil right or interest. An obvious example of such a civil interest is the loss of a remunerated office. But disputes about doctrine or liturgy are non justiciable if they do not as a consequence engage civil rights or interests or reviewable questions of public law. The governing bodies of a religious voluntary association obtain their powers over its members by contract. They must act within the powers conferred by the associations contractual constitution. If a governing body of a religious community were to act ultra vires, for example by seeking a union with another religious body which its constitution did not allow, a member of the community could invoke the jurisdiction of the courts to restrain an unlawful union. See Barker v OGorman [1971] Ch 215, which concerned a challenge to a proposed union between the Methodist Church and the Church of England on the ground that the Methodist Conference had no power to vary the doctrinal standards of the former church. It is a case involving a private Act of Parliament (the Methodist Church Union Act 1929) rather than a contract. But the principles of ultra vires are the same. See also Long v Bishop of Cape Town (1863) 4 Searle 162 PC, 176 per Lord Kingsdown. Similarly, members of a religious association who are dismissed or otherwise subjected to disciplinary procedure may invoke the jurisdiction of the civil courts if the association acts ultra vires or breaches in a fundamental way the rules of fair procedure. The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association: Dawkins v Antrobus [1879] 17 Ch D 615. Its role is more modest: it keeps the parties to their contract. In McDonald v Burns 1940 SC 376, Lord Justice Clerk Aitchison stated (at pp 383 384): In what circumstances, then, will the Courts entertain actions arising out of judgments of ecclesiastical bodies: Speaking generally, in either of two situations (first) where the religious association through its agencies has acted clearly and demonstrably beyond its own constitution, and in a manner calculated to affect the civil rights and patrimonial interests of any of its members, and (secondly) where, although acting within its constitution, the procedure of its judicial or quasi judicial tribunals has been marked by gross irregularity, such fundamental irregularity as would, in the case of an ordinary civil tribunal, be sufficient to vitiate the proceedings. But a mere irregularity in procedure is not enough. In short, the irregularity alleged must not be simply a point of form, or a departure from prescribed regulation, but must go to the honesty and integrity of the proceedings complained of. We turn to the courts enforcement of trusts. The courts have jurisdiction to determine disputes over the ownership, possession and control of property held on trusts for religious purposes. Where people set up a trust to govern the purposes for which property is to be acquired and held, they are performing a juridical act which creates interests that the civil law will protect. The courts have repeatedly exercised jurisdiction in disputes over the ownership of property which were caused by religious disagreements. Many of the cases date from the 19th century and are Scottish, because of the propensity towards schism of the Scottish Presbyterian churches at that time. But the same principles applied in English law and, subject to the statutory jurisdiction of the court to approve cy prs schemes, which we discuss below, they remain valid in both jurisdictions. In a series of cases in which, as a result of a schism, parties disputed who had the beneficial interest in property which was held in trust for a religious community, the rule was established that the civil courts would ascertain the foundational and essential tenets of a faith in order to identify who was entitled to the property. This rule replaced the former rule, which applied at least in Scotland, that the courts would not investigate the religious grounds of a schism but would give effect to the majority view within the religious community. In Craigdallie v Aikman (1813) 1 Dow 1, 14 16 Lord Eldon established the principle of both English law and Scots law that in the event of a division within a voluntary religious body, the property held for the purposes of the association will go to the part of the body that adheres to its fundamental religious principles, as identified in its contract of association. In the English case of Attorney General v Pearson (1817) 3 Mer 353, 400 401, 36 ER 136, 150) he stated [W]here a congregation become dissentient among themselves, the nature of the original institution must alone be looked to as the guide for the decision of the Court, and that to refer to any other criterion, as to the sense of the existing majority, would be to make a new institution, which is altogether beyond the reach, and inconsistent with the duties and character, of this Court. The House of Lords considered the matter again in General Assembly of the Free Church of Scotland v Overtoun [1904] AC 515 (1904 7 F (HL) 1). In that case a Bench of seven Law Lords confirmed the rule in Craigdallie v Aikman. That rule has been applied since then. Most recently, the Inner House of the Court of Session has applied the rule in Smith v Morrison 2011 SLT 1213. In that case, Lord Drummond Youngs opinion contains a careful historical analysis of development of the principle. We agree with his opinion (at para 101) that in every case it is the trust deed or other agreement that determines what are the fundamental principles on which the congregation associated. We also agree with his view (at paras 113 116) that the law looks to the fundamental principles and essential standards of the body rather than minor matters of administration and minor changes in doctrine in ascertaining the scope of the trust. Lord Drummond Young cited (at para 118) the opinion of Lord President Cooper in the unreported case of Mackay v Macleod (10 January 1952) in the context of a competition between two parties, each claiming to be the beneficiaries entitled to certain trust property. The Lord President stated: In such a case it is the duty of the Court to take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the Church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence. (Our emphasis). This clear line of authority contradicts the idea that a court can treat a religious dispute as non justiciable where the determination of the dispute is necessary in order to decide a matter of disputed legal right. Again, as Lord Davey said in Free Church of Scotland v Overtoun (at pp 644 645) the civil courts do not have the right to discuss the truth or reasonableness of any of the doctrines of [a] religious association. He stated The more humble, but not useless, function of the civil Court is to determine whether the trusts imposed upon property by the founders of the trust are being duly observed. The principles established in the church cases apply equally to other religions. In Hasanali v Mansoorali (Privy Council Appeal No 79 of 1945) (unreported, 1 December 1947), the Board in an appeal from the High Court of Judicature at Nagpur was concerned with the right to the use of property belonging to members of a Muslim community of the Ismailia Shia sect in the Central Provinces in India. The dispute within the religious community was whether an earlier leader of the sect, who was the 46th Dai or missionary, had validly appointed his successor before he died in 1840 CE. The authority of the current Dai, who was the 51st Dai, depended upon the validity of the nomination of the 47th Dai and his successors. The method by which a Dai nominated his successor as leader of the sect was by Nas e Jali, a form of declaration by the Dai. The declaration gave his successor civil powers as head of the sect and as trustee of its property as well as ecclesiastical powers as religious leader. The Board examined the tenets of the sect and the surviving evidence of what had occurred on the day on which the former leader died, before concluding that the Dai had made a valid declaration marking out his successor. It also ruled on the question whether the current Dais excommunication of members of his community complied with the procedures in the constitution of the religious community. The immigrations of the 20th century have diversified the religious landscape of the United Kingdom and the principles of the church cases have been applied equally to other religious communities in this country. In Varsani v Jesani [1999] Ch 219, the Court of Appeal dealt with a dispute over the use of a temple in London which was held in trust for a Hindu sect. The original purpose of the charity was the promotion of the faith of Swaminarayan according to the teachings and tenets of Muktajivandasji. A schism occurred in the community when in 1984 allegations of misconduct were raised against the successor, whom Muktajivandasji had nominated before his death in 1979. The majority of the community accepted his authority. But a minority thought that he had disqualified himself by his behaviour from the office of successor. The Court of Appeal held that, but for the extension of the courts jurisdiction to make a scheme cy prs in section 13 of the Charities Act 1960, it would have had to apply the law laid down by the Craigdallie, AG v Pearson and Free Church cases. In both jurisdictions the court has power to make a scheme cy prs. Among the grounds on which the trust purposes of a charity may be reorganised is where the original purposes, in whole or in part, have since they were laid down, ceased to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift. (section 13(1)(e)(iii) of the Charities Act 1993). In Scotland, similar provision is made for the reorganisation of both non charity public trusts and also charitable trusts in section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 and sections 39 42 of the Charities and Trustee Investment (Scotland) Act 2005 respectively. This power may provide a means of avoiding the judicial determination of a religious dispute. But if it is not available, the court cannot shirk its duty to determine a matter of civil right. The respondents referred to the judgments of Gray J in Blake v Associated Newspapers Ltd [2003] EWHC 1960 and Simon Brown J in R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex p Wachmann [1992] 1 WLR 1036 in support of their contention that the dispute in this case was non justiciable. But neither case supports that contention. In the former case the court stayed an action for defamation by Mr Blake against the publisher of the Daily Mail for describing him as a self styled or imitation bishop. The claimant had relinquished his status as a priest within the Church of England and had established with a Mr Palmer an organisation called The Province for Open Episcopal Ministry and Jurisdiction. Mr Palmer had purported to consecrate him a bishop. The case raised questions of doctrine and ecclesiology: the question was whether he was a bishop or merely a self styled bishop. We do not think that the court was correct to refuse to adjudicate on that issue on the ground that it was non justiciable. The claim was a civil claim in tort and the court will enter into questions of disputed doctrine if it is necessary to do so in reference to civil interests. See also Forbes v Eden (1867) LR 1 Sc & Div 568 HL, Lord Cranworth (at pp 581 582), Lord Colonsay (at p 588). The problem that such defamation claims face, which will usually doom them to failure, is that they raise issues of religious opinion on which people may hold opposing views in good faith. The expression of such views without malice is likely to be protected by the defence of honest comment what used, until Joseph v Spiller [2011] 1 AC 852, to be called fair comment. The ratio of the judgment in Wachmann was that the Chief Rabbis decision that the applicant was not religiously and morally fit to hold office as a rabbi did not raise an issue of public law which was amenable to judicial review. The case is not an authority for a proposition that the legality of such disciplinary proceedings is not justiciable. If the claim had been presented as a challenge to the contractual jurisdiction of a voluntary association, the court would have had jurisdiction to consider questions of ultra vires and allegations of breaches of natural justice: see Long v Bishop of Cape Town (above); R v Imam of Bury Park Mosque, Luton, Ex parte Sulaiman Ali CA 12 May 1993 QB COF 91/1247/D (The Times, 20 May 1993) in which Roch LJ cited Denning LJs judgment in Lee v Showmens Guild of Great Britain [1952] 2 QB 329, 342; Brentnall v Free Presbyterian Church of Scotland 1986 SLT 471. In Scotland, the wider scope of the supervisory jurisdiction of the Court of Session, which extends to those who exercise a jurisdiction conferred by private contract, would have allowed the challenge to be in the form of an application for judicial review as an alternative to a claim based on contract: West v Secretary of State for Scotland 1992 SC 385, Lord President Hope at pp 399 400. Accordingly, unless the parties are able to resolve their differences, for example by a reorganisation of the trust purposes cy prs, the court may have to adjudicate upon matters of religious doctrine and practice in order to determine who are the trustees entitled to administer the trusts. Subject to further amendment of the parties cases, the question whether Sant Jeet Singh has power to appoint and dismiss trustees may depend on issues such as (i) what are the fundamental tenets of the First Holy Saint and the Nirmal sect, (ii) what is the nature of the institution at Nirmal Kutia in India, (iii) what steps or formalities were needed for a person to become the successor of the First Holy Saint, and (iv) in relation to the fourth issue whether the teachings and personal qualities of Sant Jeet Singh comply with the fundamental religious aims and purposes of the trust. Conclusion and ancillary matters For these reasons, we would allow this appeal and restore the order of Judge Cooke. In so doing, we are reinstating the permission he accorded to the appellants to amend their particulars of claim, subject to certain reservations stipulated in his order. Although the Court of Appeal entertained an appeal against that order, they did not rule on it. We can see no good reason why an appellate court should interfere with a case management decision of this sort. It is not as if the hearing is imminent, and, as we have indicated, the respondents appear to wish to expand their case. There is one other matter we should mention. In his judgment, Judge Cooke made it clear that he did not consider that expert evidence would be appropriate. Whether that was right before the respondents made it clear that they wished to raise what we have called the fourth issue need not be decided. What is clear is that, in the light of the fourth issue, there is a strong case for saying that expert evidence should be permitted. In the light of that, as well as in the light of our decision on the points raised by the appeal, we propose to order that these proceedings be remitted to the High Court for appropriate further directions, without prejudice to the parties consenting to all further directions which they agree are needed.

UK-Abs

This appeal relates to disputes which have arisen within a Sikh sect associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and High Wycombe. It raises two questions concerning the trusts on which the Gurdwaras are held. The questions are (i) the extent to which it is open to trustees to alter, or restrict, the terms of the trusts upon which they hold property, and (ii) the extent to which the court can and should refuse to determine issues of religion or religious belief in legal proceedings. In April 1987, fourteen men attended a meeting at which they decided to establish a Gurdwara under the guardianship of His Holiness Brahamgiani, revered 108 Sant Maharaj Baba Gian Sing Ji of Nirmal Kitia Johal. His Holiness was the then holder of the office of Holy Saint (the First Holy Saint), the religious head of the abode of saints at Nirmal Kutia in the Indian village of Johal. The next month a further meeting decided that this Gurdwara, which was to be similar to a Gurdwara which had been acquired in Bradford in 1982, be established under the Supreme Authority of the First Holy Saint. In September 1987 the First Holy Saint approved a property at Oldbury, Birmingham (the Birmingham Gurdwara), which was purchased with a combination of donations from devotees and loans. The First Holy Saint gave the responsibility of managing the Birmingham Gurdwara to the first, second and third respondents (the original trustees), to whom the Birmingham Gurdwara was then transferred. In January 1991 the original trustees executed a Deed of Trust (the 1991 Deed), in which they declared themselves to be the trustees of a religious organisation preaching and practicing the Sikh faith and following the teachings of the First Holy Saint (the Society). Clause 5 of the 1991 Deed (clause 5) empowered the Saint or his successor to remove the Birmingham trustees and appoint new trustees. A month later the constitution of the Society was signed, Clause 10 of which stated that only the First Holy Saint or his successor could make changes to the Societys management committee. In September 1993, a property was acquired at High Wycombe (the Wycombe Gurdwara) and transferred to the sixth and eight appellants and the first and sixth respondents, who were declared to hold the property in accordance with the Societys constitution. In November 2001, the First Holy Saint died and was succeeded by Sant Harbhajan Ji, who died a few months later in March 2002. In July 2003, at a joint meeting of the management committees of the three Gurdwaras, Sant Jeet Singh was recognised as the Third Holy Saint. Following the respondents refusal to execute a new trust deed, Sant Jeet Singh purported to remove them as trustees and replace them with the second eighth appellants. The appellants issued proceedings in the High Court seeking various heads of relief, including removal of the first, second, third and fourth respondents as Birmingham trustees and the removal of the fifth and sixth respondents as Wycombe trustees. The respondents sought to strike out the claim on the ground that it was unjusticiable. Judge Cooke dismissed the application, but the Court of Appeal allowed the respondents appeal, holding that the issue turned on religious beliefs which were not justiciable by the English courts. The appellants now appeal to the Supreme Court. The Supreme Court unanimously allows the appeal. The judgment is given by Lord Neuberger, Lord Sumption and Lord Hodge, with whom Lord Mance and Lord Clarke agree. The issues should all go to trial. Depending on the facts, the powers of the respondents as trustees may have extended to agreeing a provision such as clause 5, and in any event they may not be entitled to challenge its validity. Further, while courts do not adjudicate on the truths of religious beliefs, the courts have jurisdiction to determine disputes over the ownership, possession and control of property held on trusts for religious purposes. During argument four issues emerged as likely to be in dispute: 1) Whether, as the appellants contend, clause 5 is valid insofar as it accords the power to appoint and dismiss trustees on persons other than the First Holy Saint; 2) If the appellants are right on the first issue, whether the reference to the successor of the First Holy Saint in clause 5 is to be read as limited to Sant Harbhajan Ji, the immediate successor to the First Holy Saint, or whether it extended to subsequent successors; 3) If the appellants are right on the first and second issues, whether Sant Jeet Singh is indeed successor to the First Holy Saint; and 4) Whether Sant Jeet Singh has departed from the tenets of mainstream Sikhism and is on character grounds unfit to be the successor [19]. The first issue: was clause 5 of the 1991 Deed invalid? In Attorney General v Mathieson [1907] 2 Ch 383, the Court of Appeal held that where a charitable trust is initially created by donors in general or vague terms, it is open to the trustee to execute a more specific deed which limits the terms of the trust, provided it does not conflict with the terms on which the donors made their donations [26]. Where the principle in Mathieson applies, it would appear that trustees must have the power to include new provisions in the trust deed which they would not normally have the power to impose in the case of a fully constituted trust [33]. It is at least arguable that, where the terms of a trust are so sparse that the trustees have implied authority on behalf of the donors to declare the trusts to which the sums contributed are to be subject, that authority extends to including a provision such as clause 5. It would not be right to resolve this issue at an interlocutory stage for a number of reasons, including the fact that the issue has not been fully pleaded, the parties arguments have changed as the proceedings progressed, the various points have not been fully considered in the courts below, and the resolution of this issue is very likely to be fact sensitive [33 34]. The second issue: the meaning of successor On the face of the 1991 Deed, it appears that, as a matter of language, his successor could be limited to the immediate next Holy Saint, or could extend to each successive Holy Saint. It would not be right to resolve this second issue at this interlocutory stage for much the same reasons given in relation to the first issue [36]. The third and fourth issues: non justiciability generally The term non justiciability refers to a case where an issue is inherently unsuitable for judicial determination by reason only of its subject matter. Such cases generally fall into one of two categories. The first category comprises cases where the issue in question is beyond the constitutional competence assigned to the courts. Once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself justiciable. A paradigm case is the non justiciability of proceedings in Parliament [41 42]. The second category comprises cases based neither on private legal rights or obligations, nor on reviewable matters of public law. These issues are non justiciable if the court were asked to decide them in the abstract; however, such issues must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable [43]. The third and fourth issues: religious doctrine The courts do not normally adjudicate on the truths of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective assessment [45]. The courts have jurisdiction to determine dispute over the ownership, possession and control of property held on trusts for religious purposes. Where people set up a trust to govern the purposes for which property is to be acquired and held, they are performing a juridical act which creates interests that the civil law will protect [49].

These appeals concern requests made for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union. The requests relating to the appellants Mindaugas Bucnys (Bucnys) and Marius Sakalis (Sakalis) come from the Ministry of Justice of the Republic of Lithuania. The third request, relating to the respondent Dimitri Lavrov (Lavrov), comes from the Ministry of Justice of the Republic of Estonia. The Ministries made the requests in the form of European arrest warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on the European arrest warrant and surrender procedures between member states of the European Union (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA), the designated authority under section 2(9), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the Ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well-founded in the case of either or both of the Ministries. The Administrative Court (Aikens LJ and Globe J) on 12 December 2012 answered the first question in the affirmative and the second in the negative: [2013] 1 All ER 1220. As to the third, it concluded that a ministry of justice would under European law be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98); it held further that the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant, and that, in the light of these considerations, the requests made by the Ministry of Justice of Lithuania in the cases of Bucnys and Sakalis were valid, while the request made by the Ministry of Justice of Estonia in the case of Lavrov was invalid. Bucnys and Sakalis now appeal, while the Estonian Ministry appeals in the case of Lavrov. The bases of the requests The request in respect of Bucnys results from his conviction for six housebreaking and one fraud offences, for which a total sentence of 5 years 4 months was passed on 29 February 2007. He was released conditionally by the Alytus Region District Courts order on 12 September 2008, but on 20 February 2010 the Vilnius City 1st District Court quashed his conditional release for failure to abide by the condition, requiring him to serve a further period of 1 year 7 months 28 days. The request for his surrender was expressed to be based on this court order dated 20 February 2010. Since preparing this judgment, the court has been informed by those instructed by Bucnys that he has died, presumably since the hearing. The issue raised remains of general importance, and this judgment records the Courts conclusions on it. Sakalis is wanted as a result of his conviction of a series of serious sexual assaults, including buggery, inflicted on the same victim on 28 October 2006. A sentence of 4 years was imposed by the Vilnius City 1st District Court on 25 January 2008, and his appeal was dismissed in his absence by the Vilnius County Court on 24 December 2008. Sakalis absconded before serving any part of this sentence. The request for his surrender was issued by the Minister of Justice signing as representative of the Ministry of Justice. Lavrov is wanted as a result of murder of an invalid paranoid schizophrenic in the nursing home where Lavrov worked as a medical orderly. He was sentenced to 13 years imprisonment on 23 March 2001, released on parole on 14 July 2008 with an obligation to fulfil supervision requirements. He was recalled to prison by the Viru County Court on 2 December 2009 for failure to fulfil such requirements, meaning that he would have to serve a further 4 years 2 months and 25 days in prison, but he absconded. On 9 February 2010 the Viru County Court issued an arrest warrant. On 10 February 2011, it sent a request to the Ministry of Justice to issue a warrant, leading to the Head of the Ministrys International Cooperation Unit issuing the request in issue dated 31 May 2011, expressed to be on the basis of the warrant dated 9 February 2010. Extradition Act 2003 and Framework Decision Section 2 of the 2003 Act, as amended by section 42 of, and paragraph 1(1) of Schedule 13 to, the Police and Justice Act 2006, reads: Part 1 warrant and certificate (1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains (a) . , or (b) the statement referred to in subsection (5) and the information referred to in subsection (6) . (5) The statement is one that (a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (6) The information is (a) particulars of the person's identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence. (7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State.... The Framework Decision was a third pillar measure agreed between member states under Title VI of the Treaty on European Union (TEU) in its pre- Lisbon Treaty form. The heading of Title VI is Provisions on Police and Judicial Cooperation in Criminal Matters. The Framework Decision was expressed to be made with regard to the TEU and in particular Article 31(a) and (b) [sic] and Article 34(2)(b) thereof. Article 31(1)(a) and (b) are for present purposes relevant: 31(1). Common action on judicial cooperation in criminal matters shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the member states, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions; (b) facilitating extradition between member states; .. The Framework Decision starts with recitals, stating inter alia: (5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation. . (8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the member state where the requested person has been arrested will have to take the decision on his or her surrender. (9) The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance. The text of the Framework Decision provides: GENERAL PRINCIPLES Article 1 Definition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. Article 6 Determination of the competent judicial authorities 1. The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing member state which is competent to execute the European arrest warrant by virtue of the law of that state. 3. Each member state shall inform the General Secretariat of the Council of the competent judicial authority under its law. Article 7 Recourse to the central authority 1. Each member state may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities. 2. A member state may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto. Member state wishing to make use of the possibilities referred to in this article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing member state. Article 8 Content and form of the European arrest warrant 1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing member state; (g) if possible, other consequences of the offence. SURRENDER PROCEDURE Article 9 Transmission of a European arrest warrant 1. When the location of the requested person is known, the issuing judicial authority may transmit the European arrest warrant directly to the executing judicial authority. 2. The issuing judicial authority may, in any event, decide to issue an alert for the requested person in the Schengen Information System (SIS). 3. Such an alert shall be effected in accordance with the provisions of article 95 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at common borders. An alert in the Schengen Information System shall be equivalent to a European arrest warrant accompanied by the information set out in article 8(1). For a transitional period, until the SIS is capable of transmitting all the information described in article 8, the alert shall be equivalent to a European arrest warrant pending the receipt of the original in due and proper form by the executing judicial authority. Status of designation under article 6 and of SOCA certification under section 2(7). The first two questions identified in paragraph 3 above are inter-related. Part 1 of the 2003 Act was enacted to give effect to the United Kingdoms international obligations contained in the Framework Decision. By its decision in Assange [2012] 2 AC 471 this court underlined the strength of the presumption that it did so fully and effectively. The Ministries submit that article 6 of the Framework Decision was intended to leave it to each member state to define its own judicial authority or authorities for the purposes of the Framework Decision, as best suited it; the information given by each state to the General Secretariat of the Council of the competent judicial authority under its law should be taken as conclusive, pursuant to the same spirit of mutual trust as underlies the Framework Decision itself; and section 2(7) of the 2003 Act must be taken as having been intended to involve a simple check by SOCA of the information received by the Secretariat, leading to a certificate issued by SOCA which must itself be taken as binding on the question whether the Part 1 warrant was issued by a competent judicial authority for the purposes of the 2003 Act. In a number of domestic authorities, the Ministries analysis has been accepted: Enander v Governor of Brixton Prison [2006] 1 CMLR 999, where Openshaw J thought that any further inquiry would be attended with considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and cannot, in my judgment, have been intended by Parliament (para 30), Goatley v HM Advocate 2008 JC 1 and Harmatos v Office of the King's Prosecutor in Dendermonde, Belgium [2011] EWHC 1598 (Admin). In more recent authorities, a different attitude has been taken. At first instance in Assange [2011] EWHC 2849 (Admin), para 17, Sir John Thomas P, giving the judgment of the Divisional Court of the Queens Bench Division thought that: it is clear that in the present state of development of the common area for justice, mutual confidence in the common area for justice and the operation of the EAW will not be advanced unless the courts of the executing state scrutinise requests for surrender under the EAW with the intensity required by the circumstances of each case. . Later, he said: 46. Although the approach in Enander is one that will ordinarily apply, the designation under article 6 does not, in our view, always compel the recognition by another member state as conclusive, if the authority is self evidently not a judicial authority within the meaning of that broad term in the Framework Decision. It is of some interest to note in the light of our observation at para 37 on the status of a Ministry of Justice that in 2007 the Commissioner for Justice and Home Affairs in the Report on the Evaluation of the Transposition of the Framework Decision stated that the designation by some states directly or indirectly of the Ministry of Justice as a judicial authority was contrary to the terms of the Framework Decision. However there appear to have no instances where the Commission has taken action in respect of a body that should not have been designated as a judicial authority. 47. For example, if a warrant was issued by a Ministry of Justice which the member state had designated as an authority under article 6, it would not, in our view, be a valid EAW under the Framework Decision. The principles of mutual recognition and mutual confidence which underpin the common area for justice would not require the recognition of such a warrant, as it would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial. In our view a national judge within the European Union is bound to uphold the principles of mutual recognition and mutual confidence for the reasons we have given at para 17; public confidence in the EAW would only be undermined by the recognition of an EAW issued by a Ministry of Justice in contradistinction to an EAW issued by a judge or prosecutor. 48. It was accepted by Miss Montgomery QC (who appeared for the prosecutor) that if circumstances arose where it could be said that the person issuing the EAW was not a judicial authority, the designating certificate issued by SOCA would not be conclusive. It would have to be challenged by judicial review. She was right to accept that the certificate was not conclusive, as under section 2(8) of the 2003 Act the function entrusted to SOCA is to certify that the issuing authority has the function of issuing EAWs. It does not certify that it is a judicial authority. In Dhar v National Office of the Public Prosecution Service, The Netherlands [2012] EWHC 697 (Admin), King J pursued the same theme, saying: 38. True it is that the certificate must be certifying that the issuing authority has been designated by the law of the requesting state as the competent judicial authority for the purpose of issuing such warrants and that the requesting state has given notice to this effect to the General Secretariat of the European council pursuant to article 6(3) of the Framework Decision, but this is not the same in my judgment as certifying that such designated authority is as a matter of fact a judicial authority within the meaning of section 2(2). 39. Hence in my judgment it must be open, the grant of the certificate under section 2(7) notwithstanding, to this appellant to raise on this appeal (as he could have done before the District Judge) the issue whether the warrant was an invalid Part 1 warrant on the grounds that the purported issuing authority was not a judicial authority within the meaning of section 2(2) of the Act. When Assange was before the Supreme Court [2012] 2 AC 471, Miss Montgomery initially maintained the attitude she had taken in the Administrative Court, but in a late change of stance she aligned herself with the Lord Advocate for Scotlands written intervention advancing the same case as the present Ministries. In the event, the majority decision on other points made it unnecessary to decide this point: see per Lord Phillips of Worth Matravers at paras 81-82. However, Lord Kerr of Tonaghmore and I expressed views obiter that article 6 did not mean that any authority about which information was given to the Council Secretariat was ipso facto judicial (paras 105 and 238). Mr Knowles QC for the Ministries of Justice on the present appeal submits that, although Lord Phillips said that he was leaving the point open, he had in effect answered it in reasoning with which other members of the majority concurred. Mr Knowles points out that Miss Montgomerys wider submission in Assange was that, although judicial authority had a broad and autonomous meaning, this meaning describes any person or body authorised to play a part in the judicial process (Lord Phillips judgment, para 5); and that at para 76 Lord Phillips concluded that the issuing judicial authority bears the wider meaning for which Miss Montgomery contends and embraces the Prosecutor in the present case. Mr Knowless submission reads more into these passages in Assange than can be justified. By authorised to play a part in the judicial process must have been meant more than simply authorised to issue a European arrest warrant domestically and designated to the Secretariat under article 6(3). Otherwise, there would be no autonomous content at all. Even if one takes the sens vague of autorit judiciare which Lord Phillips approved in paras 18 and 65, this does not make an unlimited (only a wider) range of authorities eligible to be regarded as judicial. Such authorities must be at the least authorities qui appartient la justice, par opp[osition] legislative et administrative. Further, and most importantly, it is clear that the ratio of Assange was and is confined to the status of public prosecutor, and that other members of the majority cannot be taken as necessarily having agreed with all that Lord Phillips said on a number of points: see eg Lord Walker of Gestingthorpe at para 91, Lord Brown of Eaton-under- Heywood at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and 171. Finally, in the present case, the Administrative Court also disagreed with Enander [2006] 1 CMLR 999 and Harmatos [2011] EWHC 1598 (Admin) in so far as they stated that any certificate issued by SOCA under section 2(7) was conclusive or could only be challenged by judicial review, and preferred the views expressed on this aspect by King J in Dhar and by Lord Kerr and myself in Assange. Status and interpretation of Framework Decision For reasons explained in this Court in Assange [2012] 2 AC 471, paras 208- 217, the Framework Decision falls outside the scope of the European Communities Act 1972. It is true, as Aikens LJ observed in para 48 of his judgment in this case, that this makes inapplicable the provision in section 3 of the 1972 Act imposing a duty on domestic courts to treat any question as to the meaning of any European Treaty or any European Union instrument as a question of law to be determined in accordance with the principles laid down by the European Court of Justice. But, viewing the Framework Decision as an international measure having direct effect only at an international level, the United Kingdom must still have contemplated that it would be interpreted uniformly and according to accepted European legal principles. When applying the common law presumption that Part 1 of the 2003 Act gives effect to the United Kingdoms international obligations fully and consistently (Assange, paras 201 and 204-206), I would therefore think it appropriate to have regard to European legal principles in interpreting the Framework Decision. Ultimately, however, this is not a point which I see as critical to these appeals. The recitals to the Framework Decision emphasise the importance being attached to the replacement of traditional cooperation relations by a system of surrender between judicial authorities and of free movement of judicial decisions. Article 1 emphasises at its outset that a European arrest warrant is a judicial decision, while article 6 states that the issuing [or the executing] judicial authority shall be the judicial authority of the issuing [or executing] member state which is competent to issue a [or execute the] European arrest warrant by virtue of the law of that state. Under European law, if a matter is left expressly to national law, then that must be the basic approach. In contrast, if there is no reference to national law at all, then a concept may well fall to be given an autonomous meaning: see eg Criminal Proceedings against Kozlowski (Case C- 66/08) [2009] QB 307, paras 42-43 and Criminal Proceedings against Mantello (Case 261/09) [2010] ECR I-11477, para 38. But even concepts the meaning of which is left to national law may require to be construed as subject to limitations deriving from general European legal principles: see eg Eman v College van burgemeester en wethouders van Den Haag (Case C-300/04) [2007] All ER (EC) 486. As a matter of construction, the provision in article 6(3) that each member state shall inform the Secretariat of the competent judicial authority under its law cannot in my view be read as making such information unchallengeable and binding all other member states to accept any authority whatever as judicial which any member state chooses to designate and nominate as such. In the light of the recitals and articles 1 and 6(1) and (2), the proper view of article 6(3) may well be that it does no more than address the question which judicial authority is competent. But, even if that is wrong, its language is too unspecific to remove from all scrutiny the question whether the authority nominated really does fulfil the express purpose of the Framework Decision to replace the traditional executive liaison with a new system of judicial cooperation between judicial authorities by virtue of judicial decisions. The Framework Decision must be viewed in the light of Title VI under which it was made. The pre-Lisbon Treaty on European Union operated largely on a traditional, inter-governmental basis. But it provided a structure of objectives, principles, powers and procedures within which individual measures such as the Framework Decision fell to be agreed and operated. The Framework Decision is a subsidiary measure, which must be interpreted subject to the general objectives and principles of and powers conferred by that Treaty: see Edward and Lane, European Union Law, 3rd ed (2013), paras 6.23-6.24. It is relevant that Title VI not only provides for judicial cooperation, but that the language of article 31(1)(a) - one of the express jurisdictional bases of the Framework Decision (see para 9 above) - expressly distinguishes between competent ministries and judicial or equivalent authorities. It is in my view implausible to suggest that, under the law of the European Union, the concept judicial in Title VI has no autonomous content whatever. If that is so, then the concept in the Framework Decision cannot give member states carte blanche to agree that each of them could put whatever meaning they chose upon the concept for the purposes of that measure. Further, even if the boundaries of judicial are under Title VI to be regarded as potentially limitless according to the nature and context of the powers being exercised, it by no means follows that the concept has equal width in the context of a specific measure like the Framework Decision. In this context, it does not to my mind advance the argument far to say that member states must be taken to trust each other, or that the Framework Decision was designed (as it clearly was) to eliminate delay and complexity (Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, para 53, per Lord Hope of Craighead). The Framework Decision was agreed between member states. But, in a sensitive area which could involve the surrender of a member states own citizens, it was only agreed on the fundamental premise that the relevant decisions would be taken by and the relevant trust existed between judicial authorities. As Sir John Thomas observed, public confidence would not be advanced if this meant whatever individual member states chose it to mean. In a measure designed to do away with executive involvement, it is also unlikely that European law would leave it to the executive to identify whatever authority it chose as judicial. Even Lord Phillips sens vague interpretation of judicial authority distinguishes between an authority belonging to the system of justice, as opposed to the legislature or administration; and the distinction cannot be elided by accepting that any authority given the function of issuing a European arrest warrant must ex hypothesi be judicial. Section 2(7) of the 2003 Act Section 2(7) of the 2003 Act does not take the Ministries further. First, if the case advanced by Bucnys, Sakalis and Lavrov is right, then section 2(7) does not reflect article 6. Rather, it represents an additional safeguard, of the sort which Lord Hope in Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 24 contemplated that Parliament might have included. The safeguard would require any judicial authority requesting surrender to be an authority with general authority to issue domestic arrest warrants. But, second, if that is wrong, then the certificate contemplated by section 2(7) is not concerned with the question whether an authority is judicial. The certificate is to state that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the issuing territory. Under section 2(2): A part 1 warrant is an arrest warrant which is issued by a judicial authority of the issuing territory. The certificate therefore assumes, but does not certify, that the issuing authority is judicial. If (as I consider) judicial is in the context of the Framework Decision a concept with autonomous content, then sections 2(2) and 2(7) must clearly be read (as they can be) as preserving and reflecting its autonomous meaning. How restricted the boundaries are of that autonomous meaning is a different matter. Bearing in mind the diversity within member states of judicial systems and arrangements, they may be quite relaxed. The Assange case witnesses to this. I will return to this aspect, after considering the second ground of challenge to the requests for surrender. Meaning of section 2(7) The second ground of challenge is that the Ministries of Justice of Lithuania and Estonia did not have the function of issuing domestic, as opposed to European, arrest warrants within their respective states and SOCAs certificates under section 2(7) were as a result invalid. The issue of a certificate under section 2(7) is a critical stage in the execution within the United Kingdom of a European arrest warrant. Without it there can be no arrest under section 3 and the person whose surrender is sought cannot be brought before the appropriate judge under section 4. Where a provisional arrest occurs under section 5, the certificate under section 2(7) must be produced to the judge within 48 hours, or such extended period as the judge may grant. Failing this, the person whose surrender is sought will have to be discharged under section 6. In the case law to date, it appears to have been assumed that the certificate contemplated by section 2(7) is a certificate relating to the function of issuing European arrest (or Part 1) warrants. But Mr James Lewis QC for Bucnys and Sakalis has made a powerful contrary submission, which Mr Alun Jones QC for Lavrov adopts. Mr Lewis points out that the drafters of the Act have been careful to use the concept Part 1 warrant when it first appears in any section, referring thereafter where appropriate simply to the warrant: see eg sections 2(3) and (5), 6(4) and 7(1) and (2). Yet in section 2(7) the drafters used the generic arrest warrants, when they could have used specific wording like such warrants or such a warrant. Further, as the House of Lords held in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2550, the words any other warrant in section 2(4) do refer to any domestic arrest warrant that may exist. On the other hand, section 2(2) makes clear that a Part 1 warrant is a type of arrest warrant, there were strong contextual reasons for the conclusion in Louca and it is possible that the drafters did not use the phrase such warrants in section 2(7) because other member states do not have Part 1 warrants; rather they issue European arrest warrants or some other nationally expressed equivalent, when giving effect to the Framework Decision. Mr Lewis responds to this last point by noting that, if the drafters had had in mind the authority which had the function under domestic law of issuing European arrest warrants and was so designated under article 6(3), they could easily have made this clear by substituting for the last 18 words of section 2(7) words such as has been designated to the Secretariat of the Council of Ministers under article 6(3) of the Framework Decision as having the function of issuing European arrest warrants in the category 1 territory. If section 2(7) were intended as a safeguard, it would have odd features. First, it would require SOCA to investigate overseas practice, rather than look at the information given to the Secretariat under article 6(3) of the Framework Decision. Second, it would mean that SOCA should refuse a certificate in respect of any request coming from a state which chose to assign competence to issue European arrest warrants to a specialist or different (perhaps a higher) judicial body than that responsible for domestic arrest warrants. It is true that in the present certificates SOCA certified, inter alia, that the Part 1 warrants issued by the Ministries of Justice were issued by a judicial authority, with the function of issuing arrest warrants. But it was no part of their statutory function to purport to certify the judicial nature of the issuers, and their doing so can have had no effect in law if the authority certified was not truly judicial within the meaning of the Framework Decision and Act. Mr Lewis submits that a conclusive indication as to the nature of the function of issuing arrest warrants to which section 2(7) refers is provided by section 212. Section 212 deals with alerts issued at the request of an authority of a category 1 territory under article 95 of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 239, p 19). The history of section 212 is described in para 258 of my judgment in Assange [2012] 2 AC 471. Article 95 reads: 95.1. Data on persons wanted for arrest for extradition purposes shall be entered at the request of the judicial authority of the requesting contracting party. 2. Before issuing an alert, the contracting party shall check whether the arrest is authorised under the national law of the requested contracting parties. If the contracting party issuing the alert has any doubts, it must consult the other contracting parties concerned. The contracting party issuing the alert shall send the requested contracting parties by the quickest means possible both the alert and the following essential information relating to the case: (a) the authority which issued the request for arrest; (b) whether there is an arrest warrant or other document having the same legal effect, or an enforceable judgment; (c) the nature and legal classification of the offence; (d) a description of the circumstances in which the offence was committed, including the time, place and the degree of participation in the offence by the person for whom the alert has been issued; (e) in so far as is possible, the consequences of the offence. . The Schengen alert system thus operates through data entered at the request of a domestic judicial authority, but sent by one contracting state to another. To give continuing effect to this system, section 212 of the 2003 Act, as amended by section 68 of the Policing and Crime Act 2009, provided (originally on a temporary, but in the event on a continuing basis) that, where an article 95 alert is issued, then (2) The reference in section 2(2) to an arrest warrant issued by a judicial authority of a category 1 territory is to be read: (a) as if it were a reference to the alert issued at the request of the authority, and (b) as if the alert included any information sent with it which relates to the case. . (3) In consequence of subsection (2), this Act has effect with these modifications (a) in sections 2(7) and (8) . for authority which issued the Part 1 warrant substitute authority at the request of which the alert was issued; . The effect of section 212 is thus that sections 2(7) and (8) must, in the context of article 95 Schengen alerts be read: (7) The designated authority may issue a certificate under this section if it believes that the authority at the request of which the alert was issued has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority at the request of which the alert was issued has the function of issuing arrest warrants in the category 1 territory. When certifying under section 212, SOCA must be intended to focus on the question whether the domestic judicial authority at the request of which the data were put on the Schengen system in the overseas state had the function of issuing domestic arrest warrants. This shows, Mr Lewis submits, that the very same words used in their original unmodified form in section 2(7) and (8) must also focus on the function of issuing domestic arrest warrants. In my view, that does not follow. When section 212 is in play, there is only one possible judicial authority in play, that is the overseas judicial authority at whose instance the Schengen alert is entered on the system and which is distinct from the contracting state by which the alert is communicated to the United Kingdom. It is natural that any certificate required should look at the status and functions of that overseas domestic judicial authority. When section 212 is not in play, the directly relevant judicial authority is the authority which issues the European arrest warrant. The status and functions of the authority issuing any domestic warrant (if any) are of subsidiary interest, even though the existence of any such domestic warrant will need to be noted in the European arrest warrant under article 8(1)(c) of the Framework Decision and section 2(4)(b) of the 2003 Act, as decided in Louca [2009] 1 WLR 2550. It is therefore possible for the same phrase to point in different directions in these two different contexts. To treat section 212 as altering what would otherwise be the appropriate meaning to put on section 2(7) and (8) would, in my view, be to treat the tail as wagging the dog. Mr Lewis seeks to rely on Parliamentary material under the principle in Pepper v Hart [1993] AC 593. That involves showing that the provision is ambiguous or obscure and that there are ministerial statements which, viewed in the context of the Parliamentary material as a whole, provide a clear answer as to its meaning. I do not consider that these conditions are met. I doubt whether section 2(7) is even sufficiently ambiguous or obscure to justify looking at Parliamentary material on this point. Assuming that it is, it is true that one finds ministerial statements that European arrest warrants would be issued by precisely the same authorities as currently issued the (necessarily domestic) warrants on the basis of which executive requests were previously made between states for surrender: see eg Mr Ainsworths statements in Standing Committee on 9 January 2003 (Hansard (HC Debates), col. 48), which I quoted in Assange [2012] 2 AC 471, para 253. But immediately afterwards Mr Ainsworth went on to say that By the time that countries start to operate the European arrest warrant, we will know which authorities will be competent to issue them. It will be reasonably straightforward for the issuing authority to be identified and it will be possible to cross-check them with the central record kept by the general secretariat and a little later (at col 51) that If the issuing authority were not a judicial authority as designated in the framework document, the body charged with certifying would not accept the warrant. These statements made clear that in the ministers mind certification was linked with the information provided under article 6 of the Framework Decision, which goes to the function of issuing European arrest warrants, not domestic warrants. The upshot is that neither in these nor in any other passages is there the clarity of statement that could assist to put a different meaning on section 2(7) to that which I consider otherwise follows on ordinary principles of construction. In my view, section 2(7) must (other than in the context of Schengen alerts under section 212) be taken as referring, however awkwardly, to the function of issuing European arrest warrants, not domestic. Judicial authority The second ground of challenge to the requests therefore fails, and I turn to consider whether the Ministries can be regarded as judicial authorities for the purposes of issuing the requests in issue on these appeals. The question is whether the concept of judicial authority embraces any category of persons beyond courts, judges, magistrates and (in the light of Assange) public prosecutors, and if so in what circumstances. Mr Knowles argued for a positive answer, relying on all five reasons on which Lord Phillips based his judgment in Assange. But only one of these reasons received any real endorsement even in the other majority judgments in that case: see Lord Walker at para 92. Lord Brown at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and 171. I add only, with regard to the third reason, that I agree with Lord Dyson (para 158) that the removal from the December 2001 Council redraft of the Commissions September 2001 proposal of definitions of judicial authority in terms of a judge or public prosecutor provides no basis for concluding that it was intended to broaden the scope of the concept beyond judge or public prosecutor. It is at least as likely that there were considerable reservations in some member states about appearing to accept a judge or public prosecutor as an appropriate judicial authority for the purposes of both issuing and executing European arrest warrants, as would have been the effect of the definitions included in the September 2001 proposal. Any further conclusion would be speculation. As regards the fourth reason, I also agree with Lord Dyson (para 159) that the assumption in article 6 that there may be a range of judicial authorities from which to chose that which is to be competent to issue European arrest warrants says nothing significant about the scope of the concept of judicial authority. This is all the more so, now that it is decided by Assange that the range can include both courts and public prosecutors. The one ground which did influence most members of the court in Assange was Lord Phillips fifth and final ground, based on applying the principles of the Vienna Convention on the Law of Treaties 1969 to the international agreement reached under Title VI and embodied in the Framework Decision. As appears by the five paragraph coda which appears at the end of the Courts judgment in Assange as published in [2012] 2 AC 471, 569-570, the relevance of the principles in the Vienna Convention was assumed, not argued, in Assange. When, after the draft judgment on the substance was handed down, Miss Rose QC applied to re- open the appeal to take issue with the relevance of the Vienna Convention, her application was rejected as being without merit, not because the point she wished now to raise would itself have been meritless, but because it was too late to do so on that appeal. She had had her chance to raise it during the course of oral argument before the hand down, but had accepted that the Vienna Convention applied and that state practice was a potentially relevant aid to construction. On the present appeals, there has been no such acceptance. The applicability of the Vienna Convention and the relevance of state practice have been put squarely in issue. The issue is of potential relevance (though each countrys law and practice may raise different considerations) because, in addition to Lithuania and Estonia, it appears that Finland and Sweden have under article 6 designated bodies operating as part of or under their Ministries of Justice as their issuing judicial authority in the case of conviction warrants - in the case of Finland the Criminal Sanctions Agency, in the case of Sweden the National Police Board; and Germany has designated its Ministry of Justice, although stating that its powers have been transferred to the public prosecutor at the relevant regional court. Further, two countries have designated their Ministries of Justice as their issuing authority in the case of accusation warrants Denmark outright, and Germany subject to the same transfer of powers to the regional public prosecutor. The evidence of state practice is thus, on any view, much more limited than that which existed in relation to the use of public prosecutors as recounted in Assange, where it appeared that some 11 states had nominated public prosecutors in the case of accusation warrants and some ten in relation to post-conviction warrants. (The information now before the court indicates that these figures were slightly inaccurate, and should have been ten, or pre-trial 12, in the case of accusation warrants and eight in the case of conviction warrants.) Nonetheless, Mr Knowles submits that the designation of Ministries of Justice should, even if limited, be regarded as significant, because of the absence of evidence that other states have challenged the designation or refused to execute warrants. Bearing in mind that it is unclear how far any challenge would fall to be raised by executing states, rather than by the persons whose surrender was sought, and that there has been no detailed study of state legislation or practice in cases where it is by implication suggested that a challenge might have been raised, I am unimpressed by the strength of the alleged practice as an indicator of any agreement of the state parties regarding interpretation, within the meaning of article 31(3)(c) of the Vienna Convention. As I noted in Assange, at para 242, the fact that three states (Denmark, Germany and Romania) have also designated their Ministries of Justice as executing judicial authorities is also capable of raising questions about the reliability of state practice as a guide, even if otherwise admissible. As to the question of principle, whether the Vienna Convention is applicable to the Framework Decision, in my view it is unlikely as a matter of European law that it is or would be so regarded. For reasons already indicated in paragraph 23 above, the Framework Decision must be understood in the context of Title VI of the pre-Lisbon Treaty on European Union, and the structure of objectives, principles, powers and procedures contained in that Treaty, including, where individual States agreed, provisions relating to the Court of Justices jurisdiction: see eg articles 2 to 6, 29, 31, 35 and 39. So viewed, I do not consider it correct to describe the Framework Decision as a treaty at all. It is a subsidiary measure, which fell to be agreed by unanimity within the scope of the powers conferred by, as well as in accordance with the procedures defined by, the pre- Lisbon Treaty on European Union. It must be interpreted as such: see the passages from Edward and Lane cited in paragraph 23 above. Under the pre-Lisbon Treaty on European Union, among the important pre-conditions to the agreement of the Framework Decision was the express requirement under article 39(1) for the Council to consult the European Parliament upon it as a measure agreed for facilitating extradition within article 34(2)(b). The European Parliament had three months to deliver an opinion upon the measure. Its opinion, delivered on 9 January 2002, approved the measure, but with the request that the Council notify the Parliament should it intend to depart from the approved text. The argument that subsequent state practice by members of the Council could change or affect the meaning of a Framework Decision potentially sidelines the European Parliaments role. For that reason alone, it is not one that I believe that the Court of Justice would be likely to endorse even under the pre-Lisbon Treaty on European Union. There is a striking absence in the textbooks and case law of any reference to, or any instance of the application of, subsequent member state practice as establishing the agreement of member states to a particular interpretation, or as having any real relevance to interpretation, of a measure introduced under any of the European Treaties. The court was referred to The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969, an article by P J Kuijper (a legal adviser to the Commission), published in Legal Issues of European Integration, (1998) vol 25, issue No 1. The article focuses on references to the Vienna Convention in relation to treaties and secondary legal acts entered into by the Community with third parties. The European Treaties themselves are of a special and different nature, as the article points out with reference to the Court of Justices Opinion 1/91 [1991] ECR I-6079. In that Opinion the court said: 21 In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the states have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only member states but also their nationals (see, in particular, the judgment in Van Gend en Loos (Case 26/62) [1963] ECR 1). The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the member states and the direct effect of a whole series of provisions which are applicable to their nationals and to the member states themselves. With regard to the possibility that subsequent practice might influence the interpretation of Community law, the article at pp 9-10 states bluntly that: It may be interesting to recall here that, as far as Community law is concerned, and certainly where the provisions of the Community Treaty are concerned, the Court of Justice does not accept arguments of subsequent practice at all. The Court in such cases has recourse to the standard phrase that mere practice cannot change the treaty. Cited in support are French Republic v Commission of the European Communities (Case C-327/91) [1994] ECR I-3641 and the Court of Justices Opinion 1/94 [1994] ECR I-5267. In the former, the issue was the extent of the Commissions powers to conclude agreements with third countries, under article 228 EEC which provided for such agreements to be negotiated by the Commission and concluded by the Council after consulting the Parliament subject to the powers vested in the Commission (reconnues la Commission) in this field. The Commission argued that its powers might be derived from previous practice of the respective Community institutions, to which the Court observed (para 36) that a mere practice cannot override the provisions of the Treaty. Likewise, the court held in United Kingdom of Great Britain and Northern Ireland v Council of the European Communities (Case 68/86) ECR 855, para 24, and reiterated in its Opinion 1/94 [1994] ECR I-5267 in relation to suggested external competence in the field of GATs (the General Agreement on Trade in Services) that a mere practice of the Council cannot derogate from the rules laid down in the Treaty and cannot, therefore, create a precedent binding on Community institutions with regard to the correct legal basis (para 52), that, it would, in the field of TRIPs (trade-related aspects of intellectual property rights), enable the Community institutions to escape the internal constraints to which they are subject in relation to procedures and to rules as to voting (para 60) and that Institutional practice in relation to autonomous measures or external agreements adopted on the basis of article 113 cannot alter this conclusion (para 61). These statements, made in the context of arguments about institutional competence under the Treaties themselves, are a strong indicator of the attitude that the court would take to any suggestion that the member states could by agreement between themselves alter or influence the meaning of Community measures arrived at under the Treaties, following procedures for their negotiation and enactment, including consultation with the European Parliament, contained in such Treaties. The only case which the Ministries have been able to locate in which the court might be said to have taken account of member state practice in interpreting a Community instrument under any of the European Treaties is Skatteministeriet v Henriksen (Case 173/88) [1989] ECR 2763. There, after giving its reasons for a particular construction, the court added a paragraph saying: That interpretation is also in conformity with the view common to all the member states, none of which has adopted legislation [consistent with the interpretation which the court rejected] (para 13) That comment, in a case where member states view or practice was consistent with that at which the court had arrived, is wholly inapt to show that such practice is capable of changing the meaning of an autonomous European concept in a Community or Union instrument agreed under the Treaties. I can therefore put aside the suggestion that member states alleged practice can affect the question whether the Ministries are capable of being designated as judicial authorities for the purpose of issuing European arrest warrants under the Framework Decision. Equally, however, the interpretation of the Framework Decision cannot, as it seems to me, be influenced by comments made in some evaluation reports to the effect that Ministries of Justice are not judicial authorities: see eg Council Evaluation Report on Lithuania 12399/1/07, para 7.2.1.1, reporting that The Lithuanian authorities recognised that EAWs should be issued by judicial authorities and that the Ministry of Justice could not be considered a judicial authority; and the Commission report on the operation of the Framework Decision COM(207) 407, commenting in relation to both Lithuania and Estonia that the Ministry of Justice is not a judicial authority. In my opinion, the concept of judicial authority falls simply to be interpreted in the teleological and contextual manner that Professor Anthony Arnull indicates in The European Union and its Court of Justice, 2nd ed (2006), pp. 612 and 621, as I stated in paragraph 229 of my judgment in Assange [2012] 2 AC 471. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision-making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states. The special emphasis in recital 6 on the importance of this concept in the context of execution of European arrest warrants indicates a possible difference between its significance in the contexts of issuing and executing a European arrest warrant. Likewise, article 19 with its distinction between the competent executing judicial authority and another judicial authority which may need to be involved at the hearing stage in order to ensure the proper application of this article and of the conditions laid down. This leads to consideration of the features which an authority must as a minimum have, if it is to be regarded as an issuing judicial authority for the purposes of the Framework Decision. Mr Lewis, submits that they are three: (i) it must be functionally independent of the executive, (ii) it must be capable of making a judicial decision and (iii) it must be separate from the designated central authority, a separation assumed by recital 9 and article 7. In Assange, at para 153, Lord Dyson was inclined to think that the essential characteristics of an issuing judicial authority are that it should be functionally (but not necessarily institutionally) independent of the executive. In the Administrative Court in the present cases, Aikens LJ considered that a ministry of justice could be an issuing judicial authority for a conviction warrant if the person in the ministry making the decision was sufficiently independent of the executive for the purposes of making that judicial decision and thought, in this connection, that there was much force in Lord Phillips point [in Assange [2012] 2 AC 471, paras 62-64] about the requisite safeguards being predominantly in the antecedent process which forms the basis on which the conviction European arrest warrant is issued (para 98). I would make three points in relation to these observations. First, Assange was a case of an accusation warrant and Lord Dyson noted at paras 156-157 the difficulty about Lord Phillips point, which constituted his second reason in Assange (see paras 62-64): there is no guarantee that a domestic accusation warrant would be based on any judicial decision at all, and the implications of a European arrest warrant are likely to be more serious than those of a domestic arrest warrant. Second, a test which would mean seeking to ascertain whether one or more individual decision-makers within a ministry was or were functionally, even though not institutionally, independent of the ministry in which they served, may be regarded as problematic, both in principle and because of the evidential issues to which it could give rise. On no view, in any event, would the Minister of Justice signing on behalf of the Ministry of Justice of Lithuania appear to satisfy any such test. I need say no more than that on these appeals. Third, Aikens LJ must I think have had this point in mind when he went on, immediately after his above quoted observations, to focus his conclusions on the need for a prior court request that a European arrest warrant should be issued, and on the consequent restriction of any positive ministry role to determining that effect be given to such a request: If the national law concerned provides that the pre-condition to the issue of a conviction EAW by the ministry of justice is that there must be not only an enforceable judgment and sentence but also a request from the sentencing court that a conviction EAW be issued, then the scope for executive interference is much reduced if not entirely eliminated. (para 98) This postulates a situation in which the ministrys decision to issue a conviction European arrest warrant has by law to be and is firmly founded on a judicial decision by the responsible court that such a warrant is appropriate. Consistently with this approach, both Ministries of Justice sought in their submissions and evidence to meet the criteria suggested by Aikens LJ. Accusation and conviction warrants do not necessarily raise the same considerations. A conviction warrant must necessarily have been preceded by a domestic court process. There is less scope for discretion in relation to the issue of a European arrest warrant following from a conviction. If the court responsible for the conviction or execution of the sentence considers that the European arrest warrant should be sought, and the issue of such a warrant follows from its decision, then the issue of the warrant can be regarded as the result of a judicial decision, even though the issue takes place by and in the name of a different authority. The key question is whether the issuing authority can in such a case be regarded as a judicial authority for the purposes of the Framework Decision or 2003 Act, when it is, as here, the Ministry of Justice or a section within that Ministry. Mr Lewis and Mr Jones submit that it cannot, on the basis that a body, which cannot act of its own initiative and which simply box ticks, cannot be a judicial authority taking a judicial decision. They also point out that the two Ministries have also been designated as their respective countries central authorities for the purposes of article 7, in circumstances where both recital 9 and article 7 contemplate that such a body will be separate from and have a limited role in proving practical and administrative assistance to the competent judicial authorities. Before going further into these questions, it is however relevant to look more closely at the evidence and facts in the cases under appeal. The evidential material The Administrative Court proceeded on the basis that the two requests made by the Ministry of Justice of Lithuania were based in each case upon a request made by a court, not by a prison or the Prison Department; the functions of the officials of the Ministry were tightly defined by the Rules and the decision on whether to issue the conviction European arrest warrant has to be made on the basis of those Rules alone (para 104). The warrants, though signed for the Ministry by the Minister of Justice, were on this basis regarded as issued by a judicial authority. In relation to the procedure in Estonia there was, however, much less material before the Administrative Court; there appeared to be no requirement that the sentencing court must prepare a draft European arrest warrant and then request the ministry to issue the European arrest warrant and no procedural rules which dictate what the ministry officials have to do or which dictate the time in which a request to issue a conviction warrant be carried out. The court was not satisfied that the Ministry of Justice of Estonias decision to issue a European arrest warrant could be regarded as judicial or that the International Judicial Cooperation Unit within that Ministry and its personnel had sufficient functional independence from the executive to enable the Ministry to be characterised as a judicial authority for the relevant purposes (para 106). Before the Supreme Court further material has been produced, in relation to both the Lithuanian and the Estonian positions. Mr Lewis referred to and relied upon the Lithuanian material as did eventually Mr Jones, after initially objecting to its admission. I for my part consider that the new material should be admitted and considered, even though it should have been before the Administrative Court. Without it, it is clear that we would be at risk of deciding these appeals on a false basis. The Lithuanian position The picture which emerges in relation to Lithuania from communications to the Crown Prosecution Service by the Vice Minister of Justice is that the Ministry only issues any European arrest warrant after conviction on the initiative of either (a) a court or (b) an authority responsible for executing the sentence. It does so then after examination of all the documents to ascertain that valid grounds exist for issuing such a warrant. In this connection, article 69 of the Code of Criminal Procedure provides: 2. European arrest warrants regarding citizens of the Republic of Lithuania or other persons who have been sentenced to imprisonment by enforceable judgments in the Republic of Lithuania and who have absconded from serving the sentence in another member state of the European Union shall be issued and competent authorities of that state shall be contacted by the Ministry of Justice of the Republic of Lithuania. 3. The procedure for issuing a European arrest warrant and surrendering the person under the European arrest warrant shall be defined by the Prosecutor General of the Republic of Lithuania and by the Minister of Justice of the Republic of Lithuania. Under article 69(3), the following Rules for issuing European arrest warrant were duly promulgated by Order No. IR-95/I-114 of 26 August 2004. They provide: I. GENERAL PROVISIONS 4. The Ministry of Justice of the Republic of Lithuania shall issue the European arrest warrant with a view to arrest a person who has been punished by custodial sentence but who has gone into hiding from the enforcement of this sentence. In this case the European arrest warrant shall be issued under the following circumstances: 4.1. when the remainder of the sentence to be served is of four months or of longer term; 4.2. when there is a ground to believe that the convicted person may be located in the member state of the European Union or other State, which applies the surrender procedure of the persons concerned pursuant to the European Arrest Warrant. . RECOURSE FOR ISSUING EUROPEAN ARREST WARRANT 7. If the case has been heard in the trial and the judgement of conviction rendered in absentia of the accused, the court shall send a copy of the enforceable judgement of conviction whereby a sentence of imprisonment has been imposed together with the draft European arrest warrant (except section (i)) to the Ministry of Justice of the Republic of Lithuania after taking into consideration the criteria for issuing a European arrest warrant laid down in paragraph 12 of the Rules. 8. If the convicted person, who has not been arrested until the court judgement became enforceable, absconds from the execution of the custodial sentence imposed on him by the court's judgment, or if the convicted person while serving his custodial sentence runs away from the correctional institution or fails to return there, the request to issue the European arrest warrant shall be submitted to the Ministry of Justice by the institution executing the sentence after taking into consideration the criteria for issuing a European arrest warrant laid down in paragraph 12 of the Rules. A copy of the enforceable judgement of conviction whereby a sentence of imprisonment has been imposed and the draft European arrest warrant (except section (i)) shall be enclosed with the request. . 9. When the court renders a Ruling to quash the suspension of the sentence execution, a Ruling to quash either a conditional early release from custodial sentence or conversion of the remainder of the sentence into a more lenient punishment or a Ruling to refer the person released conditionally from the correctional institution to serve the remaining sentence of imprisonment in the correctional institution, the court shall forward a copy of the aforesaid Ruling together with the draft European arrest warrant (except section (i)) to the Ministry of Justice of the Republic of Lithuania after taking into consideration the criteria for issuing a European arrest warrant laid down in paragraph 12 of the Rules. III. ISSUING OF THE EUROPEAN ARREST WARRANT 12. Upon receiving the documents set out in Chapter II of these Rules, the Prosecutor General's Office of the Republic of Lithuanian or the Ministry of Justice of the Republic of Lithuania shall analyse the above documents and, if there are all preconditions listed in paragraphs 3 or 4 of the Rules, shall issue the European arrest warrant taking into consideration the severity and type of the offence committed and the suspected, accused or convicted person's personality. If the information is insufficient to issue the European arrest warrant, the Prosecutor General's Office of the Republic of Lithuania or the Ministry of Justice of the Republic of Lithuania shall contact the institution, which has requested to issue the European arrest warrant, asking to provide the missing information within the time-limit specified by the Prosecutor General's Office of the Republic of Lithuania or the Ministry of Justice of the Republic of Lithuania. If there are no grounds for issuing the European arrest warrant or the missing information is not obtained during the time- limit defined, or if the issuance of the European arrest warrant does not satisfy the principles of proportionality and procedural economy, the request to issue the European arrest warrant shall be returned to the requesting institution. 13. The European arrest warrant shall be issued not later than within 5 days after receiving all information necessary for preparing the European arrest warrant. 14. The European arrest warrant shall be prepared in accordance with the form contained in the Annex 1 of these Rules. . 16. . if the European arrest warrant is issued by the Ministry of Justice of the Republic of Lithuania, then it shall be undersigned by the Minister of Justice of the Republic of Lithuania or his delegated persons. Contrary to the Administrative Courts understanding, it is now clear (from the Ministry of Justices letter dated 5 November 2012) that, while the request made to the Ministry of Justice in respect of Bucnys, came under rule 9 from the Vilnius City 1st District Court after it had on 20 February 2010 quashed Bucnyss conditional release, the request in respect of Sakalis came from the Prison Department of the Republic under rule 8, based on its assessment that Sakalis had absconded from the whole of the four year sentence imposed by the Vilnius City 1st District Court on 25 January 2008 and upheld on appeal on 24 December 2008. The Vice-Minister of Justice of Lithuania has explained in correspondence put before the Supreme Court that the prison department would only act after being provided by the Vilnius City 1st District Court with relevant documentation regarding the conviction and sentence. It does not follow that the District Court made any sort of judicial decision at this point and the evidence does not show that it did. Both in law and in practice, the responsibility for requesting the Ministry of Justice to issue a European arrest warrant rested on the prison authorities, upon which rule 8 conferred it. In these circumstances, I cannot regard the European arrest warrant issued in respect of Sakalis as having been either issued by a judicial authority or as being the result of a judicial decision. The Prison Department is an executive agency charged, as rule 8 states, with the execution of the sentence. It is not a judicial body considering and ruling upon the question whether the person wanted has absconded. The language of rules 8 and 12, read together, makes it possible (though surprising) that the Prison Department is required before submitting a request to issue a European arrest warrant to the Ministry to take into consideration the severity and type of the offence committed and the convicted persons personality. In other words, it may have a discretion. If so, the evident oddity in the context of a European arrest warrant of such a discretion being entrusted to a prison department merely underlines the fact that it cannot be regarded as a judicial authority. The Ministry of Justice after receiving the Prison Department request is under rule 12 required not only to consider for itself whether the formal pre-conditions listed in rule 4 are satisfied but (it appears) also to take into consideration the severity and type of the offence and the . convicted persons personality. Assuming again that this connotes an element of discretion, even in the case of a conviction, as to whether it issues a warrant, the mere fact that the Ministry of Justice is given a discretion does not make it a judicial body. If anything, it points once again towards a need for a judicial decision by a body or bodies which could be regarded as judicial. I would therefore allow the appeal by Sakalis and set aside the Part 1 warrant issued in respect of him. The position in relation to Bucnys is different. Under the combination of rules 9 and 12, the Vilnius City 1st District Court not only took the decision to quash his conditional release on 12 September 2008, it also forwarded copies of its ruling to the Minister with a draft European arrest warrant, and it must be taken to have done this after taking into account the criteria for issuing such a warrant laid down in rule 12, including the severity and type of the offence and the . convicted persons personality. The Ministry of Justices only role was to repeat the same exercise. Its review could not worsen the position of the convicted person. At best, if the Ministry took a different view on the question whether the criteria were met, its review might lead to a decision not to issue a European arrest warrant which the Vilnius court had adjudged to be appropriate. Essentially, therefore, the European arrest warrant issued in respect of Bucnys emanated from the court responsible for him having to serve a further period in prison. That was a judicial decision by a judicial authority. The Ministry by issuing the warrant effectively endorsed that decision. Under article 7 of the Framework Decision, it would have been permissible for Lithuania to designate the Vilnius City 1st District Court as the relevant judicial authority and to restrict the Ministrys role to its capacity of central authority. If a court were to out-source its registry and the registry were to be designated as the judicial authority responsible for issuing warrants or other orders to give effect to the courts orders, it should I think be possible to regard the registry as a judicial authority issuing a judicial decision, even though - or because - it would simply be giving effect to the courts orders. In the present case, it appears that the Ministry of Justice had some discretion, but only in the sense of a one-way discretion to check that, in its view also, a European arrest warrant was appropriate. This requirement for two concurrent decisions in favour of such a warrant could only operate to the benefit of the person whose surrender was proposed by the court responsible for the conviction or sentence. In these circumstances, I consider that European law would accept that the spirit of the Framework Decision was met in the case of European arrest conviction warrants issued by the Ministry of Justice of Lithuania to give effect to a corresponding request by the Court responsible for the sentence, and would treat the Ministry of Justice in that context as an appropriate issuing judicial authority. I have been addressing the present situation of a Ministry of Justice acting at the request of the responsible court. It is possible that the spirit of the Framework Decision may also be satisfied in some other situations, for example when a Ministry of Justice acts on the basis of a request made by a public prosecutor, held by this court in Assange to be capable of being regarded as a judicial authority. To take a specific instance, in Germany the Ministry of Justice is designated as the relevant judicial authority for the purpose of issuing conviction (and indeed also accusation) European arrest warrants, but has in some way transferred or delegated its role to the public prosecutor at the relevant regional court. As we have no details of the arrangements or how they operate, I can express no conclusion either way, but it may prove appropriate to treat the Federal Ministry of Justice as the issuing judicial authority, when a German public prosecutors decision that a conviction European arrest warrant should be issued is simply endorsed by or leads to the issue of such a warrant in the name of the Ministry. The Estonian position Turning to the position of the European arrest warrant issued by the Head of the International Cooperation Unit of the Estonian Ministry of Justice, it is now known that the Viru County Court on 10 February 2011, on learning that Lavrov was living in the United Kingdom, sent a request to the Ministry of Justice to issue a warrant to give effect to the domestic arrest warrant that it had itself issued on 9 February 2010. There is also substantial further information about the Estonian legal position in the form of answers dated 28 February 2013 to a questionnaire submitted by the Crown Prosecution Service. The legal framework is contained in article 507 of the Code of Criminal Procedure of Estonia which reads: Submission of European arrest warrant (1) In pre-trial proceedings, the Prosecutor's Office and, in court proceedings, the court which conducts proceedings regarding a criminal offence which is the basis for a European arrest warrant is competent to submit the European arrest warrant. (2) The Ministry of Justice is competent to submit a European arrest warrant for the execution of a court judgment which has entered into force. (21) In pre-trial proceedings, a preliminary investigation judge may, at the request of the Prosecutor's Office, apply arrest for surrender before preparation of a European arrest warrant. (22) If surrender of a person is requested in court proceedings, the arrest for surrender of the person shall be applied by the court which conducts proceedings regarding the criminal offence. (3) A European arrest warrant shall be prepared in Estonian and it shall be translated into the language determined by the requesting state by the Ministry of Justice. (4) A European arrest warrant shall be communicated to a requesting state through the Ministry of Justice. (5) In cases of urgency, a request for application of arrest for surrender with regard to a person to be surrendered may be submitted to a member state of the European Union through the International Criminal Police Organisation (Interpol) or the central authority responsible for the national section of the Schengen Information System with the consent of the Prosecutor's Office before a European arrest warrant is submitted. In the case of Lavrov, articles 507(2) and 507(22) both applied. The Deputy Secretary-General of the Ministry of Justice explained by letter dated 28 February 2013: The court ruling declaring the person a wanted and applying arrest- on-sight towards him or her is the prerequisite for later issuance of a European arrest warrant. No European arrest warrant can be issued without a court first declaring the person a wanted and applying arrest-on-sight (domestic arrest warrant) towards him or her. Pursuant to section 507 (21) and (22) of the Estonian Code of Criminal Procedure, applying arrest for surrender is a prerequisite for issuing an European arrest warrant. If no arrest pending surrender has been applied towards the person, then an European arrest warrant cannot be issued. This letter gives the following further information: in this current case a court requested the Ministry of Justice to issue a European arrest warrant on the basis of court decisions entered into force. The issuance of an European arrest warrant in conviction cases by the Estonian Ministry of Justice only takes place upon request by the court who made the decision in the specific case or a court that has the competence to issue the arrest warrant and to declare the person a fugitive in cases where the person was convicted by conditional sentence and the person escaped from the execution of sentence or the person was in freedom during the court procedures but has to appear to prison on a specific date and time to start the service of his/her sentence. Thus, this is the court that sends to the Ministry of Justice the judgment or ruling with request to issue the European arrest warrant. The court's decision has to be either a final and enforceable judgment satisfying the requirements of the framework decision or a domestic arrest warrant stating that the detention conditions are met. . The only restrictions that the Ministry of Justice is obliged to follow upon issuing a European arrest warrant on a court's request, are the general restrictions on issuing of European arrest warrants from [the] Framework Decision ie the requirement that the punishment of imprisonment applicable to a crime for which the person has been convicted must be longer than four months of imprisonment. If the materials sent to the Ministry of Justice for issuance of an European arrest warrant regarding a person towards whom the court has applied arrest for surrender, indicate that the actual punishment imposed on the person or actually servable part thereof is less than four months, then the Ministry of Justice may inform the court that there are no legal grounds for issuing an EAW. In other cases the court's request to issue a specific EAW is compulsory for the Ministry of Justice. The same letter also addresses the possibility that a European arrest warrant might be issued under executive influence: The Judicial Co-operation Unit is one of the structural units of the Ministry of Justice, but it is independent in its decisions and bases its actions solely on the law and the international instruments. This independence is also expressed in the fact that all documents prepared by the unit, ie both European arrest warrants and MLA [mutual legal assistance] requests for judicial assistance are undersigned by the head of unit or the advisor who prepared the letter. All materials, ie requests from courts, materials of the prosecutor's office, and also judicial co-operation materials and requests for legal assistance received from abroad are forwarded from the Ministry's office directly to the Judicial Co-operation Unit without passing through the Minister, the Secretary General or the Deputy Secretary General. Therefore the executive has no information about whether, how much or which judicial co-operation materials are being preceded by the unit at any time. There has been no intervention by the executive in the unit's work and there cannot be any intervention of that kind because communication in the field of international law is very strictly regulated by domestic legislation and by various other legal acts, so it is unthinkable that the Minister or the Secretary General could order the issuance of some request for legal assistance without the initiative of a prosecutor's office or a court. . International judicial co-operation is very strictly and precisely regulated by various international conventions and treaties which prescribe also the role and competence of Ministries of Justice as central authorities. It is unthinkable that the Ministry of Justice could exceed its limits of competence by way of its executive ordering a request for legal assistance for which the Ministry of Justice has competence. It is also unthinkable that the executive of the Ministry of Justice could order that a request for legal assistance be not issued or not forwarded. As described above, in daily work the management has no information at all about the requests that are preceded [sic] by the Unit at any given time. Furthermore, the Public Service Act of the Republic of Estonia prohibits (article 62) unlawful orders from the executive and gives the ways how to react in such situations. On the basis of this detailed description of the legal, procedural and practical position, it is clear that the real decision is taken by the court responsible for the conviction and sentence, and the Judicial Cooperation Unit of the Ministry of Justices only lawful role is to check that the formal conditions for issue of a European arrest warrant are satisfied, and, if they are, to issue the warrant. On the basis, by parallel reasoning to that which I have indicated in relation to Bucnys, I consider that the Ministry can be regarded as a judicial authority issuing a warrant containing a judicial decision, albeit one taken in reality by the responsible court, here the Viru County Court. However, Mr Jones points to other information in the form of the Council Evaluation Report on Estonia 5301/07 dated 20 February 2007, which states: 3.1. THE DECISION TO ISSUE The Estonian authorities do not have a formal practice guide concerning the instigation of European arrest warrant proceedings or the subsequent steps to be taken. Standardised European arrest warrant practices have been outlined to all European arrest warrant stakeholders during training provision supplied by the CA together with professional trainers from the Estonian Law Centre. It states that, in the case of accusation warrants, the following factors will be taken into consideration by a review made before any decision to issue a European arrest warrant: severity of the offence, degree of participation, extent of the injury/damage. It continues: In cases concerning the enforcement of a sentence, officials within the CA will apply similar merit tests to assess the appropriateness of the application. They will then obtain, directly from the criminal court concerned, a copy of the order to be enforced and proceed to draft an European arrest warrant. In real terms therefore a pragmatic de minimis test is brought to bear, balancing the seriousness of the criminality against the merits (costs or otherwise) of issuing an European arrest warrant. Estonia reported that their outgoing European arrest warrants were all of a benchmarked standard. This second-hand account of the Estonian system does not bear much relationship with that given by the Ministry of Justice itself in 2012 and 2013. It makes no reference to the provisions of article 507 of the Code of Criminal Procedure, or to any role of the court responsible for the conviction, still less to any duty on the part of the Ministry to issue a European arrest warrant, once satisfied that the formal conditions are met. Although the report points out earlier that the Ministry of Justice has been designated both as the competent judicial authority and as the central authority in relation to the issue of European arrest conviction warrants, it speaks at this point only of the CA. The report was based on a visit by experts to Estonia in September 2006, little over two years after Estonia joined the European Union on 1 May 2004. The European arrest warrant system may not have been well digested by that date. The Code of Criminal Procedure may have been amended since 2006 it seems clear that article 507(21) 2 and (2) must have been added at some point. However, even if, contrary to the Ministrys emphatic explanation, the Judicial Cooperation Unit of the Ministry does enjoy some form of proportionality discretion, when it comes to the exercise of a European arrest warrant requested by a court responsible for a sentence, this is again a factor which can only weigh in favour of the person whose surrender is sought. It does not therefore mean, in my opinion, that the Ministry in issuing the European arrest warrant in respect of Lavrov should not be regarded as a judicial authority communicating a judicial decision made by the Viru County Court. Conclusions The conclusions of principle that I reach are: - For the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003: i) A European arrest warrant issued by a Ministry in respect of a convicted person with a view to his or her arrest and extradition can be regarded as issued by a judicial authority for the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003 if the Ministry only issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by: a) the court responsible for the sentence; or b) some other person or body properly regarded as a judicial authority responsible for its execution (see para 57 above). ii) If this condition is satisfied, the existence of a discretion on the part of the Ministry not to issue a European arrest warrant which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this. iii) Subject only to the second point in para 47 above (so far as left open), a Ministry which has power to issue and issues a European arrest warrant of its own motion or at the request of non-judicial authority, including an executive agency such as a prison department, cannot be regarded as a judicial authority for the above purposes. The conclusions I reach on these appeals are that: i) The European arrest warrant issued in respect of Bucnys by the Ministry of Justice of Lithuania at the request of the Vilnius City 1st District Court was a valid Part I warrant under the 2003 Act, and Bucnyss appeal should accordingly be dismissed. ii) The European arrest warrant issued in respect of Sakalis by the same Ministry of Justice at the request of the Prison Department was not a valid Part 1 warrant, and Sakaliss appeal should accordingly be allowed. iii) The European arrest warrant issued in respect of Lavrov by the Ministry of Justice of Estonia at the request of the Viru County Court was a valid Part I warrant, and the Ministry of Justice of Estonias appeal in the case of Lavrov should accordingly be allowed.

UK-Abs

These three appeals concern requests for extradition under European arrest warrants (EAWs). The Lithuanian Ministry of Justice issued EAWs for Mindaugas Bucnys based on convictions for housebreaking and fraud and for Marius Sakalis based on his conviction for sexual assaults. The Estonian Ministry of Justice issued an EAW for Mr Dimitri Lavrov based on a conviction for murder. EAWs are warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on surrender procedures between member states of the EU (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 (the 2003 Act) was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA) (now the National Crime Agency (NCA), the designated authority under section 2(8), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well founded in the case of either or both of the Ministries. On 12 December 2012, the Divisional Court answered the first question affirmatively and the second negatively. As to the third, it concluded that a ministry of justice would, under European law, be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98), and that, in this connection, the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant. On the evidence before it, it held that the EAWs issued by the Lithuanian Ministry in respect of Mr Bucnys and Mr Sakalis were valid, while the EAW issued by the Estonian Ministry in respect of Mr Lavrov was invalid. Mr Bucnys and Mr Sakalis now appeal, while the Estonian Ministry appeals in the case of Mr Lavrov. During the appeal further evidence was adduced about the legal position and procedures in Lithuania and Estonia. Since the hearing, the Court has been informed by those instructed by Mr Bucnys that he has [regrettably] died. The issue remains of importance, and this judgment records the Courts conclusions on it. The Supreme Court unanimously holds that the arrest warrants issued for Mr Bucnys and Mr Lavrov were valid, whereas that issued for Mr Sakalis was not. Mr Bucnyss appeal is therefore dismissed. Mr Sakaliss appeal and the Estonian Ministrys appeal in Mr Lavrovs case are allowed. Whether a justice ministry can be a judicial authority Mr Bucnys, Mr Sakalis and Mr Lavrov submitted that the relevant ministries of justice could not be a judicial authority because they were not part of the courts or judiciary as ordinarily understood. The Supreme Court, in a judgment given by Lord Mance with which all other Justices agree, holds that member states were not intended to have carte blanche to define judicial authority however they choose. The concept is embedded in European Union law. The Framework Decision is based on article 31(1)(a) of the former Treaty of European Union, which itself distinguishes between ministries and judicial authorities [23]. The concept falls under EU law to be interpreted by looking at the instruments context and intended effects [45]. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states [45]. An EAW issued by a ministry for a convicted person with a view to his or her surrender can be regarded as issued by a judicial authority if the ministry under the relevant national law issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by, the court responsible for the sentence or by some other person or body properly regarded as a judicial authority responsible for its execution [66]. If this condition is satisfied, the existence of a discretion on the part of the ministry not to issue a EAW which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this [66]. That could work only in favour of the person sought by the warrant and would be in the spirit of the Framework Decision [56]. In issuing the EAWs for the arrest of Mr Bucnys and Mr Lavrov, the respective ministries acted only at the request of and by way of endorsement of a decision made by a court responsible for the sentence. These two EAWs therefore satisfied the above test [66] and are valid. However, in issuing the EAW for Mr Sakaliss arrest, the Lithuanian ministry was acting only on a request from the prison service, and this EAW did not meet the above test and is invalid [67]. The certification of the requests Mr Bucnys, Mr Sakalis and Mr Lavrov also submitted that the terms of section 2(7) of the 2003 Act meant that a ministry of justice could be certified by SOCA only if it was responsible for issuing domestic arrest warrants rather than European ones. While that was not inconsistent with the bare language of the Act, such an interpretation would involve SOCA in onerous investigations of overseas practice and may have perverse results where, for example, the European warrants with which Part 1 is concerned were issued by a different, but more senior, judicial authority than the domestic ones [26 28]. The correct interpretation was that section 2(7) referred to the authority responsible for issuing European arrest warrants [33]. The warrants and certification were thus unobjectionable in that respect.

These appeals concern requests made for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union. The requests relating to the appellants Mindaugas Bucnys (Bucnys) and Marius Sakalis (Sakalis) come from the Ministry of Justice of the Republic of Lithuania. The third request, relating to the respondent Dimitri Lavrov (Lavrov), comes from the Ministry of Justice of the Republic of Estonia. The Ministries made the requests in the form of European arrest warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on the European arrest warrant and surrender procedures between member states of the European Union (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA), the designated authority under section 2(9), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the Ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well founded in the case of either or both of the Ministries. The Administrative Court (Aikens LJ and Globe J) on 12 December 2012 answered the first question in the affirmative and the second in the negative: [2013] 1 All ER 1220. As to the third, it concluded that a ministry of justice would under European law be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98); it held further that the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant, and that, in the light of these considerations, the requests made by the Ministry of Justice of Lithuania in the cases of Bucnys and Sakalis were valid, while the request made by the Ministry of Justice of Estonia in the case of Lavrov was invalid. Bucnys and Sakalis now appeal, while the Estonian Ministry appeals in the case of Lavrov. The bases of the requests The request in respect of Bucnys results from his conviction for six housebreaking and one fraud offences, for which a total sentence of 5 years 4 months was passed on 29 February 2007. He was released conditionally by the Alytus Region District Courts order on 12 September 2008, but on 20 February 2010 the Vilnius City 1st District Court quashed his conditional release for failure to abide by the condition, requiring him to serve a further period of 1 year 7 months 28 days. The request for his surrender was expressed to be based on this court order dated 20 February 2010. Since preparing this judgment, the court has been informed by those instructed by Bucnys that he has died, presumably since the hearing. The issue raised remains of general importance, and this judgment records the Courts conclusions on it. Sakalis is wanted as a result of his conviction of a series of serious sexual assaults, including buggery, inflicted on the same victim on 28 October 2006. A sentence of 4 years was imposed by the Vilnius City 1st District Court on 25 January 2008, and his appeal was dismissed in his absence by the Vilnius County Court on 24 December 2008. Sakalis absconded before serving any part of this sentence. The request for his surrender was issued by the Minister of Justice signing as representative of the Ministry of Justice. Lavrov is wanted as a result of murder of an invalid paranoid schizophrenic in the nursing home where Lavrov worked as a medical orderly. He was sentenced to 13 years imprisonment on 23 March 2001, released on parole on 14 July 2008 with an obligation to fulfil supervision requirements. He was recalled to prison by the Viru County Court on 2 December 2009 for failure to fulfil such requirements, meaning that he would have to serve a further 4 years 2 months and 25 days in prison, but he absconded. On 9 February 2010 the Viru County Court issued an arrest warrant. On 10 February 2011, it sent a request to the Ministry of Justice to issue a warrant, leading to the Head of the Ministrys International Cooperation Unit issuing the request in issue dated 31 May 2011, expressed to be on the basis of the warrant dated 9 February 2010. Extradition Act 2003 and Framework Decision of Schedule 13 to, the Police and Justice Act 2006, reads: Section 2 of the 2003 Act, as amended by section 42 of, and paragraph 1(1) Part 1 warrant and certificate (1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains (a) . , or (b) the statement referred to in subsection (5) and the information referred to in subsection (6) . (5) The statement is one that (a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (6) The information is (a) particulars of the person's identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence. (7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State. The Framework Decision was a third pillar measure agreed between member states under Title VI of the Treaty on European Union (TEU) in its pre Lisbon Treaty form. The heading of Title VI is Provisions on Police and Judicial Cooperation in Criminal Matters. The Framework Decision was expressed to be made with regard to the TEU and in particular Article 31(a) and (b) [sic] and Article 34(2)(b) thereof. Article 31(1)(a) and (b) are for present purposes relevant: 31(1). Common action on judicial cooperation in criminal matters shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the member states, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions; (b) facilitating extradition between member states; . The Framework Decision starts with recitals, stating inter alia: (5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation. (8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the member state where the requested person has been arrested will have to take the decision on his or her surrender. (9) The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance. The text of the Framework Decision provides: GENERAL PRINCIPLES Article 1 Definition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. Article 6 Determination of the competent judicial authorities 1. The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing member state which is competent to execute the European arrest warrant by virtue of the law of that state. 3. Each member state shall inform the General Secretariat of the Council of the competent judicial authority under its law. Article 7 Recourse to the central authority 1. Each member state may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities. 2. A member state may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto. Member state wishing to make use of the possibilities referred to in this article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing member state. Article 8 Content and form of the European arrest warrant 1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing member state; (g) if possible, other consequences of the offence. SURRENDER PROCEDURE Article 9 Transmission of a European arrest warrant 1. When the location of the requested person is known, the issuing judicial authority may transmit the European arrest warrant directly to the executing judicial authority. 2. The issuing judicial authority may, in any event, decide to issue an alert for the requested person in the Schengen Information System (SIS). 3. Such an alert shall be effected in accordance with the provisions of article 95 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at common borders. An alert in the Schengen Information System shall be equivalent to a European arrest warrant accompanied by the information set out in article 8(1). For a transitional period, until the SIS is capable of transmitting all the information described in article 8, the alert shall be equivalent to a European arrest warrant pending the receipt of the original in due and proper form by the executing judicial authority. Status of designation under article 6 and of SOCA certification under section 2(7) The first two questions identified in paragraph 3 above are inter related. Part 1 of the 2003 Act was enacted to give effect to the United Kingdoms international obligations contained in the Framework Decision. By its decision in Assange [2012] 2 AC 471 this court underlined the strength of the presumption that it did so fully and effectively. The Ministries submit that article 6 of the Framework Decision was intended to leave it to each member state to define its own judicial authority or authorities for the purposes of the Framework Decision, as best suited it; the information given by each state to the General Secretariat of the Council of the competent judicial authority under its law should be taken as conclusive, pursuant to the same spirit of mutual trust as underlies the Framework Decision itself; and section 2(7) of the 2003 Act must be taken as having been intended to involve a simple check by SOCA of the information received by the Secretariat, leading to a certificate issued by SOCA which must itself be taken as binding on the question whether the Part 1 warrant was issued by a competent judicial authority for the purposes of the 2003 Act. In a number of domestic authorities, the Ministries analysis has been accepted: Enander v Governor of Brixton Prison [2006] 1 CMLR 999, where Openshaw J thought that any further inquiry would be attended with considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and cannot, in my judgment, have been intended by Parliament (para 30), Goatley v HM Advocate 2008 JC 1 and Harmatos v Office of the King's Prosecutor in Dendermonde, Belgium [2011] EWHC 1598 (Admin). In more recent authorities, a different attitude has been taken. At first instance in Assange [2011] EWHC 2849 (Admin), para 17, Sir John Thomas P, giving the judgment of the Divisional Court of the Queens Bench Division thought that: it is clear that in the present state of development of the common area for justice, mutual confidence in the common area for justice and the operation of the EAW will not be advanced unless the courts of the executing state scrutinise requests for surrender under the EAW with the intensity required by the circumstances of each case. Later, he said: 46. Although the approach in Enander is one that will ordinarily apply, the designation under article 6 does not, in our view, always compel the recognition by another member state as conclusive, if the authority is self evidently not a judicial authority within the meaning of that broad term in the Framework Decision. It is of some interest to note in the light of our observation at para 37 on the status of a Ministry of Justice that in 2007 the Commissioner for Justice and Home Affairs in the Report on the Evaluation of the Transposition of the Framework Decision stated that the designation by some states directly or indirectly of the Ministry of Justice as a judicial authority was contrary to the terms of the Framework Decision. However there appear to have no instances where the Commission has taken action in respect of a body that should not have been designated as a judicial authority. 47. For example, if a warrant was issued by a Ministry of Justice which the member state had designated as an authority under article 6, it would not, in our view, be a valid EAW under the Framework Decision. The principles of mutual recognition and mutual confidence which underpin the common area for justice would not require the recognition of such a warrant, as it would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial. In our view a national judge within the European Union is bound to uphold the principles of mutual recognition and mutual confidence for the reasons we have given at para 17; public confidence in the EAW would only be undermined by the recognition of an EAW issued by a Ministry of Justice in contradistinction to an EAW issued by a judge or prosecutor. 48. It was accepted by Miss Montgomery QC (who appeared for the prosecutor) that if circumstances arose where it could be said that the person issuing the EAW was not a judicial authority, the designating certificate issued by SOCA would not be conclusive. It would have to be challenged by judicial review. She was right to accept that the certificate was not conclusive, as under section 2(8) of the 2003 Act the function entrusted to SOCA is to certify that the issuing authority has the function of issuing EAWs. It does not certify that it is a judicial authority. In Dhar v National Office of the Public Prosecution Service, The Netherlands [2012] EWHC 697 (Admin), King J pursued the same theme, saying: 38. True it is that the certificate must be certifying that the issuing authority has been designated by the law of the requesting state as the competent judicial authority for the purpose of issuing such warrants and that the requesting state has given notice to this effect to the General Secretariat of the European council pursuant to article 6(3) of the Framework Decision, but this is not the same in my judgment as certifying that such designated authority is as a matter of fact a judicial authority within the meaning of section 2(2). 39. Hence in my judgment it must be open, the grant of the certificate under section 2(7) notwithstanding, to this appellant to raise on this appeal (as he could have done before the District Judge) the issue whether the warrant was an invalid Part 1 warrant on the grounds that the purported issuing authority was not a judicial authority within the meaning of section 2(2) of the Act. When Assange was before the Supreme Court [2012] 2 AC 471, Miss Montgomery initially maintained the attitude she had taken in the Administrative Court, but in a late change of stance she aligned herself with the Lord Advocate for Scotlands written intervention advancing the same case as the present Ministries. In the event, the majority decision on other points made it unnecessary to decide this point: see per Lord Phillips of Worth Matravers at paras 81 82. However, Lord Kerr of Tonaghmore and I expressed views obiter that article 6 did not mean that any authority about which information was given to the Council Secretariat was ipso facto judicial (paras 105 and 238). Mr Knowles QC for the Ministries of Justice on the present appeal submits that, although Lord Phillips said that he was leaving the point open, he had in effect answered it in reasoning with which other members of the majority concurred. Mr Knowles points out that Miss Montgomerys wider submission in Assange was that, although judicial authority had a broad and autonomous meaning, this meaning describes any person or body authorised to play a part in the judicial process (Lord Phillips judgment, para 5); and that at para 76 Lord Phillips concluded that the issuing judicial authority bears the wider meaning for which Miss Montgomery contends and embraces the Prosecutor in the present case. Mr Knowless submission reads more into these passages in Assange than can be justified. By authorised to play a part in the judicial process must have been meant more than simply authorised to issue a European arrest warrant domestically and designated to the Secretariat under article 6(3). Otherwise, there would be no autonomous content at all. Even if one takes the sens vague of autorit judiciare which Lord Phillips approved in paras 18 and 65, this does not make an unlimited (only a wider) range of authorities eligible to be regarded as judicial. Such authorities must be at the least authorities qui appartient la justice, par opp[osition] legislative et administrative. Further, and most importantly, it is clear that the ratio of Assange was and is confined to the status of public prosecutor, and that other members of the majority cannot be taken as necessarily having agreed with all that Lord Phillips said on a number of points: see eg Lord Walker of Gestingthorpe at para 91, Lord Brown of Eaton under Heywood at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and 171. Finally, in the present case, the Administrative Court also disagreed with Enander [2006] 1 CMLR 999 and Harmatos [2011] EWHC 1598 (Admin) in so far as they stated that any certificate issued by SOCA under section 2(7) was conclusive or could only be challenged by judicial review, and preferred the views expressed on this aspect by King J in Dhar and by Lord Kerr and myself in Assange. Status and interpretation of Framework Decision For reasons explained in this Court in Assange [2012] 2 AC 471, paras 208 217, the Framework Decision falls outside the scope of the European Communities Act 1972. It is true, as Aikens LJ observed in para 48 of his judgment in this case, that this makes inapplicable the provision in section 3 of the 1972 Act imposing a duty on domestic courts to treat any question as to the meaning of any European Treaty or any European Union instrument as a question of law to be determined in accordance with the principles laid down by the European Court of Justice. But, viewing the Framework Decision as an international measure having direct effect only at an international level, the United Kingdom must still have contemplated that it would be interpreted uniformly and according to accepted European legal principles. When applying the common law presumption that Part 1 of the 2003 Act gives effect to the United Kingdoms international obligations fully and consistently (Assange, paras 201 and 204 206), I would therefore think it appropriate to have regard to European legal principles in interpreting the Framework Decision. Ultimately, however, this is not a point which I see as critical to these appeals. The recitals to the Framework Decision emphasise the importance being attached to the replacement of traditional cooperation relations by a system of surrender between judicial authorities and of free movement of judicial decisions. Article 1 emphasises at its outset that a European arrest warrant is a judicial decision, while article 6 states that the issuing [or the executing] judicial authority shall be the judicial authority of the issuing [or executing] member state which is competent to issue a [or execute the] European arrest warrant by virtue of the law of that state. Under European law, if a matter is left expressly to national law, then that must be the basic approach. In contrast, if there is no reference to national law at all, then a concept may well fall to be given an autonomous meaning: see eg Criminal Proceedings against Kozlowski (Case C 66/08) [2009] QB 307, paras 42 43 and Criminal Proceedings against Mantello (Case 261/09) [2010] ECR I 11477, para 38. But even concepts the meaning of which is left to national law may require to be construed as subject to limitations deriving from general European legal principles: see eg Eman v College van burgemeester en wethouders van Den Haag (Case C 300/04) [2007] All ER (EC) 486. As a matter of construction, the provision in article 6(3) that each member state shall inform the Secretariat of the competent judicial authority under its law cannot in my view be read as making such information unchallengeable and binding all other member states to accept any authority whatever as judicial which any member state chooses to designate and nominate as such. In the light of the recitals and articles 1 and 6(1) and (2), the proper view of article 6(3) may well be that it does no more than address the question which judicial authority is competent. But, even if that is wrong, its language is too unspecific to remove from all scrutiny the question whether the authority nominated really does fulfil the express purpose of the Framework Decision to replace the traditional executive liaison with a new system of judicial cooperation between judicial authorities by virtue of judicial decisions. The Framework Decision must be viewed in the light of Title VI under which it was made. The pre Lisbon Treaty on European Union operated largely on a traditional, inter governmental basis. But it provided a structure of objectives, principles, powers and procedures within which individual measures such as the Framework Decision fell to be agreed and operated. The Framework Decision is a subsidiary measure, which must be interpreted subject to the general objectives and principles of and powers conferred by that Treaty: see Edward and Lane, European Union Law, 3rd ed (2013), paras 6.23 6.24. It is relevant that Title VI not only provides for judicial cooperation, but that the language of article 31(1)(a) one of the express jurisdictional bases of the Framework Decision (see para 9 above) expressly distinguishes between competent ministries and judicial or equivalent authorities. It is in my view implausible to suggest that, under the law of the European Union, the concept judicial in Title VI has no autonomous content whatever. If that is so, then the concept in the Framework Decision cannot give member states carte blanche to agree that each of them could put whatever meaning they chose upon the concept for the purposes of that measure. Further, even if the boundaries of judicial are under Title VI to be regarded as potentially limitless according to the nature and context of the powers being exercised, it by no means follows that the concept has equal width in the context of a specific measure like the Framework Decision. In this context, it does not to my mind advance the argument far to say that member states must be taken to trust each other, or that the Framework Decision was designed (as it clearly was) to eliminate delay and complexity (Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, para 53, per Lord Hope of Craighead). The Framework Decision was agreed between member states. But, in a sensitive area which could involve the surrender of a member states own citizens, it was only agreed on the fundamental premise that the relevant decisions would be taken by and the relevant trust existed between judicial authorities. As Sir John Thomas observed, public confidence would not be advanced if this meant whatever individual member states chose it to mean. In a measure designed to do away with executive involvement, it is also unlikely that European law would leave it to the executive to identify whatever authority it chose as judicial. Even Lord Phillips sens vague interpretation of judicial authority distinguishes between an authority belonging to the system of justice, as opposed to the legislature or administration; and the distinction cannot be elided by accepting that any authority given the function of issuing a European arrest warrant must ex hypothesi be judicial. Section 2(7) of the 2003 Act Section 2(7) of the 2003 Act does not take the Ministries further. First, if the case advanced by Bucnys, Sakalis and Lavrov is right, then section 2(7) does not reflect article 6. Rather, it represents an additional safeguard, of the sort which Lord Hope in Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 24 contemplated that Parliament might have included. The safeguard would require any judicial authority requesting surrender to be an authority with general authority to issue domestic arrest warrants. But, second, if that is wrong, then the certificate contemplated by section 2(7) is not concerned with the question whether an authority is judicial. The certificate is to state that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the issuing territory. Under section 2(2): A part 1 warrant is an arrest warrant which is issued by a judicial authority of the issuing territory. The certificate therefore assumes, but does not certify, that the issuing authority is judicial. If (as I consider) judicial is in the context of the Framework Decision a concept with autonomous content, then sections 2(2) and 2(7) must clearly be read (as they can be) as preserving and reflecting its autonomous meaning. How restricted the boundaries are of that autonomous meaning is a different matter. Bearing in mind the diversity within member states of judicial systems and arrangements, they may be quite relaxed. The Assange case witnesses to this. I will return to this aspect, after considering the second ground of challenge to the requests for surrender. Meaning of section 2(7) The second ground of challenge is that the Ministries of Justice of Lithuania and Estonia did not have the function of issuing domestic, as opposed to European, arrest warrants within their respective states and SOCAs certificates under section 2(7) were as a result invalid. The issue of a certificate under section 2(7) is a critical stage in the execution within the United Kingdom of a European arrest warrant. Without it there can be no arrest under section 3 and the person whose surrender is sought cannot be brought before the appropriate judge under section 4. Where a provisional arrest occurs under section 5, the certificate under section 2(7) must be produced to the judge within 48 hours, or such extended period as the judge may grant. Failing this, the person whose surrender is sought will have to be discharged under section 6. In the case law to date, it appears to have been assumed that the certificate contemplated by section 2(7) is a certificate relating to the function of issuing European arrest (or Part 1) warrants. But Mr James Lewis QC for Bucnys and Sakalis has made a powerful contrary submission, which Mr Alun Jones QC for Lavrov adopts. Mr Lewis points out that the drafters of the Act have been careful to use the concept Part 1 warrant when it first appears in any section, referring thereafter where appropriate simply to the warrant: see eg sections 2(3) and (5), 6(4) and 7(1) and (2). Yet in section 2(7) the drafters used the generic arrest warrants, when they could have used specific wording like such warrants or such a warrant. Further, as the House of Lords held in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2550, the words any other warrant in section 2(4) do refer to any domestic arrest warrant that may exist. On the other hand, section 2(2) makes clear that a Part 1 warrant is a type of arrest warrant, there were strong contextual reasons for the conclusion in Louca and it is possible that the drafters did not use the phrase such warrants in section 2(7) because other member states do not have Part 1 warrants; rather they issue European arrest warrants or some other nationally expressed equivalent, when giving effect to the Framework Decision. Mr Lewis responds to this last point by noting that, if the drafters had had in mind the authority which had the function under domestic law of issuing European arrest warrants and was so designated under article 6(3), they could easily have made this clear by substituting for the last 18 words of section 2(7) words such as has been designated to the Secretariat of the Council of Ministers under article 6(3) of the Framework Decision as having the function of issuing European arrest warrants in the category 1 territory. If section 2(7) were intended as a safeguard, it would have odd features. First, it would require SOCA to investigate overseas practice, rather than look at the information given to the Secretariat under article 6(3) of the Framework Decision. Second, it would mean that SOCA should refuse a certificate in respect of any request coming from a state which chose to assign competence to issue European arrest warrants to a specialist or different (perhaps a higher) judicial body than that responsible for domestic arrest warrants. It is true that in the present certificates SOCA certified, inter alia, that the Part 1 warrants issued by the Ministries of Justice were issued by a judicial authority, with the function of issuing arrest warrants. But it was no part of their statutory function to purport to certify the judicial nature of the issuers, and their doing so can have had no effect in law if the authority certified was not truly judicial within the meaning of the Framework Decision and Act. Mr Lewis submits that a conclusive indication as to the nature of the function of issuing arrest warrants to which section 2(7) refers is provided by section 212. Section 212 deals with alerts issued at the request of an authority of a category 1 territory under article 95 of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 239, p 19). The history of section 212 is described in para 258 of my judgment in Assange [2012] 2 AC 471. Article 95 reads: 95.1. Data on persons wanted for arrest for extradition purposes shall be entered at the request of the judicial authority of the requesting contracting party. 2. Before issuing an alert, the contracting party shall check whether the arrest is authorised under the national law of the requested contracting parties. If the contracting party issuing the alert has any doubts, it must consult the other contracting parties concerned. The contracting party issuing the alert shall send the requested contracting parties by the quickest means possible both the alert and the following essential information relating to the case: (a) the authority which issued the request for arrest; (b) whether there is an arrest warrant or other document having the same legal effect, or an enforceable judgment; (c) the nature and legal classification of the offence; (d) a description of the circumstances in which the offence was committed, including the time, place and the degree of participation in the offence by the person for whom the alert has been issued; (e) in so far as is possible, the consequences of the offence. The Schengen alert system thus operates through data entered at the request of a domestic judicial authority, but sent by one contracting state to another. To give continuing effect to this system, section 212 of the 2003 Act, as amended by section 68 of the Policing and Crime Act 2009, provided (originally on a temporary, but in the event on a continuing basis) that, where an article 95 alert is issued, then (2) The reference in section 2(2) to an arrest warrant issued by a judicial authority of a category 1 territory is to be read: (a) as if it were a reference to the alert issued at the request of the authority, and (b) as if the alert included any information sent with it which relates to the case. (3) In consequence of subsection (2), this Act has effect with these modifications (a) in sections 2(7) and (8) . for authority which issued the Part 1 warrant substitute authority at the request of which the alert was issued; . The effect of section 212 is thus that sections 2(7) and (8) must, in the context of article 95 Schengen alerts be read: (7) The designated authority may issue a certificate under this section if it believes that the authority at the request of which the alert was issued has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority at the request of which the alert was issued has the function of issuing arrest warrants in the category 1 territory. When certifying under section 212, SOCA must be intended to focus on the question whether the domestic judicial authority at the request of which the data were put on the Schengen system in the overseas state had the function of issuing domestic arrest warrants. This shows, Mr Lewis submits, that the very same words used in their original unmodified form in section 2(7) and (8) must also focus on the function of issuing domestic arrest warrants. In my view, that does not follow. When section 212 is in play, there is only one possible judicial authority in play, that is the overseas judicial authority at whose instance the Schengen alert is entered on the system and which is distinct from the contracting state by which the alert is communicated to the United Kingdom. It is natural that any certificate required should look at the status and functions of that overseas domestic judicial authority. When section 212 is not in play, the directly relevant judicial authority is the authority which issues the European arrest warrant. The status and functions of the authority issuing any domestic warrant (if any) are of subsidiary interest, even though the existence of any such domestic warrant will need to be noted in the European arrest warrant under article 8(1)(c) of the Framework Decision and section 2(4)(b) of the 2003 Act, as decided in Louca [2009] 1 WLR 2550. It is therefore possible for the same phrase to point in different directions in these two different contexts. To treat section 212 as altering what would otherwise be the appropriate meaning to put on section 2(7) and (8) would, in my view, be to treat the tail as wagging the dog. Mr Lewis seeks to rely on Parliamentary material under the principle in Pepper v Hart [1993] AC 593. That involves showing that the provision is ambiguous or obscure and that there are ministerial statements which, viewed in the context of the Parliamentary material as a whole, provide a clear answer as to its meaning. I do not consider that these conditions are met. I doubt whether section 2(7) is even sufficiently ambiguous or obscure to justify looking at Parliamentary material on this point. Assuming that it is, it is true that one finds ministerial statements that European arrest warrants would be issued by precisely the same authorities as currently issued the (necessarily domestic) warrants on the basis of which executive requests were previously made between states for surrender: see eg Mr Ainsworths statements in Standing Committee on 9 January 2003 (Hansard (HC Debates), col. 48), which I quoted in Assange [2012] 2 AC 471, para 253. But immediately afterwards Mr Ainsworth went on to say that By the time that countries start to operate the European arrest warrant, we will know which authorities will be competent to issue them. It will be reasonably straightforward for the issuing authority to be identified and it will be possible to cross check them with the central record kept by the general secretariat and a little later (at col 51) that If the issuing authority were not a judicial authority as designated in the framework document, the body charged with certifying would not accept the warrant. These statements made clear that in the ministers mind certification was linked with the information provided under article 6 of the Framework Decision, which goes to the function of issuing European arrest warrants, not domestic warrants. The upshot is that neither in these nor in any other passages is there the clarity of statement that could assist to put a different meaning on section 2(7) to that which I consider otherwise follows on ordinary principles of construction. In my view, section 2(7) must (other than in the context of Schengen alerts under section 212) be taken as referring, however awkwardly, to the function of issuing European arrest warrants, not domestic. Judicial authority The second ground of challenge to the requests therefore fails, and I turn to consider whether the Ministries can be regarded as judicial authorities for the purposes of issuing the requests in issue on these appeals. The question is whether the concept of judicial authority embraces any category of persons beyond courts, judges, magistrates and (in the light of Assange) public prosecutors, and if so in what circumstances. Mr Knowles argued for a positive answer, relying on all five reasons on which Lord Phillips based his judgment in Assange. But only one of these reasons received any real endorsement even in the other majority judgments in that case: see Lord Walker at para 92. Lord Brown at para 95, Lord Kerr generally and Lord Dyson at paras 155 to 159 and 171. I add only, with regard to the third reason, that I agree with Lord Dyson (para 158) that the removal from the December 2001 Council redraft of the Commissions September 2001 proposal of definitions of judicial authority in terms of a judge or public prosecutor provides no basis for concluding that it was intended to broaden the scope of the concept beyond judge or public prosecutor. It is at least as likely that there were considerable reservations in some member states about appearing to accept a judge or public prosecutor as an appropriate judicial authority for the purposes of both issuing and executing European arrest warrants, as would have been the effect of the definitions included in the September 2001 proposal. Any further conclusion would be speculation. As regards the fourth reason, I also agree with Lord Dyson (para 159) that the assumption in article 6 that there may be a range of judicial authorities from which to chose that which is to be competent to issue European arrest warrants says nothing significant about the scope of the concept of judicial authority. This is all the more so, now that it is decided by Assange that the range can include both courts and public prosecutors. The one ground which did influence most members of the court in Assange was Lord Phillips fifth and final ground, based on applying the principles of the Vienna Convention on the Law of Treaties 1969 to the international agreement reached under Title VI and embodied in the Framework Decision. As appears by the five paragraph coda which appears at the end of the Courts judgment in Assange as published in [2012] 2 AC 471, 569 570, the relevance of the principles in the Vienna Convention was assumed, not argued, in Assange. When, after the draft judgment on the substance was handed down, Miss Rose QC applied to re open the appeal to take issue with the relevance of the Vienna Convention, her application was rejected as being without merit, not because the point she wished now to raise would itself have been meritless, but because it was too late to do so on that appeal. She had had her chance to raise it during the course of oral argument before the hand down, but had accepted that the Vienna Convention applied and that state practice was a potentially relevant aid to construction. On the present appeals, there has been no such acceptance. The applicability of the Vienna Convention and the relevance of state practice have been put squarely in issue. The issue is of potential relevance (though each countrys law and practice may raise different considerations) because, in addition to Lithuania and Estonia, it appears that Finland and Sweden have under article 6 designated bodies operating as part of or under their Ministries of Justice as their issuing judicial authority in the case of conviction warrants in the case of Finland the Criminal Sanctions Agency, in the case of Sweden the National Police Board; and Germany has designated its Ministry of Justice, although stating that its powers have been transferred to the public prosecutor at the relevant regional court. Further, two countries have designated their Ministries of Justice as their issuing authority in the case of accusation warrants Denmark outright, and Germany subject to the same transfer of powers to the regional public prosecutor. The evidence of state practice is thus, on any view, much more limited than that which existed in relation to the use of public prosecutors as recounted in Assange, where it appeared that some 11 states had nominated public prosecutors in the case of accusation warrants and some ten in relation to post conviction warrants. (The information now before the court indicates that these figures were slightly inaccurate, and should have been ten, or pre trial 12, in the case of accusation warrants and eight in the case of conviction warrants.) Nonetheless, Mr Knowles submits that the designation of Ministries of Justice should, even if limited, be regarded as significant, because of the absence of evidence that other states have challenged the designation or refused to execute warrants. Bearing in mind that it is unclear how far any challenge would fall to be raised by executing states, rather than by the persons whose surrender was sought, and that there has been no detailed study of state legislation or practice in cases where it is by implication suggested that a challenge might have been raised, I am unimpressed by the strength of the alleged practice as an indicator of any agreement of the state parties regarding interpretation, within the meaning of article 31(3)(c) of the Vienna Convention. As I noted in Assange, at para 242, the fact that three states (Denmark, Germany and Romania) have also designated their Ministries of Justice as executing judicial authorities is also capable of raising questions about the reliability of state practice as a guide, even if otherwise admissible. As to the question of principle, whether the Vienna Convention is applicable to the Framework Decision, in my view it is unlikely as a matter of European law that it is or would be so regarded. For reasons already indicated in paragraph 23 above, the Framework Decision must be understood in the context of Title VI of the pre Lisbon Treaty on European Union, and the structure of objectives, principles, powers and procedures contained in that Treaty, including, where individual States agreed, provisions relating to the Court of Justices jurisdiction: see eg articles 2 to 6, 29, 31, 35 and 39. So viewed, I do not consider it correct to describe the Framework Decision as a treaty at all. It is a subsidiary measure, which fell to be agreed by unanimity within the scope of the powers conferred by, as well as in accordance with the procedures defined by, the pre Lisbon Treaty on European Union. It must be interpreted as such: see the passages from Edward and Lane cited in paragraph 23 above. Under the pre Lisbon Treaty on European Union, among the important pre conditions to the agreement of the Framework Decision was the express requirement under article 39(1) for the Council to consult the European Parliament upon it as a measure agreed for facilitating extradition within article 34(2)(b). The European Parliament had three months to deliver an opinion upon the measure. Its opinion, delivered on 9 January 2002, approved the measure, but with the request that the Council notify the Parliament should it intend to depart from the approved text. The argument that subsequent state practice by members of the Council could change or affect the meaning of a Framework Decision potentially sidelines the European Parliaments role. For that reason alone, it is not one that I believe that the Court of Justice would be likely to endorse even under the pre Lisbon Treaty on European Union. There is a striking absence in the textbooks and case law of any reference to, or any instance of the application of, subsequent member state practice as establishing the agreement of member states to a particular interpretation, or as having any real relevance to interpretation, of a measure introduced under any of the European Treaties. The court was referred to The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969, an article by P J Kuijper (a legal adviser to the Commission), published in Legal Issues of European Integration, (1998) vol 25, issue No 1. The article focuses on references to the Vienna Convention in relation to treaties and secondary legal acts entered into by the Community with third parties. The European Treaties themselves are of a special and different nature, as the article points out with reference to the Court of Justices Opinion 1/91 [1991] ECR I 6079. In that Opinion the court said: 21 In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the states have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only member states but also their nationals (see, in particular, the judgment in Van Gend en Loos (Case 26/62) [1963] ECR 1). The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the member states and the direct effect of a whole series of provisions which are applicable to their nationals and to the member states themselves. With regard to the possibility that subsequent practice might influence the interpretation of Community law, the article at pp 9 10 states bluntly that: It may be interesting to recall here that, as far as Community law is concerned, and certainly where the provisions of the Community Treaty are concerned, the Court of Justice does not accept arguments of subsequent practice at all. The Court in such cases has recourse to the standard phrase that mere practice cannot change the treaty. Cited in support are French Republic v Commission of the European Communities (Case C 327/91) [1994] ECR I 3641 and the Court of Justices Opinion 1/94 [1994] ECR I 5267. In the former, the issue was the extent of the Commissions powers to conclude agreements with third countries, under article 228 EEC which provided for such agreements to be negotiated by the Commission and concluded by the Council after consulting the Parliament subject to the powers vested in the Commission (reconnues la Commission) in this field. The Commission argued that its powers might be derived from previous practice of the respective Community institutions, to which the Court observed (para 36) that a mere practice cannot override the provisions of the Treaty. Likewise, the court held in United Kingdom of Great Britain and Northern Ireland v Council of the European Communities (Case 68/86) ECR 855, para 24, and reiterated in its Opinion 1/94 [1994] ECR I 5267 in relation to suggested external competence in the field of GATs (the General Agreement on Trade in Services) that a mere practice of the Council cannot derogate from the rules laid down in the Treaty and cannot, therefore, create a precedent binding on Community institutions with regard to the correct legal basis (para 52), that, it would, in the field of TRIPs (trade related aspects of intellectual property rights), enable the Community institutions to escape the internal constraints to which they are subject in relation to procedures and to rules as to voting (para 60) and that Institutional practice in relation to autonomous measures or external agreements adopted on the basis of article 113 cannot alter this conclusion (para 61). These statements, made in the context of arguments about institutional competence under the Treaties themselves, are a strong indicator of the attitude that the court would take to any suggestion that the member states could by agreement between themselves alter or influence the meaning of Community measures arrived at under the Treaties, following procedures for their negotiation and enactment, including consultation with the European Parliament, contained in such Treaties. The only case which the Ministries have been able to locate in which the court might be said to have taken account of member state practice in interpreting a Community instrument under any of the European Treaties is Skatteministeriet v Henriksen (Case 173/88) [1989] ECR 2763. There, after giving its reasons for a particular construction, the court added a paragraph saying: That interpretation is also in conformity with the view common to all the member states, none of which has adopted legislation [consistent with the interpretation which the court rejected] (para 13) That comment, in a case where member states view or practice was consistent with that at which the court had arrived, is wholly inapt to show that such practice is capable of changing the meaning of an autonomous European concept in a Community or Union instrument agreed under the Treaties. I can therefore put aside the suggestion that member states alleged practice can affect the question whether the Ministries are capable of being designated as judicial authorities for the purpose of issuing European arrest warrants under the Framework Decision. Equally, however, the interpretation of the Framework Decision cannot, as it seems to me, be influenced by comments made in some evaluation reports to the effect that Ministries of Justice are not judicial authorities: see eg Council Evaluation Report on Lithuania 12399/1/07, para 7.2.1.1, reporting that The Lithuanian authorities recognised that EAWs should be issued by judicial authorities and that the Ministry of Justice could not be considered a judicial authority; and the Commission report on the operation of the Framework Decision COM(207) 407, commenting in relation to both Lithuania and Estonia that the Ministry of Justice is not a judicial authority. In my opinion, the concept of judicial authority falls simply to be interpreted in the teleological and contextual manner that Professor Anthony Arnull indicates in The European Union and its Court of Justice, 2nd ed (2006), pp. 612 and 621, as I stated in paragraph 229 of my judgment in Assange [2012] 2 AC 471. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states. The special emphasis in recital 6 on the importance of this concept in the context of execution of European arrest warrants indicates a possible difference between its significance in the contexts of issuing and executing a European arrest warrant. Likewise, article 19 with its distinction between the competent executing judicial authority and another judicial authority which may need to be involved at the hearing stage in order to ensure the proper application of this article and of the conditions laid down. This leads to consideration of the features which an authority must as a minimum have, if it is to be regarded as an issuing judicial authority for the purposes of the Framework Decision. Mr Lewis, submits that they are three: (i) it must be functionally independent of the executive, (ii) it must be capable of making a judicial decision and (iii) it must be separate from the designated central authority, a separation assumed by recital 9 and article 7. In Assange, at para 153, Lord Dyson was inclined to think that the essential characteristics of an issuing judicial authority are that it should be functionally (but not necessarily institutionally) independent of the executive. In the Administrative Court in the present cases, Aikens LJ considered that a ministry of justice could be an issuing judicial authority for a conviction warrant if the person in the ministry making the decision was sufficiently independent of the executive for the purposes of making that judicial decision and thought, in this connection, that there was much force in Lord Phillips point [in Assange [2012] 2 AC 471, paras 62 64] about the requisite safeguards being predominantly in the antecedent process which forms the basis on which the conviction European arrest warrant is issued (para 98). I would make three points in relation to these observations. First, Assange was a case of an accusation warrant and Lord Dyson noted at paras 156 157 the difficulty about Lord Phillips point, which constituted his second reason in Assange (see paras 62 64): there is no guarantee that a domestic accusation warrant would be based on any judicial decision at all, and the implications of a European arrest warrant are likely to be more serious than those of a domestic arrest warrant. Second, a test which would mean seeking to ascertain whether one or more individual decision makers within a ministry was or were functionally, even though not institutionally, independent of the ministry in which they served, may be regarded as problematic, both in principle and because of the evidential issues to which it could give rise. On no view, in any event, would the Minister of Justice signing on behalf of the Ministry of Justice of Lithuania appear to satisfy any such test. I need say no more than that on these appeals. Third, Aikens LJ must I think have had this point in mind when he went on, immediately after his above quoted observations, to focus his conclusions on the need for a prior court request that a European arrest warrant should be issued, and on the consequent restriction of any positive ministry role to determining that effect be given to such a request: If the national law concerned provides that the pre condition to the issue of a conviction EAW by the ministry of justice is that there must be not only an enforceable judgment and sentence but also a request from the sentencing court that a conviction EAW be issued, then the scope for executive interference is much reduced if not entirely eliminated. (para 98) This postulates a situation in which the ministrys decision to issue a conviction European arrest warrant has by law to be and is firmly founded on a judicial decision by the responsible court that such a warrant is appropriate. Consistently with this approach, both Ministries of Justice sought in their submissions and evidence to meet the criteria suggested by Aikens LJ. Accusation and conviction warrants do not necessarily raise the same considerations. A conviction warrant must necessarily have been preceded by a domestic court process. There is less scope for discretion in relation to the issue of a European arrest warrant following from a conviction. If the court responsible for the conviction or execution of the sentence considers that the European arrest warrant should be sought, and the issue of such a warrant follows from its decision, then the issue of the warrant can be regarded as the result of a judicial decision, even though the issue takes place by and in the name of a different authority. The key question is whether the issuing authority can in such a case be regarded as a judicial authority for the purposes of the Framework Decision or 2003 Act, when it is, as here, the Ministry of Justice or a section within that Ministry. Mr Lewis and Mr Jones submit that it cannot, on the basis that a body, which cannot act of its own initiative and which simply box ticks, cannot be a judicial authority taking a judicial decision. They also point out that the two Ministries have also been designated as their respective countries central authorities for the purposes of article 7, in circumstances where both recital 9 and article 7 contemplate that such a body will be separate from and have a limited role in proving practical and administrative assistance to the competent judicial authorities. Before going further into these questions, it is however relevant to look more closely at the evidence and facts in the cases under appeal. The evidential material The Administrative Court proceeded on the basis that the two requests made by the Ministry of Justice of Lithuania were based in each case upon a request made by a court, not by a prison or the Prison Department; the functions of the officials of the Ministry were tightly defined by the Rules and the decision on whether to issue the conviction European arrest warrant has to be made on the basis of those Rules alone (para 104). The warrants, though signed for the Ministry by the Minister of Justice, were on this basis regarded as issued by a judicial authority. In relation to the procedure in Estonia there was, however, much less material before the Administrative Court; there appeared to be no requirement that the sentencing court must prepare a draft European arrest warrant and then request the ministry to issue the European arrest warrant and no procedural rules which dictate what the ministry officials have to do or which dictate the time in which a request to issue a conviction warrant be carried out. The court was not satisfied that the Ministry of Justice of Estonias decision to issue a European arrest warrant could be regarded as judicial or that the International Judicial Cooperation Unit within that Ministry and its personnel had sufficient functional independence from the executive to enable the Ministry to be characterised as a judicial authority for the relevant purposes (para 106). Before the Supreme Court further material has been produced, in relation to both the Lithuanian and the Estonian positions. Mr Lewis referred to and relied upon the Lithuanian material as did eventually Mr Jones, after initially objecting to its admission. I for my part consider that the new material should be admitted and considered, even though it should have been before the Administrative Court. Without it, it is clear that we would be at risk of deciding these appeals on a false basis. The Lithuanian position The picture which emerges in relation to Lithuania from communications to the Crown Prosecution Service by the Vice Minister of Justice is that the Ministry only issues any European arrest warrant after conviction on the initiative of either (a) a court or (b) an authority responsible for executing the sentence. It does so then after examination of all the documents to ascertain that valid grounds exist for issuing such a warrant. In this connection, article 69 of the Code of Criminal Procedure provides: 2. European arrest warrants regarding citizens of the Republic of Lithuania or other persons who have been sentenced to imprisonment by enforceable judgments in the Republic of Lithuania and who have absconded from serving the sentence in another member state of the European Union shall be issued and competent authorities of that state shall be contacted by the Ministry of Justice of the Republic of Lithuania. 3. The procedure for issuing a European arrest warrant and surrendering the person under the European arrest warrant shall be defined by the Prosecutor General of the Republic of Lithuania and by the Minister of Justice of the Republic of Lithuania. Under article 69(3), the following Rules for issuing European arrest warrant were duly promulgated by Order no. IR 95/I 114 of 26 August 2004. They provide: I. GENERAL PROVISIONS 4. The Ministry of Justice of the Republic of Lithuania shall issue the European arrest warrant with a view to arrest a person who has been punished by custodial sentence but who has gone into hiding from the enforcement of this sentence. In this case the European arrest warrant shall be issued under the following circumstances: 4.1. when the remainder of the sentence to be served is of four months or of longer term; 4.2. when there is a ground to believe that the convicted person may be located in the member state of the European Union or other State, which applies the surrender procedure of the persons concerned pursuant to the European Arrest Warrant. RECOURSE FOR WARRANT 7. If the case has been heard in the trial and the judgement of conviction rendered in absentia of the accused, the court shall send a copy of the enforceable judgement of conviction whereby a sentence of imprisonment has been imposed together with the draft European arrest warrant (except section (i)) to the Ministry of Justice of the Republic of Lithuania after taking into consideration the criteria for ISSUING EUROPEAN ARREST issuing a European arrest warrant laid down in paragraph 12 of the Rules. 8. If the convicted person, who has not been arrested until the court judgement became enforceable, absconds from the execution of the custodial sentence imposed on him by the court's judgment, or if the convicted person while serving his custodial sentence runs away from the correctional institution or fails to return there, the request to issue the European arrest warrant shall be submitted to the Ministry of Justice by the institution executing the sentence after taking into consideration the criteria for issuing a European arrest warrant laid down in paragraph 12 of the Rules. A copy of the enforceable judgement of conviction whereby a sentence of imprisonment has been imposed and the draft European arrest warrant (except section (i)) shall be enclosed with the request. 9. When the court renders a Ruling to quash the suspension of the sentence execution, a Ruling to quash either a conditional early release from custodial sentence or conversion of the remainder of the sentence into a more lenient punishment or a Ruling to refer the person released conditionally from the correctional institution to serve the remaining sentence of imprisonment in the correctional institution, the court shall forward a copy of the aforesaid Ruling together with the draft European arrest warrant (except section (i)) to the Ministry of Justice of the Republic of Lithuania after taking into consideration the criteria for issuing a European arrest warrant laid down in paragraph 12 of the Rules. III. ISSUING OF THE EUROPEAN ARREST WARRANT 12. Upon receiving the documents set out in Chapter II of these Rules, the Prosecutor General's Office of the Republic of Lithuanian or the Ministry of Justice of the Republic of Lithuania shall analyse the above documents and, if there are all preconditions listed in paragraphs 3 or 4 of the Rules, shall issue the European arrest warrant taking into consideration the severity and type of the offence committed and the suspected, accused or convicted person's personality. If the information is insufficient to issue the European arrest warrant, the Prosecutor General's Office of the Republic of Lithuania or the Ministry of Justice of the Republic of Lithuania shall contact the institution, which has requested to issue the European arrest warrant, asking to provide the missing information within the time limit specified by the Prosecutor General's Office of the Republic of Lithuania or the Ministry of Justice of the Republic of Lithuania. If there are no grounds for issuing the European arrest warrant or the missing information is not obtained during the time limit defined, or if the issuance of the European arrest warrant does not satisfy the principles of proportionality and procedural economy, the request to issue the European arrest warrant shall be returned to the requesting institution. 13. The European arrest warrant shall be issued not later than within 5 days after receiving all information necessary for preparing the European arrest warrant. 14. The European arrest warrant shall be prepared in accordance with the form contained in the Annex 1 of these Rules. 16. if the European arrest warrant is issued by the Ministry of Justice of the Republic of Lithuania, then it shall be undersigned by the Minister of Justice of the Republic of Lithuania or his delegated persons. Contrary to the Administrative Courts understanding, it is now clear (from the Ministry of Justices letter dated 5 November 2012) that, while the request made to the Ministry of Justice in respect of Bucnys, came under rule 9 from the Vilnius City 1st District Court after it had on 20 February 2010 quashed Bucnyss conditional release, the request in respect of Sakalis came from the Prison Department of the Republic under rule 8, based on its assessment that Sakalis had absconded from the whole of the four year sentence imposed by the Vilnius City 1st District Court on 25 January 2008 and upheld on appeal on 24 December 2008. The Vice Minister of Justice of Lithuania has explained in correspondence put before the Supreme Court that the prison department would only act after being provided by the Vilnius City 1st District Court with relevant documentation regarding the conviction and sentence. It does not follow that the District Court made any sort of judicial decision at this point and the evidence does not show that it did. Both in law and in practice, the responsibility for requesting the Ministry of Justice to issue a European arrest warrant rested on the prison authorities, upon which rule 8 conferred it. In these circumstances, I cannot regard the European arrest warrant issued in respect of Sakalis as having been either issued by a judicial authority or as being the result of a judicial decision. The Prison Department is an executive agency charged, as rule 8 states, with the execution of the sentence. It is not a judicial body considering and ruling upon the question whether the person wanted has absconded. The language of rules 8 and 12, read together, makes it possible (though surprising) that the Prison Department is required before submitting a request to issue a European arrest warrant to the Ministry to take into consideration the severity and type of the offence committed and the . convicted persons personality. In other words, it may have a discretion. If so, the evident oddity in the context of a European arrest warrant of such a discretion being entrusted to a prison department merely underlines the fact that it cannot be regarded as a judicial authority. The Ministry of Justice after receiving the Prison Department request is under rule 12 required not only to consider for itself whether the formal pre conditions listed in rule 4 are satisfied but (it appears) also to take into consideration the severity and type of the offence and the . convicted persons personality. Assuming again that this connotes an element of discretion, even in the case of a conviction, as to whether it issues a warrant, the mere fact that the Ministry of Justice is given a discretion does not make it a judicial body. If anything, it points once again towards a need for a judicial decision by a body or bodies which could be regarded as judicial. I would therefore allow the appeal by Sakalis and set aside the Part 1 warrant issued in respect of him. The position in relation to Bucnys is different. Under the combination of rules 9 and 12, the Vilnius City 1st District Court not only took the decision to quash his conditional release on 12 September 2008, it also forwarded copies of its ruling to the Minister with a draft European arrest warrant, and it must be taken to have done this after taking into account the criteria for issuing such a warrant laid down in rule 12, including the severity and type of the offence and the . convicted persons personality. The Ministry of Justices only role was to repeat the same exercise. Its review could not worsen the position of the convicted person. At best, if the Ministry took a different view on the question whether the criteria were met, its review might lead to a decision not to issue a European arrest warrant which the Vilnius court had adjudged to be appropriate. Essentially, therefore, the European arrest warrant issued in respect of Bucnys emanated from the court responsible for him having to serve a further period in prison. That was a judicial decision by a judicial authority. The Ministry by issuing the warrant effectively endorsed that decision. Under article 7 of the Framework Decision, it would have been permissible for Lithuania to designate the Vilnius City 1st District Court as the relevant judicial authority and to restrict the Ministrys role to its capacity of central authority. If a court were to out source its registry and the registry were to be designated as the judicial authority responsible for issuing warrants or other orders to give effect to the courts orders, it should I think be possible to regard the registry as a judicial authority issuing a judicial decision, even though or because it would simply be giving effect to the courts orders. In the present case, it appears that the Ministry of Justice had some discretion, but only in the sense of a one way discretion to check that, in its view also, a European arrest warrant was appropriate. This requirement for two concurrent decisions in favour of such a warrant could only operate to the benefit of the person whose surrender was proposed by the court responsible for the conviction or sentence. In these circumstances, I consider that European law would accept that the spirit of the Framework Decision was met in the case of European arrest conviction warrants issued by the Ministry of Justice of Lithuania to give effect to a corresponding request by the Court responsible for the sentence, and would treat the Ministry of Justice in that context as an appropriate issuing judicial authority. I have been addressing the present situation of a Ministry of Justice acting at the request of the responsible court. It is possible that the spirit of the Framework Decision may also be satisfied in some other situations, for example when a Ministry of Justice acts on the basis of a request made by a public prosecutor, held by this court in Assange to be capable of being regarded as a judicial authority. To take a specific instance, in Germany the Ministry of Justice is designated as the relevant judicial authority for the purpose of issuing conviction (and indeed also accusation) European arrest warrants, but has in some way transferred or delegated its role to the public prosecutor at the relevant regional court. As we have no details of the arrangements or how they operate, I can express no conclusion either way, but it may prove appropriate to treat the Federal Ministry of Justice as the issuing judicial authority, when a German public prosecutors decision that a conviction European arrest warrant should be issued is simply endorsed by or leads to the issue of such a warrant in the name of the Ministry. The Estonian position Turning to the position of the European arrest warrant issued by the Head of the International Cooperation Unit of the Estonian Ministry of Justice, it is now known that the Viru County Court on 10 February 2011, on learning that Lavrov was living in the United Kingdom, sent a request to the Ministry of Justice to issue a warrant to give effect to the domestic arrest warrant that it had itself issued on 9 February 2010. There is also substantial further information about the Estonian legal position in the form of answers dated 28 February 2013 to a questionnaire submitted by the Crown Prosecution Service. The legal framework is contained in article 507 of the Code of Criminal Procedure of Estonia which reads: Submission of European arrest warrant (1) In pre trial proceedings, the Prosecutor's Office and, in court proceedings, the court which conducts proceedings regarding a criminal offence which is the basis for a European arrest warrant is competent to submit the European arrest warrant. (2) The Ministry of Justice is competent to submit a European arrest warrant for the execution of a court judgment which has entered into force. (21) In pre trial proceedings, a preliminary investigation judge may, at the request of the Prosecutor's Office, apply arrest for surrender before preparation of a European arrest warrant. (22) If surrender of a person is requested in court proceedings, the arrest for surrender of the person shall be applied by the court which conducts proceedings regarding the criminal offence. (3) A European arrest warrant shall be prepared in Estonian and it shall be translated into the language determined by the requesting state by the Ministry of Justice. (4) A European arrest warrant shall be communicated to a requesting state through the Ministry of Justice. (5) In cases of urgency, a request for application of arrest for surrender with regard to a person to be surrendered may be submitted to a member state of the European Union through the International Criminal Police Organisation (Interpol) or the central authority responsible for the national section of the Schengen Information System with the consent of the Prosecutor's Office before a European arrest warrant is submitted. In the case of Lavrov, articles 507(2) and 507(22) both applied. The Deputy Secretary General of the Ministry of Justice explained by letter dated 28 February 2013: The court ruling declaring the person a wanted and applying arrest on sight towards him or her is the prerequisite for later issuance of a European arrest warrant. No European arrest warrant can be issued without a court first declaring the person a wanted and applying arrest on sight (domestic arrest warrant) towards him or her. Pursuant to section 507 (21) and (22) of the Estonian Code of Criminal Procedure, applying arrest for surrender is a prerequisite for issuing an European arrest warrant. If no arrest pending surrender has been applied towards the person, then an European arrest warrant cannot be issued. This letter gives the following further information: in this current case a court requested the Ministry of Justice to issue a European arrest warrant on the basis of court decisions entered into force. The issuance of an European arrest warrant in conviction cases by the Estonian Ministry of Justice only takes place upon request by the court who made the decision in the specific case or a court that has the competence to issue the arrest warrant and to declare the person a fugitive in cases where the person was convicted by conditional sentence and the person escaped from the execution of sentence or the person was in freedom during the court procedures but has to appear to prison on a specific date and time to start the service of his/her sentence. Thus, this is the court that sends to the Ministry of Justice the judgment or ruling with request to issue the European arrest warrant. The court's decision has to be either a final and enforceable judgment satisfying the requirements of the framework decision or a domestic arrest warrant stating that the detention conditions are met. The only restrictions that the Ministry of Justice is obliged to follow upon issuing a European arrest warrant on a court's request, are the general restrictions on issuing of European arrest warrants from [the] Framework Decision ie the requirement that the punishment of imprisonment applicable to a crime for which the person has been convicted must be longer than four months of imprisonment. If the materials sent to the Ministry of Justice for issuance of an European arrest warrant regarding a person towards whom the court has applied arrest for surrender, indicate that the actual punishment imposed on the person or actually servable part thereof is less than four months, then the Ministry of Justice may inform the court that there are no legal grounds for issuing an EAW. In other cases the court's request to issue a specific EAW is compulsory for the Ministry of Justice. The same letter also addresses the possibility that a European arrest warrant might be issued under executive influence: The Judicial Co operation Unit is one of the structural units of the Ministry of Justice, but it is independent in its decisions and bases its actions solely on the law and the international instruments. This independence is also expressed in the fact that all documents prepared by the unit, ie both European arrest warrants and MLA [mutual legal assistance] requests for judicial assistance are undersigned by the head of unit or the advisor who prepared the letter. All materials, ie requests from courts, materials of the prosecutor's office, and also judicial co operation materials and requests for legal assistance received from abroad are forwarded from the Ministry's office directly to the Judicial Co operation Unit without passing through the Minister, the Secretary General or the Deputy Secretary General. Therefore the executive has no information about whether, how much or which judicial co operation materials are being preceded by the unit at any time. There has been no intervention by the executive in the unit's work and there cannot be any intervention of that kind because communication in the field of international law is very strictly regulated by domestic legislation and by various other legal acts, so it is unthinkable that the Minister or the Secretary General could order the issuance of some request for legal assistance without the initiative of a prosecutor's office or a court. International judicial co operation is very strictly and precisely regulated by various international conventions and treaties which prescribe also the role and competence of Ministries of Justice as central authorities. It is unthinkable that the Ministry of Justice could exceed its limits of competence by way of its executive ordering a request for legal assistance for which the Ministry of Justice has competence. It is also unthinkable that the executive of the Ministry of Justice could order that a request for legal assistance be not issued or not forwarded. As described above, in daily work the management has no information at all about the requests that are preceded [sic] by the Unit at any given time. Furthermore, the Public Service Act of the Republic of Estonia prohibits (article 62) unlawful orders from the executive and gives the ways how to react in such situations. On the basis of this detailed description of the legal, procedural and practical position, it is clear that the real decision is taken by the court responsible for the conviction and sentence, and the Judicial Cooperation Unit of the Ministry of Justices only lawful role is to check that the formal conditions for issue of a European arrest warrant are satisfied, and, if they are, to issue the warrant. On the basis, by parallel reasoning to that which I have indicated in relation to Bucnys, I consider that the Ministry can be regarded as a judicial authority issuing a warrant containing a judicial decision, albeit one taken in reality by the responsible court, here the Viru County Court. However, Mr Jones points to other information in the form of the Council Evaluation Report on Estonia 5301/07 dated 20 February 2007, which states: 3.1. THE DECISION TO ISSUE The Estonian authorities do not have a formal practice guide concerning the instigation of European arrest warrant proceedings or the subsequent steps to be taken. Standardised European arrest warrant practices have been outlined to all European arrest warrant stakeholders during training provision supplied by the CA together with professional trainers from the Estonian Law Centre. It states that, in the case of accusation warrants, the following factors will be taken into consideration by a review made before any decision to issue a European arrest warrant: severity of the offence, degree of participation, extent of the injury/damage. It continues: In cases concerning the enforcement of a sentence, officials within the CA will apply similar merit tests to assess the appropriateness of the application. They will then obtain, directly from the criminal court concerned, a copy of the order to be enforced and proceed to draft an European arrest warrant. In real terms therefore a pragmatic de minimis test is brought to bear, balancing the seriousness of the criminality against the merits (costs or otherwise) of issuing an European arrest warrant. Estonia reported that their outgoing European arrest warrants were all of a benchmarked standard. This second hand account of the Estonian system does not bear much relationship with that given by the Ministry of Justice itself in 2012 and 2013. It makes no reference to the provisions of article 507 of the Code of Criminal Procedure, or to any role of the court responsible for the conviction, still less to any duty on the part of the Ministry to issue a European arrest warrant, once satisfied that the formal conditions are met. Although the report points out earlier that the Ministry of Justice has been designated both as the competent judicial authority and as the central authority in relation to the issue of European arrest conviction warrants, it speaks at this point only of the CA. The report was based on a visit by experts to Estonia in September 2006, little over two years after Estonia joined the European Union on 1 May 2004. The European arrest warrant system may not have been well digested by that date. The Code of Criminal Procedure may have been amended since 2006 it seems clear that article 507(21) 2 and (2) must have been added at some point. However, even if, contrary to the Ministrys emphatic explanation, the Judicial Cooperation Unit of the Ministry does enjoy some form of proportionality discretion, when it comes to the exercise of a European arrest warrant requested by a court responsible for a sentence, this is again a factor which can only weigh in favour of the person whose surrender is sought. It does not therefore mean, in my opinion, that the Ministry in issuing the European arrest warrant in respect of Lavrov should not be regarded as a judicial authority communicating a judicial decision made by the Viru County Court. Conclusions The conclusions of principle that I reach are: For the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003: i) A European arrest warrant issued by a Ministry in respect of a convicted person with a view to his or her arrest and extradition can be regarded as issued by a judicial authority for the purposes of Council Framework Decision 2002/584/JHA and Part 1 of the Extradition Act 2003 if the Ministry only issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by: a) the court responsible for the sentence; or some other person or body properly regarded as a judicial b) authority responsible for its execution (see para 57 above). ii) If this condition is satisfied, the existence of a discretion on the part of the Ministry not to issue a European arrest warrant which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this. iii) Subject only to the second point in para 47 above (so far as left open), a Ministry which has power to issue and issues a European arrest warrant of its own motion or at the request of non judicial authority, including an executive agency such as a prison department, cannot be regarded as a judicial authority for the above purposes. i) The European arrest warrant issued in respect of Bucnys by the Ministry of Justice of Lithuania at the request of the Vilnius City 1st District Court was a valid Part I warrant under the 2003 Act, and Bucnyss appeal should accordingly be dismissed. ii) The European arrest warrant issued in respect of Sakalis by the same Ministry of Justice at the request of the Prison Department was not a valid Part 1 warrant, and Sakaliss appeal should accordingly be allowed. iii) The European arrest warrant issued in respect of Lavrov by the Ministry of Justice of Estonia at the request of the Viru County Court was a valid Part I warrant, and the Ministry of Justice of Estonias appeal in the case of Lavrov should accordingly be allowed. The conclusions I reach on these appeals are that:

UK-Abs

These three appeals concern requests for extradition under European arrest warrants (EAWs). The Lithuanian Ministry of Justice issued EAWs for Mindaugas Bucnys based on convictions for housebreaking and fraud and for Marius Sakalis based on his conviction for sexual assaults. The Estonian Ministry of Justice issued an EAW for Mr Dimitri Lavrov based on a conviction for murder. EAWs are warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on surrender procedures between member states of the EU (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 (the 2003 Act) was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA) (now the National Crime Agency (NCA), the designated authority under section 2(8), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well founded in the case of either or both of the Ministries. On 12 December 2012, the Divisional Court answered the first question affirmatively and the second negatively. As to the third, it concluded that a ministry of justice would, under European law, be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98), and that, in this connection, the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant. On the evidence before it, it held that the EAWs issued by the Lithuanian Ministry in respect of Mr Bucnys and Mr Sakalis were valid, while the EAW issued by the Estonian Ministry in respect of Mr Lavrov was invalid. Mr Bucnys and Mr Sakalis now appeal, while the Estonian Ministry appeals in the case of Mr Lavrov. During the appeal further evidence was adduced about the legal position and procedures in Lithuania and Estonia. Since the hearing, the Court has been informed by those instructed by Mr Bucnys that he has [regrettably] died. The issue remains of importance, and this judgment records the Courts conclusions on it. The Supreme Court unanimously holds that the arrest warrants issued for Mr Bucnys and Mr Lavrov were valid, whereas that issued for Mr Sakalis was not. Mr Bucnyss appeal is therefore dismissed. Mr Sakaliss appeal and the Estonian Ministrys appeal in Mr Lavrovs case are allowed. Whether a justice ministry can be a judicial authority Mr Bucnys, Mr Sakalis and Mr Lavrov submitted that the relevant ministries of justice could not be a judicial authority because they were not part of the courts or judiciary as ordinarily understood. The Supreme Court, in a judgment given by Lord Mance with which all other Justices agree, holds that member states were not intended to have carte blanche to define judicial authority however they choose. The concept is embedded in European Union law. The Framework Decision is based on article 31(1)(a) of the former Treaty of European Union, which itself distinguishes between ministries and judicial authorities [23]. The concept falls under EU law to be interpreted by looking at the instruments context and intended effects [45]. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states [45]. An EAW issued by a ministry for a convicted person with a view to his or her surrender can be regarded as issued by a judicial authority if the ministry under the relevant national law issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by, the court responsible for the sentence or by some other person or body properly regarded as a judicial authority responsible for its execution [66]. If this condition is satisfied, the existence of a discretion on the part of the ministry not to issue a EAW which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this [66]. That could work only in favour of the person sought by the warrant and would be in the spirit of the Framework Decision [56]. In issuing the EAWs for the arrest of Mr Bucnys and Mr Lavrov, the respective ministries acted only at the request of and by way of endorsement of a decision made by a court responsible for the sentence. These two EAWs therefore satisfied the above test [66] and are valid. However, in issuing the EAW for Mr Sakaliss arrest, the Lithuanian ministry was acting only on a request from the prison service, and this EAW did not meet the above test and is invalid [67]. The certification of the requests Mr Bucnys, Mr Sakalis and Mr Lavrov also submitted that the terms of section 2(7) of the 2003 Act meant that a ministry of justice could be certified by SOCA only if it was responsible for issuing domestic arrest warrants rather than European ones. While that was not inconsistent with the bare language of the Act, such an interpretation would involve SOCA in onerous investigations of overseas practice and may have perverse results where, for example, the European warrants with which Part 1 is concerned were issued by a different, but more senior, judicial authority than the domestic ones [26 28]. The correct interpretation was that section 2(7) referred to the authority responsible for issuing European arrest warrants [33]. The warrants and certification were thus unobjectionable in that respect.

There are two issues in this case, both of them simple to state but neither of them simple to answer. First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the proceedings for her)? Second, what happens if legal proceedings are settled or compromised without it being recognised that one of the parties lacked that capacity (so that she did not have the benefit of a litigation friend and the settlement was not approved by the court as also required by the CPR)? Can matters be re opened long after the event or does the normal rule of English law apply, which is that a contract made by a person who lacks capacity is valid unless the other party to the contract knew or ought to have known that she lacked that capacity in which case it is voidable (the rule in Imperial Loan Co Ltd v Stone [1892] 1 QB 599)? These issues are of very considerable importance, particularly in personal injury cases. On the one hand, there is the need to protect people who lack capacity from making settlements which are disadvantageous to them. On the other hand, people are assumed to have capacity to make their own decisions and should only be deprived of the right to do so in clear cases. There is also a public interest in upholding bargains which everyone, but particularly the other party, thought were valid when they were made and in putting an end to litigation. The spectre looms of many personal injury claims which insurers thought had been settled long ago being reopened on the basis of an incapacity which they had no reason to suspect at the time. The real culprits, they would say, are the claimants original legal advisers (if she had any) against whom she will almost always have a claim for professional negligence. The history of this case On 25 June 1999, there was a road accident on a dual carriageway near the entrance to a roundabout in Goldthorpe (which is roughly half way between Doncaster and Barnsley in South Yorkshire). Mr Burgin, who was riding a motorcycle in the offside lane, struck Ms Dunhill, who was crossing the road having emerged from between parked vehicles in the nearside lane. She suffered a severe closed head injury along with soft tissue injury to both legs. On 13 May 2002, shortly before the limitation period ran out, she issued a claim for damages in the Barnsley county court. She claimed still to be suffering from a complete loss of the senses of smell and taste, some hearing loss, forgetfulness, headaches, personality change, low moods and tearfulness, anxiety, mood swings, occasional suicidal ideation and self mutilation. She claimed general damages for pain, suffering and loss of amenity, and special damages (totalling 2,262.92) for travelling expenses and 10 hours care a day for six months followed by one hour a day for two years, the total claim being limited to 50,000. It was accompanied by two reports from a consultant surgeon specialising in accident and emergency medicine. Mr Burgin denied liability and alternatively alleged contributory negligence. The case was listed for a trial on the issue of liability at the Sheffield county court on 7 January 2003. Ms Dunhill was at court, accompanied by a mental health advocate, and represented by counsel and a trainee solicitor. One of her witnesses to the accident did not arrive and negotiations took place towards a settlement. The claim was eventually compromised for the total sum of 12,500 with costs. This was embodied in a consent order, which was signed by both counsel and placed before the judge. This provided that (i) the defendant pay the claimant the sum of 12,500 in full and final settlement of her claim by 28 January 2003; (ii) the defendant pay the claimants costs, to be the subject of detailed assessment if not agreed; and (iii) there be detailed assessment of the claimants community legal service costs. On any view this was a gross undervaluation of her claim, which her current advisers would put at over 2,000,000 on a full liability basis and the defendants would put at around 800,000. In July 2006, Mrs Dunhill sought the advice of new solicitors. In December 2008, nearly six years after the consent order was made, her litigation friend issued proceedings on her behalf for professional negligence against her former solicitors and counsel. Those proceedings have been stayed pending further order. On 11 February 2009, her litigation friend issued the present proceedings. These took the form of an application in the original action, seeking (i) a declaration that the claimant did not have capacity at the time of the purported settlement of the matter on 7 January 2003, and (ii) that the consent order be set aside and directions given for the further conduct of the claim. Such applications are known as Masterman Lister proceedings, after the case of Masterman Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889, [2003] 1 WLR 1511. It was agreed between the parties that there should first be a trial of whether or not the compromise and consent order made on 7 January 2003 required the approval of the court. This depended on two issues: (i) whether Mrs Dunhill was a patient within the meaning of Part 21 of the Civil Procedure Rules, which regulates the procedure to be adopted in proceedings involving children and (as the Rules then were) patients; and (ii) what the consequences were if she was such a patient, specifically whether this meant that the compromise and consent order should have been approved by the court under CPR 21.10. The defendant has not sought retrospective approval of the settlement. Issue (i) was tried by Silber J in February 2011: [2011] EWHC 464 (QB). The parties were agreed that the test of whether a person was a patient was whether she had the mental capacity to conduct the proceedings. They further agreed that this was to be judged by reference to her capacity to make the decisions likely to be required of her in the course of the proceedings, a test derived from the judgment of Chadwick LJ in Masterman Lister. But they disagreed as to whether this test was to be applied to the proceedings which she had actually brought, on the advice of her legal representatives, or whether it was to be applied to the proceedings as they might have been brought had her lawyers given her different advice. If it was the former, then the most difficult decision she had to take was whether to accept the sum which was offered on 7 January 2003, so in practice the question was whether she was able to understand matters well enough to make that decision. If it was the latter, the defendant concedes that she did not have the capacity to conduct the larger and much more complicated claim which should have been brought. Silber J decided that capacity was to be judged by reference to the decisions which the claimant was actually required to take in the action as drafted and not to the decisions which she might have been required to take had it been differently framed. In practice this meant whether she had capacity to make the compromise on 7 January 2003. He held that, on the evidence, the presumption that she did have that capacity had not been rebutted: [2011] EWHC 464 (QB), para 97. In the light of that decision, issue (ii) did not arise. The claimant appealed on the point of law. The Court of Appeal held that the judge should not have confined himself to the actual decision required of her on 7 January 2003, but should have considered her capacity to conduct the proceedings as they should have been framed. Ward LJ concluded at [2012] EWCA Civ 397, para 29: Since capacity to conduct proceedings includes . the capacity to give proper instructions for and to approve the particulars of claim, the claimant lacked that capacity. For her to have capacity to approve a compromise she needed to know . what she was giving up and, as is conceded, she did not have the faintest idea that she was giving up a minor fortune without which her mental disabilities were likely to increase. As a result, the case was remitted to the High Court to determine issue (ii). This was now framed as whether CPR 21.10 has any application where the claimant has brought a claim in contravention of CPR 21.2, so that in the eyes of the defendant and the court she appeared to be asserting that she was not under a disability? No doubt this reformulation was intended by the defendant to hammer home that the general rule in contract is that laid down in Imperial Loan Co Ltd v Stone. Bean J decided that where a civil claim is issued, the Civil Procedure Rules are incorporated into any agreement made to settle the case and that CPR 21.10(1) required that this settlement be approved by the court irrespective of how matters appeared at the time. Hence the settlement was void, the court order should be set aside and the case should go for trial: [2012] EWHC 3163 (QB); [2012] 1 WLR 3739. Between the hearing before Bean J in early October 2012 and his judgment in November 2012, this court had given the defendant permission to appeal against the decision of the Court of Appeal on issue (i). Accordingly Bean J certified, with the parties consent, that the conditions were met for a leapfrog appeal under sections 12 to 16 of the Administration of Justice Act 1969 on issue (ii). This was in order that both issues could be heard together if this court gave the defendant permission to appeal on issue (ii), which it duly did in March 2013. The whole question of the proper approach to the problem is therefore before this court. As so often happens, the parties do not agree on precisely how the issues should be formulated and new arguments have been introduced to bolster the decisions reached in the courts below. The defendant, in particular, has a sense of grievance at the way in which the issues and the arguments have shifted over time. But in this court we have to do our best to arrive at the right result and thus to allow all relevant arguments to be deployed before us unless this would be unfair to an opposing party. There is no unfairness here. Everyone has been well aware from the outset of what the underlying questions are and each party has had sufficient time to respond to all the arguments deployed. Indeed we are grateful to them for the assistance which we have received. The test of capacity In 2002 when this claim was launched and 2003 when it was compromised, CPR 21.1(2)(b) to the Civil Procedure Rules 1998 (SI 1998/3132 (L 17)) defined a patient as a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his own affairs. This was much the same definition as that in Order 80, rule 1, of the former Rules of the Supreme Court, which referred to his property and affairs; this phrase also used to appear in Part VII of the Mental Health Act 1983 as the definition of those over whose property and affairs the Court of Protection might take control; and in section 38(2) of the Limitation Act 1980 as the definition of those under a disability in respect of whom limitation periods did not begin to run. It suggests a global inability to manage and administer all ones property and affairs, whereas of course a person may be able to manage some of his affairs but not others. The general approach of the common law, now confirmed in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity in question and not globally. Hence it was concluded in Masterman Lister that capacity for this purpose meant capacity to conduct the proceedings (which might be different from capacity to administer a large award resulting from the proceedings). This was also the test adopted by the majority of the Court of Appeal in Bailey v Warren [2006] EWCA Civ 51, [2006] CP Rep 26, where Arden LJ specifically related it to the capacity to commence the proceedings (para 112). It would have been open to the parties in this court to challenge that test, based as it was mainly upon first instance decisions in relation to litigation and the general principle that capacity is issue specific, but neither has done so. In my view, the Court of Appeal reached the correct conclusion on this point in Masterman Lister and there is no need for us to repeat the reasoning which is fully set out in the judgment of Chadwick LJ. Under the Rules as amended when the Mental Capacity Act 2005 came into force (the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204 (L20)), patients in rule 21.1(1)(a) has been replaced by protected parties, and in rule 21.1(2)(d) a protected party is defined as a party, or intended party, who lacks capacity to conduct the proceedings. Thus the current test is stated in the same terms as that which was applicable to these proceedings. The current rule 21.1(2)(c) defines lacks capacity to mean lacks capacity within the meaning of the 2005 Act. Given that the courts had already arrived at a test of capacity on which the 2005 Act test was closely modelled, it seems unlikely that this has introduced any differences between the old and the new law. But that question does not arise in this case, where the issue is what is meant by the proceedings which the party must have the capacity to conduct. This is a question of construing the Rules. Rule 21.2(1) provides that a protected party must have a litigation friend to conduct proceedings on his behalf. By rule 21.4(3), a litigation friend must be someone who can fairly and competently conduct proceedings on behalf of the patient. This in itself suggests a focus on proceedings in general rather than on the proceedings as framed. Furthermore it applies right at the start of any proceedings. Indeed, as will be seen later, rule 21.10 applies to claims which are settled before any proceedings have begun. Read as a whole, therefore, rule 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. The proceedings themselves may take many twists and turns, they may develop and change as the evidence is gathered and the arguments refined. There are, of course, litigants whose capacity fluctuates over time, so that there may be times in any proceedings where they need a litigation friend and other times when they do not. CPR 21.9(2) provides that when a party ceases to be a patient (now, a protected person) the litigation friends appointment continues until it is ended by a court order. But a party whose capacity does not fluctuate either should or should not require a litigation friend throughout the proceedings. It would make no sense to apply a capacity test to each individual decision required in the course of the proceedings, nor, to be fair, did the defendant argue for that. There are, of course, statements in the cases which might suggest a different approach. In Masterman Lister, Kennedy LJ (para 18) quoted with approval the test described by Boreham J in the limitation case of White v Fell (unreported) 12 November 1987 (which the best efforts of counsel in this case have been unable to find for us): To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice . Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately . Finally, she needs sufficient mental capacity to understand and make decisions based upon, or otherwise give effect to, such advice as she may receive. Applied to the facts of this case, this could suggest that, having identified a problem and gone to a lawyer, all that is needed is the capacity to understand and make decisions based upon the actual advice given by that lawyer. The same might be said of the test as stated by Chadwick LJ at para 75 of Masterman Lister: For the purposes of Order 80 and now CPR Pt 21 the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. Equally, of course, those words could be read in the opposite sense, to refer to the advice which the case required rather than the advice which the case in fact received. In truth, such judicial statements, made in the context of a different issue from that with which we are concerned, are of little assistance. But they serve to reinforce the point that, on the defendants argument, the claimants capacity would depend upon whether she had received good advice, bad advice or no advice at all. If she had received good advice or if she had received no advice at all but brought her claim as a litigant in person, then she would lack the capacity to make the decisions which her claim required of her. But if, as in this case, she received bad advice, she possessed the capacity to make the decisions required of her as a result of that bad advice. This cannot be right. I would hold, therefore, that the test of capacity to conduct proceedings for the purpose of CPR Part 21 is the capacity to conduct the claim or cause of action which the claimant in fact has, rather than to conduct the claim as formulated by her lawyers. Judged by that test, it is common ground that Mrs Dunhill did not have the capacity to conduct this claim. The effect of incapacity It follows that Mrs Dunhill should have had a litigation friend when the proceedings were begun, as required by CPR 21.2(1). As Kennedy LJ pointed out in Masterman Lister, at para 30, Order 80 and CPR Pt 21 are worded in such a way as to indicate that in that event the litigation is ineffective and decisions made in the course of litigation are invalid see for example, Order 80, rr 2(1) and 10, CPR rr 21.2(1) and 21.10(1), but CPR r 21.3(4) does suggest a solution. It provides: Any step taken before a child or patient has a litigation friend, shall be of no effect, unless the court otherwise orders. Kennedy LJ went on to say that Provided everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time I cannot envisage any court refusing to regularise the position (para 31). But of course, everything must depend upon the particular facts. It might be appropriate retrospectively to validate some steps but not others. In this case, we have not been asked to validate anything, but no doubt we could do so of our own motion if we thought it just. I would not think it just to do so. While every other step in the proceedings might be capable of cure, the settlement finally disposing of the claim is not. For obvious reasons, we have not been asked retrospectively to validate the settlement and consent order made on 7 January 2003. CPR 21.10(1) relevantly provides: Where a claim is made (a) by or on behalf of a child or patient [now protected party] (b) against a child or . patient [now protected party], no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim, by, on behalf of or against the child or patient [now protected party], without the approval of the court. The embodiment of this settlement in a consent order did not constitute the approval of the court for the purpose of this rule. The purpose of the rule is to impose an external check on the propriety of the settlement and the accompanying practice direction sets out the evidence which must be placed before the court when approval is sought (see now 21PD.6). Given the finding that Mrs Dunhill was a patient at the time, does this automatically mean that the settlement and court order are of no effect? The defendant makes two arguments that the rule does not have that effect. The first is that the rule only applies where the patient (or protected party) has a litigation friend. Only then is the other party to the settlement put on notice that the settlement requires the approval of the court. Despite the particulars of injury given in the Particulars of Claims in this case, it has never been suggested that this defendant either knew or ought to have known of the claimants lack of capacity. As a general proposition, the other party is unlikely to be in a position to know the details of his opponents mental faculties unless these are fully explored in medical reports to which he has access. The problem with the defendants argument is that it involves writing words into the rule which are not there. If anything, the words hint at the reverse, as they refer to a claim made by or on behalf of a patient or protected party. As CPR r 21(2)(a) says, it is the task of a litigation friend to conduct proceedings on behalf of a patient or protected person. Although there are other circumstances in which a claim may be made on behalf of a child or protected party, the inclusion of by suggests proceedings conducted by the patient herself. Equivalent wording is not used in relation to claims made against a patient or protected person; but clearly the same rule must apply to settlements made by or on behalf of claimants or defendants. Defendants who lack capacity require as much protection as claimants against improvident settlements. To disapply the rule where there was no litigation friend would in each case require the words having a litigation friend to be written into the rule. Furthermore, in Dietz v Lennig Chemicals Ltd [1969] 1 AC 170, the House of Lords held that the compromise rule embodied in the predecessor to CPR 21.10(1) applied to the settlement of a claim made on behalf of a child before any proceedings were begun. Following this decision, in Drinkall v Whitwood [2003] EWCA Civ 1547, [2004] 1 WLR 462, Simon Brown LJ pointed out that the claim in CPR 21.10 must mean the cause of action rather than any proceedings in which the claim is asserted. This is clear from the wording of CPR 21.10(2), which provides the procedure whereby settlements made before proceedings are begun are approved by the court (that is, as pointed out in Dietz, by a simplified process rather than having to issue a claim in the ordinary way): Where (a) before proceedings in which a claim is made by, or on behalf of, or against a child or patient [now, protected party] (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and (b) the sole purpose of proceedings on that claim is to obtain the approval of the court to a settlement or compromise of the claim, the claim must (i) be made using the procedure set out in Part 8 (alternative procedure for claims); and (ii) include a request to the court for approval of the settlement or compromise. The claim at the end of (a) must necessarily predate the commencement of proceedings. If the claim in CPR 21.10(2) predates the commencement of proceedings, there is no reason why the claim in CPR 21.10(1) should not also do so. If there are not yet any proceedings, there can be no litigation friend. There is no obvious way to read a limitation to cases where the party lacking capacity has a litigation friend into CPR 21.10(1) as it applies to proceedings which have already been started but not as it applies where proceedings have not yet begun. Nor would it make any practical sense to do so. The other party is, if anything, in a rather better position to assess whether his opponent may lack capacity to conduct the proceedings after they have begun than he is beforehand. Dietz and Drinkall were both cases in which the defendant wished to resile from the compromise of a childs claim which had not yet been finally approved by the court. In Bailey v Warren, the Court of Appeal held that there was no reason to distinguish between claims involving children and claims involving patients in this respect. Hence a settlement made before proceedings began by a person who lacked capacity to conduct proceedings on his claim required the approval of the court under CPR 21.10(1) (although in that case the court gave the settlement its approval). In Bailey v Warren, the Court of Appeal also rejected the defendants second argument. This is of a more fundamental nature than his argument upon the construction of the Rules, although he uses it to bolster his construction argument, for he says that without the limitation for which he contends the rule would be ultra vires. This argument was foreshadowed by Chadwick LJ in Masterman Lister, at para 68: To my mind it is not self evident that rules 10 and 12 [the predecessors to CPR 21.10(1) and 21.11] have any application where the plaintiff brings a claim in contravention of rule 2 so that, in the eyes of the defendant and the court, he is asserting that he is not under a disability. If rules 10 and 12 were intended to apply in such a case (which I doubt) then it would be open to question whether the rule making body had power to change the substantive law expounded in Imperial Loan Co Ltd v Stone [1892] 1 QB 599 and Hart v OConnor [1985] AC 1000. In Imperial Loan Co Ltd v Stone [1892] 1 QB 599, the Court of Appeal held that a contract made by a person who lacked the capacity to make it was not void, but could be avoided by that person provided that the other party to the contract knew (or, it is now generally accepted, ought to have known) of his incapacity. As Mr Rowley points out on behalf of the defendant, this rule is consistent with the objective theory of contract, that a party is bound, not by what he actually intended, but by what objectively he was understood to intend. The rule in Imperial Loan was applied by the Judicial Committee of the Privy Council in Hart v OConnor [1985] AC 1000, a case from New Zealand, where the issue was whether this only applied if the contract was fair. Overruling prior New Zealand authority to the contrary in Archer v Cutler [1980] 1 NZLR 386, but consistently with the decision of the High Court of Australia in McLoughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243, the Board held that a contract made by a person who was ostensibly sane could not be set aside simply because it was unfair but only if there was equitable fraud which would also avail a sane person. This rule, it is argued, applies just as much to the settlement of civil claims as it does to any other sort of contract. Once the parties to ordinary civil litigation have reached agreement, it is not for the court to interfere in their bargain. If they desire to embody it in a consent order, they can do so simply by having it entered and sealed by a court officer under CPR 40.6(2). They do not have to submit it for the approval of any judicial officer. In this case, it was simply a matter of courtesy to show the order to the judge, who had (no doubt) been waiting patiently or getting on with other business while the negotiations were proceeding. Matrimonial proceedings are different, because the parties cannot oust the jurisdiction of the court, and so if they want their agreement embodied in a court order, they cannot avoid at least a degree of judicial scrutiny. Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see In re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210. Thus, it is argued, section 1 of the Civil Procedure Act 1997 gave the Civil Procedure Rule Committee power to make rules governing the practice and procedure to be followed in the civil courts and as further provided in Schedule 1 to the Act. Paragraph 4 of that Schedule provides that the Rules may modify the rules of evidence, thus showing that where it is intended that the Rules could modify the substantive law, express provision is made for this. The comment made by Chadwick LJ in Masterman Lister was obiter dictum, because it was there held that the claimant did not lack capacity to litigate. In Bailey v Warren, it was pointed out that the cases of Dietz and Drinkall had not been cited in Masterman Lister. Dietz is of particular relevance, because it was there argued (on behalf of the party who was trying to uphold the unapproved settlement) that the compromise rule as embodied in the Rules of the Supreme Court, Order 80, rule 11 (the predecessor to CPR 21.10(1)) was ultra vires (see counsels reply at p 179). This argument was dealt with by Lord Pearson (with whom Lord Reid and Lord Pearce certainly agreed) as follows, at p 189: There was a suggestion made in the course of the argument that the Compromise Rule, if it meant what it appears to say if invalid means of no legal effect is ultra vires. I do not accept that suggestion. When the claim of an infant or other person under disability is before the court, the court needs, for the purpose of protecting his interests, full control over any settlement compromising his claim. In my view, the making and re making of the Compromise Rule were valid exercises of the rule making power under the Judicature Acts, which is now contained in section 99 of the Act of 1925. Mr Rowley rightly points out that Dietz was a childs claim, where the common law of contract is different, so their Lordships did not have to address their minds to the position of persons who lacked capacity. In practical terms, of course, it is a great deal easier to know whether one is dealing with a child than it is to know whether one is dealing with a patient or protected party. But the fact that a childs contracts may be avoided in rather wider circumstances than may the contracts of a patient or protected party does not alter the fact that both are subject to the same compromise rule and for the same reasons. It did not occur to the Court of Appeal to distinguish between them in Bailey v Warren. It is fair to say that Lord Pearson gives no reason for his acceptance that the compromise rule is within the powers of the rule making body. Given that it applies to claims compromised before proceedings are brought, it is carving out a substantial but quite specific exception to the common law rule in Imperial Loan Co Ltd v Stone. Nevertheless, we are bound by Dietz unless there is a very good reason to depart from it. Mr Melton, on behalf of the claimant, also points out that paragraph 1 of Schedule 1 to the Civil Procedure Act 1997 expressly provides that Among the matters which Civil Procedure Rules may be made about are any matters which were governed by the former Rules of the Supreme Court or the former county court rules . This could certainly be read as conferring an express power to make rules of court modifying the substantive law to the extent that the previous rules did so, whether or not those rules were within the powers which the previous rule making bodies had been given. Agency Having reached the conclusion that the Compromise Rule is intra vires and applies to this case, there is no need to address a further argument made on behalf of Ms Dunhill. This is to the effect that counsel was acting as her agent, rather than a mere messenger, when making the settlement on 7 January 2003. It has been held that the principals incapacity terminates a contract of agency, whether or not it is known to the agent (Yonge v Toynbee [1910] 1 KB 215), and this must logically apply also to the initial formation of a contract of agency. This means that the agent lacks any actual authority to make a contract on behalf of the incapacitated principal, whether or not the other party to the contract knows of the incapacity. Thus, it is said, the rule in Imperial Loan Co Ltd v Stone does not apply to a contract concluded by an agent on behalf of a principal who lacks the capacity to make it. Nor, it is said, could there be any apparent authority if the principal lacked capacity at the time of making the initial representation as to the agents authority, again whether or not the other party knew of this. Reliance is placed, in particular, upon a passage in Bowstead & Reynolds on Agency (19th ed, (2010) para 2 009). This argument has led the current editor of that work, Professor Peter Watts, to reconsider and disavow what is there stated. The authorities are indeed in a state of some confusion, as is amply demonstrated by A.H Hudson at (1959) 37 Canadian Bar Review 497. It would be most unwise for this court to express any opinion, one way or another, as to the present state of the law. Fortunately, the issue does not arise. Policy Much was made in the course of argument of the competing policy arguments, some of which I touched upon at the outset of this judgment. In particular, Mr Rowley emphasised the need for finality in litigation, the stresses and strains which prolonged litigation places upon both litigants and the courts, the difficulty of re opening cases such as this so long after the event, and the alternative protection given to the parties by their legal advisers, who should bear the consequences of their own mistakes. Against this Mr Melton emphasised the disadvantages of claims for professional negligence when compared with claims for personal injuries, principally the discount for the chance that the claim might not have succeeded and the inability to make a periodical payments order. He also points out that lack of insight is a common feature in head injury cases, so that the parties should be encouraged to investigate capacity at the outset. A litigant in person would, of course, have no legal advisers against whom to make a claim, but the legal position cannot differ according to whether or not a party is, or is not, represented by lawyers. Policy arguments do not answer legal questions. But to the extent that they are at all relevant to the issues before us, the policy underlying the Civil Procedure Rules is clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers. The notes to Order 80 in the last (1999) edition of the Supreme Court Practice stated that among the objects of the compromise rule was to protect minors and patients from any lack of skill or experience of their legal advisers which might lead to a settlement of a money claim for far less than it is worth, a sentiment which has been carried forward into the current edition of Civil Procedure. Conclusion I would therefore dismiss both appeals and uphold the order made by Bean J. On the test properly to be applied, Ms Dunhill lacked the capacity to commence and to conduct proceedings arising out of her claim against Mr Burgin. She should have had a litigation friend from the outset and any settlement should have been approved by the court under CPR 21.10(1). We have not been invited to cure these defects nor would it be just to do so. The consent order must be set aside and the case go for trial.

UK-Abs

On 25 June 1999 the respondent, Ms Dunhill, was struck by a motorcycle driven by the appellant, Mr Burgin, when crossing the road. She suffered a severe head injury. In May 2002 she issued a claim against Mr Burgin for damages limited to 50,000 for her injuries. On the day of the trial, settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for 12,500 plus costs, which was embodied in a consent order put before the judge. Ms Dunhill had in fact suffered very serious injuries and this settlement represented a gross undervalue of her claim, if she could establish that Mr Burgin had been negligent. In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, who applied for a declaration that she had not had mental capacity at the time of the settlement and that the consent order should be set aside with directions for the future conduct of the claim. Two preliminary issues arose. The first was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. The second was the consequence if legal proceedings were compromised without it being recognised that one of the parties lacked that capacity, so that the requirement in Part 21.10 of the Civil Procedure Rules (CPR) that the compromise must be approved by a court was not complied with. The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal ruled that she had to have capacity to conduct the more complicated action which ought to have been brought and Ms Dunhill had lacked that capacity. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10. The Supreme Court gave permission to Mr Burgin to appeal against both findings. The Supreme Court unanimously dismisses the appeals. It holds that, on the test properly to be applied, Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim against Mr Burgin. The consent order must be set aside and the case proceed to trial. Lady Hale gives the only judgment. Test for capacity The general approach of the common law, now enshrined in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity generally and not globally. On the issue before the court the question was Ms Dunhills capacity to conduct the proceedings. CPR 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. This could not depend on whether that person received good advice, bad advice or no advice at all. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers, and on this test it was common ground that Ms Dunhill lacked that capacity [13 18]. The effect of incapacity It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made without the external check on its propriety required by CPR 21.10. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhills incapacity [22]. A settlement of a claim was an established exception to the general position under English law in respect of a contract made by a person who lacks capacity, which is valid unless this fact was or ought to have been known [23 30]. Although there was a need for finality in litigation, and the difficulty of re opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32 33]. Accordingly the consent order must be set aside and the case go for trial [34].

These proceedings arise out of the deaths of three young men who lost their lives while serving in the British Army in Iraq and the suffering by two other young servicemen of serious injuries. The units in which they were serving were sent to Iraq as part of Operation TELIC. This operation, which lasted from January 2003 to July 2009, had two distinct phases of military activity. The first began on 19 March 2003 when Iraq was invaded by coalition forces including those from the United Kingdom. The second phase began on 1 May 2003 when major combat operations ceased and were replaced by a period of military occupation. During much of that time there was a constant threat of enemy action by insurgents opposed to the interim Iraqi government. On 25 March 2003 Corporal Stephen Allbutt, who was the husband of the claimant Ms Deborah Allbutt, Lance Corporal Daniel Twiddy and Trooper Andrew Julien were serving with the Queens Royal Lancers as part of the Royal Regiment of Fusiliers battle group during the fourth day of the offensive by British troops to take Basra. They were in one of a number of Challenger II tanks which had been placed at a dam in hull down positions to minimise their visibility to the enemy. Just after midnight a Challenger II tank of the Second Royal Tank Regiment which had been assigned to the 1st Battalion Black Watch battle group and was commanded by Lt Pinkstone crossed over onto the enemy side of a canal to take up a guarding position some distance to the south east of the dam. At about 0050 hrs Lt Pinkstone identified two hot spots through his thermal imaging sights which he thought might be personnel moving in and out of a bunker. He described the location to Sgt Donlon who was unable to identify the hot spots for himself because the description he was given was incorrect. After Lt Pinkstone had identified a further four hot spots in the same area he was given permission to fire by Sgt Donlon. Lt Pinkstones tank fired a first round of high explosive shell at about 0120 hrs and a second round shortly afterwards. The hot spots that he had observed were in fact men on top of Cpl Albutts Challenger II tank at the dam. The first shell landed short of the tank, but the explosion blew off the men who were on top of it including Lance Corporal Twiddy. The second shell entered the tank and killed Cpl Allbutt, injured Trooper Julien and caused further injury to Lance Corporal Twiddy. It also killed Trooper David Clarke: see R (Gentle and another) v Prime Minister [2008] UKHL 20, [2008] AC 1356, para 1. Lt Pinkstone did not know of the presence at the dam of the Royal Regiment of Fusiliers battle group. He did not realise that he was firing back across the canal, as he was disorientated and believed that he was firing in a different direction. In 2005 Private Phillip Hewett, who was the son of the claimant Susan Smith, was serving with 1st Battalion the Staffordshire Regiment. On 10 May 2005 he was deployed to Camp Abu Naji, near the town of Al Amarah in the Maysan Province of Iraq. He was assigned to a battle group working alongside soldiers from other battalions. In mid July 2005 there was a substantial threat against Camp Abu Naji from rocket attacks and an operation was launched to counter this threat by restricting the movement of insurgent anti Iraqi forces. On 15 July 2005 Pte Hewett was assigned to a mobile unit which was sent that evening to patrol around Al Amarah. The unit consisted of three Snatch Land Rovers. Snatch Land Rovers are lightly armoured. Their armour is designed to provide limited protection against ballistic threats, such as those from small arms fire. It provided no protection, or no significant protection, against improvised explosive devices (IEDs). It was escorted into, but not around, the town by a Warrior fighting vehicle. Warriors are heavily armoured and tracked, and are capable of carrying seven or eight personnel as well as the crew. Pte Hewett was in the lead Snatch Land Rover as its driver with 2nd Lt Richard Shearer. It had no electronic counter measures (ECMs) to protect it against the threat of IEDs. At about 0115 hrs on 16 July 2005 an explosion was heard in the vicinity of the stadium in Al Amarah. 2nd Lt Shearer decided to investigate the explosion. As the Snatch Land Rovers were driving down the single road to the stadium an IED detonated level with the lead vehicle. Pte Hewett, 2nd Lt Shearer and another soldier who was acting as top cover died in the explosion, and two other occupants of the vehicle were seriously injured. In 2006 Private Lee Ellis, who was the father of the claimant Courtney Ellis and the brother of the claimant Karla Ellis, was serving with the 2nd Battalion the Parachute Regiment. His unit was attached to the Royal Scots Dragoon Guards and was based at Camp Abu Naji. On 28 February 2006 Pte Ellis was the driver of a Snatch Land Rover in a patrol of three Warriors and two Snatch Land Rovers which made a journey from the Camp to the Iraqi police headquarters in Al Amarah. Captain Richard Holmes and another soldier were in the same vehicle. On the return journey from the police headquarters an IED was detonated level with the lead Snatch Land Rover driven by Pte Ellis. He and Captain Holmes were killed by the explosion and another soldier in the vehicle was injured. The vehicle had been fitted with an ECM, but a new part of that equipment known as element A was not fitted to it at that time. Element A was fitted to the other Snatch Land Rovers used in the Camp within a few days of the incident. The claims The claims by Ms Deborah Allbutt, Lance Corporal Daniel Twiddy and Trooper Andrew Julien (the Challenger claims) are brought in negligence at common law only. They make two principal claims. First, they allege a failure to ensure that the claimants tank and the tanks of the battle group that fired on it were properly equipped with the technology and equipment that would have prevented the incident. That equipment falls into two categories: target identity devices that provide automatic confirmation as to whether a vehicle is a friend or foe; and situational awareness equipment that permits tank crews to locate their position and direction of sight accurately. Secondly, they allege that the Ministry of Defence (the MOD) was negligent in failing to provide soldiers with adequate recognition training pre deployment and also in theatre. The claims by Susan Smith and by Courtney and Karla Ellis (the Snatch Land Rover claims) fall into two parts. The first, which is common to all three claimants, is that the MOD breached article 2 of the European Convention on Human Rights by failing to take measures within the scope of its powers which, judged reasonably, it might have been expected to take in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Land Rovers. The second, which is brought by Courtney Ellis only, is based on negligence at common law. The particulars of the Smith claim under article 2 of the Convention are that the MOD (i) failed to provide better/medium armoured vehicles for use by Pte Hewetts commander which, if provided, would have been used for Pte Hewetts patrol, (ii) failed to ensure that any patrol inside Al Amarah was led by a Warrior, (iii) caused or permitted a patrol of three Snatch Land Rovers to proceed inside Al Amarah, especially when there was no ECM on the lead Snatch Land Rover and it knew or ought to have known that ECMs were ineffective against the triggers that were in use by the insurgents and no suitable counter measures had been provided, (iv) permitted the patrol of Snatch Land Rovers to investigate the bomb blast, especially when there was only one road to the decoy bomb site, (v) failed to provide other vehicles for route clearing and route planning ahead of the Snatch Land Rovers, (vi) failed to provide suitable counter measures to IEDs in the light of the death of Lance Corporal Brackenbury, who was killed by an IED while in a Snatch Land Rover on 29 May 2005 and (vii) failed to use means other than patrols to combat the threat posed by the insurgents. The particulars of the Ellis claim under article 2 and in negligence are that the MOD failed (i) to limit his patrol to better, medium or heavily armoured vehicles, (ii) to provide any or any sufficient better or armoured vehicle for use by Pte Elliss commander which, had they been provided, would or should have been used for his patrol and (iii) to ensure that Element A had been fitted to the ECM on Pte Elliss Snatch Land Rover, without which it should not have been permitted to leave the Camp. The MODs primary case in reply to the Challenger claims and the Ellis claim in negligence is that they should all be struck out on the principle of combat immunity. It also pleads that it would not be fair, just or reasonable to impose a duty of care on the MOD in the circumstances of those cases. Its case for a strike out in reply to the Snatch Land Rover claims under article 2 of the Convention falls into two parts. First, it submits that at the time of their deaths Pte Hewett and Pte Ellis were not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention. Secondly, it submits that on the facts as pleaded the MOD did not owe a duty to them at the time of their deaths under article 2. The strike out applications were heard by Owen J, who handed down his judgment on 30 June 2011: [2011] EWHC 1676 (QB), [2011] HRLR 795. He struck out the Snatch Land Rover claims under article 2 on the ground that Pte Hewett and Pte Ellis were not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention when they died: para 48. He based this decision on R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2011] 1 AC 1. He went on nevertheless, in a carefully reasoned judgment, to address the question whether, if the deceased were within the Convention jurisdiction, the MOD was under a substantive article 2 duty of the kind that the Snatch Land Rover claimants were contending for. He said that he would not have struck out their claims relating to the supply of equipment: para 80. But in his judgment there was no sound basis for extending the scope of the implied positive duty under article 2 to decisions made in the course of military operations by commanders: para 81. Holding that the doctrine of combat immunity should be narrowly construed, he refused to strike out the Challenger claims and the second and third of the three Ellis claims in negligence because he was not persuaded that their equipment and pre deployment training claims were bound to fail: paras 110, 111. But he struck out the first of the Ellis claims because he was of the opinion that this claim fell squarely within the scope of combat immunity: para 114. On 19 October 2012 the Court of Appeal (Lord Neuberger MR, Moses and Rimer LJJ) dismissed appeals by the Snatch Land Rover claimants on the question whether the deceased were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention: [2012] EWCA Civ 1365, [2013] 2 WLR 27. It found it unnecessary to deal with the extent of the substantive obligations implicit within that article. It also dismissed the MODs appeal against the judges refusal to strike out the Challenger claims and the second and third of the Ellis claims in negligence on the ground of combat immunity. But it allowed a cross appeal by the Ellis claimants against the striking out of the first Ellis claim. This was because, although the allegation was of failures of the MOD away from the theatre of war, there might be factual questions as to the circumstances in which the decisions were made which would enable the MOD to raise the defence of combat immunity at the trial: para 63. All these issues are now the subject of appeals by the claimants and a cross appeal by the MOD to this court. It will be convenient to take first the question whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention. If they were, I propose to consider next the question whether article 2 imposes positive obligations on the states party to the Convention with a view to preventing the deaths of their own soldiers in active operations against the enemy. Finally, there are the claims made at common law where the question is whether the allegations of negligence by the Challenger and Ellis claimants should be struck out because they fall within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against such death or injury. I. Jurisdiction: article 1 ECHR (a) the domestic authorities Article 1 of the Convention provides as follows: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention. In Soering v United Kingdom (1989) 11 EHRR 439 at para 86 the Strasbourg court said that article 1 sets a limit, notably territorial, on the reach of the Convention and that the engagement undertaken by a contracting state is confined to securing the listed rights and freedoms to persons within its own jurisdiction. It does not govern the actions of states not parties to it, nor does it purport to be a means of requiring the contracting state to impose Convention standards on other states. The essentially territorial notion of jurisdiction was also emphasised by the Grand Chamber in Bankovic v Belgium (2001) 11 BHRC 435, para 67, where it said that it is only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention. In Andrejeva v Latvia, (Application No 55707/00), given 18 February 2009, para 56, the Grand Chamber reiterated that the concept of jurisdiction for the purposes of article 1 reflects that terms meaning in public international law and that it is closely linked to the international responsibility of the state concerned. The question that the Snatch Land Rover claims raise is whether the jurisdiction of the United Kingdom extends to securing the protection of article 2 of the Convention to members of the armed forces when they are serving outside its territory. For that to be so it would have to be recognised that service abroad by members of the armed forces is an exceptional circumstance which requires and justifies the exercise by the State of its jurisdiction over them extra territorially. In R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153 (Al Skeini (HL)) the House of Lords was asked to consider the case of the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied and run by British military personnel. It was argued for the civilians that, because of the special circumstances in which British troops were operating in Basra, the conduct complained of, although taking place outside the borders of the United Kingdom and any other contracting state, fell within the exceptions recognised by the Strasbourg jurisprudence. The House held that, although one such exception was recognised where a state through effective control of another territory exercised powers normally exercised by the government of that territory, the obligation to secure the Convention rights would arise only where a contracting state had such effective control over an area as to enable it to provide the full package of rights and freedoms guaranteed by article 1 of the Convention to everyone within that area: Lord Rodger of Earlsferry at para 79; Lord Brown of Eaton under Heywood at para 129. The United Kingdoms presence in Iraq fell far short of such control. As Lord Rodger put it in para 78, the idea that the United Kingdom was obliged to secure the observance of all the rights and freedoms as interpreted by the European court in the utterly different society of southern Iraq was manifestly absurd. The Secretary of State accepted that, as the events occurred in a British detention unit, Mr Mousa met his death within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention: Lord Rodger at para 61. So far as the other appellants were concerned, the United Kingdom did not have the kind of control of Basra and the surrounding area that would have allowed it to have discharged its obligations, including its positive obligations, as a contracting state under article 2. Three aspects of the discussion of the issue in that case should be noted at this stage. First, the appellants were all citizens of Iraq. They were not state agents of the United Kingdom or otherwise subject to its control or authority. British servicemen, on the other hand, are under the complete control of the UK authorities and are subject exclusively to UK law. Secondly, the House was plainly much influenced by the ruling on jurisdiction by the Grand Chamber in Bankovic which emphasised the centrality of territorial jurisdiction, the regional nature of the Convention and the indivisibility of the package of rights in the Convention: Lord Rodger at para 69. As Lord Brown noted in para 109, Bankovic stood, among other things, for the proposition that the rights and freedoms defined in the Convention could not be divided and tailored. In para 75 of Bankovic the proposition which attracted these observations was in these terms: . the Court is of the view that the wording of article 1 does not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in section 1 of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question. In para 65 of its judgment in that case the Grand Chamber said that the scope of article 1 was determinative of the very scope of the contracting parties positive obligations and, as such, of the scope and reach of the entire Convention system of human rights protection. Thirdly, it was recognised that it was for the Strasbourg court to define the exceptions and evaluate the grounds for departing from the general rule: Lord Bingham of Cornhill at para 29. As Lord Brown put it at para 105, the ultimate decision on the question must necessarily be for that court. Lord Rodger referred at para 67 to the problem which the House had to face, which was that the judgments and decisions of the European court did not speak with one voice. On the one hand there was Issa v Turkey (2004) 41 EHRR 567, where the court said at para 71 that accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of the other state which it could not perpetrate on its own territory. This appeared to focus on the activity of the contracting state, whereas the emphasis in Bankovic was on the requirement that the victim should be within the jurisdiction. In these circumstances the House was of the view that it would not be proper to proceed beyond the jurisprudence of the European court on jurisdiction as analysed and declared by the Grand Chamber in Bankovic. The appellants then sought just satisfaction in Strasbourg. In the meantime the jurisdiction question was considered by the domestic court in two further cases: R (Gentle) v Prime Minister [2008] AC 1356 and R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2011] 1 AC 1 (Catherine Smith). The question in Gentle was whether article 2 of the Convention imposed a substantive duty on the state to take timely steps to obtain reliable legal advice before committing its troops to armed conflict: see para 3. The claimants were the mothers of two soldiers who were killed while serving in Iraq, one of whom was killed by the same shell as killed Cpl Allbutt and injured Trooper Julien and Lance Corporal Twiddy: see para 3, above. The issue which the claimants wished to explore was the lawfulness of the military action on which the United Kingdom had been engaged in Iraq before it was legitimised by United Nations Security Council Resolution 1546 of 8 June 2004. Lord Bingham said at para 8(3) that, although the soldiers were subject to the authority of the United Kingdom, they were clearly not within its jurisdiction as that expression in the Convention had been interpreted in Al Skeini (HL), paras 79 and 129. But the case was decided on the basis that the claimants were unable to establish the duty which they asserted: see Lord Bingham at para 6. In para 39 Lord Rodger said article 2 of the Convention did not impose an obligation on the government not to take part in an invasion that was unlawful in international law: see also Baroness Hale of Richmond, para 57. In para 19 I said that the guarantee in the first sentence of that article was not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which was properly equipped and capable of defending itself, even though the risk of their being killed was inherent in what they were being asked to do. The issue in Catherine Smith was whether a British soldier in Iraq when outside his base was within the scope of the Convention. The appellant was the mother of Private Jason Smith who had been mobilised for service in Iraq as a member of the Territorial Army and was stationed at Camp Abu Naji. He collapsed while working off base. He was rushed by ambulance to the Camps medical centre but died there almost immediately of heat stroke. The issue in the case concentrated on the question whether the inquest into his death had to satisfy the procedural requirements of article 2. The Secretary of State conceded that, as Private Smith was on the base when he died, Mrs Smith was entitled to the relief which she sought. This meant that the issue had become largely academic, as Lord Phillips recognised in para 2. But on this occasion the Court decided to examine the question and express its opinion on it. The Court was divided on the issue by six to three. The majority held that the contracting states, in concluding the provisions of the Convention, would not have intended it to apply to their armed forces when operating outside their territories. Lord Collins, who delivered the leading judgment on behalf of the majority, said in para 307 that the case came within none of the exceptions recognised by the Strasbourg court, and that there was no basis in its case law, or in principle, for the proposition that the jurisdiction which states undoubtedly have over their armed forces abroad both in national law and international law means that they are within their jurisdiction for the purposes of article 1. Repeating a point that had been made by Lord Rodger in Al Skeini (HL), he said that, to the extent that Issa v Turkey stated a principle of jurisdiction based solely on authority and control by state agents, it was inconsistent with Bankovic. In para 308 he said that there were no policy grounds for extending the scope of the Convention to armed forces abroad, as this would ultimately involve the courts in issues relating to the conduct of armed hostilities which was essentially non justiciable. The leading judgment for the minority was delivered by Lord Mance, with whom Lady Hale and Lord Kerr agreed. It is not possible to do justice to it in a brief summary. But some points that are of particular importance should be noted. In para 188 he said that, to the extent that jurisdiction under the Convention exists over occupied territory, it does so only because of the occupying states pre existing authority and control over its own armed forces. An occupying state cannot have any jurisdiction over local inhabitants without already having jurisdiction over its own armed forces, in both cases in the sense of article 1 of the Convention. In para 194 he said that the United Kingdoms jurisdiction over its armed forces was essentially personal. It could not be expected to take steps to provide in Iraq the full social and protective framework and facilities which it would be expected to provide domestically. But the United Kingdom could be expected to take steps to provide proper facilities and proper protection against risks falling within its responsibility or its ability to control or influence when despatching and deploying armed forces overseas. In paras 195 197 he examined the question whether there would be consequences beyond or outside any that the framers of the Convention could have contemplated and concluded that none of the matters that might give cause for concern justified giving to the concept of jurisdiction a different or more limited meaning to that which in his opinion followed from the guidance that the Strasbourg court had already given in Bankovic. It is however worth noting that he did not attach the same importance as the majority did to the proposition in Bankovic that the rights and freedoms defined in the Convention could not be divided and tailored, and that he was inclined to give more weight than they were to a principle of jurisdiction based on the authority and control which the contracting state had over its armed forces. (b) Al Skeini in Strasbourg The structure of the relevant part of the Grand Chambers judgment, at (2011) 53 EHRR 589, falls into two parts. First, there is a comprehensive statement of general principles relevant to the issue of jurisdiction under article 1 of the Convention. Secondly, those principles are applied to the facts of the case. Although the facts of that case are different from those which are before this Court in these appeals, both parts of the judgment provide important guidance as to how we should resolve the issue with which we have to deal. The statement of general principles begins in para 130 with the observation that the exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. The significance of this observation in the context of these appeals is that it is not disputed that the United Kingdom has authority and control over its armed forces when serving abroad. It has just as much authority and control over them anywhere as it has when they are serving within the territory of the United Kingdom. They are subject to UK military law without any territorial limit: Armed Forces Act 2006, section 367(1). The extent of the day to day control will, of course, vary from time to time when the forces are deployed in active service overseas, especially when troops are in face to face combat with the enemy. But the legal and administrative structure of the control is, necessarily, non territorial in character. are set out: In paras 131 132 the general principles relevant to the territorial principle 131 A states jurisdictional competence under article 1 is primarily territorial. Jurisdiction is presumed to be exercised normally throughout the states territory. Conversely, acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of article 1 only in exceptional cases. 132 To date, the Court in its case law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the state was exercising jurisdiction extra territorially must be determined with reference to the particular facts. One can take from these paragraphs two important points. First, the word exceptional is there not to set an especially high threshold for circumstances to cross before they can justify a finding that the state was exercising jurisdiction extra territorially. It is there to make it clear that, for this purpose, the normal presumption that applies throughout the states territory does not apply. Secondly, the words to date in para 132 indicate that the list of circumstances which may require and justify a finding that the state was exercising jurisdiction extra territorially is not closed. In Catherine Smith, para 303 Lord Collins said that Bankovic made it clear in paras 64 and 65 that article 1 was not to be interpreted as a living instrument in accordance with changing conditions. That can no longer be regarded as an entirely accurate statement. The general principles are derived from the application to particular facts of the requirement of jurisdictional competence. The particular facts to which those principles must now be applied may be the product of circumstances that were not foreseen by the framers of the Convention. But that is no reason to disregard them if they can be shown to fall within the general principles relevant to jurisdiction under article 1. The Grand Chamber in Al Skeini then set out to divide the general principles relevant to jurisdiction into three distinct categories: state agent authority and control; effective control over an area; and the Convention legal space. We are not concerned in the case of the Snatch Land Rover claims with a situation where, as a consequence of military action, the United Kingdom was in effective control of an area outside its territory. Its presence in Iraq in 2005 and 2006 was to provide security and help with the reconstruction effort in that country pursuant to a request by the Iraqi government. The local administration was in the hands of the Iraqi government. Nor are we concerned with the risk of a vacuum in the Convention legal space. The category relevant to this case is that of state agent authority and control, which is described in paras 133 to 137. This category is introduced by para 133, which is in these terms: The Court has recognised in its case law that, as an exception to the principle of territoriality, a contracting states jurisdiction under article 1 may extend to acts of its authorities which produce effects outside its own territory: see Drozd and Janousek v France and Spain (1992) EHRR 745, para 91; Loizidou v Turkey (1995) 20 EHRR 99 (preliminary objections), para 62; Loizidou v Turkey (1997) 23 EHRR 513 (merits), para 52; Bankovic v Belgium (2004) 44 EHRR SE75, para 69. The statement of principle, as it appears in Drozd and the other cases just cited, is very broad: the Court states merely that the contracting partys responsibility can be involved in these circumstances. It is necessary to examine the Courts case law to identify the defining principles. There then follow three paragraphs in which the principles are defined by reference to the Courts case law. The first principle is set out in para 134. It refers to the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law. This may amount to an exercise of jurisdiction when these agents exert authority and control over others. The cases cited are X v Federal Republic of Germany (1965) 8 Yearbook of the European Convention on Human Rights 158; X v United Kingdom (1977) 12 DR 73; M v Denmark (1992) 73 DR 193; and Bankovic, para 73, where the Court noted that other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state. The second principle is set out in para 135. It refers to the fact that the Court has recognised the exercise of extra territorial jurisdiction by a contracting state when, through the consent, invitation or acquiescence of the government of that territory, it exercises all or some of the public powers normally to be exercised by that government: Bankovic, para 71. So, where in accordance with custom, treaty or other agreement, authorities of the contracting state carry out executive or judicial functions on the territory of another state, the contracting state may be responsible for breaches of the Convention that result from their exercise, so long as the acts in question are attributable to it rather than to the state in whose territory the acts take place. The cases cited are Drozd and Janousek v France and Spain (1992) 14 EHRR 745; Gentilhomme v France (Application Nos 48205, 48207 and 48209), given 14 May 2002; and X and Y v Switzerland (1977) 9 DR 57. The third principle is set out in para 136. It refers to the fact that the Courts case law demonstrates that in certain circumstances the use of force by a states agents operating outside its territory may bring the individual thereby brought under control of the states authorities into the states article 1 jurisdiction. Four examples are given of the application of this principle to cases where an individual was taken into the custody of state agents abroad: calan v Turkey (2005) 41 EHRR 985, where an individual was handed over to Turkish officials outside the territory of Turkey by officials from Kenya; Issa v Turkey (2004) 41 EHRR 567, where the Court indicated in paras 74 77 that if it had been established that Turkish soldiers had taken the shepherds into custody in a nearby cave in Northern Iraq and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers authority and control over them; Al Saadoon v United Kingdom (2009) 49 EHRR SE95 where the Court held that two Iraqi nationals detained in a British controlled prison in Iraq fell within the jurisdiction of the United Kingdom as the United Kingdom exercised total control over the prison and the individuals detained in them; and Medvedyev v France (2010) 51 EHRR 899, where crew members of a Cambodian registered merchant ship suspected of drug smuggling were taken into custody and detained on a French frigate while it was taken to France. A more recent example of the application of the same principle is to be found in Jamaa v Italy (2012) 55 EHRR 627, where the applicant asylum seekers were detained on an Italian ship after their vessels had been intercepted by the Italian Revenue Police and Coastguard. The following words are set out at the end of para 136 which sum up the essence of the general principle: The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the contracting state over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. The description of the category of state agent authority and control concludes with an important statement in para 137. It is in these terms: It is clear that, whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under article 1 to secure to that individual the rights and freedoms under section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be divided and tailored . I do not read the first sentence of this paragraph as adding a further example to those already listed in paras 134 136. No further cases are cited in support of it, which the Court would have been careful to do if that were the case. The point that the Grand Chamber was making in para 137, as is made clear by the last sentence, is that the package of rights in the Convention is not indivisible, as Bankovic, para 75, which is cited here, appeared to indicate. The Grand Chamber had stated in that paragraph of its judgment in Bankovic that it was of the view that the wording of article 1 did not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in section 1 of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question. The effect of para 137 of the Al Skeini judgment is that this proposition, which informed much of the thinking of the House of Lords in Al Skeini (HL) and of the majority in Catherine Smith, that the rights in Section 1 of the Convention are indivisible, is no longer to be regarded as good law. The extra territorial obligation of the contracting state is to ensure the observance of the rights and freedoms that are relevant to the individual who is under its agents authority and control, and it does not need to be more than that. The dividing and tailoring concept relative to the situation of the individual was applied in the Hirsi Jamaa case to resolve the issue whether the asylum seekers were subject to the jurisdiction of Italy while they were detained on the ship flying the Italian flag: 55 EHRR 627, para 74. The second part of the judgment of the Grand Chamber applies the principles described in the first part to the facts of the case. The state of affairs in Iraq during the period when the applicants deaths at the hands of British forces occurred is reviewed in paras 143 to 148. They were killed on various dates between May and September 2003. This was during a period when the United States and the United Kingdom were exercising the powers of government for the provisional administration of Iraq through a Coalition Provisional Authority, which had been created for the purpose in May 2003. They included the maintenance of civil law and order. That remained the position until 28 June 2004, when full authority for governing Iraq passed from the Coalition Provisional Authority to the Interim Iraqi Government. In the light of these facts the Court held in para 149 that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations. This established a jurisdictional link between the deceased and the United Kingdom for the purposes of article 1 of the Convention. The Court does not say which of the general principles led it to this conclusion, but it is reasonably clear that the facts come closest to those referred to in para 135. The United Kingdom was not exercising public powers through the consent, invitation or acquiescence of the government of Iraq as during the relevant period no such government was in existence. But it was exercising powers normally to be exercised by that government had it existed. The case thus fell within the general principle of state authority and control. It should be noted, however, that the situation in Iraq had changed by the time the incidents that have given rise to the Snatch Land Rover claims occurred. These incidents took place on 16 July 2005 and 28 February 2006. By that stage the occupation of Iraq had come to an end and the Coalition Provisional Authority had ceased to exist. Full authority for governing the country had passed to the Interim Iraqi Government. The United Kingdom was no longer exercising the public powers normally to be exercised by that countrys government. (c) discussion The question whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention does not receive a direct answer from the Grand Chamber in its Al Skeini judgment. This is not surprising, as that was not the question it had to decide. As it made clear in para 132, the question whether the state was exercising jurisdiction extra territorially in any given case must be determined with reference to the particular facts of that case. But the insertion of the words to date at the beginning of that paragraph indicate that one should not be too troubled by the fact that no case has yet come before the Strasbourg court which required it to consider whether the jurisdiction which states undoubtedly have over their armed forces abroad in both national and international law means that they are within their jurisdiction for the purposes of article 1 of the Convention. Care must, of course, be exercised by a national court in its interpretation of an instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 per Lord Bingham. He had already acknowledged in Brown v Stott [2003] 1 AC 681 that, as an important constitutional instrument, the Convention was to be seen as a living tree capable of growth and expansion within its natural limits (Edwards v Attorney General for Canada [1930] AC 124 at p 136 per Lord Sankey LC). But he said that those limits will often call for very careful consideration. As he put it at the end of para 20 in Ullah, the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. Lord Binghams point was that Parliament never intended by enacting the Human Rights Act 1998 to give the courts of this country the power to give a more generous scope to the Convention rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free standing rights of the courts own creation. In Al Skeini (HL), paras 105 106, Lord Brown of Eaton under Heywood saw a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. The question before us here, however, is not one as to the scope that should be given to the Convention rights, as to which our jurisprudence is still evolving. It is a question about the states jurisdictional competence under article 1. In this context, as the question of jurisdiction is so fundamental to the extent of the obligations that must be assumed to have been undertaken by the contracting states, the need for care is all the greater. In Catherine Smith, para 93, I endorsed the view expressed by Lord Brown in Al Skeini (HL), para 107 that article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. I would take that as being for us, as a national court, the guiding principle. It seems to me that three elements can be extracted from the Grand Chambers Al Skeini judgment which point clearly to the conclusion that the view that was taken by the majority in Catherine Smith that the states armed forces abroad are not within its jurisdiction for the purposes of article 1 can no longer be maintained. The first is to be found in its formulation of the general principle of jurisdiction with respect to state agent authority and control. The whole structure of the judgment is designed to identify general principles with reference to which the national courts may exercise their own judgment as to whether or not, in a case whose facts are not identical to those which have already been held by Strasbourg to justify such a finding, the state was exercising jurisdiction within the meaning of article 1 extra territorially. While the first sentence of para 137 does not add a further example of the application of the principle to those already listed in paras 134 136, it does indicate the extent to which the principle relating to state agent authority and control is to be regarded as one of general application. The words whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, can be taken to be a summary of the exceptional circumstances in which, under this category, the state can be held to be exercising its jurisdiction extra territorially. As I said in para 30, above, the word exceptional does not set an especially high threshold for circumstances to cross before they can justify such a finding. It is there simply to make it clear that, for this purpose, the normal presumption that applies throughout the states territory does not apply. Lord Collinss comment in Catherine Smith, para 305, that other bases of jurisdiction are exceptional and require special justification should be understood in that sense. The second is to be found in the way, albeit with a degree of reticence, that this formulation resolves the inconsistency between Issa v Turkey and Bankovic on the question whether the test to be applied in these exceptional cases can be satisfied by looking only at authority and control or is still essentially territorial. The problem that was created by this inconsistency was articulated most clearly by Lord Rodger in Al Skeini (HL), paras 71 75. How can one reconcile the decision in Bankovic, which showed that an act which would engage the Convention if committed on the territory of a contracting state does not ipso facto engage the Convention if carried out by that contracting state on the territory of another state outside the Council of Europe, with the test that was described in Issa that required the court to ascertain whether the deceased were under the authority and control of the respondent state? We now know that Issa cannot be dismissed as an aberration because, as Lord Collins said in Catherine Smith, para 307, it is inconsistent with Bankovic. It is Bankovic which can no longer be regarded as authoritative on this point. The fact that Issa is included in para 136 as one of the examples of cases that fall within the general principle of state agent authority and control is particularly noteworthy. It anchors that case firmly in the mainstream of the Strasbourg courts jurisprudence on this topic. The third is to be found in the way that the Grand Chamber has departed from the indication in Bankovic that the package of rights in the Convention is indivisible and cannot be divided and tailored to the particular circumstances of the extra territorial act in question. It was always going to be difficult to see how, if that was to be the guiding principle, it could be possible to accept that a states armed forces abroad in whatever circumstances were within their jurisdiction for the purposes of article 1 as its ability to guarantee the entire range of the Convention rights would in many cases be severely limited. The problem was solved in the case of the actions of Turkish soldiers in northern Cyprus because the Convention rights were also engaged by the acts of the local administration which survived by virtue of Turkish military and other support: Cyprus v Turkey (Application No 25781/94), given 10 May 2001, para 77. Other cases were likely to be more difficult, and Lord Collins recognised in Catherine Smith, para 302 that cases such as Markovic v Italy (2006) 44 EHRR 1045 suggested that some qualification would have to be made to the principle of indivisibility of Convention rights. The Grand Chamber has now taken matters a step further. The concept of dividing and tailoring goes hand in hand with the principle that extra territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. The court need not now concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached: see Jamaa v Italy 55 EHRR 627. There is one other point arising from the Grand Chambers Al Skeini judgment that should not pass unnoticed. The Equality and Human Rights Commission points out in para 49 of its written case that the anterior question that presents itself in state agent cases is whether the state agent himself is within his states jurisdiction within the meaning of article 1. As Lord Mance observed in Catherine Smith, para 188, to the extent that a states extra territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them, this is because of the authority and control that the state has over its own armed forces. It would seem to follow therefore that an occupying state cannot have any jurisdiction over local inhabitants without already having jurisdiction over its own armed forces, in each case in the sense of article 1 of the Convention. That this is so has never been questioned by the Strasbourg court, and it may be said that it is the premise from which extra territorial jurisdiction based on state agent authority and control has been developed. In Cyprus v Turkey (1975) 2 DR 125, which appears to have been the first case in which the concept of state agent authority and control was mentioned (see Al Skeini, para 121), the European Commission of Human Rights observed at p 136, para 8, that authorised agents of a state, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring other persons or property within the jurisdiction of that state, to the extent that they exercise authority over such person or property. In so far as, by their acts or omissions, they affect such persons or property, the responsibility of the state is engaged. The same formulation is to be found in the Commissions decisions in W v Ireland (1983) 32 DR 211, 215 and Vearncombe v Germany and United Kingdom (1989) 59 DR 186, 194. It no longer appears in references by the Strasbourg court to the acts of diplomatic and consular agents present on foreign territory in accordance with provisions of international law: see X and Y v Switzerland 9 DR 57, para 2; Bankovic, para 73; Al Skeini, para 134. But it has never been disapproved. It was quoted without comment or criticism in Chrysostomos v Turkey (1991) 34 Yearbook of the European Convention on Human Rights 35, para 32. The Grand Chamber in Al Skeini was referred by the applicants to the same passage in the Cyprus judgment: see para 121. The quotation from it in that paragraph includes the proposition that authorised agents of a state remain under its jurisdiction when abroad. The Grand Chamber had the opportunity to say that there was something wrong with it, but it did not do so. The Cyprus case was referred to by Lord Phillips in Catherine Smith, paras 49 50. He did not attach any significance to it, as it seemed to him that the reasoning of the Commission was far wider than that of the Court when it dealt with Turkeys jurisdiction in Northern Cyprus in Loizidou v Turkey (1995) 20 EHRR 99. It receives a passing mention also by Lord Collins in para 249 in the course of a brief review of the cases on acts of diplomatic and consular officials abroad. As matters now stand, given the guidance that has now been given in Al Skeini, it deserves more attention. The logic which lies behind it, as explained by Lord Mance in Catherine Smith, para 188, is compelling. It is plain, especially when one thinks of the way the armed forces operate, that authority and control is exercised by the state throughout the chain of command from the very top all the way down to men and women operating in the front line. Servicemen and women relinquish almost total control over their lives to the state. It does not seem possible to separate them, in their capacity as state agents, from those whom they affect when they are exercising authority and control on the states behalf. They are all brought within the states article 1 jurisdiction by the application of the same general principle. In Demir and Baykara v Turkey (Application No 34503/97), given 12 November 2008, para 74, the Grand Chamber said that in a number of judgments it had used, for the purposes of interpreting the Convention, intrinsically non binding instruments of Council of Europe organs, in particular recommendations and resolutions of the Committee of Ministers and the Parliamentary Assembly. These resolutions and recommendations constitute agreements within the meaning of article 31(3)(a) of the Vienna Convention, account of which may be taken in the interpretation of a treaty or the application of its provisions. It is therefore worth noting recommendation 1742 (2006) of the Parliamentary Assembly on the human rights of members of the armed forces of 11 April 2006, which was made in the light of a debate on a report on this issue of its Committee on Legal Affairs and Human Rights (doc 10861). In para 2 of recommendation 1742 the point was made that members of the armed forces are citizens in uniform who must enjoy the same fundamental freedoms and the same protection of their rights and dignity as any other citizen, within the limits imposed by the specific exigencies of military duties. In para 3 it was emphasised that members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within the army ranks. The Parliamentary Assembly recommended that the Committee of Ministers should prepare and adopt guidelines in the form of a new recommendation to member states designed to guarantee respect for human rights by and within the armed forces. A draft recommendation prepared by a steering committee was adopted by the Committee of Ministers on 24 February 2010 with an explanatory memorandum (CM/Rec (2010) 4) in which it was stated that member states should, so far as possible, apply the principles set out in the recommendation to their armed forces in all circumstances, including in time of armed conflict. The conclusion which I would draw from the jurisprudence of the Strasbourg court derives further support from these non binding recommendations. For these reasons I would hold that the decision in Catherine Smith should be departed from as it is inconsistent with the guidance that the Grand Chamber has now given in its Al Skeini judgment. I would also hold that the jurisdiction of the United Kingdom under article 1 of the Convention extends to securing the protection of article 2 to members of the armed forces when they are serving outside its territory and that at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of that article. To do so would not be inconsistent with the general principles of international law, as no other state is claiming jurisdiction over them. The extent of that protection, and in particular whether the MOD was under a substantive duty of the kind for which the Snatch Land Rover claimants contend, is the question which must now be considered. The article 2 ECHR claims Article 2(1) of the Convention provides as follows: Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. The relevant guarantee for the purposes of this case is set out in the first sentence. It has two aspects: one substantive, the other procedural. We are not concerned here with the procedural obligation which is implied into the article in order to make sure that the substantive right is effective in practice: see R (Gentle) v Prime Minister [2008] AC 1356, para 5, per Lord Bingham. The Snatch Land Rover claims, details of which are set out in paras 11 and 12, above, are all directed to the substantive obligation, which requires the state not to take life without justification and also, by implication, to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life: R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, para 2. As Owen J pointed out, these claims involve issues of procurement as well as allegations relating to operational decisions made by commanders: [2011] EWHC 1676 (QB), para 51. (a) preliminary observations Lord Collins said in Catherine Smith, para 308 that to extend the scope of the Convention to armed forces abroad would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non justiciable. That some issues relating to the conduct of armed hostilities are non justiciable is not really in doubt. But in my opinion a finding that in all circumstances deaths or injuries in combat that result from the conduct of operations by the armed forces are outside the scope of article 2 would not be sustainable. It would amount, in effect, to a derogation from the states substantive obligations under that article. Such a fundamental departure from the broad reach of the Convention should not be undertaken without clear guidance from Strasbourg as to whether, and in what circumstances, this would be appropriate. It may be noted in this context that the intervener JUSTICE drew attention to article 15 of the Convention in reply to concerns about the practical consequences of finding that soldiers are within the jurisdiction of the United Kingdom under article 1. It provides that in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under the Convention to the extent required by the exigencies of the situation. But the phrase threatening the life of the nation suggests that the power to derogate under this article is available only in an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the state is composed: Lawless v Ireland (No 3) (1961) 1 EHRR 15, para 28. It will be recalled that in A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 it was held that the Human Rights Act 1998 (Designed Derogation) Order 2001, which had been made to derogate from the right to personal liberty under article 5(1) to enable the appellants to be detained indefinitely without trial, should be quashed. And in R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58, [2008] AC 332, para 38, Lord Bingham said that it was hard to think that the conditions of article 15 could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. He also noted that it had not been the practice of states to derogate in situations such as those in Iraq in 2004 and that as subsequent practice in the application of a treaty may, under article 31(3)(b) of the Vienna Convention, be taken into account in interpreting the treaty it seemed proper to regard the power in article 15 as inapplicable. I do not think therefore that it would be right to assume that concern about the practical consequences in situations such as those with which we are dealing in this case can be answered by exercising the power to derogate. The circumstances in which that power can properly be exercised are far removed from those where operations are undertaken overseas with a view to eliminating or controlling threats to the nations security. The jurisprudence of the Strasbourg court shows that there are other ways in which such concerns may be met. The Strasbourg court has repeatedly emphasised that, when it comes to an assessment of the positive obligations that are to be inferred from the application in any given case of the Convention rights, a fair balance must be struck between the competing interests of the individual and of the community as a whole. It has also recognised that there will usually be a wide margin of appreciation if the state is required to strike a balance between private and public interests and Convention rights: Hristozov v Bulgaria (Application Nos 47039/11 and 358/12), given 13 November 2012, paras 118, 124. That was a case about a refusal to authorise an experimental medicinal product which the applicants had wished to be administered to them. But the competition between the interests of the state and those of the individual is no less acute where issues arise about the risk to life of soldiers in the context of military operations conducted on the states behalf. The challenge this court faces when dealing with the Snatch Land Rover claims is to determine where the boundary lies between the two extremes in the circumstances that the armed forces were facing in Iraq in 2005 and 2006. In Gentle, para 19, I said that the proper functioning of an army in a modern democracy includes requiring those who serve in it to undertake the operations for which they have been recruited, trained and equipped, some of which are inherently dangerous, and that the jurisprudence developed from the decision in Soering v United Kingdom (1989) 11 EHRR 439 about decisions taken in this country to send people abroad to places where they face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment does not apply. The guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do. The other side of the coin, as Lord Mance explained in Catherine Smith, para 195, is that there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations in matters such as, for example, the adequacy of equipment, planning or training. Lord Rodger recognised in the same case at para 126 that, while a coroner will usually have no basis for considering at the outset that there has been a violation of article 2 where a serviceman or woman has been killed by opposing forces in the course of military operations, new information might be uncovered as the investigation proceeds which does point to a possible violation of the article. He referred to the death of a soldier as a result of friendly fire from other British forces as an extreme example. And, as I said in Catherine Smith, para 105, one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failure on the part of the state, ranging from a failure to provide them with the equipment that was needed to protect life on the one hand to mistakes in the way they are deployed due to bad planning or inadequate appreciation of the risks that had to be faced on the other. So failures of that kind ought not to be immune from scrutiny in pursuance of the procedural obligation under article 2 of the Convention. The extent to which the application of the substantive obligation under article 2 to military operations may be held to be impossible or inappropriate will, however, vary according to the context. Military operations conducted in the face of the enemy are inherently unpredictable. There is a fundamental difference between manoeuvres conducted under controlled conditions in the training area which can be accurately planned for, and what happens when troops are deployed on active service in situations over which they do not have complete control. As Lord Rodger observed in Catherine Smith, para 122, the job of members of the armed forces involves their being deployed in situations where, as they well know, opposing forces will be making a determined effort, and using all their resources, to kill and injure them. The best laid plan rarely survives initial contact with the enemy. The best intelligence cannot predict with complete accuracy how the enemy will behave, or what equipment will be needed to meet the tactics and devices that he may use to achieve his own ends. Speed may be essential if the momentum of an attack is to be maintained or to strengthen a line of defence. But lines of communication may become stretched. Situations may develop where it is simply not possible to provide troops in time with all they need to conduct operations with the minimum of casualties. Things tend to look and feel very different on the battlefield from the way they look on such charts and images as those behind the lines may have available to them. A court should be very slow indeed to question operational decisions made on the ground by commanders, whatever their rank or level of seniority. Then there is the issue of procurement. In A v Secretary of State for the Home Department [2005] 2 AC 68, para 29, Lord Bingham said that the more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, and the less likely it is to be an appropriate matter for judicial decision. The allocation of resources to the armed services and as between the different branches of the services, is also a question which is more appropriate for political resolution than it is by a court. Much of the equipment in use by the armed forces today is the product of advanced technology, is extremely sophisticated and comes at a very high price. Procurement depends ultimately on the allocation of resources. This may in turn be influenced as much by political judgment as by the judgment of senior commanders in Whitehall as to what they need for the operations they are asked to carry out. It does not follow from the fact that decisions about procurement are taken remote from the battlefield that they will always be appropriate for review by the courts. This, then, is a field of human activity which the law should enter into with great caution. Various international measures, such as those contained in the 3rd Geneva Convention of 1929 to protect prisoners of war, have been entered into to avoid unnecessary hardship to non combatants. But subjecting the operations of the military while on active service to the close scrutiny that may be practicable and appropriate in the interests of safety in the barrack block or in the training area is an entirely different matter. It risks undermining the ability of a state to defend itself, or its interests, at home or abroad. The world is a dangerous place, and states cannot disable themselves from meeting its challenges. Ultimately democracy itself may be at risk. (b) the Strasbourg authorities Fundamentally, article 2 requires a state to have in place a structure of laws which will help to protect life: Savage v South Essex NHS Trust [2008] UKHL 74, [2009] AC 681, para 19, per Lord Rodger. As he explained, with reference to the European courts discussion of this issue in Osman v United Kingdom (1998) 29 EHRR 245, para 115, the primary duty is to secure the right to life by putting in place effective criminal law offences backed up by law enforcement machinery. But the states duty goes further than that. It may also imply, in certain well defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect the lives of those within their jurisdiction. In para 88 of its judgment in Keenan v United Kingdom (2001) 33 EHRR 913, the court began by reciting the high level of duty of the state to put in place effective criminal law sanctions to deter the commission of offences against prisoners. But that was just part of what Lord Rodger described in para 30 of Savage as the tralatician jurisprudence of the court on positive obligations under article 2. The positive duties on the state operate at various levels, as one idea is handed down to another. There is a lower level, but still general, duty on a state to take appropriate measures to secure the health and well being of prisoners or people who are in some form of detention. This in its turn gives rise, at a still lower level, to two general obligations: Savage, para 36; Rabone v Pennine Care NHS Trust (INQUEST and others intervening) [2012] UKSC 2, para 12, per Lord Dyson; neryildiz v Turkey (2004) 41 EHRR 325, para 89. The first is a systemic duty, to put in place a legislative and administrative framework which will make for the effective prevention of the risk to their health and well being or, as it was put in neryildiz, para 89, effective deterrence against threats to the right to life. Depending on the facts, this duty could extend to issues about training and the procurement of equipment before the forces are deployed on operations that will bring them into contact with the enemy. The second, which is also directly in point in this case, is to ensure that, where there is a real and immediate risk to life, preventative operational measures of whatever kind are adopted to safeguard the lives of those involved so far as this is practicable. The Strasbourg court has not had occasion to examine the extent to which article 2(1) offers protection at any level to a states armed forces when engaged in operations such as those that were being conducted in Iraq in 2005 and 2006. But there are some straws in the wind which may offer some guidance. In Engel v The Netherlands (No 1) (1976) 1 EHHR 647, para 54, in a well known passage, the Court said that, when interpreting and applying the rules of the Convention, the court must bear in mind the particular characteristics of military life and its effect on the situation of individual members of the armed forces. That was a case about the preservation of military discipline, as were en v Turkey (Application No 45824/99), given 8 July 2003) and Grigoriades v Greece (1997) 27 EHHR 464, where it was observed at p 8 that the extent of the protection given to members of the armed forces must take account of the characteristics of military life, the nature of the activities they are required to perform and of the risk that they give rise to. These comments, however brief, do seem to make it clear that it would not be compatible with the characteristics of military life to expect the same standard of protection as would be afforded by article 2(1) to civilians who had not undertaken the obligations and risks associated with life in the military. That is plainly so in the context of the exercise of military discipline over members of the armed forces when they are on active service. It is hard to see why servicemen and women should not, as a general rule, be given the same protection against the risk of death or injury by the provision of appropriate training and equipment as members of the police, fire and other emergency services. But it is different when the serviceman or woman moves from recruitment and training to operations on active service, whether at home or overseas. It is here that the national interest requires that the law should accord the widest measure of appreciation to commanders on the ground who have the responsibility of planning for and conducting operations there. This approach receives some support from Stoyanovi v Bulgaria (Application No 42980/04), given 9 November 2010, where an application was made under article 2(1) by the family of a soldier who had died during a parachute exercise. In paras 59 61 the Court examined the difference between the primary positive obligation under that article to establish a framework of laws and procedures to protect life and the obligation to take preventative operational measures to protect the life of an individual which may be imposed by implication, as it was put in Osman v United Kingdom (1998) 29 EHRR 245, para 115, only in certain and well defined circumstances. In para 59, recalling what was said in para 116 of Osman where the allegation was of a failure to take preventive measures where there was a known risk of a real, direct and immediate threat to the life of an individual posed by another individual, the Court said: Subject to considerations as to the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities and which also conforms with the other rights guaranteed by the Convention. In para 61 it observed that positive obligations will vary in their application depending on the context. Having noted that the case concerned an accident during a military training exercise and that parachute training was inherently dangerous but an ordinary part of military duties, it said: Whenever a state undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum. If nevertheless damage arises, it will only amount to a breach of the states positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events. That was a case where the state was in control of the situation, as the accident occurred during a training exercise. It was not claimed that any specific risk to the life of the deceased should have been foreseen in advance, nor was it argued that the legislative and administrative framework was defective in any general or systemic sense: paras 62 63. The whole focus of the courts supervision was on the authorities response to the accident. It was not suggested that there could not have been a breach of the general or systemic duties in such a case. There is, however, a sharp contrast between that situation and operations undertaken in a situation where it was known or could reasonably have been anticipated that troops were at risk of attacks from insurgents by unconventional means such as by the planting of IEDs. Regulation and control of the kind contemplated in Stoyanovi is likely to be very difficult, if not impossible, to achieve on the ground in situations of that kind. Even where those directing operations are remote in place and time from the area in which the troops are operating, great care is needed to avoid imposing a burden on them which is impossible or disproportionate. Another example of the Strasbourg courts concern not to impose a disproportionate and unrealistic obligation on the state is provided by Giuliani and Gaggio v Italy (Application No 23458/02), given 24 March 2011. The applicants in that case complained of the death of their son and brother during demonstrations surrounding the G8 summit in Genoa which had degenerated into violence. The Court held that the Italian authorities did not fail in their obligation to do what could reasonably be expected of them to provide the level of safeguards required during operations potentially involving the use of lethal force. It drew a contrast between dealing with a precise and identifiable target and the maintenance of order in the face of possible disturbances spread over the entire city as regards the extent to which the officers involved could be expected to be highly specialised in dealing with the tasks assigned to them. So too, in the case of the armed forces, a contrast can be drawn between their situation in the training area that can be planned for precisely and that which they are likely to encounter during operations when in contact with the enemy. The same approach is indicated by Finogenov v Russia (Application Nos 18299/03 and 27311/03), given 20 December 2011, para 213, where the Court was prepared to give a margin of appreciation to the domestic authorities, in so far as the military and technical aspects of the situation were concerned, in connection with the storming of a theatre in which many people were held hostage by terrorists, even if with hindsight some of the decisions they took might appear open to doubt. The guidance which I would draw from the Courts jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case. (c) should the claims be struck out? The circumstances of the Snatch Land Rover cases are not precisely analogous to those of any previous case in which the implied positive obligation under article 2 has been imposed, and the allegations made in each of the claimants particulars of claim (see paras 11 and 12, above) are not identical. This is because the explosion in which Pte Hewett was killed occurred more than six months before that which killed Pte Ellis. The claim in Pte Elliss case concentrates on the provision of what is said, in the light of experience, to have been inadequate equipment and a failure to limit his patrol to vehicles which offered better protection or had been fitted with element A. The claims in Pte Hewetts case are less precise and range more widely. But they too extend to criticism of operational decisions taken by those in charge of the patrols as well as to alleged failures in the provision of appropriate vehicles and equipment in the light of the death of L Cpl Brackenbury in similar circumstances seven weeks previously. I am conscious, however, of the fact that these particulars are no more than the briefest outline of the case that the claimants seek to make. Account should also be taken of the fact that the claims were issued in January 2008, in the case of Pte Hewett, and in February 2009, in the case of Pte Ellis. In both cases this was before the judgment was delivered in Stoyanovi v Bulgaria. The European Court has now provided greater clarity as to the approach that should be taken to claims of this kind, as has the discussion about the distinct elements that are to be found in the positive duty to protect life that is to be found in Savage and Rabone. Some of the failures which the claimants allege appear to be of the systemic kind (see para 68, above). Others are of the operational kind that was described in the Osman case, where there was an implied positive obligation to take preventative operational measures to protect those who were at risk of a real, direct and immediate threat to life. Measures of that kind could extend to procurement decisions taken on the ground about the provision of vehicles and equipment, as well as to decisions about their deployment. How precisely the allegations fit into the structure of the duties implied by the article cannot be determined without knowing more about the facts, bearing in mind that it must be interpreted in a way which does not impose an unrealistic or disproportionate burden on the authorities. The overall aim of the courts procedure must be to achieve fairness, and I think that it would be unfair to the relatives of the deceased to apply too exacting a standard at this stage to the way the claims have been pleaded. The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of the implied positive obligation. The details which are needed to place those circumstances into their proper context will only emerge if evidence is permitted to be led in support of them. This seems to me to be a classic case where the decision on liability should be deferred until after trial. I agree with Owen J that the procurement issues may give rise to questions that are essentially political in nature but that it is not possible to decide whether this is the case without hearing evidence. He said that there was no sound basis for the allegations that relate to operational decisions made by commanders, and for this reason took a different view as to whether they were within the reach of article 2. But it seems to me that these allegations cannot easily be divorced from the allegations about procurement, and that here too the question as to which side of the line they lie is more appropriate for determination after hearing evidence. Much will depend on where, when and by whom the operational decisions were taken and the choices that were open to them, given the rules and other instructions as to the use of equipment under which at each level of command they were required to operate. I would therefore dismiss the MODs appeal against Owen Js decision, which the Court of Appeal found it unnecessary to consider, that none of these claims should be struck out. The claimants are, however, on notice that the trial judge will be expected to follow the guidance set out in this judgment as to the very wide measure of discretion which must be accorded to those who were responsible on the ground for the planning and conduct of the operations during which these soldiers lost their lives and also to the way issues as to procurement too should be approached. It is far from clear that they will be able to show that the implied positive obligation under article 2(1) of the Convention to take preventative operational measures was breached in either case. III. Combat immunity (a) background The Challenger claims proceed on the basis that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat. So it has not been suggested that Lt Pinkstone or anyone else in the Black Watch battle group was negligent. Nor, as his decision to fire was taken during combat, would it have been appropriate to do so. The Challenger claimants concentrate instead on an alleged failure to ensure that the claimants tank and the tanks of the battle group that fired on it were properly equipped with technology and equipment that would have prevented the incident, and an alleged failure to ensure that soldiers were provided with adequate recognition training before they were deployed and also in theatre. Their case is founded entirely on failings in training and procurement. The Ellis claim at common law also raises issues about procurement. The MOD invokes in reply the doctrine of combat immunity, which it says should be given a sufficiently broad scope to cover all acts or omissions that are alleged to have caused death or injury in the course of combat operations. It is plain that the effect of the doctrine, if it applies, would be to remove the issue of liability for negligence from the jurisdiction of the court altogether. But the MOD also submits that, if the court does have jurisdiction, it would not be fair, just or reasonable to impose a duty of care on it to protect the soldiers in such circumstances against death or injury. The justification for these arguments is the same, whichever of the two formulations is adopted. It is that the interests of the state must prevail over the interests of the individual. As Mr Eadie QC for the MOD put it, the fair, just and reasonable test chimes with the doctrine of combat immunity. His appeal against the Court of Appeals decision that the negligence claims should not be struck out was directed primarily to that doctrine. This may be considered to be an application to given facts of the test as to what is fair, just and reasonable. But the structure of the law is important and combat immunity is best thought of as a rule, because once a case falls within it no further thought is needed to determine the question whether a duty of care was owed to the claimant. The scope of this rule deserves attention as a separate issue in its own right. (b) the authorities Combat immunity made its first appearance in Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344. A collision had occurred between HMAS Adelaide and a civilian vessel, the MV Coptic. It took place on 3 December 1940 while the civilian vessel was on a voyage from Brisbane to Sydney. The owners of the civilian vessel claimed that the collision had been caused by negligence on the part of the naval authorities and sought damages. The High Court was adjudicating on the plaintiffs demurrer to the defence and a strike out summons by the Commonwealth. The defence was that, while in the course of actual operations against the enemy, the forces of the Crown are under no duty of care to avoid loss or damage to private individuals. Both applications were dismissed and the case proceeded to trial. The Commonwealth was ultimately found liable on the ground of the captains fault in his navigation of the Adelaide: see Attorney General (New South Wales) v Perpetual Trustee Co Ltd (1952) 85 CLR 237, 252 per Dixon CJ. Dixon J, with whom Rich ACJ and McTiernan J agreed, said in the demurrer proceedings at p 361 that it could hardly be maintained that during an actual engagement with the enemy the navigating officer of a ship of war was under a common law duty to avoid harm to such non combatant ships as might appear in the theatre of operations: To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. At p 362 he acknowledged that it might not be easy under conditions of modern warfare to say in a given case upon which side of the line an act or omission falls. But the uniform tendency of the law had been to concede to the armed forces complete legal freedom in the field, that is to say in the course of active operations against the enemy, so that the application of private law by the ordinary courts may end where the active use of arms begins. Starke J said at pp 355 356 that acts done in the course of operations of war are not justiciable and that this had been decided by Ex P D F Marais [1902] AC 109, where the Judicial Committee of the Privy Council applied the test of whether actual war was raging at the time of the incident. In Groves v Commonwealth (1982) 150 CLR 113, para 3 Gibbs CJ said that he had no difficulty in accepting the correctness of what was said by Dixon J: To hold that there is no civil liability for injury caused by negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy. In Mulcahy v Ministry of Defence [1996] QB 732 Neill LJ said at p 746 that it seemed to have been recognised in the Australian cases that warlike activities fell into a special category. He concluded at p 748 that an English court should approach a claim of negligence by a soldier who was injured while a gun of whose team he was a member was fired into Iraq during the first Iraq war in the same way as in the High Court of Australia did in the Shaw Savill case. At pp 749 750 he examined what the position would have been, in the absence of the Australian cases, as to whether it would have been fair, just or reasonable to impose a duty of care on one soldier in his conduct to another when engaging the enemy during hostilities. Echoing the words of Gibbs CJ in Groves, he reached the same conclusion, as there was no duty on the defendants in battle conditions to maintain a safe system of work. Sir Iain Glidewell said at p 751 that at common law one soldier does not owe a duty of care to another member of the armed forces when engaging the enemy in the course of hostilities. In his judgment in this case, at para 93, Owen J referred to his judgment in Multiple Claimants v The Ministry of Defence [2003] EWHC 1134 (QB) in which he drew from the cases the proposition that the immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established. It extends to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack, including the planning and preparation for the operations in which the armed forces may come under attack or meet armed resistance. He qualified the latter part of this proposition by saying that the extension of the immunity to the planning of and preparation for military operations applied to the planning of and preparation for the operations in which injury was sustained, and not to the planning and preparation in general for possible unidentified further operations. (c) discussion: combat immunity There is not much by way of close reasoning in Shaw Savill and Groves, apart from assertions that where combat immunity applies the doctrine is justified by reason and policy. But the doctrine itself, as explained in Mulcahy, is not in doubt. The question is as to the extent of the immunity. With great respect, I doubt the soundness of the extension of it that in the Multiple Claimants case Owen J drew from the very few cases on this topic. They included Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, where the House held that the destruction of oil installations to avoid their falling into the hands of the enemy did not fall into the category of damage done during the course of battle. That was a very unusual case, which does not really bear on the issue we have to decide. It seems to me that the extension of the immunity to the planning of and preparation for the operations in which injury was sustained that the judge seems to have favoured is too loosely expressed. It could include steps taken far away in place and time from those operations themselves, to which the application of the doctrine as a particular application of what is just, fair and reasonable would be at the very least questionable. Such an extension would also go beyond the situations to which the immunity has so far been applied. In Bici v Ministry of Defence [2004] EWHC 786 (QB), para 90, Elias J noted that combat immunity was exceptionally a defence to the government, and to individuals too, who take action in the course of actual or imminent armed conflict and cause damage to property or death or injury to fellow soldiers or civilians. It was an exception to the principle that was established in Entick v Carrington (1765) 19 State Tr 1029 that the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs. In his opinion the scope of the immunity should be construed narrowly. That approach seems to me to be amply justified by the authorities. The Challenger claims are about alleged failures in training, including pre deployment and in theatre training, and the provision of technology and equipment. They are directed to things that the claimants say should have been done long before the soldiers crossed the start line at the commencement of hostilities. The equipment referred to consists of target identity devices to provide automatic confirmation as to whether a vehicle is a friend or a foe, and situation awareness equipment that would permit tank crews to locate their position and direction of sight accurately. The claim is that, if the Challenger II tanks that were involved in this incident had been provided with this equipment before they went into action, the claimants tank would not have been fired on. The training referred to is described as recognition training. It is said that this should have been provided pre deployment and in theatre. Here too the essence of the claim is that these steps should have been taken before the commencement of hostilities. The claimants are careful to avoid any criticism of the actions of the men who were actually engaged in armed combat at the time of the incident. The question which these claims raise is whether the doctrine of combat immunity should be extended from actual or imminent armed conflict to failures at that earlier stage. I would answer it by adopting Elias Js point, with which Owen J agreed in para 99 of his judgment in this case, that the doctrine should be narrowly construed. To apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied. That in itself suggests that it should not be permitted. I can find nothing in these cases to suggest that the doctrine extends that far. In the Shaw Savill case the argument for the Commonwealth at the demurrer stage was that at the time of the collision the warship was engaged in active naval operations against the enemy, that those operations were urgently required and necessary for the safety of the realm and that the national emergency called for the taking of the measures that the warship adopted. Both vessels were said to have been proceeding without any navigation or other lights, in pursuance of instructions from the Australian naval authorities which had been authorised to give them as part of the Crowns function of waging war by sea and protecting vessels from enemy action. It was not said where the enemy were, or what exactly the warship was doing when the collision occurred. But the phrase active naval operations against the enemy makes the point that it was assumed that it occurred during, and not before, the vessels engagement in those operations. The fact that the Commonwealth was ultimately found liable at trial suggests that the judge found that at the material time the warship was not, after all, engaged in actual operations against the enemy. The accident in Mulcahys case occurred while the gun was being fired into Iraq during, and not before, the actual engagement with the enemy. Then there is the point that, as was noted in Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398, paras 108 and 161, any extension of an immunity needs to be justified. It has to be shown to be necessary. Starke J observed in the Shaw Savill case at p 354 that not every warlike operation done in time of war is an operation or an act of war. It is to operations or acts of war only that the doctrine extends, on the ground that the armed forces must be free to conduct such operations without the control or interference of the courts of law. As Dixon J said in the same case at p 361, no one can imagine a court undertaking the trial of an issue as to whether a soldier on the field of battle or a sailor fighting on his ship might reasonably be more careful to avoid causing civil loss or damage. The principle, as he described it, is not limited to acts or omissions in the course of an actual engagement with the enemy. It extends to all active operations against the enemy. While in the course of actually operating against the enemy, the armed forces are under no duty of care to avoid causing loss or damage to those who may be affected by what they do. But, as Dixon J also said at p 362, there is a real distinction between actual operations against the enemy and other activities of the combatant services in time of war. He referred by way of example to a warship proceeding to her anchorage or manoeuvring among other ships in a harbour. At that stage no reason was apparent for treating her officers as under no civil duty of care, remembering always that the standard of care is that which is reasonable in the circumstances. The same point can be made about the time when the failures are alleged to have taken place in the Challenger claimants case. At the stage when men are being trained, whether pre deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. For this reason I would hold that the Challenger claims are not within the scope of the doctrine, that they should not be struck out on this ground and that the MOD should not be permitted, in the case of these claims, to maintain this argument. The Ellis common law claim relates to a different phase of the United Kingdoms engagement in Iraq, but it was a phase during which there was a constant threat of enemy action by insurgents which was liable to cause death or injury. These claims are less obviously directed to things done away from the theatre in which Pte Ellis was engaged at the time of his death: see para 12, above. Their wording suggests that at least some of the failures alleged may have been due to decisions taken by local commanders during active operations on the ground. If that was the situation, it may be open to argument that these claims are within the doctrine. As Moses LJ recognised in the Court of Appeal, para 63, factual issues of that kind must be left for determination at the trial. The information that would be needed for a decision either way is lacking at this stage. As in the case of their claims under article 2 of the Convention, the details that are needed to place the claims in context will only emerge if evidence is permitted to be led in support of them. So I would hold that it would be premature for these claims to be struck out on the ground of combat immunity. I would leave this issue open to further argument in the light of the evidence. (d) discussion: fair, just and reasonable Mr Eadie QC also renewed the argument that was advanced below that the common law claims should be struck out on the ground that it would not be fair, just and reasonable to impose a duty of care at common law to protect against such death or injury as occurred in these cases. He referred, for example, to Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, [2009] AC 225, Brooks v Comr of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495 and Stovin v Wise [1996] AC 923 in support of this part of his argument. In Brooks, para 30 Lord Steyn affirmed what he described as the core principle in Hill v Chief Constable of West Yorkshire [1989] AC 53, where it was held on grounds of public policy that the police did not owe legal duties to victims or witnesses in the performance of their function in keeping the Queens peace: see also Elguzouli Daf v Commissioner of Police of the Metropolis [1995] QB 335, where Lord Steyn held, also on grounds of public policy, that the Crown Prosecution Service did not owe a duty of care to those whom it was prosecuting; and Hughes v National Union of Mineworkers [1991] ICR 669, where May J held that it would be detrimental to the public interest if police officers charged with deploying of other officers in times of serious public disorder were to have to concern themselves with possible negligence claims from their subordinates. These can all be seen as cases where, for reasons of public policy, it was not fair, just or reasonable for the defendant to be under a duty of care to avoid injury. The closest the cases have come to applying that reasoning to cases involving members of the armed forces is Mulcahy v Ministry of Defence [1996] QB 732, where Neill LJ said at p 750 that there was no duty on the defendants in battle conditions to maintain a safe system of work and Sir Iain Glidewell said at p 751 that one soldier does not owe to another a duty of care when engaged in battle conditions. As in the other cases, the question whether a duty should be held not to exist depends on the circumstances on who the potential claimants are and when, where and how they are affected by the defendants acts. The circumstances in which active operations are undertaken by our armed services today vary greatly from theatre to theatre and from operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk, which must of course be avoided, of judicialising warfare. For these reasons, I think that the question whether the claims in this case fall within the exclusion that was recognised in Mulcahy or any extension of it that can be justified on grounds of public policy cannot properly be determined without hearing evidence. In Van Colle, para 58 Lord Bingham said that one would ordinarily be surprised if conduct which violated a fundamental right or freedom of the individual under the Convention did not find a reflection in a body of law as sensitive to human needs as the common law. So Lord Rodgers observation in Catherine Smith, para 126 that there would be reason to believe that the military authorities may have failed in their article 2 duty if a soldier dies as a result of friendly fire from other British forces is capable of being read across as indicating that the question in the case of the Challenger claims is not whether a duty was owed but whether, on the facts, it was breached. Whether the situation in Iraq at the time of the incidents that gave rise to the Ellis claims was comparable to battle conditions when a nation is at war is a matter that also needs to be investigated. It needs to be emphasised, however, that the considerations mentioned in paras 64 66 and 76 81, above in the context of the claims made under article 2 of the Convention are just as relevant in the context of the common law claims. Close attention must be paid to the time when the alleged failures are said to have taken place, and to the circumstances in which and the persons by whom the decisions that gave rise to them were taken. It will be easier to find that the duty of care has been breached where the failure can be attributed to decisions about training or equipment that were taken before deployment, when there was time to assess the risks to life that had to be planned for, than it will be where they are attributable to what was taking place in theatre. The more constrained he is by decisions that have already been taken for reasons of policy at a high level of command beforehand or by the effects of contact with the enemy, the more difficult it will be to find that the decision taker in theatre was at fault. Great care needs to be taken not to subject those responsible for decisions at any level that affect what takes place on the battlefield, or in operations of the kind that were being conducted in Iraq after the end of hostilities, to duties that are unrealistic or excessively burdensome. The sad fact is that, while members of the armed forces on active service can be given some measure of protection against death and injury, the nature of the job they do means that this can never be complete. They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety. But it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable. Conclusion For these reasons I would allow the Snatch Land Rover claimants appeal against the decision of the Court of Appeal that the soldiers in these cases were not within the United Kingdoms jurisdiction for the purposes of article 2 of the Convention at the time of their deaths. I would, however, dismiss the MODs application that the Snatch Land Rover claims should be struck out on the ground that the claims are not within the scope of that article. I would dismiss the MODs application that the Challenger claims should be struck out on the ground of combat immunity and on the ground that it would not be fair, just or reasonable to extend the duty of care to those cases. I would also dismiss the MODs cross appeal against the decision of the Court of Appeal to dismiss its application to strike out the Ellis claim based on negligence. LORD MANCE (with whom Lord Wilson agrees) Introduction This first issue is whether soldiers in the British army are within the jurisdiction of the United Kingdom when serving both on and off base in Iraq for the purposes of article 1 of the European Convention on Human Rights. On this issue, I am in complete agreement with Lord Hope. I have nothing to add to what he says in his paragraphs 17 55. On this basis, this case raises once again for consideration the difficult line or inter relationship between national law and substantive Convention rights, to which I referred in Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, para 121. It is in general terms clear from Strasbourg jurisprudence that article 2 of the Human Rights Convention includes substantive duties on the part of the state, namely (a) a systems or framework duty, viz to establish a framework which is appropriately protective of life and (b) an operational duty, viz in appropriate circumstances, a positive duty to take preventive operational measures to protect an individual whose life is at risk: Watts v United Kingdom (2010) 51 EHRR SE66, para 82. Although the operational duty was said in Osman v United Kingdom (1998) 29 EHRR 245 to apply in certain well defined circumstances, the subsequent recognition of its application in new sets of circumstances (including by this Court in Rabone) leaves its scope uncertain. As Lady Hale notes in Rabone, para 97 99, it is conceivable that the Strasbourg jurisprudence accepts or is moving towards a broad principle that engages article 2 and requires the state to react reasonably in any situation where the state knows or ought to know of a real and immediate threat to human life. It is also unclear how far the two substantive duties are separated, with middle ground between them, or form part of a continuum covering almost every aspect of state activity. In neryildiz v Turkey (2005) 41 EHRR 325, paras 89 90 the Strasbourg court treated the framework duty as indisputably apply[ing] in the particular context of dangerous activities, where special emphasis must be placed on regulations geared to the special features of the activity in question, adding that They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. On the other hand, there are some circumstances in which death occurs as a result of the activities of state agents, but article 2 is not engaged. They include casual errors of judgment or acts of negligence (which I described in R (Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1, para 201, as operational as opposed to systematic failures), a principle established in the context of medical negligence. The present appeal concerns the operation and application of the principles of common law negligence and of article 2 in a factual context which is very largely uncharted by previous authority. The right approach is I believe to take first the common law position. A primary aspect of the framework duty on states is to have a legislative and administrative framework appropriately protective of life: neryildiz, para 89, quoted in Rabone, para 12. So article 2 naturally directs attention first to the question whether domestic law provides such a framework, including the recourse to compensation for non pecuniary damages which the Strasbourg court has indicated should in principle be available as part of the range of redress where a state is held responsible for a death: Z v United Kingdom (2001) 34 EHRR 97, para 109. The claims I gratefully adopt Lord Hopes summary of the various claims in paras 9 to 12 of his judgment. Some preliminary observations may be made. First, although the Challenger claims are based only on allegations of lack of technology, equipment and/or training, the Particulars of Claim alone show that the factual circumstances of these sad deaths would require examination and that failings on the ground of those with command over the firing tank are in fact held directly responsible for such deaths. In particular, it is alleged that Major McDuff under whose command the firing tank fell was told of the presence of the tanks subsequently fired upon and had such tanks visually identified to him, that he was shown, but refused to accept, the boundaries of responsibility marked on a map which had been given to such tanks and that he failed to communicate any of this information to anyone, with the result that, some 12 hours later, the firing tank wrongly identified the tanks fired on as enemy. Second, the particulars relied upon in Mrs Smiths claim under article 2 include both decisions or omissions on the ground and equipment and tactical decisions at a higher level. Third, the particulars relied upon in the Ellis claims in negligence and/or under article 2 relate mainly at least to equipment and tactical decisions at a higher level (although they also embrace allegations as to what equipment should have been used if available). As pleaded, the complaint regarding the decision to deploy Snatch Land Rovers on the patrol might be read as a complaint about a decision made on the ground. But their case (para 188) explains that it relates to a decision made well away from the heat of battle at a time when the decision maker was neither under attack nor threat of attack. It did not form part of the planning of this particular patrol. Common law The questions arising are (i) the existence and scope of any common law responsibility on the part of the state towards its soldiers, in particular in respect of deaths in active service and (ii) the nature and scope of any common law doctrine of combat immunity. The claimants starting point is that the state owes to its soldiers a general duty to take appropriate measures to secure their safety, like that owed by any other employer, and that it must also answer vicariously for any breach of duty by one soldier killing or injuring another. It is only therefore by virtue of some exceptional immunity that the state can escape liability for breach of any such duty, and the only principle giving any such immunity is a limited principle of combat immunity. That the Crown is in tort generally in the same position as any employer follows from s.2 of the Crown Proceedings Act 1947, providing Liability of the Crown in tort. (1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject: (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate. However, there is authority that where actual war is raging acts done by the military authorities are not justiciable by the ordinary tribunals: Ex p Marais [1902] AC 109, 114. That was a case of alleged wrongful detention where the Privy Council declared that the principle applied where martial law had been declared, even though the military commander had allowed ordinary courts, before which the claimant might have been brought, to continue in operation. In Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, Lord Reid recognised (at p 110) an exception (to the Crowns liability to pay compensation for property seized or destroyed) in relation to battle damage consisting of accidental or deliberate damage done in the course of fighting operations. In Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, Ex p Marais was cited by Starke and Williams JJ, but all the members of the High Court also assimilated the question of justiciability with the question whether the state owed a legal duty to take care in the particular circumstances. Starke J stated that it is for the court to determine whether a state of war exists and whether the matters complained of were done or omitted in the conduct of an operation or act of war. He added (consistently with Ex p Marais) that the immunity arising from conduct of war cannot be confined to the theatre of operations where combatants are actively engaged: it must extend, in modern times, to all theatres in which action on the part of the Kings enemies is imminent. In terms of the modern law of tort, the right analysis is, I consider, that combat immunity is not so much an entirely separate principle as the result of a general conclusion that it is not fair, just or reasonable to regard the Crown or its officers, soldiers or agents as under a duty of care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of war. That is how the matter was seen in Mulcahy v Ministry of Defence [1996] QB 732. The Court of Appeal there, rightly in my view, followed the approach in Shaw Savill in holding that a gun commander firing live rounds into Iraq during the first Gulf War in 1991 owed the claimant, a serving soldier in the same team, no duty of care for breach of which the Ministry could be held vicariously liable. It held equally that the Ministry itself owed the claimant no duty to maintain a safe system of work. Among the points considered in Mulcahy was whether the repeal of the immunity in tort formerly provided by section 10 of the Crown Proceedings Act 1947, subject to the right (never yet utilised) to revive section 10 for all or limited purposes under s.2 of the Crown Proceedings (Armed Forces) Act 1987 bore on the existence or scope of any doctrine of combat immunity. Neill LJ held it did not, because it was still necessary to consider the common law position. I agree. In Bici v Ministry of Defence [2004] EWHC 786 (QB), concerning the killing of two civilians by British soldiers during the course of peace keeping operations in Kosovo, Elias J treated separately the doctrine of combat immunity and the question whether there existed a duty of care, viewing the former as an exclusion of justiciability and so as a doctrine to be strictly confined on constitutional grounds. But on that basis it was still necessary to consider whether any duty of care existed. Elias J held it did, because the case involved the single question whether the soldiers were justified in firing on the civilians, and there was no basis for concluding that they did not owe a duty of care in doing so: Troops he said (para 104) frequently have to carry out difficult and sensitive peace keeping functions, such as in Northern Ireland, whilst still being subject to common law duties of care. The difficulties of their task are reflected in the standard of the duty rather than by denying its applicability. As Lord Hope has noted, the cases on combat immunity are focused on acts or omissions occurring and causing injury or death in the course of hostilities. In the present case the Challenger claimants are careful to put their case in a way which relies solely on allegedly negligent conduct occurring prior to and distant from the actual hostilities, and involving failures, in Whitehall or elsewhere, properly to equip and train the soldiers sent to fight in Iraq. The same applies, at least for the most part, to the Ellis claims. The question is whether the state, or indeed those of its officers responsible for procurement and training decisions, owe any duty of care in respect of injury or death in the course of combat operations allegedly attributable to their negligence in the performance of such responsibility. This is a question of public policy about the answer to which Lord Rodger (at para 127), with whom Lord Walker expressly agreed (at para 131), can, I think, have had no doubt in R (Catherine Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1. Although they were addressing explicitly the position under article 2, they cannot have thought that their remarks were or could be made irrelevant simply be reformulating a claim in negligence. It is not difficult to identify situations in which the common law has concluded on policy grounds that no duty of care should exist. I agree with all that Lord Carnwath has said in this connection in paras 161 to 175 of his judgment. In Hill v Chief Constable of West Yorkshire [1989] AC 53, the House held that the police had owed no enforceable duty of care with respect to the last victim of the Yorkshire Ripper, properly to investigate the crimes committed by the Yorkshire Ripper before the murder of, and so to save the life of, the last victim. Lord Keith said, at p 63: From time to time they [the police] make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure for example that a police officer negligently tripped and fell while pursuing a burglar others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. In Brooks v Comr of Police of the Metropolis [2005] 1 WLR 1495, the House applied similar reasoning when holding that the police have no duty of care not to cause by positive acts or omissions harm to victims of serious crime, or witnesses to serious crime, with whom they have contact. Lord Steyn said (para 30): It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence: . A retreat from the principle in Hill's case would have detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and witnesses the police's ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead to an unduly defensive approach in combating crime. Van Colle v Chief Constable of the Hertfordshire Police (Secretary of State for the Home Department intervening) [2008] UKSC 50, [2009] AC 225 is a further case in which there was in Lord Hopes words a highly regrettable failure to react to a prolonged campaign by Jeffrey threatening the use of extreme criminal violence against Mr Smith, which in the event did culminate in Jeffrey attacking Mr Smith and very severely injuring him. The House again applied the approach in Hill and Brooks in concluding that there was no actionable duty of care. In all these cases the existence of a duty of care was negatived, although it could not be said that the police action or inaction occurred in the heat of the moment and the failings occurred over considerable periods when the police had the opportunity to think about and investigate the position and take protective measures. In Multiple Claimants v Ministry of Defence [2003] EWHC 1134 (QB), it was claimed that the Ministry was in breach of a duty of care to provide service personnel with a safe system of work. Owen J considered (para 2.C.16) that In aggressive operations the objective will be defeat of the enemy; in defensive operations the successful repulse of the enemy. In the planning of and preparation for such operations the interests of service personnel must be subordinate to the attainment of the military objective. In my judgment the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution. The planning of and preparation for military operations will include decisions as to the deployment of resources. On that basis, he dismissed a claim that the Ministry had failed to make proper arrangements for psychiatric support in combat on the basis that Decisions as to the deployment of medical resources in operations in which service personnel may engage in hostilities fall within the combat immunity . (para 10.12). However, he disagreed with the Ministrys more extended submission that no cause of action can arise in relation to injury sustained in combat irrespective of whether the acts or omissions to which such injury is attributable fall within the combat immunity (para 2.C.18). He reiterated his view on this point in his judgment at first instance in the present cases concerning the Challenger and Ellis claims. Mr Eadie QC takes issue with Owen J on the point. However, it was explained by Owen J with an example which suggests that he had in mind a relatively narrow situation not presently relevant. The explanation was in these terms: If the restriction to the duty of care does not arise on the facts, and a claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is immaterial that the injury was sustained in the course of combat. The question with regard to the injury is then simply one of causation; is it attributable to the breach of duty? The point can be illustrated by reference to the claimants' contention that the MoD was under a duty to devise and implement a system for screening recruits so as, and I paraphrase, to eliminate those vulnerable to stress, and that as a result of breach of that duty recruits who should have been rejected were enlisted, and subsequently sustained psychiatric injury when exposed to the trauma of battle. If that contention is well founded, it will obviously not be open to the MoD to argue that the combat immunity applies to the relevant acts or omissions. The injury will have been sustained in combat; but the exposure to stress in combat is simply the mechanism by which the breach causes injury. In considering the Challenger claims and the Ellis claim for negligence, Owen J referred to his previous decision in Multiple Claimants as well as to Elias Js decision in Bici. He accepted the latter as standing for the proposition that any exception on grounds of combat immunity should be narrowly construed. He confined the extension of the doctrine of combat immunity, recognised in Multiple Claimants, to the planning and preparation of the particular operations in which injury was sustained, as opposed to planning and preparation made . in general for possible unidentified further military operations (para 94). He was not persuaded that the fact that the equipment claims were likely to give rise to issues of procurement and allocation of resources demonstrated conclusively that it would not be fair, just and reasonable to impose the duties of care for which the claimants contend (para 107). He was not persuaded that either the equipment or the claims based on lack of pre deployment training had no real prospect of success. He thought that different considerations might apply to the claims so far as based on lack of in theatre training, but that this issue would be better determined by the trial judge. He struck out the Ellis claim for negligence in para 26.1 (failure to limit patrols to other vehicles) as falling squarely within combat immunity. The Court of Appeal upheld Owen Js conclusion that the equipment and training claims arguably fall outwith the scope of combat immunity, and also allowed the appeal in respect of para 26.1. Three points arise. First, in my opinion, the decisions below underestimate the inevitable inter linking of issues relating to the supply of technology and equipment and to training for active service with decisions taken on the ground during active service. As noted in para 110 above, it is not possible to consider the Challenger claims without considering the conduct of those on the ground. If it were suggested, as might be possible, that the real cause of the incident was the failings of a local commander, the court would, on the claimants case, find itself having to adjudicate on this suggestion in order to establish whether there was any relevant causative failure regarding the prior supply of equipment or training. As Lord Hope notes (para 91), the claimants have, quite naturally, been careful not to make any criticism of those actually engaged on the ground. But that indicates, rather than resolves, the problem. The proper attribution of responsibility cannot depend upon how a claimant frames his case. The Ministry of Defence could itself advance a case that the real cause was not the fault of someone responsible for procurement, but of someone on the ground. In any event, as the present pleadings show, all the facts would be laid before the court, which would have to decide upon causation looking at them as a whole. Allegations about procurement cannot in the case of the Challenger claims be divorced from consideration of the conduct of those using the equipment on the ground. Lord Hope recognises this in paragraph 80, but draws the opposite conclusion to that which I would draw. He considers that all such circumstances must be evaluated with a view to striking a balance between competing considerations (paras 61, 78 80 and 98 99). I would conclude the opposite that all such circumstances are inter related and essentially non justiciable. Second, Mr Hermer QC for the Challenger claimants accepts that tactical decisions, wherever taken, are not actionable. Mr Hermer must on any view be correct, I consider, on this point. But, if so, it opens the question in relation to the Snatch Land Rover claim by Ms and Mrs Ellis whether a complaint of failure to supply a better armoured or equipped vehicle is not really a complaint about tactics. (In contrast to Mr Hermer, Mr Weir QC for the Smith and Ellis claimants would confine combat immunity so narrowly that it could not embrace in the case of the Ellis claimants either a question why allegedly available equipment (Element A) was not fitted to Private Elliss Snatch Land Rover on the day of the casualty or a question why the patrol to the Iraqi police station was not delayed a day or two to enable it to be fitted.) Third, both in that connection and more widely, I consider that Owen J was clearly right to conclude in Multiple Claimants that the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution. The planning of and preparation for military operations will include decisions as to the deployment of resources. I would also refer to cautionary words of Lord Keith in Rowling v Takaro Properties Ltd [1988] AC 473, 502D F: The third [matter] is the danger of overkill. It is to be hoped that, as a general rule, imposition of liability for negligence will lead to a higher standard of care in the performance of the relevant type of act; but sometimes not only may this not be so, but the imposition of liability may even lead to harmful consequences. In other words, the cure may be worse than the disease. The claims that the Ministry failed to ensure that the army was better equipped and trained involve policy considerations of the same character as those which were decisive in Hill, Brooks and Van Colle. They raise issues of huge potential width, which would involve courts in examining procurement and training policy and priorities over years, with senior officers, civil servants and ministers having to be called and to explain their decisions long after they were made. Policy decisions concerning military procurement and training involve predictions as to uncertain future needs, the assessment and balancing of multiple risks and the setting of difficult priorities for the often enormous expenditure required, to be made out of limited resources. They are often highly controversial and not infrequently political in their nature. These may well also be influenced by considerations of national security which cannot openly be disclosed or discussed. Lord Rodger summarised the position in relation to responsibility, accountability and investigation in Catherine Smith (para 127) in terms with which, as I have said, Lord Walker agreed, as I also do: Once it is established, say, that a soldier died because the blast from a roadside bomb penetrated the armour plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger. And that simple fact may be worth pointing out as a possible guide for the future. But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal. That being so, a curious aspect of counsel's submissions before this court was the complete absence of any reference to Parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible. Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects. Also in Catherine Smith Lord Brown at para 146 asked rhetorically: Is it really to be suggested that even outside the area of the Council of Europe Strasbourg will scrutinise a contracting state's planning, control and execution of military operations to decide whether the state's own forces have been subjected to excessive risk (risk, that is, which is disproportionate to the objective sought) ? May Strasbourg say that a different strategy or tactic should have been adopted perhaps the use of airpower or longer range weaponry to minimise the risk to ground troops notwithstanding that this might lead to higher civilian casualties? The question was asked in the context of jurisdiction, but, jurisdiction having been established under article 1, both the question and Lord Browns evident scepticism remain relevant. The claimants case is that during or after any war any injured soldier or the relatives or dependants of any soldier killed in combat could sue the state for alleged failures in the preparation or equipping of the armed forces for combat. Logically, if that is so, then a soldier might, even during the war, complain that his or her equipment or training was inadequate and that it would be a breach of the states common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it. If domestic legislation compelled this, then the soldier could seek relief in the Strasbourg court maybe even interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment. One may also recall the facts of R v Jones (Margaret) [2006] UKHL 16; [2007] 1 AC 136, where protestors sought to disrupt Fairford Airbase in order to prevent intervention in Iraq, and pleaded in defence that they were preventing the international crime of aggression. Pointing to defective equipment and seeking to ban its use could have a considerable disruptive effect. Not only would there be a huge potential diversion of time and effort in litigation of such issues in an area of essential national interest (whether before, during or after hostilities). There must be risks that the threat of exhaustive civil litigation following any active military operation would affect decision making and lead to a defensive approach, both at the general procurement and strategic stages and at the tactical and combat stages when equipment was being deployed. The duties of care owed by soldiers to civilians during peace keeping operations or by the state to its soldiers in peace are not in issue and raise different considerations. I examined some of the cases which the Strasbourg court has decided in this area in para 196 of my judgment in Catherine Smith. When considering whether a duty of care exists, it is always relevant to ask in what context and to avoid what consequences. (Compare in another branch of the law South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 and Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627.) Equipment should at least be safe and training adequate for peacetime training and activities, and its adequacy in the face of enemy action will not be tested in the same way. But procurement and training decisions and priorities are geared primarily to the needs and risks inherent in active military operations, when enemy activity will be aimed at killing British soldiers in as many unexpected ways as possible. It is after a death or injury occurring in such operations that, as the present cases show, questions can be raised as to whether different technology, equipment or training or different decisions regarding deployment and use of equipment like vehicles might not have made all the difference to the incidence of the death or injury. The relevant question for present purposes is therefore whether the state owed a duty of care to avoid the death or injury during the course of active service which actually occurred. It will often not be difficult with hindsight to point to different decisions that might have been made or preparations made. Would the disaster of Isandlwana have been avoided had the army command equipped Lord Chelmsfords forces with the heliograph? Or was the cause the failure to form a laager? Or the deployment of troops over too wide a perimeter? Or the lack of screwdrivers to open the ammunition boxes quickly enough? And would many disastrous casualties of the First World War have been avoided if the War Office had recognised the significance of the proposal for a tank put to it in 1912, 1914 and 1916 by the Australian engineer Lancelot de Mole of whom a post war Commission on Awards to Inventors said in 1919: We consider that he is entitled to the greatest credit for having made and reduced to practical shape as far back as the year 1912 a very brilliant invention which anticipated and in some respects surpassed that actually put into use in the year 1916. It was this claimant's misfortune and not his fault that his invention was in advance of his time, and failed to be appreciated and was put aside because the occasion for its use had not then arisen. Was the fall of Singapore to numerically inferior forces, with the ensuing slaughter and torture, due to culpable failures to fortify the Malay peninsular or landward side of Singapore or to provide armoured vehicles or aircraft to protect both? Or was it due to failures of military commanders on the ground? Or was it inevitable in the context of what Churchill described as our bitter needs elsewhere? To offer as a panacea in relation to these points the injunction that courts should be very cautious about accepting such claims is to acknowledge the problem, but to offer no real solution. Had it been, the same panacea would have been adopted as the solution by the House in Hill, Brooks and Van Colle. My conclusions do not mean that every death or injury occurring in the course of military conflict falls necessarily outside the scope of any duty of care. There will be deaths and injuries occurring during active service which are unconnected with the risks of active combat or which arise, as Owen J recognised was possible (para 123 above), from breaches of duty independent of active combat. An accident arising from a defect in equipment which could just as well have occurred on Salisbury Plain and owed nothing significant to any risk of war would be an example. Private Smiths sad death in Catherine Smith likewise. I consider that that the Challenger claims, which are only in common law negligence, should be struck out in their entirety on the basis that the state owes no such duty of care as alleged with regard to the provision of technology, equipment or training to avoid death or injury in the course of an active military operation. Similarly, with regard to the Ellis claim in negligence, I would hold that there was no such duty of care as alleged regarding the provision of different or differently equipped vehicles or, a fortiori, regarding the deployment on patrol on 28 February 2006 of the Snatch Land Rovers which were deployed. Moses LJ suggested in the Court of Appeal (para 60) that it was necessary to consider the evidence in order to decide when active operations start and when they finish and that Owen J had recognised that the present cases may not fall within the scope of combat immunity. But, so far as this suggests that Owen J doubted whether active operations were afoot at the dates relevant to either the Smith claim (16 July 2005) or the Ellis claim (28 February 2006), it is wrong. No such argument even appears to have been raised before Owen J or before the Court of Appeal, in relation to either claim. Further, in paras 113 114 of his judgment Owen J expressly struck out the Ellis claim, so far as it relied on the failure to limit the patrol, on the basis that combat immunity did apply as at 28 February 2006. Before the Supreme Court, the nearest there is to any suggestion is the elliptical statement made in para 186 of the Ellis case in the context of combat immunity that Private Ellis was not engaged in a major combat operation that had ended in May 2003. He was part of an armed force providing security and stability to a region of Iraq; at the time of his death he was on a patrol returning from a trip to the Iraqi police headquarters in Al Amarah. It is the Ellis claimants case that this activity should be treated as akin to a peace keeping, police or anti terrorist activity so that the ambit of combat immunity should be very tightly constrained around the actual patrol in question. Even that statement does not challenge the existence of a combat operation involving the patrol, and in any event there is no basis for allowing an entirely new point, contrary to the basis on which the matter was put before the judge, to be raised at this stage. I would therefore also hold that the Ellis claim should be struck out in so far as it is made for common law negligence. Article 2 As stated in para 103 above, article 2 is said to involve two substantive obligations: framework and operational. In Stoyanovi v Bulgaria (Application No 42980/04) decided 9 November 2010, the Strasbourg court was concerned with an accidental death in a military training exercise a practice parachute jump during which the deceaseds head hit the aircrafts wheel rendering him unconscious and so unable to open his parachute. The court referred to the operational duty arising, on the authority of Osman v United Kingdom and neryildiz v Turkey, where authorities know or ought to know of a real and immediate risk to life, or of a situation inherently dangerous to life, and to the framework duty in the public health sphere to make regulations compelling hospitals to adopt appropriate measures to protect patients lives and to have an effective independent judicial system to determine the cause of death of patients in hospital and make those responsible accountable. It then went on, at para 61, Positive obligations will vary therefore in their application depending on their context. In the present case, which concerns an accident during a military training exercise, the Court notes that while it may indeed be considered that the armed forces' activities pose a risk to life, this is a situation which differs from those dangerous situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man made or natural hazards. The armed forces, just as doctors in the medical world, routinely engage in activities that potentially could cause harm; it is, in a manner of speaking, part of their essential functioning. Thus, in the present case, parachute training was inherently dangerous but an ordinary part of military duties. Whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum. If nevertheless damage arises, it will only amount to a breach of the State's positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or the concatenation of unfortunate events (see, for comparison, Kalender v Turkey, Application No 4314/02), 43 47, 15 December 2009). The courts reasoning appears to have been that, in so far as military life is inherently dangerous, there could be no question of any operational duty to prevent that danger. This seems fairly self evident, and is certainly consistent with the Strasbourg courts recognition in other cases of the need to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces (Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 54), meaning, for example, also that many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill treatment when they occur in the armed forces, provided that they contribute to the specific mission of the armed forces in that they form part of, for example, training for battlefield conditions (Chember v Russia, (Application No 7188/03) (unreported) given 3 July 2008, para 49). However, as the court stated in Stoyanovi, the state must by the same token have a system of rules and sufficient control to reduce the risks to a reasonable minimum. In Kalender v Tutrkey (Application No 4314/02) (unreported) given 15 December 2009, cited by the court, liability under the substantive aspect of article 2, was held to exist in the light of numerous failings in the structure and operation of a railway station, leading to passengers having, without supervision or warning, to disembark and cross a line used by other trains and being killed in the process. Accordingly, it appears that the framework duty may in appropriate circumstances operate at a low level. In domestic contexts where the state is taking armed action affecting or liable to affect third persons, the court has undertaken quite close and in the upshot critical examination of the states conduct. I cited examples in para 196 of my judgment in Catherine Smith: Such cases start with McCann v United Kingdom (1995) I EHRR 97, relating to the shooting by SAS officers of members of the Provisional IRA suspected of planning to attack the Royal Anglian Regiment in Gibraltar, and include Isayeva, Yusupova and Bazayeva v Russia (Applications Nos 57947/00, 57948/00 and 57949/00), 24 February 2005, and Isayeva v Russia (Application No 57950/00), 24 February 2005, relating to the conduct of military operations by the Russian armed forces against Chechen separatist fighters which led to the deaths of civilians. In such cases, it appears that the exigencies of military life go to the standard and performance, rather than the existence of, any Convention duty. The question is whether the Strasbourg court would take a similar attitude to the responsibility of a state for the death of a member of its own armed forces in circumstances alleged to have involved mistaken decisions in the course of an operation or act of war (such as alleged by Mrs Smith in at least paragraphs 26.2 to 26.5 of her claim), or failings in planning or in the equipping or training of such forces (such as alleged by Mrs Smith in paras 26.1 and it seems paras 26.6 and 26.7 of her claim and by the Ellis claimants in probably all three particulars in their para 26). In this connection it is relevant to bear in mind that the Strasbourg court has curtailed the operational duty, so that it does not embrace mere casual acts of negligence, certainly in the field of health care and, as appears logical, in other fields: see my judgment in Catherine Smith, para 201 and the cases there cited, to which can now be added Stoyanovi v Bulgaria (Application No 42980/04), para 61, where the European Court of Human Rights said that a death occurring during an inherently dangerous training activity (parachute jumping) undertaken by a soldier would not involve any breach of article 2 if caused through the negligent conduct of an individual (see para 138 above). Mr Weir QC regretted this qualification as deeply unsatisfactory, and as a manifestation of the fact that (in his words) the search for principle has been called off in this area. An alternative view might be that it would have been better if the Strasbourg court had left the development and application of the law of tort to domestic legal systems, subject to clearly defined criteria, rather than set about creating what amounts in many respects to an independent substantive law of tort, overlapping with domestic tort law, but limited to cases involving death or the risk of death. Be that as it may be, the exception for casual acts of negligence is relevant to show that liability under article 2 can be tailored and limited in what the Strasbourg court regards as appropriate circumstances. In the present circumstances, the question arises whether that the Strasbourg court would regard article 2 in its substantive aspect as making the state liable for the death in combat of one soldier due to alleged negligence of his commander or of another soldier. The prospect of the Strasbourg court reviewing the conduct of combat operations in this way seems to me sufficiently striking, for it to be impossible to give this question a positive answer. If the European Court considers that the Convention requires it to undertake the retrospective review of armed conflicts to adjudicate upon the relations between a state and its own soldiers, without recognising any principle similar to combat immunity, then it seems to me that a domestic court should await clear guidance from Strasbourg to that effect. That leaves for consideration whether the framework duty involves an obligation on the part of the state to exercise due care in the course of planning armed operations, and in equipping and training its armed forces, so as to reduce or limit the risks to life involved in such operations. In my opinion it is not possible to conclude that the Strasbourg court would hold that such matters are justiciable under the Convention, any more than they are at common law. I am not over enamoured of the cautionary warning to this court that the road to Strasbourg is a one way street, which a claimant can tread if this Court has not gone far enough, but which the state cannot tread if this Court goes too far. If it is clear from prior authority or this Court is otherwise confident about what Strasbourg will decide, then we should decide the issue as we believe correct. But in the present very difficult case, two connected considerations lead me to consider that caution is called for. First, having decided that the common law recognises no such duty or care or claims as the claimants advance, we should not lightly conclude, in so important and sensitive an area of national life, that the Strasbourg court would take a different view. Second, since I have no confidence about the scope or application of any positive duties which the Strasbourg court might recognise under article 2 in the area, I believe it would be wrong for this Court to advance way ahead of anything that it has yet decided. It should be for the Strasbourg court to decide whether it will review the procurement and training policy of the British army over recent decades in the context of claims under article 2 for compensation arising from deaths of serving soldiers during active military operations. Support for the view that the Strasbourg court does recognise areas of policy into which the Convention protection does not stretch is afforded by two cases. First, in Taylor v United Kingdom (Application No 23412/94) (unreported) 30 August 1994, the Commission held that article 2 did not require the investigation into the killing by Beverley Allitt, a hospital nurse, of child patients to enquire into the responsibility in the NHS for alleged inadequate systems, resource shortages and weak leadership. In holding the application manifestly ill founded and inadmissible, it stated: The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four. The procedural element contained in article 2 of the Convention however imposes the minimum requirement that where a state or its agents potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commissions opinion, matters for public and political debate which fall outside the scope of article 2 and the other provisions of the Convention. The second case concerned article 3 of the Convention. In Banks v United Kingdom (2007) 45 EHRR SE2, the ECtHR rejected a claim that article 3 required a public inquiry into allegations of torture and inhuman treatment of prisoners at a UK prison. The Court held that the facts had been sufficiently investigated and that: The wider questions raised by the case as to the background of assaults and the remedial measures apt to prevent any recurrence in a prison in the future are, in the Courts opinion, matters for public and political debate which fall outside the scope of article 3 of the Convention. In my opinion therefore this Court should proceed on the basis that the policy considerations which guide its domestic law in the present area of national interest will find an echo in Strasbourg, and not invade a field which would involve, in the context of claims for civil compensation, extensive and highly sensitive review with the benefit of hindsight the United Kingdoms countrys policies, strategy and tactics relating to the deployment and use of its armed forces in combat. The United Kingdoms performance of its investigatory and procedural duties under article 2 is not in doubt, as attested by the sadly numerous inquests (investigating and recording the circumstances of each death) and the still incomplete Chilcot Enquiry (delayed inter alia it is understood by problems relating to the release or use of documents with national security implications). The issue with which this judgment is concerned is whether deaths and (at common law) injuries in combat fall to be investigated in the civil courts, at whatever level in the armed forces, Whitehall or the government responsibility for them is suggested to arise. The answer I would give is, no. The majority approach I agree with Lord Hope (para 100) about the paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. But I do not consider that the majority approach reflects or meets this imperative. In summary, I understand that this approach: (a) recognises at common law a principle of combat immunity, as excluding liability for negligence in respect of any act or omission on the part of those who are actually engaged in active combat (paragraph 82), since no one can imagine a court undertaking the trial of an issue as to whether a soldier on the field of battle or a sailor on his ship might reasonably be more careful to avoid causing civil loss or damage (para 94); (b) recognises allegations as beyond the reach of article 2 . if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy (para 76), and extends this to operational decisions made on the ground by commanders, whatever their rank or level of seniority (para 64); but also; (c) suggests that liability (under the Osman v United Kingdom principle, (1998) 29 EHRR 245, para 115) for failure to take preventative operational measures in the face of a real, direct and immediate threat to life could extend to procurement decisions taken on the ground about the provision of vehicles or equipment, as well as to decisions taken about their deployment (para 78); (d) recognises that the more political (in a broad or narrow sense) a decision, the slower a court should be to impose liability at common law and/or under article 2 (para 65), so that it will easy to find that allegations are beyond the reach of article 2 and do not give rise to liability in common law negligence if they concern decisions that were or ought to have been taken about training, procurement or the conduct of operations . at a high level of command and closely linked to the exercise of political judgment and issues of policy (paras 76 and 99). It is unclear to me whether on this approach liability is said to be beyond the reach of article 2 because of its nature or simply because of an injunction that courts should be very slow to find fault in the areas concerned. Whatever the position in that respect, I see real difficulties in the undefined boundaries and the suggested middle ground between on the one hand (a) and (b) and on the other (d). The suggestion in para 78 that Osman type liability could exist as mentioned in point (c) would also appear liable to extend fault based liability to all aspects of decision making during combat operations. What is the logical distinction between deployment of equipment and of troops? The inter twining of issues of procurement and training with issues relating to the causation of injury or death on the battlefield seems highly likely to lead to a court undertaking the trial of unimaginable issues as to whether a soldier on the field of battle or a sailor on his ship might reasonably have been more careful. Further, I see little attraction in a scheme according to which the acts or omissions of the man on the ground and the policy maker in Whitehall give rise either to no liability at all or only to liability in egregious cases, but the procurement, training and deployment decisions of a middle rank commander (query, in Whitehall or in local headquarters or both) are subject to scrutiny under conventional principles of fault based liability. All depends, as I understand it, under article 2 upon balancing private and public interests and Convention rights (para 61); or upon balancing (i) the need to avoid undermining the ability of a state to defend itself, or its interests, at home or abroad (para 66) and the paramount importance of not impeding the armed forces against (ii) the consideration that (at common law) soldiers injured or (at common law and under the Convention) the relatives and dependants of soldiers killed should be able, wherever possible, to benefit by the more substantial civil measure of recovery that fault based liability brings, over and above the no fault compensation available in cases of injury or death as described by Lord Carnwath in para 181 of his judgment. Still more fundamentally, the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army. It is likely to lead to the judicialisation of war, in sharp contrast with Starke Js dictum in Shaw Savill (1940) 66 CLR 344 that war cannot be controlled or conducted by judicial tribunals. No doubt it would be highly desirable if all disputes with international legal implications were to be submitted to international judicial resolution, with those involved abiding by the outcome; and if wars were no more. But, in the present imperfect world, there is no precedent for claims to impose civil liability for damages on states whose armed forces are killed or injured in armed combat as a result of alleged failures of decision making either in the course of, or in procuring equipment or providing training for, such combat. All the claims made in these appeals fall in my view within one or other of these areas where the common law should not tread. Similarly, we should not assume that the European Court of Human Rights would regard it as appropriate to enter such areas under article 2, and there is to my mind wholly insufficient guidance to lead to any conclusion that it would. We cannot, at least at present, refer a case to Strasbourg to seek its guidance on the proper interpretation of article 2. But my conclusions as to the common law position and its rationale, the dearth of any authority for any like claim in the Strasbourg jurisprudence and statements in that jurisprudence showing that policy decisions can be non justiciable all lead me to conclude that we should for the present proceed on the basis that the outcome in Strasbourg would in the present areas be no different from the outcome at common law. Conclusion The upshot is that, in my opinion, although the soldiers involved in these cases were within the United Kingdoms jurisdiction for the purposes of article 2 of the Convention of Human Rights at the material times, the claims made under article 2 and/or in negligence in respect of their deaths were, in the case of the Smith and Ellis claims, rightly struck out by the courts below and the Ministry of Defences appeal seeking to strike out the Challenger claims should be allowed. LORD CARNWATH Introduction I agree entirely with Lord Hopes treatment of the jurisdiction issue. There is also much with which I agree in his discussion of the substantive issues, in particular his comment (para 100) on the paramount importance that the preparation for and conduct of active operations should not take place under the threat of litigation if things should go wrong. However, in agreement with Lord Mance, I do not think it is an adequate response at this level for us simply to send the claims for trial with general injunctions to exercise great caution or special care. Having heard full argument on all these issues, we should be able to rule whether the claims are in principle viable or not; or at least to give clearer guidance as to what answers to what questions of fact may or may not lead to a favourable result following trial. I also agree with Lord Mance that, contrary to the approach adopted by Lord Hope, we should first concentrate on the common law aspects of the claims. In this respect, the balance of the relevant issues may have been distorted by the sequence of submissions at the hearing. It is understandable, given the importance of the jurisdictional issues arising under the Convention, that much of the oral hearing time was taken up with submissions on that subject, and as a natural extension with arguments about the substantive scope of article 2 itself. On the latter aspect, I have nothing to add to Lord Mances reasoning and conclusions, with which I agree. However, like him, I consider that our primary responsibility should be for the coherent and principled development of the common law, which is within our own control. We cannot determine the limits of article 2. Indeed, the multiplicity of views expressed by the nine members of this court, when this issue was previously considered in Catherine Smith, shows how difficult and unproductive it can be, even at this level, to attempt to predict how Strasbourg will ultimately draw the lines. The trial judge will be in no stronger position. With respect to Lord Hope (para 79), if the problem is a lack of directly relevant guidance from Strasbourg, it is hard to see how, simply by hearing further evidence or finding further facts, he or she will be better able to fill that gap, still less to do so with complete confidence. Common law the nature of the issues It is important to recognise that we are being asked to authorise an extension of the law of negligence (as indeed of article 2), into a new field. We have not been referred to any authority in the higher courts, in this country or any comparable jurisdiction, in which the state has been held liable for injuries sustained by its own soldiers in the course of active hostilities. Further we are concerned only with duties at common law, rather than under statute. As the Court of Appeal recognised [2013] 2 WLR 27 (para 38), statutory regulations governing the responsibilities of the Ministry as employers do not apply outside the United Kingdom. Mr Eadies case, on behalf of the Ministry, was advanced on a broad front. As formulated in his printed case, this involved a root and branch objection to any form of civil liability in this area. It was introduced by a lengthy section headed: The difficulties courts would face grappling with the issues raised in these claims (paras 72 92). Not only were the courts institutionally incompetent to resolve such issues which are essentially matters of political and military judgement; but there are strong reasons both of public policy and democratic accountability for them not seeking to do so. There is some common ground. There is no dispute as to the existence in domestic law of a principle known as combat immunity, relating to decisions and actions in the heat of battle. Furthermore, at the other end of the spectrum Lord Hope accepts, as I understand it, that high level decisions about procurement or conduct of operations are not open to review in the courts. This dichotomy is most clearly stated in his para 76: It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. Although this comes as part of his consideration of article 2, he treats it as equally relevant to the common law claims (para 99). On that view, the difference between us is over the extent (if any) of what he calls the middle ground, and whether its boundaries can only be determined after the finding of further facts. Here too the balance of the discussion may have been distorted by the course of the submissions at the hearing. The emphasis of the common law debate was directed mainly to the scope of the combat immunity defence as such, rather than issues arising under the general law of negligence. No doubt reflecting that emphasis, the wider issues are dealt with relatively shortly at the end of Lord Hopes judgment. In my view, however, it is within that broader compass that the solution to these difficult questions must be found if not at this preliminary stage, then following the trial. In truth, the claimants are caught on the horns of a dilemma. The operational phases of the undertaking, which might otherwise under ordinary principles have been expected to give rise to a duty of care (see eg Wade and Forsyth Administrative Law, 10th ed (2009), p 653ff; Craig Administrative Law, 7th ed (2012), p 908ff) are, as the claimants accept, the very phases which are excluded from review by the combat immunity defence. On the other hand the further back in time they seek to direct their challenge so as to include issues of planning, procurement, and training, the more they have to confront the competing principle that discretionary decisions about policy and resources are not justiciable. The issue is whether it is possible to carve out some middle ground of potential liability. The answer to that question raises issues of principle, policy and practicality. Mr Weir QC rightly emphasises that the importance of another policy consideration, the principle that where there is a wrong there should be a remedy, described by Lord Dyson JSC as a cornerstone of our system of justice (Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398, para 113). From that principle he draws the submission that: The default position is one whereby the MoD owes its soldiers an orthodox employers duty of care. So it falls for the MoD to establish that public policy must operate to deny the existence of that recognised duty of care. However, that formulation begs a logically prior question. I agree that it is for the Ministry to make the case for any policy exception to any recognised duty of care. But the scope and content of any such duty of care are themselves matters for determination. In the modern law of negligence, the starting point for determining that issue is the application of the familiar three fold test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605, 618 per Lord Bridge. In that context, the scope of any so called immunity necessarily overlaps with the question, under the third part of that test, whether it is fair, just and reasonable for the law to impose a duty of care at all (see Clerk & Lindsell On Torts 20th ed (2010), para 14 39ff Immunities). As Lord Browne Wilkinson has said: a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (Barrett v Enfield London Borough Council [2001] 2 AC 550, 559) For that reason I agree with Lord Mance that the scope of combat immunity should now be discussed, not as a separate principle, but as part of the third element of the Caparo analysis. Equally, in my view, we should not see ourselves as necessarily constrained by the limits illustrated by the existing case law on combat immunity, developed in very different circumstances and (until Mulcahy) without reference to the modern law of negligence. Working by analogy In determining whether a duty of care should be imposed in a new factual situation, precedent is an important guide. In Caparo Lord Bridge proposed that the emphasis should be less on the search for underlying general principles, but rather on the development of the law incrementally and by analogy with established categories (ibid p 618, quoting Brennan J. in the High Court of Australia, Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43 44). In the present context, apart from the cases on combat immunity as such (discussed by Lord Hope and Lord Mance) the closest analogies in my view are to be found in two lines of authority: first, the sequence of authorities relating to the immunity of the police, culminating in Van Colle v Chief Constable of the Hertfordshire Police (Secretary of State of the Home Department intervening) [2009] AC 225; secondly, in respect of the issue of breach, assuming an actionable duty of care is established, the cases relating to the law of negligence as applied to the emergency services, in particular to claims by employees. Police immunity On the issue whether a duty of care should be imposed, the most useful parallel in the modern law, in my view, is to be found in the sequence of authorities dealing with the possible liability of the police for alleged negligence in the course of investigating crime. In Hill v Chief Constable of West Yorkshire [1989] AC 53 it was held that for reasons of public policy the police owed no actionable duty of care to a victim in such circumstances. They were said to be immune from actions of this kind (p 64, per Lord Keith). Initial concerns that this approach might conflict with article 6 of the Convention by precluding consideration of the merits of the claim (see Osman v United Kingdom (1998) 29 EHRR 245) were dispelled by the Strasbourg court in Z v United Kingdom (2001) 34 EHRR 97. The Grand Chamber, following the lead of Lord Browne Wilkinson (X (Minors) v Bedfordshire County Council [1995] 2 AC 633,751) accepted the legitimate role of policy in determining the limits of liability: the Court is not persuaded that the House of Lords' decision that as a matter of law there was no duty of care in the applicants' case may be characterised as either an exclusionary rule or an immunity which deprived them of access to court the House of Lords was concerned with the issue whether a novel category of negligence, that is a category of case in which a duty of care had not previously been held to exist, should be developed by the courts in their law making role under the common law. The House of Lords, after weighing in the balance the competing considerations of public policy, decided not to extend liability in negligence into a new area. In so doing, it circumscribed the range of liability under tort law. (para 96, emphasis added) Echoing that approach, in Brooks v Comr of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495, the House confirmed but qualified the core principle established in Hill. In his leading speech Lord Steyn said: since the decision of the European Court of Human Rights in Z v United Kingdom (2001) 34 EHRR 97, 138, para 100, it would be best for the principle in Hills case to be reformulated in terms of the absence of a duty of care rather than a blanket immunity. (para 27) Finally, in Van Colle v Chief Constable of the Hertfordshire Police [2009] AC 225, the House by a majority held that the same principle applied even where the police were aware of a specific threat to an individual witness. That is particularly helpful in the present context because it was concerned with the scope of the states liability both at common law and under article 2 of the Convention. I draw the following points from the judgments: The common law claim was to be considered on its own merits i) (stand on its own feet) rather than assimilated with the article 2 claim (para 82, per Lord Hope; para 136, Lord Brown). ii) The common law analysis began from the three fold test laid down in Caparo by which it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship of A and B was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care on A towards B. (para 42, per Lord Bingham). iii) The majority were able to support an exception based on public policy reasons which were accommodated within the third element of that test, that being accepted as a price to be paid by individuals denied for public policy reasons (as not being fair, just and reasonable within the Caparo principle) a civil claim in the interests of the community as a whole (para 139, per Lord Brown) iv) There was no suggestion that, because the core principle involved an exception to ordinary principles of liability, it should be narrowly construed. On the contrary, as Lord Brown put it, the wider public interest is best served by maintaining the full width of the Hill principle (para 139). v) The House was able to determine the limits of this principle on the basis of the pleadings. Again I quote Lord Brown (para 140): In common, I think, with all your Lordships, I regards this issue as plainly one which the House should decide one way or the other on the pleaded facts. Either a duty of care arises on these facts or it does not. No useful purpose would be served by allowing the action to go to trial for facts to be found and then for further consideration to be given to the applicable law. vi) Finally, the policy considerations justifying immunity in respect of the polices function of investigating crime were contrasted with civil operational tasks, in relation to which liability had been accepted in some decided cases (Lord Hope, para 79). Those examples were not regarded as undermining the core principle. This line of cases shows that it remains a proper function of the court, faced with a potential clash between public and private interests, to determine as a matter of policy the limits of any actionable duty of care, and to do so at the preliminary stage (see also Jonathan Morgan, Negligence into Battle [2013] CLJ 14, commenting on the Court of Appeals reasoning in the present case). Furthermore, so to determine the limits of liability in negligence in a new area, by balancing competing considerations of public policy, is within the margin allowed to the national courts by Convention law. Lord Hope acknowledges this line of authority, but declines to apply the same approach to the present context (paras 97 98). With respect, I find this difficult to understand. If this was an appropriate exercise in relation to the purely domestic policy concerns arising from police powers of investigation, how much more so in relation to the issues of vital national security raised by the preparation for and conduct of war? Negligence and the emergency services Assuming a duty of care is not excluded under the principles considered so far, the closest analogies are to be found in cases relating to the duties owed by employees to their staff in the context of the delivery of emergency services. King v Sussex Ambulance Service NHS Trust [2002] ICR 1413 contains an authoritative exposition of the relevant principles. The Court of Appeal dismissed a claim related to injuries sustained by an ambulance technician, who was required in the course of an emergency call to help in carrying a patient downstairs. Hale LJ, giving the majority judgment, summarised the relevant law (paras 21 23): The starting point is that an ambulance service owes the same duty of care towards its employees as does any other employer. There is no special rule in English law qualifying the obligations of others towards fire fighters, or presumably police officers, ambulance technicians and others whose occupations in the public service are inherently dangerous: see Ogwu v Taylor [1988] 1 AC 431. Such public servants accept the risks which are inherent in their work, but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid. An employer owes his employees a duty to take reasonable care to provide safe equipment and a safe system of work, which includes assessing the tasks to be undertaken, training in how to perform those tasks as safely as possible, and supervision in performing them. This was subject to two qualifications: first, the further dimension identified by Denning LJ (Watt v Hertfordshire County Council [1954] 1 WLR 835, 838): It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved. and secondly (citing Colman J in Walker v Northumberland County Council [1995] ICR 702, 712): what is reasonable may have to be judged in the light of the service's duties to the public and the resources available to it to perform those duties In Hughes v National Union of Mineworkers ([1991] 4 All ER 278, cited by Lord Hope, para 97), this approach was taken a stage further so as to deny the existence of a duty of care at all. The claim was by a police officer who had been injured when, in the course of policing a strike at a colliery, he was knocked to the ground by an advancing crowd of pickets. He alleged negligence by the police officers on the day, rather than wider issues relating to police deployment generally or training (p 281a). The claim was rejected. It was held by May J, applying Caparo principles, and following Hill v Chief Constable of West Yorkshire that public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. That, in my judgment, should be the general rule in cases of policing serious public disorders. (p 288d e). In Multiple Claimants (at para 2.C.17) Owen J treated Hughes as example of the application of the combat immunity defence, noting that it had been cited in that context by the Court of Appeal in Mulcahy v Ministry of Defence [1996] QB 732, ((at pp 747, 751). He was considering the question: Does the immunity apply to anti terrorist, policing and peace keeping operations of the kind in which British forces were engaged in Northern Ireland and in Bosnia? (para 2.C.17) He gave a qualified yes, concluding that the immunity would apply to peace keeping/policing operations in which service personnel are exposed to the attack or threat of attack (para 2.C.20). This interpretation seems open to question. However violent was the situation facing the police during the mineworkers strike, there could be no argument that it had anything to do with the conduct of war, nor was the judges reasoning linked to that group of cases. While I would not wish to question the actual decision in Hughes, it is in my view better seen as an application of King principles in an extreme situation. The decisions in both King and Hughes were concerned with the operations, rather than with prior policy decisions about the nature of the service and the resources to be committed to them, or issues such as procurement and training. To illustrate the possible limits of operational liability in relation to the emergency services, a useful analogy can be found in Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242. The police were held liable by Taylor J for damage caused by firing a gas canister into the plaintiffs premises without having fire fighting equipment available. On the other hand (relying on Dorset Yacht Co Ltd v Home Office [1970] AC 1004, and cases following it) the judge rejected a claim based on the failure of the Chief Constable to equip the force with an alternative CS gas device, known as Ferret, which did not carry the same fire risk. In that respect he accepted the submission that the constable was exercising a statutory discretion which could not be impugned if exercised bona fide (pp 1250 1251). That decision, which is cited by Wade (op cit p 656) as an illustration of the policy operational decision, has not as far as I aware been questioned in later authority. Statutory intervention Before drawing some conclusions, and for completeness, although it did not figure prominently in the oral argument, I should address the suggestion that the claim gains at least implicit support from the Crown Proceedings (Armed Forces) Act 1987. In short, it is said, there is no policy reason to extend the scope of immunity beyond acts or omissions occurring in the heat of battle, given that Parliament has now provided a new statutory framework covering both general liability and the means to secure greater protection where exceptionally it is required. It was the Crown Proceedings Act 1947 which opened the way generally to proceedings in tort against the Crown. However, section 10 preserved a specific and precisely defined statutory exception for the armed forces in relation to injury or death on service subject to the conditions outlined in the section, one being a certificate of entitlement to a service pension (see Clerk & Lindsell op cit para 5 08ff). That exclusion was repealed by the 1987 Act, but (by section 2) subject to a power for the Secretary of State to make an order reviving the effect of section 10 in certain circumstances. By section 2(2): The Secretary of State shall not make an order reviving the effect of the said section 10 for any purposes unless it appears to him necessary or expedient to do so (a) by reason of any imminent national danger or of any great emergency that has arisen; or (b) for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are to be carried out in connection with the warlike activity of any persons in any such part of the world. Although we were not referred by the parties to any background materials relating to that change, the Parliamentary history is of some interest. A written answer by the Secretary of State for Defence explains that it followed a review of the working of section 10 (Hansard HC Deb 08 December 1986 vol 107 cc85 86W). He said: Section 10 was included in the 1947 Act on the grounds that members of the Armed Forces, by the very nature of their profession, undertake hazardous tasks which ordinary members of the public do not. At that time it was believed that this provision would not result in any overall financial penalty against servicemen, because they received benefits, payable regardless of fault, which were in most cases comparable with those which a civilian might expect from the courts. Our review has, however, shown that damages which courts have awarded in some cases of personal injury have now risen to a level which can considerably exceed the benefits which the serviceman receives. The Government have concluded that repeal of section 10 is the only satisfactory course which will remove this disadvantage We shall need to be able to reactivate the provisions of section 10 in the event of impending or actual hostilities or grave national emergency. It was indicated that, while the government did not have time to promote its own legislation within the current programme, it would be ready to support a suitable Bill brought by a private Member. This invitation was taken up by Mr Winston Churchill MP (HC Deb 13 February 1987 vol 110 cc567 609). The Parliamentary Under Secretary of State, welcoming the Bill on the part of the government commented: The Bill seeks to retain the power to reactivate section 10 at a time of great national emergency or in the event of actual or impending hostilities. That is widely accepted by the House. Indeed, I have not heard any hon. Member advocate in the debate that section 10 should not be reimposed in time of war. It is not possible or desirable to draw hard and fast definitions of the circumstances in which the Government might seek to reimpose section 10, but the wording of clause 2 is satisfactory in this respect, making it clear from that the Secretary of State will need to consider it necessary or expedient to make an order to reactivate section 10 by reason of a great national emergency or imminent national danger or in the event of warlike operations or connected activities outside the United Kingdom. We are talking about a grave situation in Britain or elsewhere, and I draw the attention of the House to the fact that the wording of clause 2 to a large extent mirrors the wording of the provisions of the Reserve Forces Act 1980 dealing with the call up of reserves. Although there is no intention to create a formal link between, say, mobilisation and the reimposition of section 10, hon Members will recognise that that gives an indication of the gravity of the circumstances in which reimposition of section 10 would arise. Those passages raise a number of possible issues, on which we have heard no argument, as to either relevance or substance. One indeed might be the scope of phrase warlike activities (cf Reserve Forces Act 1996, s 54) in its possible application to peace keeping operations such as are in issue in the Snatch claims. We cannot resolve those questions within the scope of the arguments we have heard, and it is unnecessary to do so. It should be noted in any event that the provisions for no fault compensation have changed materially since 1987 when that debate took place. The governing legislation is now the Armed Forces (Pensions and Compensation) Act 2004, with the Armed Forces Compensation Scheme made under it. Awards are based on a detailed tariff, which is kept under review, and there is provision for appeal to a specialised tribunal. The scheme was most recently revised in 2011, following a review by Lord Boyce. However, it was not part of Mr Eadies case that the existence of that scheme, or its overlap with the law of negligence, should affect our consideration of the issues before us. In my view these two sets of statutory provisions are no more than neutral, and neither assists in establishing the limits of the duty of care in the present context. It is not argued for the claimants that the 1987 Act impinges in any way on the defence of combat immunity as hitherto understood. At most it is said to be relevant in determining what is fair, just and reasonable under Caparo principles. However, there is nothing in the 1987 Act to suggest that it was intended to inhibit the ordinary, and logically prior, function of the court in determining the limits of potential liability under the law of negligence. It is only in so far as liability is so established that the scope of immunity under the Act becomes relevant. Finally, under this section, it is of interest to note how similar issues have been dealt with in the USA, although again we have not heard any submissions on this aspect. Until 1946 claims against the Federal Government without its consent were barred by the doctrine of sovereign immunity. This position was altered by the Federal Tort Claims Act (FTCA), 28 U.S.C.A 1346(b), which can be seen as the equivalent of the Crown Proceedings Act 1947 in the United Kingdom. The FTCA abrogated sovereign immunity in relation to the Federal Government in most circumstances. However, pursuant to 28 U.S.C.A. 2680(j), the sovereign immunity of the Federal Government is not abrogated in respect of [a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. A further exception relating to injuries incident to service has been developed judicially, known as the Feres doctrine (Feres v United States, 340 U.S. 135 (S.Ct. 1950)). According to a leading textbook (Speiser, Krause and Gans The American Law of Torts (2010) para 17:5): The critical and lasting rationale of the Feres doctrine is the third one the military disciplinary structure. The lawsuit cannot require a civilian court to second guess military decisions [see Stencel Aero Engineering Corp v United States, 431 U.S. 666, 673 (1977)], and the suit cannot conceivably impair essential military discipline [see Chappell v Wallace, 462 U.S. 296, 300, 302, 304 (1983) (such complex, subtle and professional decisions as the composition, training . and control of a military force are essentially professional military judgments]. Despite certain confusion in the broad statements of the courts, and notwithstanding critical comments, the Feres doctrine of denial of recovery has displayed a charmed life and continuing vitality. The cases show that in practice the Feres doctrine has been applied so as to give immunity in a wide range of situations, not directly linked to armed conflict. Conclusions I have discussed these issues at some length, albeit in a minority judgment, because in my view they deserve greater attention than they have been given in the oral argument or the majority judgment. They remain matters which will need to be considered when the case goes to trial. In this respect I do not regard my analysis as conflicting significantly with the majoritys approach. The main difference is that I would have preferred to reach decisions at this stage. In agreement with Lord Mance, and for the same reasons, I would have struck out the Challenger claims. As I have said, in considering the scope of any actionable duty of care relating to the preparation for or conduct of war activities in the modern law of negligence, I do not think we should regard ourselves as constrained by the limits of combat immunity as established in the earlier cases. The proper application of Caparo principles, as illustrated by the sequence of authorities on police liability, enables us to extend and adapt those limits within the scope of the modern law of negligence, and to hold that there is no middle ground of potential liability in relation to the preparation for, or conduct of, war. As I understand Lord Hopes judgment, it leaves the trial judge free, albeit after further factual inquiry, to reach the same conclusion. In my view, differing from Lord Mance in this respect only, we should apply different considerations to the later Snatch claims. They occurred in July 2005 and February 2006, after the time (May 2003) when (as Lord Hope explains: para 1) major combat operations ceased and were replaced by a period of military occupation. Now that the cases are to go to trial, I would not regard consideration of this issue as necessarily constrained by the shape of the arguments in the lower courts or before us. It is not surprising that Owen J drew no such distinction since, as I have noted, he had already held in Multiple Claimants that such operations were in principle within the scope of the combat immunity defence. The Court of Appeal did not address this issue in detail, but as I understand their judgment left it as raising questions of fact to be decided at trial. If as I believe the policy reasons for excluding liability are related to the special features of war or active hostilities, it would be wrong in my view to apply the same approach to peace keeping operations, however intrinsically dangerous. The ordinary principles of negligence, as illustrated by cases such as Hughes and Rigby, can when necessary be sufficiently restrictive to ensure that most such claims, whether relating to advance procurement and training, or decisions on the ground, will be doomed to failure. On the other hand, the pleaded claims in the present cases go further. It is alleged, as I understand, that there was an unjustified failure, following earlier incidents, to take readily available steps to deal with a known and preventable risk. I would not regard such claims as necessarily excluded as a matter of general policy, either at common law or under article 2. Since all the issues will now have to be considered at trial, it is unnecessary and probably undesirable for me to say more.

UK-Abs

These proceedings concern three sets of claims which arise out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq. The first set (the Challenger claims) arise from a friendly fire incident involving British tanks which caused the death of Cpl Stephen Allbutt and the serious injury of Lance Cpl Daniel Twiddy and Tpr Andrew Julien. They are brought in negligence and allege failures by the Ministry of Defence (the MoD) to properly equip the tanks involved and to give soldiers adequate recognition training. The second set (the Snatch Land Rover claims) arise from the deaths of Pte Phillip Hewett (son of the claimant Susan Smith) and Pte Lee Ellis (father of the claimant Courtney Ellis and brother of the claimant Karla Ellis) by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling. The claimants all claim that the MoD breached the implied positive obligation in article 2 of the European Convention on Human Rights (the Convention) to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Land Rovers. The third (the Ellis negligence claim) is brought by Courtney Ellis in negligence and is based on various alleged failures on the part of the MoD [1 12]. The MoD argued that the Snatch Land Rover claims under article 2 of the Convention should be struck out because at the time of their deaths Pte Hewett and Pte Ellis were not within the jurisdiction of the UK for the purposes of the Convention, and because on the facts as pleaded the MoD did not owe a duty to them at the time of their deaths under article 2. It also argued that the Challenger claims and the Ellis negligence claim should all be struck out (1) on the principle of combat immunity (which operates to exclude liability for negligence in respect of the acts or omissions of those engaged in active operations against the enemy), and (2) because it would not be fair, just or reasonable to impose a duty of care on the MoD in the circumstances of those cases [13]. The High Court and Court of Appeal considered these arguments. The effect of the Court of Appeals judgment was that: (1) the Snatch Land Rover claims under article 2 of the Convention should be struck out because the deceased were outside the jurisdiction of the UK for the purposes of the Convention and there was no basis for extra territorial jurisdiction; and (2) the Challenger claims and the Ellis negligence claim should proceed to trial [15]. The following issues were before the Supreme Court. (1) In relation to the Snatch Land Rover claims, whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the UK for the purposes of the Convention. (2) If they were, whether and if so, the extent to which article 2 imposes positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. (3) In relation to the Challenger claims and the Ellis negligence claim, whether the allegations of negligence should be struck out because they fall within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances [16]. The Court unanimously holds that, in relation to the Snatch Land Rover claims, Pte Hewett and Pte Ellis were within the UKs jurisdiction for the purposes of the Convention at the time of their deaths. By a majority (Lords Mance, Wilson and Carnwath dissenting), the Court holds that: (i) the Snatch Land Rover claims should not be struck out on the ground that the claims are not within the scope of article 2 of the Convention; and (ii) the Challenger claims and Ellis negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoDs duty of care to those cases [101]. The effect of the Courts decision is that all three sets of claims may proceed to trial. Issue 1: Convention jurisdiction: In its judgment of July 2011 in the Al Skeini case, the European Court of Human Rights decided that six Iraqi civilians who had died as a result of the actions of British armed forces in Iraq were within the UKs jurisdiction for the purposes of the Convention. The judgment does not answer issue 1 directly, but elements can be extracted from it which point clearly to the conclusion that the Court reaches in this case. It formulates a relatively general principle that extra territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. It also indicated that Convention rights can be divided and tailored to the particular circumstances of the extra territorial act in question, as opposed to being an indivisible package. A states extra territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them as a result of the authority and control that the state has over its own armed forces. They are all brought within the states jurisdiction by the application of the same general principle [42 52]. Issue 2: Snatch Land Rover claims under article 2 of the Convention: In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be protected by article 2. Policy decisions made at a high level of command and things done on the battlefield will fall outside the scope of article 2. But whether claims which are between these two categories are within the scope of article 2 will require the exercise of judgment in the light of the facts of each case [76]. The present claims provide only brief outlines of the claimants cases and they pre date developments in relevant case law on article 2. The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Courts guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach [78 81]. Issue 3: Challenger claims and Ellis negligence claim: The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The Ellis negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine. It would be premature for these claims to be struck out and the issue should be open to further argument in the light of the evidence [89 96]. The circumstances in which active operations are undertaken by the UKs armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence [98 100]. Minority judgments: Lord Mance (with whom Lord Wilson agrees) would have struck out all three sets of claims in their entirety, essentially because they are not suitable for resolution by a court [125 137, 146, 150 152]. For the same reasons, Lord Carnwath would have struck out the Challenger claims. However, he considered that the Snatch Land Rover claims were not necessarily excluded, because major combat operations had ceased by the time of the relevant incidents [156, 186 188].

The issue in this case is whether and in what circumstances a judge who has announced her decision is entitled to change her mind. The issue arises in the context of fact finding hearings in care proceedings in a family court, but it could obviously arise in any civil or family proceedings. So a subsidiary question is whether the principles are any different in that context. One difference is that section 1(2) of the Children Act 1989 requires that any court hearing a case in which a question about the upbringing of a child arises is to have regard to the general principle that delay in determining it is likely to prejudice the welfare of the child. This court heard the appeal on 21 January 2013. The final hearing to determine the future of the child in question was fixed to take place the following week. Accordingly, we announced our decision to allow the appeal at the end of the hearing, with judgment to follow. The facts The proceedings concern a little girl whom I shall call Susan, who was born on 8 July 2010, and her elder half brother whom I shall call Terry, who was born on 30 January 2006. On 21 September 2010, Susan was taken to hospital by her mother and found to have suffered a number of fractures to her ribs, clavicle and long bones, as well as some bruising to her face and head. Care proceedings were brought in respect of both children three days later. Susan was placed in foster care, where she has remained ever since. Terry was initially removed from his home with his maternal grandparents, but was returned to them after a few days, and has remained with them ever since. On 15 November 2010, Judge Penna directed that the case be listed for a fact finding hearing to determine the nature and extent of Susans injuries, their causation whether accidental or non accidental, and if non accidental, the identity of the perpetrator or perpetrators. That hearing began on 31 May 2011. Unfortunately, it became necessary to adjourn the hearing on the second day, because of the mothers mental health. She suffers from a serious mental illness and was unable to cope with giving evidence in the ordinary way. The hearing was resumed on 26 September 2011, with the mother giving evidence via a video link, but she was also unable to cope with this. On 29 September the judge concluded that the mother lacked the capacity to take part in the proceedings and invited the Official Solicitor to act as her litigation friend. This he agreed to do on 20 October 2011. The fact finding hearing resumed on 22 November and concluded on 25 November 2011. The mother gave no more evidence but the father gave evidence over two days. Thus the father was cross examined but the mother was not. The judge also heard oral evidence from various family members and from the paediatric sister at the time of Susans admission to hospital, the health visitor, and the mothers community psychiatric nurse. She had written reports from the medical witnesses about the nature and causation of Susans injuries. By that stage it was common ground that these were non accidentally caused and that the only possible perpetrators were the mother and the father. The judge also had written psychiatric reports about the mothers mental condition. After the conclusion of the evidence, the parties made written submissions. The local authority, in a noticeably balanced account of the evidence, submitted that it was not possible to identify a sole perpetrator on the evidence. The mother argued that the father was sole perpetrator and the father argued that the mother was sole perpetrator. The childrens guardian took a neutral stance. The judge gave her first judgment orally on 15 December 2011. When it was partially transcribed much later (the recording started after the judge had begun to deliver judgment but we are told that nothing of substance has been missed), the judgment was headed Preliminary Outline Judgment approved by the Court. The transcript consists of only 15 paragraphs. It does not deal at all with the specifics of the injuries to the child, their nature, or their timing. It concentrates on the stresses upon the family caused by financial problems, the mothers mental illness, and caring for a young baby who cried often and was not easy to feed. It concluded that the pressures upon the father, who took the lions share of the responsibility for looking after Susan, became intolerable and he snapped. So the finding was that the father was the perpetrator, although the judge took care to stress that under ordinary circumstances he was a loving and competent parent and had a valuable role to play in his daughters life. The judge also stated that if any party would be assisted by the provision of detail in relation to specific points, she would address them. At that hearing and by email the following day, counsel for the father asked her to address a number of matters in an addendum to her judgment: the context in which both mother and father had given their evidence; the mothers opportunity to have perpetrated the injuries; the inconsistencies in the mothers account; the mothers lack of parenting skills and what she did when the baby cried and the father was not there. This accords with the guidance given in In re A (Children) (Judgment: Adequacy of Reasoning) (Practice Note), [2011] EWCA Civ 1205, [2012] 1 WLR 595. At para 16, Munby LJ stressed that: . it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judges reasoning process. The order drawn up as a result of the judgment of 15 December recorded that the Court provided a summary judgment in respect of the fact finding hearing where the father was seen to have caused the injuries to [the child]. It went on to order the next steps in the case, including an experts meeting before a further directions hearing on 23 January 2012, with the final hearing provisionally booked for 20 February 2012. Unbeknown to anyone at the time, that order was not formally sealed by the Manchester County Court until 28 February 2012. The local authoritys care plan was for Susan to be placed with the maternal grandparents where her half brother Terry was already living. At the directions hearing on 23 January 2012, it was recorded that the court would use three days of the hearing beginning on 20 February to determine whether Susan should be placed in the grandparents care. The judge ordered that a perfected judgment would be distributed by 9 February and deemed to have been handed down on the date of distribution. However, on 15 February, the judge delivered a bombshell in the shape of a written perfected judgment. This expanded upon the earlier judgment in some respects: it gave an account of the injuries, concluded that they were non accidental, that one of the parents must have been the perpetrator, that the same parent was likely to have inflicted all the injuries, that Susan had been injured during the course of the day before she was taken to hospital or the two or three days beforehand, and that she had been injured on (at least) one occasion before that. However, it reached a different conclusion from the conclusion reached in December: Given the uncertain nature of the evidence after the passage of so much time I am unable to find to the requisite standard which of the parents it was who succumbed to the stress to which the family was subject. It could have been either of them who injured [Susan] and that is my finding. At the hearing on 20 February, counsel for the mother asked the judge to explain why she had changed her mind and not given the parties an opportunity to make further submissions before doing so. She delivered a short extempore judgment apologising to the parties, although she did not view the development of this matter as a complete change of direction and the scenario which I posited when giving my view in December remains a possibility. She went on, the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had been alone with the child and might have caused some injury. The order made on 20 February recorded that The mother through her counsel, supported by the other parties, sought clarification of the reasons behind the courts determination that it could not identify a sole perpetrator as between the mother and the father in its judgment of 15 February 2012, compared with the conclusion indicated in the preliminary judgment of 15 December 2011. It was ordered that the hearing listed for 23 February should be for case management, with a view to a further assessment of the father as a carer for Susan, rather than for considering the placement with the maternal grandparents. The mother, the Official Solicitor still acting as her litigation friend, was granted permission to appeal against the February judgment. The Grounds of Appeal complained, firstly, that the second judgment was flawed and/or unjust. No adequate reasons have been provided to account for the change of decision and to place the mother back into the pool of possible perpetrators, and secondly, that no opportunity to make further representations was afforded to the mother beforehand. Before the appeal hearing, the mother and the childrens guardian proposed that the case should be remitted to the judge for amplification and clarification of her change of mind. The local authority and the father argued that it had been adequately explained. No one was suggesting that the December findings be restored without more ado. At the outset of the appeal hearing on 14 June 2012, the court suggested to the mothers counsel that she should be arguing that the judge was functus officio after the December judgment had been recorded in a perfected order. Only after inquiries were made of the Manchester Civil Justice Centre did it emerge that the order had not in fact been sealed until 28 February. Nevertheless, the Court of Appeal, by a majority, not only allowed the mothers appeal but ordered that the findings of 15 December 2011 stand as the findings of fact as to the perpetration of the injuries, the judgment of 15 February 2012 was quashed, and all reference to it excised from the orders made on 20 and 23 February. The father now appeals to this court. With the support of the local authority, the childrens guardian and (tellingly) the maternal grandparents, he argues that the judge was entitled to change her mind and the February judgment should be restored. The mother, now acting on her own behalf, opposes this. Given the passage of time, no party is suggesting that the case be remitted, either for further clarification of the judges reasoning or for a rehearing. The judge has now recused It has long been the law that a judge is entitled to reverse his decision at any herself and the final hearing took place before His Honour David Gee in the week beginning 28 January 2013. The parties written submissions to this court spent some time discussing whether the majority in the Court of Appeal decided (a) that the judge had no jurisdiction to change her mind; or (b) that she had such a jurisdiction but should not have exercised it on the facts of this case. For reasons which will later appear, I believe that they must have meant (b), although there are passages, particularly in the judgment of Sir Stephen Sedley which are more consistent with (a). But we do not need to discuss what they really meant, as those are the very issues before this court. Rimer LJ dissented. He held that the judge did have jurisdiction and was entitled to exercise it in the way that she did. The jurisdiction time before his order is drawn up and perfected. The modern story begins with the Judicature Acts 1873 (36 & 37 Vict c 66) and 1875 (38 & 39 Vict c 77), which amalgamated the various common law, chancery and doctors commons jurisdictions into a single High Court and created a new Court of Appeal for England and Wales. In In re St Nazaire Company (1879) 12 Ch D 88, the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judges orders. Sir Richard Malins V C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal. The Court of Appeal held that he had no power to do so. Sir George Jessel MR explained that the Judicature Acts had changed everything. Before they came into force, the Lord Chancellor, Vice Chancellor and Master of the Rolls had power to rehear their own decisions and, indeed, the decisions of their predecessors. He remarked that the hope of every appellant was founded on the change of the judge: p 98. (An example of Jessel MR revisiting one of his own orders is In re Australian Direct Steam Navigation (Millers Case) (1876) 3 Ch D 661). But such an application was in the nature of an appeal and jurisdiction to hear appeals had now been transferred to the Court of Appeal. Thesiger LJ added that, whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common Law Courts 12 Ch D 88, 101. The courts conclusions harmonised the practice in all Divisions of the newly amalgamated High Court. Nothing was said in In re St Nazaire about the position before the judges order was perfected. In re Suffield and Watts, Ex p Brown (1888) 20 QBD 693, a High Court judge had made an order in bankruptcy proceedings which had the effect of varying a charging order which he had earlier made under the Solicitors Act 1860 (23 & 24 Vict c 127). All the members of the Court of Appeal, citing In re St Nazaire, agreed that he had no power to do this once his order had been drawn up and perfected. Unlike the bankruptcy jurisdiction, the Solicitors Act gave no power of variation. As Fry LJ put it, at p 697: So long as the order has not been perfected the judge has a power of re considering the matter, but, when once the order has been completed, the jurisdiction of the judge over it has come to an end. Strictly speaking, the reference to what may be done before the order is perfected was obiter, but that this was the law was established by the Court of Appeal no later than the case of Millensted v Grosvenor House (Park Lane) Ld [1937] 1 KB 717, where the judge had revised his award of damages before his order was drawn up and the court held that he was entitled to do so. Thus there is jurisdiction to change ones mind up until the order is drawn up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is now perfected by being sealed by the court. There is no jurisdiction to change ones mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal. On any view, therefore, in the particular circumstances of this case, the judge did have power to change her mind. The question is whether she should have exercised it. Exercising it As Wilson LJ pointed out in Paulin v Paulin [2009] EWCA Civ 221, [2010] 1 WLR 1057, para 30(c), Until 1972 the courts made no attempt to narrow the circumstances in which it would be proper for a judge to exercise his jurisdiction to reverse his decision prior to the sealing of the order. He referred to In re Harrisons Share Under a Settlement [1955] Ch 260, in which the judge recalled an order approving the variation of a settlement on behalf of infant, unborn and unascertained persons, because after he had pronounced it but before it was formally drawn up the House of Lords had decided that there was no power to make such an order. The Court of Appeal rejected the submission that the order could only be corrected for manifest error or omission (as can a perfected order under the slip rule): When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed: pp 283 284. The court went on to say that This control must be . exercised judicially and not capriciously but that was all. The court clearly contemplated that people might act upon an order before it was drawn up, but they did so at their own risk. In 1972, however, the Court of Appeal decided In re Barrell Enterprises [1973] 1 WLR 19, in which it refused to allow the re opening of an unsuccessful appeal in which judgment had been given some months previously dismissing the appeal but the order had for some reason never been drawn up. Russell LJ, giving the judgment of the court, stated, at pp 23 24, that: When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in the most exceptional circumstances to be able to assume that the judgment is a valid and effective one. The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present. There was no such justification in that case. In Paulin [2010] 1 WLR 1057, 1070, Wilson LJ also pointed out that the limitation thus placed on the proper exercise of the jurisdiction was not universally welcomed. In Pittalis v Sherefettin [1986] 1 QB 868, Dillon LJ had in effect emasculated [it] into insignificance by pointing out that it was exceptional for a judge to be satisfied that the order he had previously pronounced was wrong. In Stewart v Engel [2000] EWCA Civ 362, [2000] 1WLR 2268, the Court of Appeal unanimously held that the power to recall orders before perfection had survived the coming into force of the Civil Procedure Rules 1998. However, for some reason (probably the submissions of counsel) they termed this the Barrell jurisdiction. By a majority, they affirmed the Barrell limitation, which Sir Christopher Slade said must apply a fortiori where the judgment is a formal written judgment in final form, handed down after the parties have been given the opportunity to consider it in draft and make representations on the draft: pp 2274, 2276. Clarke LJ dissented on this point. He did not think that the court was bound by Barrell to look for exceptional circumstances. He clearly took as a starting point the overriding objective in the Civil Procedure Rules of enabling the court to deal with cases justly. He considered that the judge had been right to direct himself that the examples given by Neuberger J in In re Blenheim Leisure (Restaurants) Ltd (No 3), The Times, 9 November 1999, a plain mistake by the court, the parties failure to draw to the courts attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given were merely examples: How the discretion should be exercised in any particular case will depend upon all the circumstances: [2000] 1WLR 2268, 2285 . Other formulations of the Barrell principle have been suggested. In Cie Noga DImportation et dExportation SA v Abacha [2001] 3 All ER 513, Rix LJ, sitting in the Commercial Court, referred at para 42 to the need to balance the concern for finality against the proper concern that courts should not be held by their own decisions in a straitjacket pending the formality of drawing up the order. He went on, at para 43: Provided that the formula of exceptional circumstances is not turned into a straitjacket of its own, and the interests of justice and its constituents as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost. Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again. Therefore, on one ground or another the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary or exceptional. An exceptional case does not have to be uniquely special. Strong reasons is perhaps an acceptable alternative to exceptional circumstances. It will necessarily be in an exceptional case that strong reasons are shown for reconsideration. In Robinson v Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257 May LJ commented that that expression [exceptional circumstances] by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case (para 94). Peter Gibson LJ commented, at para 120: With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered. Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for the judge to have the courage to recall his order. If . the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so? No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required . The possible qualification was when the judgment has been reasonably relied upon by a party who has altered his position irretrievably in consequence. Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case. This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances. Exercising the discretion in this case If that be the correct approach, was this judge entitled to exercise her discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to adhere to the conclusion in her December judgment, having recited (at para 55) the clarity of the conclusion reached, the general assumption that the order had been perfected, the general implementation of her conclusion, her adherence to it at the hearing on 23 January, and the absence of any change in the circumstances and the general slackness that left the order unsealed. He was also somewhat puzzled as to why the result of her change of mind was seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator (para 56). Sir Stephen Sedley held that something more than a change in the judges mind was required, because it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice (paras 79, 80). Rimer LJ, on the other hand, held that the judge was honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. the judge would be presented with real difficulty in her future conduct of this case were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong. The court should not be required to make welfare decisions concerning a child on such a false factual basis. It could not be in the interests of the child to require a judge to shut his eyes to the reality of the case and embrace a fiction. The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach. They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result. The care plan may have been developed (we do not have the details of this) but the childs placement had yet to be decided and she had remained where she was for the time being. The majority were, of course, also right to stress the importance of finality, but the final decision had yet to be taken. I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. Section 1(1) of the Children Act 1989 provides that where a court determines any question with respect to the upbringing of a child the welfare of the child shall be its paramount consideration. While that provision does not apply to procedural decisions made along the way, it has to govern the final decision in the case. Mr Charles Geekie QC, on behalf of the mother, argues that even if the judge was entitled to change her mind, she was not entitled to proceed in the way that she did, without giving the parties notice of her intention and a further opportunity of addressing submissions to her. As the court pointed out in Re Harrisons Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised judicially and not capriciously. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re iterate what had already been said. For those reasons, therefore, we ordered that the fathers appeal against the decision of the Court of Appeal be allowed. No party had sought to appeal against the judges decision of 15 February 2012, so the welfare hearing should proceed on the basis of the findings in the judgment of that date. We were pleased subsequently to learn that agreement has now been reached that Susan should be placed with her half brother and maternal grandparents under a care order and, after a settling in period, have visiting and staying contact with her father and her paternal family. The local authority plan to work with both families with a view to both mother and father having unsupervised contact in the future and it is hoped that the care order will be discharged after a period of one to two years. But what if the order had been sealed? On the particular facts of this case, that is all that need be said. But what would have been the position if, as everyone thought was the case, the order made by the judge on 15 December 2011 had been formally drawn up and sealed? Whatever may be the case in other jurisdictions, can this really make all the difference in a care case? The Court of Appeal, despite having themselves raised the point, do not appear to have thought that it did. Sir Stephen Sedley said that it seemed to be of little or no consequence that the order recording the first judgment had not been sealed or that a final order in the case remained to be made (para 74). Both Thorpe and Rimer LJJ held that the relevant order in care proceedings is the final care order made at the end of the hearing. They expressly agreed with Munby LJ in In re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21. This was a case in which the mother challenged the adequacy of the judges reasons for finding her complicit in the sexual abuse of her daughter in a fact finding hearing in care proceedings. Having quoted my observation in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part of the whole process of trying the case and once completed the case is part heard, Munby LJ continued, at para 21: Consistently with this, the findings at a fact finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24. This court has since agreed with that proposition. In Re S B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, all seven justices agreed that: It is now well settled that a judge in care proceedings is entitled to revisit an earlier identification of the perpetrator if fresh evidence warrants this (and this court saw an example of this in the recent case In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319). (para 46) There are many good reasons for this, both in principle and in practice. There are two legal issues in care proceedings. First, has the threshold set by section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount consideration of the childs welfare require to be done about it? Much of the evidence will be relevant to both parts of the inquiry. It may be very helpful to separate out some factual issues for early determination, but these do not always neatly coincide with the legal issues. In this case, for example, there was no dispute that the threshold had been crossed. Nevertheless, it was convenient to attempt to identify who was responsible for the childs injuries before moving on to decide where her best interests lay. In such a composite enquiry, the judge must be able to keep an open mind until the final decision is made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned, but particularly to the children, if the only way to correct such an error were by an appeal. This is reinforced by the procedural position. As Munby LJ pointed out in In re A [2012] 1 WLR 595, para 20, in the context of a fact finding hearing there may not be an immediate order at all. It was held in In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to an appeal. Nevertheless, it would be very surprising these days if there were no order. In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of fact made at a fact finding hearing should be the subject of recitals to an order issued there and then. But this is merely a recital in what is, on any view, an interlocutory order. Both the Civil Procedure Rules and the Family Procedure Rules make it clear that the courts wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955). This may be done either on application or of the courts own motion: CPR r 3.3(1), rule 4.3(1). It was the absence of any power in the judge to vary his own (or anyone elses) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order. Clearly, that power does not enable a free for all in which previous orders may be revisited at will. It must be exercised judicially and not capriciously. It must be exercised in accordance with the over riding objective. In family proceedings, the overriding objective is enabling the court to deal with cases justly, having regard to any welfare issues involved: rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good example. At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the childs injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mothers apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings. The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear cut. On the one hand, given that the basis of the general rule was the lack of a power to vary the original order and there undoubtedly is power to vary these orders, why should it make any difference in principle if the reason for varying it is that, on mature reflection, the judge has reached a different conclusion from the one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot be in the best interests of the child to require the judge to conduct the welfare proceedings on the basis of a false substratum of fact. That would have been just as true if the December order had been sealed as it was when it had not. In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the courts paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error. On the other hand, the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, para 2. If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay. Furthermore, if a judge were entitled to change his mind, a party would presumably be entitled to invite him to do so. No doubt most judges would do their best to have no truck with the invitation. But could the party be prevented from pressing for the exercise of the jurisdiction on the basis that, in his first judgment, the judge had failed to weigh certain evidence sufficiently or at all? In effect the judge would be invited to hear an appeal against himself. There is a distinction between an appeal and a variation for cause. This is the principle underlying the basic rule that an order is final once sealed. The point does not arise in this case and it was not fully developed in the arguments before us. The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it. In our view the preferable solution would be to avoid the situation arising in the first place. A concluding comment courage and intellectual honesty to admit ones mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsels email of the 16 December. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mothers mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision. No doubt the judge was anxious, given the vicissitudes which had beset the fact finding hearing, to deliver her first judgment quickly so that the welfare hearing fixed for the following February could be maintained. But the subsequent history demonstrates all too clearly that this was a false economy. Had that judgment been properly reasoned, none of this would have happened. Furthermore, if the judge had not changed her mind, the father would have had the opportunity of appealing against her findings to the Court of Appeal. One extraordinary result of the Court of Appeals order in this case was that the findings against the father were restored without his having had the opportunity which he should have had of mounting a proper appeal against them. As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes

UK-Abs

The issue in this appeal is whether and in what circumstances a judge who has announced her decision in civil or family proceedings is entitled to change her mind. It arose in this case in care proceedings in a family court. The proceedings concern a child (S) and her half brother (T). Care proceedings were commenced in respect of both children after S was taken to hospital with serious injuries. A fact finding hearing was ordered to determine whether Ss injuries were non accidental and, if so, the identity of the perpetrator. The hearings lasted over several days, spread over several months because of the mothers mental health. It became common ground that the injuries were non accidental and the only possible perpetrators were the mother and father. On 15 December 2011 the judge, Judge Penna, gave a short oral judgment (the December judgment) finding that the father was the perpetrator and she invited submissions if the parties wanted further detail. She gave directions for the filing of expert evidence before a final hearing provisionally booked for 20 February 2012. Her order was not in fact formally sealed by the court until 28 February 2012. Before that, on 15 February 2012, the judge delivered a written perfected judgment (the February judgment) which reached a different conclusion from her oral judgment, holding that she was unable to determine whether it was the mother or the father who had caused the injuries to section As a result, she proposed to give directions for an assessment of the father as a carer for S at the next hearing. The mother was granted permission to appeal against the February judgment. The Court of Appeal by a majority allowed her appeal, quashed the February judgment and ordered that the findings of the December judgment as to the perpetration of the injuries to S should stand. The father brought an appeal to the Supreme Court with the support of the local authority, the childrens guardian, and their maternal grandparents (with whom T had been residing). The Supreme Court unanimously allows the appeal. It gave its decision to the parties at the conclusion of the oral hearing of the appeal on 21 January 2013 and now provides its written judgment. This is given by Lady Hale, with whom all the Justices agree. The Supreme Court restores the February judgment and the welfare hearing has already proceeded on the basis of the findings in that judgment. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected. In the absence of express power to vary or discharge his own orders, any general power for a judge to review his order once perfected was abolished by the Judicature Acts 1873 and 1875 but the power to reconsider the matter before an order was perfected survived [17 18]. Thus until the December order was sealed, the judge in this case did have the power to change her mind and the question for the appeal court was whether she should have exercised it [19]. The overriding objective in the exercise of this power must be to deal with the case justly. Contrary to the practice previously adopted, it is not reserved for exceptional circumstances and would in every case depend on its particular facts. It would be relevant whether any party has acted upon the decision to his detriment especially in a case where it was expected that they may do so before the order is formally drawn up [27]. In this case, the parties had not irretrievably changed their position as a result of the December judgment. Ss placement had yet to be decided and she remained where she was for the time being. Finality was important but here a final decision had yet to be taken. No judge should be required to decide the future placement of a child upon what he or she believes to be a false basis [29]. The judge had heard very full submissions on the evidence and it was not necessary to invite further submissions before changing her findings in this particular case [30]. If, unlike the facts of this case, the order had already been sealed by the time the judge changed her mind, what would be the position? In care proceedings the fact finding hearing is merely part of the whole process of trying the case [34]. During that process the judge must be able to keep an open mind until the final decision has been made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned and particularly the children if the only way to correct such an error were by an appeal [35]. The Civil Procedure Rules and the Family Procedure Rules make it clear that the courts wide case management powers include the power to vary or revoke previous case management orders, and the issue was whether it was proper to vary an order, rather than whether that order had been sealed [37]. The power had to be exercised judicially and not capriciously and in accordance with the overriding objective [38]. However, if the later development was simply a judicial change of mind, the arguments were finely balanced. Children cases may be different from other civil proceedings because the consequences were so momentous for the child and for the whole family. The court had to get it right for the child [41]. On the other hand, the purpose of the fact finding hearing was to create a platform of established facts which would be undermined, throwing the later hearings into disarray, if a judge could be urged to change his mind and in effect hear an appeal against himself [44]. As the point did not arise in this case, the court declined to express a view [45]. The Supreme Court reflected that the problem which arose in these proceedings would have been avoided by having a full and reasoned judgment from the judge in the first place, which would have identified the reasons for her initial conclusion that the father had been the perpetrator, and from which the father could have appealed. That would have avoided the situation here, where the findings against the father were restored without his having an opportunity for a proper appeal [46].

Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers . [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment. (emphasis added). This formulation is taken from para 94 of R (NS) (Afghanistan) v Secretary of State for the Home Department [2013] QB 102. The mooted requirement that there be a systemic deficiency lies at the heart of this appeal. That is the first and principal issue. It also constitutes the critical finding of the Court of Appeal. But, somewhat unusually, it is an issue on which there is no significant dispute between the parties. The appellants, the interveners (UNHCR), and the respondent all assert and agree that the Court of Appeal was wrong to hold that the sole ground on which a second state is required to exercise its power under article 3(2) of Regulation 343/2003 to entertain a re application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter's asylum or reception procedures (emphasis added) [2012] EWCA Civ 1336; [2013] 1 WLR 576, para 62. The parties are also agreed that the test laid down in Soering v United Kingdom (1989) 11 EHRR 439 on this issue continues to hold the field. That case had established that the removal of a person from a member state of the Council of Europe to another country is contrary to the European Convention on Human Rights (ECHR) where substantial grounds have been shown for believing that the person concerned . faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention] para 91 of Soering. The Dublin II Regulation and domestic legislation Council Regulation 343/2003 is commonly known as the Dublin II Regulation. In certain circumstances it provides that asylum claims must be processed and acted on by the member state of the European Union in which an asylum seeker first arrives. Asylum seekers and those who have been granted asylum (refugees) may therefore be returned to the first member state by any other member state of the EU in which asylum seekers and refugees subsequently arrive. But where a person claims that his removal from the United Kingdom would expose him to the risk of breach of his human rights and/or article 3 ill treatment within the member state to which it is proposed to return him, he has a statutory right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 against a decision to remove him. This right is exercisable from within the United Kingdom unless the Secretary of State certifies the claim to be clearly unfounded. By virtue of section 92(4)(a) of the 2002 Act and of para 5(4) in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004, claims concerning removals to a listed country (of which Italy is one) are to be certified as clearly unfounded unless the Home Secretary is satisfied that they are not. Such a certificate can be issued if "on any legitimate view" the claimants assertion that his enforced return would constitute a violation of his human rights would fail on appeal: R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, by Lord Hope at para 34; R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25; [2003] 1 WLR 1230 and ZT (Kosovo) [2009] 1 WLR 348. The Home Secretary in each of these appeals has decided that the contention that Italy is in systemic breach of its material international obligations is clearly unfounded, and that there is no separate reason to abstain from removal. Certification that the claims are clearly unfounded has the effect of prohibiting any appeal while the applicant remains in the United Kingdom. The appellants circumstances Sir Stephen Sedley, who delivered the judgment of the court in the Court of Appeal, summarised the accounts given by the appellants in paras 13 to 28 of that judgment. The brief description of their circumstances which follows is drawn mainly from that synopsis. By way of preamble Sir Stephen correctly observed that, when deciding whether an asylum claim is capable of succeeding, it is customary to take the facts at their highest in the claimants favour. That is the approach that I intend to follow in my consideration of these cases. Where, therefore, it is stated that a particular event took place or that a certain factual proposition is established, this is for the purposes of considering the appellants cases at their reasonable height. It does not betoken any final finding or conclusion. EH is an Iranian national aged 32. He arrived in Italy on 11 November 2010 or thereabouts. It is recorded that his fingerprints were taken on that date. A short time later he left Italy and made his way to the United Kingdom. On 11 March 2011 he applied for asylum in this country on the ground that he had been tortured while a political detainee in Iran. When it became clear that he had first claimed asylum in Italy, the Italian authorities were contacted about EH. They failed to respond within the time stipulated in Dublin II and they were deemed to have accepted responsibility for his claim. (It appears that the Italian authorities subsequently accepted responsibility for the claim.) EHs claim was certified as being clearly unfounded. Removal directions were set. EH launched judicial review proceedings to challenge both the decision to certify and the removal directions. He claimed that there was a real risk that he would be subjected in Italy to inhuman and degrading conditions. He relied not on his own experience of reception in Italy, which was brief, but on that of others. There is an abundance of evidence that EH is now severely disturbed and suffering from PTSD and depression, both of which require treatment. The Court of Appeal found that there was a real risk that EH, whether as an asylum seeker or as an accepted refugee, will be homeless if returned to Italy. For the purposes of the present appeal that finding cannot be challenged. EM is an Eritrean national. It is believed that he was born on 8 January 1989. He is an Orthodox Pentecostal Christian. His father was of the same faith and had been arrested by the Eritrean authorities for having arranged prayer meetings at the family home. His uncle was concerned that EM would also be arrested on suspicion of following his fathers faith and made arrangements for him to leave Eritrea. EM arrived in Italy at Lampedusa, and was first recorded as being there on 21 August 2008. He was fingerprinted and placed in a hotel in Badia Tedalda in the Arezzo province. After about 2 months he and the other asylum seekers there were told that they must each pay 120 for further processing of their applications. Having no money, he and other asylum seekers, who were likewise without funds, were given train tickets to Milan. For some three weeks after he arrived there he was himself homeless and destitute, living among other asylum seekers in similar circumstances. A fellow asylum seeker helped him to travel clandestinely to the United Kingdom, where he claimed asylum on 11 November 2008. His fingerprints were found to correspond with fingerprints on record in Italy. On 18 November 2008 Italy was asked to accept responsibility for his claim and, having failed to respond, was deemed to have accepted responsibility. Removal directions were set, but were challenged by an application for judicial review. On 1 June 2010 the Home Secretary certified EM's asylum claim as clearly unfounded. This was also challenged in the judicial review proceedings. AE fled from Eritrea because she and her husband had been ill treated by the authorities after their arrest on suspicion that her husband was helping people to leave the country illegally. She arrived in Italy in August 2008 and was screened. After this she was placed in a hotel at Bibbiano in the north of Italy in the Emilia Romagna region. She was accommodated there for some three months and about halfway through her stay she was interviewed about her asylum claim. At the end of that period, AE was recognised as a refugee and granted a five year residence permit. At about the same time she and other inhabitants of the hotel were told that it was too expensive to house them there and they were sent to a place that she knew as Aruso but was probably Arezzo. She was given accommodation in crowded and insanitary premises which she was obliged to share with other women and with men. Vouchers which she was given for food ran out after two weeks and she depended on charities for food after that. After three months they were told that they had to leave. AE and a friend went back to Bibbiano. They were refused accommodation but managed to contact a friend who let them stay with him for a month, sharing a room with three men. They left after one of the men tried to rape AE. She and her friend managed to get train tickets to France and she then secretly boarded a lorry which took her to the United Kingdom, arriving here on 19 January 2010. Following unsuccessful judicial review proceedings she was returned to Italy on 15 October 2010. She then found herself homeless and destitute in Milan. In desperation she was forced to live in a squat where she was repeatedly raped by a number of men who threatened her with reprisals if she reported them. Finally, with 100 borrowed from a fellow Eritrean, she made her way back to this country, where she was detained on arrival. A decision was made to remove her again to Italy. Her claim that to do so would violate her human rights was certified by the Home Secretary as clearly unfounded, and an application for permission to seek judicial review of the certificate was dismissed. Psychiatric evidence was submitted to the Home Secretary to the effect that AE was traumatised as a result of her experiences in Italy and suicidal at the prospect of being returned there. It was contended that to return her to Italy would violate her rights under article 3 of ECHR. The Home Secretary rejected an application to use her discretionary power to transfer AEs refugee status to the United Kingdom and confirmed the decision to remove her to Italy. In response to a Rule 39 indication issued by the European Court of Human Rights (ECtHR), removal of AE has been stayed. On 10 November 2011 her renewed application for permission to apply for judicial review was refused by the Administrative Court. Her challenge to the refusal to transfer her refugee status to this country was not pursued but the challenge to the certification of her claim remains. MA is an Eritrean woman who reached Italy in 2005 and in April 2006 was accorded refugee status there on the ground of fear of persecution as a Pentecostal Christian. In January 2008 an agent brought her three children to Italy to join her: M, D and Y. MA's evidence is that the family, despite being recognised as refugees, had to live on the streets, sleeping under bridges, lighting fires for warmth when rain permitted and relying on charitable hand outs for food. After three months MA brought her children covertly to the United Kingdom. In the course of embarking in a lorry at Calais in the dark, she lost Y, whose whereabouts are still not known. The other two are now settled in secondary and tertiary education here and are both doing well. Because of their failure to respond to the UK's request, the Italian authorities in July 2008 were deemed under Dublin II to have accepted responsibility for MA and her children. Removal directions were set but were cancelled because the Italian police considered that they had been given inconsistent details about the children and would not accept them. MA would not cooperate with attempts to interview her about this. Instead she sought to oppose removal by reliance on medical evidence that she was HIV positive. By July 2009 Italy had accepted responsibility and fresh removal directions were set. They were cancelled because of a new application for judicial review, which was later withdrawn. They were re set for July 2010, but the family failed to check in for their departure to Italy. MA then made further allegations about her treatment both in Eritrea and in Italy. In August 2010 the Home Secretary certified MAs claim as clearly unfounded. She refused to transfer MA's refugee status to the United Kingdom and re set removal directions. These were cancelled when the present proceedings were brought. The Court of Appeal found that MA had displayed considerable deviousness. She had lacerated her fingertips to prevent identification on arrival here and had used a different name from that which she used in Italy. It was only after a third set of removal directions was given that, for the first time, she gave an account of being serially raped in both Italy and Eritrea. As the court found, however, her late accounts of rape do not necessarily make them incredible. Moreover, MA's account of the effects of her experiences is now supported by what appears to be cogent medical evidence. As to MA's two children, M, although now legally an adult, continues to form part of the mother's human rights claim. She is taking a course at an educational establishment, and staff there speak highly of her. D is at a school which has reported favourably on both his behaviour and his academic progress. Neither child has any desire to be returned to Italy, with its associations of misery and hardship. MA is reportedly suicidal at the prospect of enforced return. The Court of Appeals decision The Court of Appeal sat as a first instance court in two of the cases (AE and EH) and in its appellate jurisdiction in the cases of EM and MA [2013] 1 WLR 576. This came about because permission to allow AE and EH to apply for judicial review was refused at first instance and granted on application to the Court of Appeal which then conducted the substantive hearing in those cases. In the cases of EM and MA, appeals against substantive decisions by, respectively, Kenneth Parker J and Langstaff J were heard by the Court of Appeal in a conjoined hearing with EM and MA. that had been proffered by the Secretary of State: In para 30 of its judgment the Court of Appeal summarised the evidence Asylum seekers are accommodated in a reception centre for long enough for the Territorial Commission to evaluate their claims. If accepted as refugees, or while awaiting a decision, they are given an international protection order and assigned to a "territorial project" which forms part of SPRAR, the national system for the protection of asylum seekers and refugees. SPRAR will either provide accommodation or transfer the claimant to a public or private local provider. Access to SPRAR is by referral only. It provides food and lodging and courses designed to assist integration, but (with few exceptions) the limit of stay there is six months. On leaving, claimants can apply to charitable or voluntary providers but there is no guarantee of success. However, the international protection order affords access to free healthcare and social assistance (which does not extend to social security) equivalent to that enjoyed by nationals. This requires a fiscal code number, which in turn depends on having an address which can be verified by the police. An international protection order also allows the holder to take employment or undertake self employment, to marry, to apply for family reunification, to obtain education, to seek recognition of foreign qualifications, to apply for public housing and, after five years, for naturalisation. For those denied these rights, there is access to the Italian courts. The challenge which the appellants presented to the claims contained in this passage was set out in para 31 of the courts judgment: The claimants' case is that this may be the system in theory, but their own experience and that of many others, to which independent reports attest, is that it is not what happens in reality to a very considerable number both of asylum seekers and of recognised refugees. In short, they say, Italy's system for the reception and settlement of asylum seekers and refugees is in large part dysfunctional, with the result that anyone arriving or returned there, even if they have children with them, faces a very real risk of destitution. The Court of Appeal held that if the matter stopped [t]here they would be bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to article 3 of ECHR. This is clearly in keeping with well established jurisprudence in the area. For instance, in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 23 Lord Phillips said, If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. Plainly, therefore, the Court of Appeal considered that if it could have regard to the evidence presented on behalf of the appellants, their claims could not be characterised as clearly unfounded. The Home Secretarys certificates would therefore have been of no effect and the appellants would have to be afforded an in country appeal against removal. But the court found itself deflected from giving effect to this preliminary view because of what it understood to be the Home Secretarys argument that access to article 3 and the assertion of a right of appeal could only be countenanced if it was shown that Italy was in systemic rather than sporadic breach of its international obligations and the case made on behalf of the appellants fell well short of establishing that. The Court of Appeal felt driven to this conclusion by its analysis of recent jurisprudence from ECtHR and the Court of Justice of the European Union (CJEU), particularly the trilogy of cases, KRS v United Kingdom (2008) 48 EHRR SE 129, MSS v Belgium and Greece (2011) 53 EHRR 28, and NS (Afghanistan) v Secretary of State for the Home Department Cases C 411/10 and C 493/10, [2013] QB 102. In the first of these cases, KRS, the Fourth Section of ECtHR found the applicants case to be inadmissible. He was an Iranian asylum seeker who had entered Greece before seeking asylum in the UK. Adverse reports on Greeces treatment of asylum seekers were noted by the Fourth Section but it concluded that Greeces international commitment to the European asylum system and (it was to be presumed) her compliance with that system provided a comprehensive answer to the applicants claim. Although UNHCR had advised member states to suspend returns to Greece under Dublin II, this had not displaced the presumption that Greece would abide by her obligations. In the second case, MSS, a Grand Chamber decision, ECtHR noted UNHCRs claim (in a letter to the Belgian government in April 2009) that the Fourth Section in KRS had apparently overlooked some of the criticisms that it had made of Greece. No reference had been made to whether conditions of reception conformed to regional and international standards of human rights protection or whether asylum seekers had access to fair consideration of their asylum applications or if they were able to exercise their rights under the Geneva Convention. The Grand Chamber reviewed the numerous reports and materials that had been generated about the situation in Greece since the KRS decision. It observed that these all agreed about the deficiencies of the asylum procedure in Greece. The court therefore concluded that the situation in Greece was known to the Belgian authorities; that seeking assurances from the Greek government that the applicant faced no risk of treatment contrary to ECHR was not sufficient to ensure adequate protection against the risk where reliable sources had reported practices that were tolerated by the authorities and which were manifestly contrary to the principles of the Convention; and that the Aliens Office of the Belgian government systematically applied the Dublin Regulation without so much as considering the possibility of making an exception (para 352). The Grand Chamber therefore held that there had been a violation by Belgium of article 3 of EHCR because by sending the applicant back to Greece, the Belgian authorities exposed him to detention and living conditions there which were in breach of that article. The Court of Appeal said of this decision that the assessment of risk on return is seen by the Strasbourg court as depending on a combination of personal experience and systemic shortcomings which in total may suffice to rebut the presumption of compliance (para 39). It is clear that the court felt that the personal experience of the appellants in these cases, taken in combination with documented shortcomings in the manner in which asylum seekers are dealt with in Italy, would have at least raised a case to be tried as to whether their enforced return to that country would have violated their article 3 rights (see, in particular, paras 32 and 61 of the courts judgment). But the court decided that raising an arguable case was not enough. It reached that conclusion principally because of its view as to the effect of the CJEU decision in NS. Notably, in introducing his discussion of that case, Sir Stephen Sedley said (at para 43) that, but for the fact that the decision of CJEU was binding on courts of this country, the Court of Appeal might have had to confront the problem of conflicting decisions of ECtHR and CJEU. This observation seems clearly to signify that, but for the effect of the NS case, the Court of Appeal would have come to a different conclusion from that which it felt compelled to reach. Resonances of this conflict appear later in the judgment of the Court of Appeal and will be touched on in my consideration of the NS decision. The NS case was concerned with the question whether, in deciding if it should exercise the power under article 3(2) of the Dublin II Regulation (that is the power to examine a claim which is the responsibility of another state), a member state is required to presume conclusively that the other states arrangements are compliant with its international obligations. Alternatively, is the member state which is contemplating recourse to the article 3(2) power obliged to examine whether transfer would bring a risk of violation of Charter rights or of the EU's minimum standards? CJEU decided that there was a presumption that member states would comply with their international obligations but that this was rebuttable. At para 86 of its judgment the court said: if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the member state responsible, resulting in inhuman or degrading treatment, within the meaning of article 4 of the Charter, of asylum seekers transferred to the territory of that member state, the transfer would be incompatible with that provision. Building on that finding CJEU said this at para 94 of its judgment: to ensure compliance by the European Union and its member states with their obligations concerning the protection of the fundamental rights of asylum seekers, the member states, including the national courts, may not transfer an asylum seeker to the member state responsible within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter. The Court of Appeal considered that CJEU had addressed in its judgment the question of what amounted to systemic deficiencies in paras 81 and 82 for, at para 46 of the Court of Appeals judgment, Sir Stephen said that CJEU had taken care in those paragraphs to draw a distinction between a true systemic deficiency and operational problems even if such problems created a substantial risk that asylum seekers would be treated in a manner incompatible with their fundamental rights. It will be necessary in due course to look at the relevant paragraphs of CJEUs judgment in order to examine whether that conclusion can be upheld. For the present, it is, perhaps, sufficient to consider its implications. A person applying for asylum in a member state might be able to establish conclusively that he would be at substantial risk of being treated in a manner incompatible with his fundamental rights if returned to a listed country but because that risk did not arise from so called systemic deficiencies it could not operate to prevent his enforced return to that country. That would be, to say the least, a remarkable conclusion. In any event, the Court of Appeal decided that proof of a systemic deficiency in the system of refugee protection had been elevated by NS into a sine qua non of intervention para 47. The court said: What in the MSS case was held to be a sufficient condition of intervention has been made by the NS case into a necessary one. Without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state's system, cannot prevent return under Dublin II. It is clear that the Court of Appeal considered that NS had changed the landscape in relation to the requirements of proof of possible violation of fundamental rights from that which had hitherto obtained. At para 61 the Court of Appeal, having reviewed the evidence that had been presented on behalf of the appellants about conditions in Italy, said this: This material gives a great deal of support to the accounts given by three of the claimants of their own experiences of seeking asylum in Italy. If the question were, as Ms Carss Frisk submits it is, whether each of the four claimants faces a real risk of inhuman or degrading treatment if returned to Italy, their claims would plainly be arguable and unable to be certified. But we are unable to accept that this is now the law. The decision of the CJEU in the NS case [2013] QB 102 has set a threshold in Dublin II and cognate return cases which exists nowhere else in refugee law. It requires the claimant to establish that there are in the country of first arrival systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers . [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment. A presumption of compliance The need for a workable system to implement Dublin II is obvious. To allow asylum seekers the opportunity to move about various member states, applying successively in each of them for refugee status, in the hope of finding a more benevolent approach to their claims, could not be countenanced. This is the essential underpinning of Dublin II. Therefore, that the first state in which asylum is claimed should normally be required to deal with the application and, where the application is successful, to cater for the refugees needs is not only obvious, it is fundamental to an effective and comprehensive system of refugee protection. Asylum seeking is now a world wide phenomenon. It must be tackled on a co operative, international basis. The recognition of a presumption that members of an alliance of states such as those which comprise the European Union will comply with their international obligations reflects not only principle but pragmatic considerations. A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense examination of avowed failings of the first state would lead to disarray. It is entirely right, however, that a presumption that the first state will comply with its obligations should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker. Violation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings. It is self evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system. If this requirement is grafted on to the presumption it will unquestionably make its rebuttal more difficult. And it means that those who would suffer breach of their article 3 rights other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur. That this should be the result of the decision of CJEU in NS would be, as I have said, remarkable. More significantly, if the Court of Appeals interpretation of NS was correct, it would give rise to an inevitable tension between the Home Secretarys obligation to abide by EU law, as pronounced by CJEU, and her duty as a public authority under section 6 of the Human Rights Act 1998. On the Court of Appeals analysis, the Secretary of State would be bound under Dublin II to return an asylum seeker or refugee to the first country in which that person had claimed or been granted asylum unless he or she could show that the anticipated breach of their article 3 rights had as its source a systemic deficiency in the asylum procedure and reception conditions. Thus, even if it could be proved conclusively that an article 3 violation was likely to occur, the return of the individual would have to take place. Such an enforced return would involve the Secretary of State in a failure to comply with the duty under section 6 of the 1998 Act not to act in a way that is incompatible with a Convention right. It may well be that, confronted by such a dilemma, the Secretary of State would have to resort to her powers under article 3(2) of the Dublin Regulation which permits each member state to examine an application for asylum lodged with it by a third country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. In the event, I do not believe that it is necessary to reach a view on this because I do not consider that NS has the effect which the Court of Appeal considered it to have. NS was an Afghan national who challenged his removal under the Dublin II Regulation to Greece by the Secretary of State. He relied on material concerning the general situation in Greece for asylum seekers. A series of questions were referred to the CJEU. These raised queries about the Charter of Fundamental Rights of the European Union (the Charter) and the relationship between fundamental rights and returns under the Dublin II Regulation. In the present appeals, of course, the issue of importance from NS is the courts decision about the circumstances in which a member state must desist from transferring an asylum applicant to the state with responsibility under the Regulation. In paras 76 80 of its judgment, CJEU sets out the background to the need for mutual confidence among member states about the obligation of those states that participate in the Common European Asylum System to comply with fundamental rights including those based on the Convention relating to the Status of Refugees (the 1951 Convention) ((1951) Cmd 9171) and its 1967 Protocol ((1967) Cmnd 3906). In these paras the court also dealt with the assumption that needed to be made that the states will be prepared to fully comply. These twin considerations (the importance of the obligations and the assumption that they will be fulfilled) underpin the system a system designed to avoid blockages as a result of the obligation on state authorities to examine multiple claims by the same applicant, and to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective to speed up the handling of claims in the interests both of asylum seekers and the participating member states. para 79. The aspirational aspect of this approach is readily understandable. If the system is going to work properly, if administrative delays and forum shopping are to be eliminated and if bureaucratic quagmires are to be avoided, participating states must live up to their commitments and they must inspire trust in the other participants and, in turn, repose trust in the willingness and capacity of the other participants to likewise fulfil their obligations. CJEU was therefore anxious to ensure that there was no significant compromise on the smooth operation of the inter state return of asylum seekers to the country where they first claimed asylum. The critical question is whether it sought to achieve that effective process by permitting challenges to a decision to return under Dublin II only in those cases where there is a systemic failure in the asylum procedure and reception conditions in the state to which the transfer is to take place. Before examining what CJEU said on this issue, it can be observed that an exclusionary rule based only on systemic failures would be arbitrary both in conception and in practice. There is nothing intrinsically significant about a systemic failure which marks it out as one where the violation of fundamental rights is more grievous or more deserving of protection. And, as a matter of practical experience, gross violations of article 3 rights can occur without there being any systemic failure whatsoever. One must be careful, therefore, to determine whether CJEU referred to systemic failures in order merely to distinguish these from trivial infringements of the various European asylum directives or whether it consciously decided to create a new and difficult to fulfil pre condition for asylum seekers who seek to have recourse to their article 3 rights to prevent their return to a country where it can be shown that those rights will be violated. For there can be little doubt that such a condition would indeed be difficult to fulfil. Some of the facts in the present cases exemplify the truth of that proposition. For instance, the Court of Appeal held that there was a real risk that EH, now severely disturbed and suffering from PTSD and depression, both of which require treatment, will be homeless if returned to Italy. But that is not enough to prevent his enforced return. The appalling degradation suffered by AE and the awful but distinct possibility that something of the same will happen again if she is returned to that country are not sufficient to satisfy the stringent standard which the Court of Appeal has decided must now be met. Because of the narrowly defined (by the Court of Appeal) category of systemic failures in asylum procedures and reception conditions, which these appellants have been deemed not to inhabit, they are prohibited from challenging the validity of their enforced return to a country where, if their claims are right, they will suffer breach of their article 3 rights. The unacceptable artificiality of that situation is that if a systemic failure could be demonstrated, even though the consequences were far less terrible than those which, it is anticipated, will befall these appellants, the enforced return could be resisted. With these concerns in mind, I turn to consider the critical paragraphs in the judgment of CJEU in NS. At para 80, the court said that it must be assumed that the treatment of asylum seekers in all member states complies with the requirements of the Charter, the Geneva Convention and the ECHR. Para 81 is pivotal to the courts reasoning: It is not however inconceivable that that system may, in practice, experience major operational problems in a given member state, meaning that there is a substantial risk that asylum seekers may, when transferred to that member state, be treated in a manner incompatible with their fundamental rights. The system referred to in this para is the system of the treatment of asylum seekers in all member states (see para 80). What is contemplated in para 81 is that this system may experience major operational problems in a particular member state. The circumstance that the general system may experience major operational problems in specific settings is not the same as the system having intrinsic deficiencies. The Court of Appeal in para 46 of its judgment suggested that CJEU had taken care to distinguish a true systemic deficiency from operational problems. With respect, I do not agree. What the CJEU recognised was that any system, however free from inherent deficiency, might experience operational difficulties which would cause a substantial risk that asylum seekers would be treated in a manner incompatible with their fundamental rights. The source of the risk was not systemic deficiencies (in the sense of the deficiencies deriving from intrinsic weaknesses in the system) but rather, major operational problems in a given member state. I therefore take a different view from that of the Court of Appeal in its analysis of paras 80 and 81 of the CJEU judgment. I do so on two grounds. First, I do not believe that the system (as that expression was used by CJEU in these paras) was the system in a particular member state. I consider that the words that system in para 81 are a reference back to the system of treatment of asylum seekers in all member states in para 80. Secondly, I am of the view that the source of the risk of asylum seekers being treated in a manner incompatible with their fundamental rights, which CJEU identified in these paras, is not a deficiency in the overall system but operational problems experienced in a given member state. See also in this context paras 75 and 78 of NS. Now, it is true that at a later point in the judgment, CJEU turns to refer to systemic flaws in the asylum procedure and reception conditions in Greece. At para 86 the court said: if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the member state responsible, resulting in inhuman or degrading treatment, within the meaning of article 4 of the Charter, of asylum seekers transferred to the territory of that member state, the transfer would be incompatible with that provision. It is perhaps unfortunate that the expression systemic deficiency was employed in two different contexts to describe what are clearly distinctly different phenomena because this creates the potential for confusion. But I believe that, even in the later context, CJEU did not intend to stipulate that an anticipated violation of article 3 could only be a basis for resisting a transfer to a listed state if it could be shown that this was the result of a systemic deficiency in that countrys asylum procedures and reception conditions. Indeed, it is clear from para 89 of the courts judgment that it considered that the infringement of fundamental rights provided evidence of the systemic deficiency rather than that a systemic deficiency had to be demonstrated before violation of a fundamental right could operate to prevent the transfer. In that para the court said: The extent of the infringement of fundamental rights described in [MSS v Belgium and Greece] shows that there existed in Greece, at the time of the transfer of the applicant MSS, a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers. The important central feature of MSS and NS is that systemic deficiencies were found to be present in the asylum procedures and reception conditions in Greece. The debate in those cases therefore focused on the question of what, given that systemic deficiencies were present, the effect of those deficiencies was on the application of the presumption of compliance. There was no occasion to address the question whether systemic deficiencies had to be present before the interdict on transferring asylum seekers to the member state responsible. This is how, in my opinion, para 94 of the courts judgment in NS should be read. In that para the court said: to ensure compliance by the European Union and its member states with their obligations concerning the protection of the fundamental rights of asylum seekers, the member states, including the national courts, may not transfer an asylum seeker to the member state responsible within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter. The focus here is on the member states awareness of systemic deficiencies which provide substantial grounds for believing that there is a real risk of inhuman or degrading treatment. In other words, does the member state proposing to transfer an asylum seeker have grounds for believing that the consequence for the person transferred will be inhuman or degrading treatment? As it happened, in both those cases the existence of systemic deficiencies which had been extensively reported on by, among others, UNHCR was the means by which the transferring states were deemed to have that knowledge but there is nothing in the reasoning of CJEU nor is there, I believe, any reason in logic to suggest that, if the transferring state acquires the same knowledge through a different medium, that it should not have the same effect. The correct approach I consider that the Court of Appeals conclusion that only systemic deficiencies in the listed countrys asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering v United Kingdom (1989) 11 EHRR 439. The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR. Article 13(1) of Council Directive 2003/9/EC (the Reception Directive) requires that member states provide material reception conditions for applicants for asylum. Article 13(2) stipulates that these conditions should be such as to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence. The Dublin Regulation and the Reception Directive must be interpreted and applied in conformity with fundamental rights: Case C 106/89 Marleasing SA v La Comercial Internacional de Alimentacin SA [1990] ECR I 4135; Joined Cases C 402/05P and 415/05P Kadi v Council of the European Union [2009] AC 1225. The preamble to Council Directive 2004/83/EC (the Qualification Directive) emphasises that, in contrast to the Reception Directive (which identifies minimum standards), the key objective is to ensure that those granted refugee status are not discriminated against in terms of access to welfare support, accommodation etc. Recital 33 is in these terms: Especially to avoid social hardship, it is appropriate, for beneficiaries of refugee or subsidiary protection status, to provide without discrimination in the context of social assistance the adequate social welfare and means of subsistence. Articles 26 29 of the Qualification Directive requires member states to provide refugees with equivalent access to that enjoyed by nationals of the member state in areas such as employment, education, social welfare and medical treatment. Article 31 requires that they be given equivalent rights as regards accommodation and article 33 calls for member states to provide appropriate integration programmes. These duties coalesce with the positive obligations on members of the Council of Europe who are also member states of the European Union. Under the EU Charter of Fundamental Rights, article 4 contains a human rights protection in equivalent language to article 3 of ECHR. The UK, as an EU member state, is obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law (see article 51 of the Charter). It is common case that the positive obligations under article 3 of ECHR include the duty to protect asylum seekers from deliberate harm by being exposed to living conditions (for which the state bears responsibility) which cause ill treatment see MSS at [221]. And in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 the House of Lords held that article 3 could be engaged where asylum seekers were by the deliberate action of the state, denied shelter, food or the most basic necessities of life per Lord Bingham at para 7. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at para 42(i) as a significant evidential presumption that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed. The first instance decisions In his first judgment in EM [2011] EWHC 3012 Admin, delivered on 18 November 2011, Kenneth Parker J referred approvingly to the statement in R v Home Secretary Ex p Adan [1999] 3 WLR 1274 to the effect that a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of aberrations. He then said this at para 12: Following KRS, the existence of such a system is to be presumed. It is for the claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory. (original emphasis) Systematic is defined as arranged or conducted according to a system, plan, or organised method whereas the definition of the word systemic is of or pertaining to a system. Taken in context, I believe that Kenneth Parker Js statement that it had to be shown that there was a systematic and significant failure to comply with international obligations meant that the omissions were on a widespread and substantial scale. His approach is rather different from that of the Court of Appeal, therefore, in that it does not appear to suggest that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems. This approximates (at least) to what I consider is the true import of the decision in NS. On one view, therefore, Kenneth Parker Js decision is in keeping with the correct test and his decision should stand. For two reasons, however, I have decided that this would not be the correct disposal. In the first place the Court of Appeal took a different view from that of Kenneth Parker J as to the effect of the evidence. As I pointed out, (in paras 26 and 31 above) the court indicated that, but for the effect of NS, it would have been bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to article 3 of ECHR. Secondly, there is an issue as to whether Kenneth Parker Js approach accords precisely with that in Soering. In that case ECtHR had said that an extraditing contracting state will incur liability under the Convention if it takes action which has as a direct consequence the exposure of an individual to proscribed ill treatment. In order to rebut the presumption a claimant will have to produce sufficient evidence to show that it would be unsafe for the court to rely on it. On proper analysis, it may well be that Kenneth Parker J was not suggesting that there was a requirement that a person subject to an enforced return must show that his or her risk of suffering ill treatment contrary to article 3 of EHCR was the result of a significant and systematic omission of the receiving state to comply with its international obligations. It seems to me, however, that, to impose such an obligation in every instance would go beyond the Soering requirement. Since there was no reference to Soering in Kenneth Parker Js judgment and in light of this courts re assertion of the test articulated in that case, I consider that it would be sensible to have the matter revisited. In MA, Langstaff J (whose judgment is reported at [2012] EWHC 56 Admin) said (at para 62) that it could not realistically be argued that Italy systematically breaches the rights of refugees so as to involve a violation of article 3. At para 63 he rejected the argument that to rely on an absence of systematic breach avoided dealing with the practical realities of life in Italy. Langstaff J said that such realities might need to be considered if the return was to some less developed country in which the generality was for there to be such difficulties. By implication, this approach suggests that a breach of article 3, sufficient to prevent a return, could only arise where there had been systematic breach of the rights of refugees. For the reasons given earlier, I consider that a more open ended approach to the question of the risk of breach of article 3 is required. Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill treatment if there is an enforced return. Disposal I would therefore remit all four cases to the Administrative Court so that an examination of the evidence may take place to determine whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention. That examination can only be conducted properly if there is an assessment of the situation in the receiving country. In appropriate circumstances, this calls for a rigorous assessment see Chahal v United Kingdom (1997) 23 EHRR 413 at para 96 and Vilvarajah v United Kingdom (1991) 14 EHRR 248 at para 108. The court must examine the foreseeable consequences of sending a claimant to the receiving country bearing in mind both the general situation there and the claimants personal circumstances, including his or her previous experience see Vilvarajah at para 108 and Saadi v Italy (2009) 49 EHRR 30 at para 130. This approach has been followed by decisions of ECtHR subsequent to MSS Hussein v Netherlands Application No 27725/10 at paras 69 and 78 and Daytbegova v Austria Application No 6198/12 at paras 61 and 67 69. The position of UNHCR The Court of Appeal recognised that particular importance should attach to the views of UNHCR and noted that ECtHR in MSS had treated UNHCRs judgment as pre eminent and possibly decisive. At para 41 Sir Stephen Sedley said this: It seems to us that there was a reason for according the UNHCR a special status in this context. The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court. In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports. It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit. I fully agree with this assessment. In a recent decision of this court, the unique and unrivalled expertise of UNHCR in the field of asylum and refugee law was acknowledged. In IA (Iran) v Secretary of State for the Home Department [2014] UKSC 6; [2014] 1 WLR 384, this court said at para 44: Although little may be known about the actual process of decision making by UNHCR in granting refugee status in an individual case, the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision making in the field of refugee status determinations must invest its decisions with considerable authority. It is of course the case that UNHCRs criticisms of the situation in Greece in its interventions in KRS and particularly MSS were more pointed and direct than they have been in the present appeal in relation to Italy. In a report of July 2012 containing recommendations in relation to Italy, UNHCR did not call for a halt to all Dublin transfers to Italy. But, as Mr Fordham QC, for UNHCR, submitted, this does not mean that the organisation considered that there were no legal obstacles to particular transfers taking place or that UNHCR had given Italy a clean bill of health. The recommendations contained in UNHCRs report of July 2012 and its more recent report of July 2013 will doubtless be examined carefully by the Administrative Court. While, because of their more muted contents, they do not partake of the pre eminent and possibly decisive quality of the reports on Greece, they nevertheless contain useful information which the court will wish to judiciously consider. Assumptions should not be made about any lack of recommendations concerning general suspension of returns under Dublin II to Italy but it is of obvious significance that UNHCR did not make any such proposal. The UNHCR material should form part of the overall examination of the particular circumstances of each of the appellants cases, no more and no less. Should refugees be treated differently from asylum seekers? Of the four appellants, two are asylum seekers (EH and EM), and two are refugees (AE and MA). AE and MA submit that their transfer to Italy is not governed by Dublin II and is not within the scope of EU law because they are refugees. The Treaty provision under which the Dublin Regulation was adopted, article 63(1) of the Treaty on European Union makes it clear that the Regulation is directed to determine which member state is responsible for considering an asylum application. Accordingly, the appellants say, the return of refugee appellants is governed exclusively by national law. The respondent, whilst agreeing that refugee appellants are not returned to member states under Dublin II, takes a rather different approach to the question whether asylum seekers and refugees should be treated similarly. It is argued that ECtHR has consistently recognised that asylum seekers are an underprivileged and vulnerable population group requiring special protection in the form of basic reception facilities whereas refugees are on a par, as regards rights and obligations with the general population see Hassan and others v Netherlands and Italy 40524/10 (27 August 2013) para 179. The Court of Appeal noted that questions had been raised in the course of argument as to whether the return to Italy of a claimant already granted refugee status there would fall under Dublin II but decided that the reasoning of the CJEU in NS required them to adopt a uniform approach to all of the present appeals see para 48. It seems to me that the relevant matter is not whether Dublin II treats refugees and asylum seekers differently or the same, but that it relates to anyone who has applied for asylum in the country from which he might be transferred, whether or not he has previously been recognised as a refugee in the country to which it is proposed he be transferred. This reflects the nature of Dublin II as a chiefly procedural instrument. Refugee is defined, but referred to only once, obliquely, in article 7: Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire. An applicant or asylum seeker is defined in article 2(d) of Dublin II as a third country national who has made an application for asylum in respect of which a final decision has not yet been taken. A third country national is defined in para (a) of the same article as anyone who is not a citizen of the Union within the meaning of article 17(1) of the Treaty establishing the European Community. The appellants meet these criteria and all are subject, therefore, to the provisions of Dublin II. Whether their respective positions as asylum seekers who have previously been granted refugee status and asylum seekers who have not been granted that status will make it more or less likely that they will be at risk of violation of their article 3 rights if returned to a listed country will depend on an examination of the particular circumstances of their individual cases. One can anticipate an argument that those who have refugee status in Italy are less likely to suffer such a violation because they can assert their rights under the Qualification Directive but whether such an argument would prevail must depend on the evaluation of the evidence which is presented on that issue.

UK-Abs

This appeal concerns the circumstances in which an asylum seeker should be sent back to the country where he or she first claimed asylum if it is claimed that such a return would expose the asylum seeker to the risk of inhuman or degrading treatment, which is forbidden by article 3 of the European Convention on Human Rights (ECHR). At this stage the appellants account of the risk that they face must be assumed to be true. They are an Iranian national (EH) and three Eritrean nationals (EM, AE, and MA) who have come to the United Kingdom via Italy. In each of their cases Italy is the country responsible for processing their asylum applications according to the relevant EU law, Council Regulation 343/2003 (commonly known as Dublin II). The basis of EHs asylum claim is that he was tortured as a political prisoner in Iran. He is now severely psychologically disturbed and needs treatment. He claims that if he were returned to Italy he would be homeless and without treatment. EM, AE, and MA were left homeless and destitute in Italy. AE and MA, who are women, claim that they were repeatedly raped there, despite having been recognised as refugees. MA has come to the UK with two of her children; a third was separated from the family during the attempt to make it here and has not been found. AEs experiences have traumatised her, and she is suicidal at the thought of being taken back to Italy. Italy is one of a list of countries which is presumed by the United Kingdom to be safe for returning asylum seekers. The Home Secretary therefore must be satisfied that the appellants claims that they will be subject to degrading and inhuman treatment are not clearly unfounded if they are to be allowed to stay in the United Kingdom while they pursue their asylum applications. That is important to the appellants because of the threats to their well being if they were returned to Italy. The Home Secretary certified all of the appellants claims as clearly unfounded because Italy was not in systemic breach of its international obligations to treat asylum seekers with dignity. The Court of Appeal considered that a systemic breach, rather than merely a breach, of those obligations was indeed required before the United Kingdom could decline to return an asylum seeker to Italy. The Court of Appeal reached that conclusion on the basis of a decision of the Court of Justice of the European Union (CJEU), NS (Afghanistan) v Secretary of State for the Home Department. The CJEU is responsible for interpreting EU law, including Dublin II. However, the Court of Appeal read the decisions of the European Court of Human Rights (ECtHR) as requiring only a breach, rather than a systemic breach, of a persons human rights. The ECtHR is responsible for interpreting the ECHR, and belongs to a separate legal system established by the Council of Europe. By virtue of legislation in the UK, decisions of the CJEU are binding on UK courts, while decisions of the ECtHR need only be taken into account. The Court of Appeal therefore felt bound to apply the CJEU case, as it understood it, over the ECtHR cases. Since it held that Italy was not in systemic breach of its duties, it found for the Home Secretary. The Supreme Court unanimously allows the asylum seekers appeals and remits all four cases to the administrative court to determine on the facts whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention. The Court of Appeal was wrong to consider that only a systemic breach by the receiving country of its human rights obligations would justify not returning an asylum seeker to that country. The CJEUs judgment in NS had to be read according to the context in which it was given. While it did refer to a systemic breach, such a breach was well established on the cases facts. The CJEUs focus was therefore not on the sort of breach that had to be established, but rather on EU member states awareness of such a breach. There was therefore no warrant for concluding that CJEUs judgment was that there had to be a systemic breach; it only meant that a systemic breach would be enough. The CJEU was not calling into question the well established test applied in human rights law, which is that the removal of a person from a member state of the Council of Europe to another country is forbidden, if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of the ECHR [5658]. Indeed, the EU requires its laws to be interpreted in accordance with fundamental rights, such as those guaranteed by the ECHR. And beyond that it is clear that the EU scheme of asylum law in general is to be applied in a way that respects the dignity of asylum seekers, and ensures a basic minimum standard of support. Council Directive 2003/9/EC (commonly known as the Reception Directive) requires that member states provide asylum seekers with at least enough to sustain their health and ability to subsist. And under Council Directive 2004/83/EC (the Qualification Directive), those granted refugee status are not to be discriminated against in terms of access to welfare support, accommodation, and so on [59 60]. These duties coalesce with the positive obligations on members of the Council of Europe who are also member states of the European Union. Article 4 of the EU Charter of Fundamental Rights contains a human rights protection in equivalent language to article 3 of ECHR. The UK, as an EU member state, is obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law. There was no dispute before this Court that the positive obligations under article 3 of ECHR include the duty to protect asylum seekers from deliberate harm by being exposed to living conditions (for which the state bears responsibility) which cause ill treatment. And in R (Limbuela) v Secretary of State for the Home Department the House of Lords held that article 3 ECHR could be engaged where asylum seekers were by the deliberate action of the state, denied shelter, food or the most basic necessities of life [62]. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his or her removal to that state is forbidden. The evidence about breaches of a positive obligation is more likely to concern systemic failings, but a focus on such failings is only by way of establishing that there is a real risk of a breach of article 3, rather than a distinct hurdle to be surmounted [63].

This appeal raises two issues of contractual construction in documents relating to the letting of commercial premises at 1 and 3 South Wardpark Place, Wardpark South Industrial Estate, Cumbernauld, Scotland. The appellant (Batley) is the mid landlord of sub let premises and the respondent (the Council) is the sub tenant. Batley and the Council disagree on whether the Council was obliged to remove its alterations and reinstate the sub let premises on the expiry of the sub lease when the request to do so was made orally by Batleys surveyor and not put in writing in a schedule of dilapidations or otherwise before the sub lease expired. The two issues are: (a) whether under a minute of agreement that authorised alterations to the sub let premises Batley was obliged to give written notification that it required the Council to remove the alterations and reinstate the sublet premises; and (b) whether under the repairing obligation in the head lease, which was applied to the sub lease, Batley had to give a written notification that it required the Council to carry out the repairs before the expiry of the sub lease. As the repairing obligation in the head lease is in terms which are commonly used in commercial leases, the appeal from the decision of the Extra Division of the Inner House of the Court of Session raises an issue of law of general importance. The relevant contracts The head lease, which is dated 18 and 25 October 1995, granted the tenant a lease of the premises for 25 years until 8 October 2020. Batley acquired the tenants interest in the head lease in 2007. Clause 3 of the head lease imposed obligations on the tenant, including obligations to repair, maintain and renew the premises (cl 12), to maintain the landscaped areas (cl 3.13) and to decorate the exterior and interior of the premises (cls 3.14 & 3.15). As the first of those obligations is in issue, I set out the relevant parts of cl 3.12: At all times throughout the Period of this Lease at the Tenants expense well and substantially to repair, maintain and where necessary to renew, rebuild and reinstate and generally in all respects keep in good and tenantable condition the Premises and every part thereof with all necessary maintenance, cleansing and rebuilding and renewal works and amendments whatsoever regardless of the age or state of dilapidation of the buildings for the time being comprised in the Premises and irrespective of the cause or extent of the damage necessitating such repair, maintenance, renewal, rebuilding or others and including any which may be rendered necessary by any latent or inherent defects in the Premises The tenant also had to permit the landlord to inspect the premises (cl 3.18) and was obliged to comply with any notices in writing by the landlord identifying a failure to comply with its obligations to repair (cl 3.19). 3. The tenant had to obtain the landlords prior written consent to alterations to the premises (cl 3.25(a) & (b)). Although various clauses of the lease generally required written notices, written consents and written approvals, clause 5.8 stated Any notice, request, demand or consent shall be in writing and specified what amounted to sufficient service. The sub lease to the Council of part of the premises was dated 26 February and 19 March 1998. Its date of expiry was 19 February 2008 but Batley and the Council varied the sub lease to extend it to 18 February 2009. Clause 5 of the sub lease provided: The Sub tenant also undertakes with the Mid Landlord and binds and obliges its successors and assignees whomsoever throughout the Period of the Sub Lease as follows: 1 Fulfilment of Mid Landlords obligations Save in so far as inconsistent with the express terms of the Sub Lease to fulfil, perform and observe to the relief of the Mid Landlord the obligations and restrictions of a non monetary nature undertaken by or imposed upon the Mid Landlord under the Lease so far as they relate to the Premises and as if references in the Lease to the Premises were references to the Premises as defined in the Sub Lease and that in accordance with the terms of the Lease. 5.3 Expenses to reimburse to the Mid Landlord all proper and reasonable costs and expenses incurred by the Mid Landlord: 5.3.1 incidental to the preparation and service of all notices and schedules relating to deficiencies in repair or requiring the Sub Tenant to remedy the breach of any of its obligations under the Sub Lease whether the same be served before or after the Date of Expiry; 5.3.2 in the preparation and service of a schedule of dilapidations at any time before or after the Date of Expiry; 5.3.3 in procuring the remedy of any breach of any obligation on the part of the Sub Tenant under the Sub Lease. 5. Clause 5.7 of the sub lease provided that alterations of the sub let subjects required the prior written consent of the mid Landlord. Clause 8 contained an irritancy (forfeiture) clause in the event of any breach of any of the undertakings of the sub tenant under the sub lease. Clause 13, on which the Council founds, provided: The provisions for notices contained in Clause 5.8 of the Lease shall apply also under the Sub Lease as if the Mid Landlord had been substituted for the Landlord and the Sub tenant had been substituted for the Tenant. Thus, under the sub lease any notice, request, demand or consent had to be in writing. The third agreement is the Minute of Agreement dated 7 and 17 April 1998 by which the then mid landlord licensed the Council to make alterations to the sub let premises subject to conditions. Clause 2 of the Minute of Agreement imposed obligations on the sub tenant to obtain the needed planning and other permissions (cl 2.1), to notify the mid landlord of the commencement and completion of the works (cl 2.2), to indemnify the mid landlord (cl 2.3) and to permit the mid landlord and its surveyors to inspect the progress of the works (cl 2.4). The obligation at the heart of the present dispute is clause 2.5 which provided: By the expiration and sooner determination of the period of the Sub Lease (or as soon as the licence hereby granted shall become void) if so required by the Mid Landlord and at the cost of the Sub tenant to dismantle and remove the Works and to reinstate and make good the Premises and to restore it to its appearance at the date of entry under the Sub Lease, such reinstatement to be carried out in the same terms (mutatis mutandis) as are stipulated in this Licence with respect to the carrying out of the Works in the first place (including as to consents, the manner of carrying out works, reinstatement, inspection, indemnity, costs and otherwise). Counsel agreed that the word and (which I have underlined) should be read as or. The issue between the parties on that clause is whether the mid landlord had to put in writing before the expiration of the sub lease its requirement for the sub tenant to dismantle and remove the alterations and to reinstate the premises. This is because clause 5 of the Minute of Agreement stated: Obligations of Tenant incorporated into Lease That during the execution of the Works and when the same shall have been completed all the undertakings and obligations on the part of the Sub Tenant herein contained shall be deemed to be incorporated in the Sub Lease and the power of irritancy contained in the Sub Lease shall be construed and have effect accordingly. Finally, clause 7 provided that [e]xcept in so far as amended hereby the parties ratified and confirmed the whole terms of the sub lease. Counsel did not know whether and on what terms the head landlord had consented to the sub tenants alterations. Batleys claim and the decisions below Batley presented its claim on alternative bases: (a) Under the Minute of Agreement it claimed 253,766.44 for both the removal of the alterations and the repair of the sub let premises; and in the alternative (b) under clause 5 of the sublease, which imposed on the Council the obligations of clause 3.12 of the lease, it claimed 189,692.30 for repair of the sub let premises (excluding the removal of the alterations). The Council challenged the legal relevancy of Batleys case. Temporary Judge Wise QC concluded that Batley had pleaded a relevant case because she construed clause 2.5 of the Minute of Agreement as allowing Batley to communicate orally that it required the reinstatement of the sub let premises. She allowed the parties a proof before answer of their averments. Per incuriam in her interlocutor of 20 December 2011 she repelled the Councils plea to the relevancy (plea in law 1). The Extra Division (Lord Clarke, Lord Hardie and Lord Bonomy) in an opinion dated 7 November 2012 granted the Councils reclaiming motion and dismissed Batleys action. They held that absent a written notice before the expiry of the sub lease, the Council was not obliged under clause 2.5 of the Minute of Agreement to dismantle and remove the works and reinstate the sub let premises. They also held that Batley had not averred a relevant basis for its alternative claim. They referred to the Councils submission that Batley had not pleaded that they had given the Council any indication before the expiry of the sub lease that any work was required under clause 3.12 of the head lease. They concluded that Batley had no sufficient averments of the obligations for which it sought relief. Batley appeals to this court. This appeal I address the second basis ((b) in para 9 above) before I turn to Batleys primary case because it has a bearing on the construction of the provisions that are relevant to that case. I recognise that Batleys pleadings are not detailed but they refer to the Councils obligations under clause 5.1 of the sub lease in relation to the obligation to repair and quote the relevant part of clause 3.12 of the head lease, specifying the tenants obligation to repair and maintain the premises at all times throughout the period of [the] lease. Batley also avers that the necessary repair works were specified in the column described as costs ex strip out in the revised schedule of dilapidations. In my view the pleadings give notice of both the contractual basis of the claim and also, by reference to the revised schedule, the works which Batley asserts were required at the expiry of the sub lease to meet the obligation to repair. The question whether the identified works relate to the condition of the sub let premises within the period of the sub lease is a matter for proof. Before us, Mr Lindsay sought to defend the Extra Divisions dismissal of Batleys second basis on the grounds (i) that the claim arose under clause 2.5 of the Minute of Agreement which prevailed over the sub lease and required written notice, (ii) that Batleys claim was under clause 5.3 of the sub lease and it had not carried out the repair works which entitled it to reimbursement, (iii) that Batley had not averred that the defects occurred during the currency of the sub lease and (iv) that Batley had not given written notice to the Council of the requirement to repair and reinstate before the expiry of the sub lease. I can deal with the first three points shortly. First, clause 2.5 of the Minute of Agreement is focused on the removal of the licensed works. An overlap of the clause 2.5 obligations with the obligations under clause 5.1 of the sub lease does not impose a requirement of written notice as a trigger for the latter if none otherwise existed. Mr Lindsays submission drew on Batleys argument that there was a hierarchy of contractual documents with the Minute of Agreement at its peak. I do not accept that such a hierarchy exists; the Minute of Agreement is simply a means of giving consent under clause 5.7 of the sub lease. It is separate from rather than superior to the lease and the sub lease. Secondly, Batleys claim is under clause 5.1 of the sub lease (para 4 above) which obliges the Council to perform the mid landlords non monetary obligations in relation to the sub let premises. A claim for damages is available for breach of that obligation and exists alongside the mid landlords right to reimbursement under clause 5.3. If Batley has not carried out the works, a claim based on the estimated cost of those works may be a legitimate measure of its loss: Duke of Portland v Woods Trustees 1926 SC 640, per Lord President Clyde at 650 651. Thirdly, it is implicit in Batleys claim under clause 5.1 that it is asserting that the sums listed in the costs ex strip out column of the schedule of dilapidations relate to Batleys obligations under clause 5.1. The fourth point is important, because the Extra Division, in accepting the Councils submission, appear (in para 18 of their opinion) to have imposed on a landlord a hurdle that is not there. Clause 3.12 of the head lease, which obliges the tenant to repair, maintain and where necessary reinstate the premises in order to keep them in a tenantable condition at all times during the period of the lease, is an obligation to keep premises in (and put them into) a good condition. It imposes a continuing obligation on the tenant which does not require any notice from the landlord to activate it. It is well established that clauses of that nature have this effect. In Credit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803, Lindsay J stated (at 821g h) Whilst I accept the inevitability of the conclusion of the Court of Appeal in Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055 that one cannot have an existing obligation to repair unless and until there is disrepair, that reasoning does not apply to a covenant to keep (and put) into good and tenantable condition. One cannot sensibly proceed from no disrepair, ergo no need to repair to no disrepair, ergo no need to put or keep in the required condition. Leaving aside cases, such as this, where there is special provision for there to have been prior knowledge or notice in the covenantor, all that is needed, in general terms, to trigger a need for activity under an obligation to keep in (and put into) a given condition is that the subject matter is out of that condition. There are two first instance decisions by Lord Penrose that Scots law is to the same effect: Taylor Woodrow Property Co v Strathclyde Regional Council unreported, 15 December 1995, and Lowe v Quayle Munro Ltd 1997 SC 346, at 351. In my view they are correct. There is no requirement of notice from the landlord, in writing or otherwise, during the currency of a lease to trigger this obligation. I am satisfied therefore that Batley has pleaded a case on basis (b) that is relevant to go to proof before answer. Issues of fact, such as whether Batley has carried out the needed repairs, and, if it has, the legal consequences to its claim (which is based on estimated costs) can be addressed at that hearing. Batleys principal claim (basis (a) in para 9 above) depends on the correct construction of the Minute of Agreement. The question is whether Batley had to give written notice before the expiry of the sub lease of its requirement that the Council remove the licensed works. It is not straightforward as the document can bear more than one interpretation, but I conclude that no written notice was required. Mr Lindsay argued, first, that the Minute of Agreement should be read in the context of the lease and the sub lease, which each provided for notices, requests, demands and consents to be in writing: clause 5.8 of the head lease and clause 13 of the sub lease. Secondly, he submitted that it made commercial sense to have the requirement in writing so that the parties could be certain whether and to what extent the mid landlord required the sub tenant to remove the licensed works. The requirement for written notice was not burdensome and it would be anomalous if, in the context of the three contracts, written notification was not needed to impose this requirement. Accordingly, the Council argued that clauses 5 and 7 of the Minute of Agreement should be construed as incorporating the notice provisions of clause 5.8 of the head lease into the Minute of Agreement. Attractively presented though those submissions were, I am not persuaded. In Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, Lord Clarke of Stone cum Ebony stated (at para 21): [T]he exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. The starting point is the words the parties have chosen to use. See also Multi Link Leisure Developments Ltd v North Lanarkshire Council 2011 SC (UKSC) 53, Lord Hope at para 21. The words must be construed in the context of the Minute of Agreement as a whole and having regard to the admissible background knowledge, which is often called the factual matrix. Starting with the words of the Minute of Agreement, I note that the disputed words in clause 2.5 (if so required by the Mid Landlord) contrast with two provisions in the Minute of Agreement which expressly require written forms. First, there was the requirement in clause 2.1.2 that the sub tenant produce all needed permissions for alteration to the mid landlord and obtain the mid landlords written acknowledgement that it was satisfied with the permissions. Secondly, clause 3 empowered the mid landlord to nullify the licence if the sub tenant did not complete the works within the time limit of 16 weeks or breached its undertakings and obligations and failed to remedy such breaches within a reasonable period following a notice by the Mid landlord to the Sub tenant specifying the breach complained of (my emphasis). Other provisions in the Minute of Agreement did not expressly require writing. Thus in clause 2.1.3 the sub tenant was to give such information as might be reasonably required by the mid landlord that it had complied with its undertakings and obligations before commencing the licensed works. Clause 2.2.2 obliged the sub tenant to notify the mid landlord after the commencement and the completion of those works. The concluding words of clause 2.5, which deal with the reinstatement works, incorporated the provisions of clause 2 (including 2.1 and 2.2). It appears that in this document the parties stated expressly when a communication had to be in writing and when more informal communication was permitted. Further, contrary to the Councils submission, nothing was incorporated into the Minute of Agreement. Clause 5 (para 7 above) deemed the undertakings and obligations on the part of the Sub Tenant herein contained to be incorporated into the sub Lease. The purpose of that deemed incorporation is clear in the concluding words of clause 5: it was to give the mid landlord the power of irritancy (forfeiture) of the sub lease if the sub tenant breached its obligations under the Minute of Agreement. In my view the Councils case depends on a rather convoluted argument that clause 5 of the Minute of Agreement subjected clause 2.5 to the requirement of writing (in clause 5.8 of the head lease) because the sub tenants obligation in that clause was conditional upon the mid landlord requiring the sub tenant to remove the licensed works. I strongly prefer the simpler construction of clause 5 of the Minute of Agreement. Clause 7 of the Minute of Agreement is in my view neutral on the issue that divides the parties. The Minute of Agreement was not a deed of variation of the sub lease and I do not construe it as having amended the sub lease at all. But if I am wrong and the sub lease was amended, clause 7, which is a saving provision, limits the amendment to the deemed incorporation. It does not tell what was so incorporated. It is also relevant to see the Minute of Agreement in its context as a document required by clause 5.7 of the sub lease: the mid landlords consent to the sub tenants works. The Minute of Agreement exists in the context of the head lease and the sub lease, both of which are part of the factual matrix. But it is a separate contract and, as I have said, the starting point is the words which it contains. Those words point towards the conclusion that writing was not required for communications in all circumstances. The fact that the communications in the head lease and the sub lease that fell within the scope of clause 5.8 of the former had to be in writing does not overturn that conclusion. I do not think that the construction which I favour lacks business common sense. On the contrary. First, as I have said, clause 5 of the Minute of Agreement states the commercial purpose of the deemed incorporation of the obligations into the sub lease: to give the mid landlord the power of irritancy. Secondly, the context is important; the landlord would require the removal of the licensed works only at the end of the sub lease, when the sub tenant would have to address its separate and continuing obligation to keep the property in repair. See para 14 above. Intimation by or on behalf of the mid landlord that it required the removal of the licensed works required no formality. A sub tenant that conscientiously addressed its mind to its obligations under clause 5.1 of the sub lease to keep the sub let premises in repair could readily respond to an intimation by the mid landlord or its surveyor that it include the removal of the licensed works in the works it carried out at the end of the sub lease. If in doubt, it could ask the mid landlord. The benefits of certainty, which Mr Lindsay emphasised, do not make the Councils interpretation of the Minute the only commercially sensible construction. I am therefore satisfied that the Minute of Agreement did not require the mid landlord to give written notice of its requirement that the licensed works be removed at the end of the sub lease. Batley avers that it instructed a named firm of chartered surveyors to produce a schedule of dilapidations and that on 22 December 2008 a named surveyor from that firm informed a named official of the Council that the mid landlord would be requiring the reinstatement of the premises to their original condition. Those averments meet the well known test of relevancy in Jamieson v Jamieson 1952 SC (HL) 44, Lord Normand at 49 50. The appellant is not to plead evidence; and as the Council can not only enquire of its official but also take steps to recover from Batley and the surveyor any documents relevant to those averments, there is no unfair lack of notice of the case Batley seeks to prove. I would allow the appeal. I would also reinstate defenders plea to the relevancy (plea in law 1) as the parties agreed that the appropriate disposal is proof before answer.

UK-Abs

This appeal from an Extra Division of the Court of Session raises two issues of contractual construction in documents relating to the letting of commercial premises at 1 and 3 South Wardpark Place, Wardpark South Industrial Estate, Cumbernauld, Scotland. The appellant (Batley) was the mid landlord of sub let premises and the respondent (the Council) was the sub tenant. Batley and the Council disagreed on whether the Council was obliged to remove its alterations and reinstate the sub let premises on the expiry of the sub lease when the request to do so was made orally by Batleys surveyor and not put in writing in a schedule of dilapidations or otherwise before the sub lease expired. The two issues were a) whether under a minute of agreement that authorised alterations to the sub let premises Batley was obliged to give written notification that it required the Council to remove the alterations and reinstate the sublet premises; and b) whether under the repairing obligation in the head lease, which was applied to the sub lease, Batley had to give a written notification that it required the Council to carry out the repairs before the expiry of the sub lease. The Extra Division dismissed Batleys claim on the basis that it was irrelevant, meaning that Batleys pleadings did not, on the face of them, set out a claim that was properly founded in law. As the repairing obligation in the head lease was in terms commonly used in commercial leases, this appeal raises an issue of law of general importance. The Supreme Court unanimously allows the appeal. It also allows a proof before answer of the appellants case. This means that the question whether the appellants have made out a good case in law will be reserved pending an evidential hearing in the Court of Session. Lord Hodge gave a judgment with which the rest of the Justices agree. The Court first addressed basis (b) of Batleys claim. Batleys pleadings on this issue were sufficiently detailed to give notice of both the contractual basis of the claim and also, by reference to the revised schedule, the works which Batley asserts were required at the expiry of the sub lease to meet the obligation to repair. [11] This basis was also sound in law. The Extra Division, in accepting the Councils submission, appeared to have imposed on the landlord a hurdle that was not there. The head lease obliged the tenant to repair, maintain, and where necessary reinstate the premises in order to keep them in a tenantable condition at all times during the period of the lease. That obligation to keep premises in (and put them into) a good condition was a continuing obligation of a sort that, it was well established, did not require any notice from the landlord to activate it. [14] Basis (b) of Batleys claim was therefore relevant to go to proof before answer. Issues of fact, such as whether Batley has carried out the needed repairs, and, if it has, the legal consequences to its claim (which is based on estimated costs) could be addressed at that hearing. [15] Basis (a) depended on whether Batley had to give written notice before the expiry of the sub lease of that it required the Council to remove the licensed works. It was not straightforward, as the document could bear more than one interpretation, but the Court concluded that no written notice was required. [16] The words had to be construed in the context of the Minute of Agreement as a whole and having regard to the admissible background knowledge, which is often called the factual matrix. [18] Starting with the words of the Minute of Agreement, the Court noted that the disputed words in clause 2.5 (if so required by the Mid Landlord) contrasted with two provisions in the Minute of Agreement that expressly required written forms. So the parties appeared to state expressly in this document when a communication had to be in writing and when less formal communication was permitted. [19] Further, contrary to the Councils submission, no requirement for written notice was incorporated into the Minute of Agreement. That submission depended on a convoluted argument that clause 5 of the Minute of Agreement subjected clause 2.5 to the requirement of writing (in clause 5.8 of the head lease) because the sub tenants obligation in that clause was conditional upon the mid landlord requiring the sub tenant to remove the licensed works. The Court strongly preferred the simpler construction of clause 5 of the Minute of Agreement. [21] It was also relevant to see the Minute of Agreement in its context as a document required by clause 5.7 of the sub lease: the mid landlords consent to the sub tenants works. The Minute of Agreement existed in the context of the head lease and the sub lease, both of which were part of the factual matrix. But it was a separate contract and the starting point was the words it contained. Those words pointed towards the conclusion that writing was not required for communications in all circumstances. The fact that the communications in the head lease and the sub lease that fell within the scope of clause 5.8 of the former had to be in writing did not overturn that conclusion. [23] Moreover, this made business common sense. First, the commercial purpose of the deemed incorporation of the obligations into the sub lease was stated in clause 5 to be to give the mid landlord the power of irritancy. Secondly, the context was important; the landlord would require the removal of the licensed works only at the end of the sub lease, when the sub tenant would have to address its separate and continuing obligation to keep the property in repair. An indication that the mid landlord wanted the licensed works removed required no formality. A sub tenant that conscientiously addressed its mind to its obligations under clause 5.1 of the sub lease to keep the sub let premises in repair could readily respond to an intimation by the mid landlord or its surveyor that it include the removal of the licensed works in the works it carried out at the end of the sub lease. If in doubt, it could ask the mid landlord. The benefits of certainty, which the Council emphasized, did not make its interpretation of the Minute the only commercially sensible construction. [24] The Court was therefore satisfied that the Minute of Agreement did not require the mid landlord to give written notice of its requirement that the licensed works be removed at the end of the sub lease. Batley averred that it instructed a named firm of chartered surveyors to produce a schedule of dilapidations and that on 22 December 2008 a named surveyor from that firm informed a named official of the Council that the mid landlord would be requiring the reinstatement of the premises to their original condition. Those averments met the well known test of relevancy in Jamieson v Jamieson 1952 SC (HL) 44, per Lord Normand at 4950. The appellant was not to plead evidence; and, as the Council could not only enquire of its official but also take steps to recover from Batley and the surveyor any documents relevant to those averments, there was no unfair lack of notice of the case Batley sought to prove. [25]

On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18 months in prison for robbery. He was entitled to automatic release on licence after serving half his sentence, ie on 5 July 2011. However, on 21 February 2011, he was released on licence under a so called home detention curfew pursuant to section 246 of the Criminal Justice Act 2003. On 7 April 2011, the Secretary of State decided to revoke the licence under section 255 of the 2003 Act, because the appellants whereabouts could no longer be monitored in the community, and he was recalled to prison. The decision of the Secretary of State was not subject to any statutory judicial control or review. The question raised on this appeal is whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the 2003 Act, has rights pursuant to article 5(4) of the European Convention of Human Rights. More broadly, the appeal raises the issue of how far it is open to a person who is still serving a sentence imposed by a court to invoke article 5(4). The relevant domestic law All the statutory provisions relevant to this appeal are in the 2003 Act, but, as has been regrettably familiar in the field of criminal law, the provisions have been successively amended or added to by subsequent legislation. As these amendments and additions do not affect the analysis of the arguments or the outcome, I shall describe the provisions in their current form, namely as amended most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Where a person has been convicted and given a determinate prison sentence of twelve months or more (a sentence period), section 244(1) provides that, subject to certain specified exceptions, once he has served half his sentence, it is the duty of the Secretary of State to release him on licence. Section 244(3) defines the first half of the sentence period as the requisite custodial period, at the end of which he is thus entitled to be released on licence. A prisoner may also be released on licence during the requisite custodial period under section 246(1), which, so far as is relevant, is in the following terms: Subject to subsections (2) to (4), the Secretary of State may release on licence under this section a fixed term prisoner at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period. Subsection (2) limits this power in relation to short sentences, and subsection (4) excludes the operation of subsection (1) in certain other cases, including cases where (aa) the sentence is for four years or more and (g) the prisoner has been released on licence under this section at any time and has been recalled to prison under section 255(1)(a). Section 250(4) states that any licence (a) must include the standard conditions, which are stated to be such conditions as may be prescribed, and (b) may include (i) any condition authorised by certain other statutes, and (ii) such other conditions of a kind prescribed by the Secretary of State as [he] may for the time being specify in the licence. Section 250(5) provides that a licence granted under section 246 must be subject to a curfew condition in accordance with section 253, which is in the following terms: (1). [A] curfew condition is a condition which (a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified . and (b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified. (2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than 9 hours in any one day . (3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244. Thus, a curfew condition cannot operate beyond the end of the requisite custodial period, the point at which the prisoner would in any event be entitled to be released. The place specified in a persons licence is normally his home, and for that reason a licence under section 246 is often known as home detention curfew. By virtue of section 249, a licence, whether under section 244 or 246, remains in place until the end of the sentence period, unless the licence is revoked and the person subject to the licence (the licensee) recalled. The Secretary of State has the power to revoke a licence and recall a licensee back to prison pursuant to two different statutory provisions. First, section 254(1) of the 2003 Act gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. Where the power of revocation is exercised under section 254(1), the licensee is entitled pursuant to section 254(2) to be told the reasons for his recall and to make representations to the Secretary of State, who can cancel the revocation of the licence under section 254(2A). Sections 255A 255C contain provisions which apply when a licence is revoked under section 254(1) and the revocation is not cancelled. In general terms, in such an event, the Secretary of State may release the former licensee, if satisfied that he will not present a risk of serious harm to the public, and, if she is not so satisfied, she must refer the case to the Parole Board for a binding ruling within that period if the prisoner makes representations. If there is no such release, the Secretary of State must refer the question of the former licensees release to the Parole Board within 28 days of his return to custody see sections 255B(4) and 255C(4). Secondly, section 255(1) confers a specific power on the Secretary of State to revoke a section 246 licence or home detention curfew, and it provides as follows: (1) If it appears to the Secretary of State, as regards a person released on licence under section 246 (a) that he has failed to comply with any condition included in his licence, or (b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence, the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section. Thus, the power of recall under section 255 can only be exercised whilst the curfew condition is in force ie until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right. (Thereafter, the licence can only be revoked under section 254). Further, section 255(2) provides for a licensee to be given the reasons for his recall and the opportunity to make representations to the Secretary of State, who can cancel the revocation pursuant to section 255(3). However, unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of States section 255 power of recall. Accordingly a prisoner can be recalled under section 255 even if he has fully complied with the conditions of the licence. The procedural safeguards are that the recalled prisoner must be given reasons for the recall and be able to make representations about them. So the statutory position in relation to determinate sentences is, in outline, as follows: a) All prisoners are entitled to release on licence after serving b) half their sentence; If recalled, a prisoner is either entitled to re release after 28 days or to referral to the Parole Board, whose decision on re release is binding; c) There may be discretionary release, sanctioned by the Secretary of State, for the limited period of up to 135 days before the prisoner becomes entitled to release at the half way mark in his sentence. d) This discretionary release is also on licence but the licence must additionally incorporate Home Detention Curfew terms. e) During the period of the discretionary release, the prisoner may be recalled not only for breach of licence or demonstrated risk to the public but also because the Home Detention Curfew system cannot be made to work in his case. He must be given the reasons and is permitted to make representations to the Secretary of State. f) Such recall within the limited period of up to 135 days is not subject to Parole Board or court review, but g) So soon as the half way stage in his sentence is reached, the automatic Home Detention Curfew terms fall away and the rules set out at (a) and (b) apply. There are quite separate rules for prisoners serving indeterminate terms, where the criteria for release on licence, recall or re release on licence are largely geared to current risk to the public; in such cases all decisions are referable to the Parole Board whose ruling is binding. Article 5(4) of the Convention The short point raised in this appeal is whether a recall to prison under section 255, without a right of review by the Parole Board or any other judicial body, is consistent with article 5(4) of the Convention. Article 5(1)(a) of the Convention provides as follows: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court . Article 5(4) states: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. As Elias LJ observed below in para 12, there is a close relationship between these two provisions. Article 5(1)(a) recognises the right to liberty, and provides that a person should not lose his liberty save by being lawfully detained following a conviction by a tribunal which is judicial in character. Article 5(4) confers an associated right on a detained person to challenge the lawfulness of his detention before a tribunal which is judicial in character, and to have effect given to the decision of that tribunal. The parties respective cases The case for each party is simple. The appellant contends that, as a result of the licence granted on 21 February 2011, he regained his liberty, and the subsequent revocation of the licence and his consequent recall to prison on 7 April 2011 therefore constituted a deprivation of his liberty which infringed article 5(4), because, having been effected under section 255 pursuant to a decision of the Secretary of State, its lawfulness was not decided speedily, or indeed at all, by a court. The Secretary of State, on the other hand, argues that, at least where, as in this case, the sentence in question is determinate, in any case where a prisoner, who has been released on licence, is recalled to prison during the currency of his sentence period, or at any rate during the requisite custodial period, the requirements of article 5(4) are satisfied by the original sentence lawfully passed by the court by which he was originally imprisoned. Somewhat counter intuitively, the appellant relies on domestic authority, and in particular on the decision of the House of Lords in R (Smith and West) v Parole Board [2005] 1 WLR 350 (West), whereas the Secretary of State relies on the jurisprudence of the Strasbourg court. In my opinion, it is right to start by considering the Strasbourg case law, and then turn to the domestic decisions. The Strasbourg jurisprudence on article 5(4) para 76, the Strasbourg court said this: In De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, [T]he purpose of article 5(4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected . Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that article 5(4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by article 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after conviction by a competent court . It may therefore be concluded that article 5(4) is observed if the arrest or detention is ordered by a court within the meaning of [article 5(4)]. This reasoning was distinguished by the court in X v United Kingdom (1982) 4 EHRR 188, para 51 in relation to indeterminate sentences, where the court held that, while this observation applied to an ordinary, determinate, sentence, it does not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise. In Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 47, the court pointed out that an indeterminate sentence involved placing recidivists and habitual offenders at the Governments disposal, which required the Minister of Justice to direct his mind to the need to deprive or continue to deprive the person concerned of his liberty. In such a case, article 5(4) was engaged, and it required judicial review, at reasonable intervals, of the justification for the deprivation of liberty The effect of the reasoning in De Wilde is demonstrated by two admissibility decisions of the Strasbourg court. In Ganusauskas v Lithuania (Application No 47922/99, 7 September 1999), the applicant, who had been sentenced to six years in prison for obtaining property by deception, complained about the fact that the District Court permitted the prosecutor to appeal out of time against a decision to release him conditionally after he had served half his sentence as a model prisoner (a decision which the District Court then reversed). The Third Section rejected as inadmissible his contention that his rights under articles 5(1), 5(4) and 6 had been infringed. Relying on De Wilde, the court said that article 5(4) only applies to proceedings in which the lawfulness of detention is challenged, and added that [t]he necessary supervision of the lawfulness of the detention after conviction by a competent court, as in the present case, is incorporated at the outset in the applicants original trial and the appeal procedures against the conviction and sentence. In Brown v United Kingdom (Application No 986/04, 26 October 2004), the applicant, who had been sentenced to eight years in prison for supplying heroin, was released on licence after serving two thirds of his sentence. He was then recalled on the grounds of changing his residence without approval and posing a risk to others. His representations to the Parole Board were rejected, as was his subsequent attempt to seek judicial review. His application, based on the contention that his rights under articles 5(1), 5(4), 6 and 8 had thereby been infringed, was rejected as inadmissible by the Fourth Section, which said this so far as article 5(4) is concerned: [W]here an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures. No new issues of lawfulness concerning the basis of the present applicants detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5(4) of the Convention. Mr Southey QC, for the appellant, argued that, in each of these two cases, the applicants reliance on article 5(4) could have been rejected on the ground that he had had the opportunity to challenge his recall to prison (in opposition to the prosecutors appeal to the District Court in Ganusauskas, and to the Parole Board and, arguably, through his application for judicial review, in Brown). That may well be right, but it does not in any way undermine the fact that, in each case, the court rejected the article 5(4) complaint on the ground that the article did not apply at all in circumstances where the recall to prison occurred during the period of a determinate sentence imposed for the purposes of punishment. I would add that the reference to punishment cannot have been intended to mean solely for punishment: determinate prison sentences are imposed for a mixture of reasons, each of which should, at least normally, be treated as applicable to the whole of the sentence period. Domestic jurisprudence on article 5(4) In R (Giles) v Parole Board [2004] 1 AC 1, the House of Lords held that article 5(4) was not infringed in a case where the appellant had been sentenced (under statutory provisions which have now been superseded) to a determinate but increased term to recognise the risk to the public which he represented. He had served what would have been the unincreased period but remained in prison. Relying on the reasoning in De Wilde and Van Droogenbroeck, it was held that, because the protective period had been imposed as part of the original sentence and was not subject to any control by the executive, but could be reviewed by the parole board, a judicial body, it did not infringe article 5(4). In his opinion (with which the other members of the committee agreed), at para 40, Lord Hope described the effect of the Strasbourg jurisprudence (which he analysed in the thirteen preceding paragraphs) as being that: [A] distinction is drawn between detention for a period whose length is embodied in the sentence of the court on the one hand and the transfer of decisions about the prisoner's release or re detention to the executive. The first requirement that must be satisfied is that according to article 5(1) the detention must be lawful. That is to Lord Hope expanded on the effect of this distinction at para 51, in these say, it must be in accordance with domestic law and not arbitrary. The review under article 5(4) must then be wide enough to bear on the conditions which are essential for a determination of this issue. Where the decision about the length of the period of detention is made by a court at the close of judicial proceedings, the requirements of article 5(1) are satisfied and the supervision required by article 5(4) is incorporated in the decision itself. That is the principle which was established in De Wilde, Ooms and Versyp. But where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. terms: Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary. Lord Hutton (with whom the other members of the committee also agreed) expressed the same view after analysing the Strasbourg jurisprudence in paras 65 79. In West [2005] 1 WLR 350, the two appellants were licensees who had been recalled to prison for alleged breaches of their respective licences, which had been granted under what was effectively the statutory predecessor of section 244(1). Thus, they had each served a sufficient proportion of their respective sentences to be entitled to be released on licence. In each case, the Parole Board had decided not to recommend re release, having refused to grant an oral hearing to consider the contention that the revocation of the licence was unjustified and that the licensee should be re released. The primary decision of the House of Lords was that the Parole Board had a common law duty to act fairly, both substantively and procedurally, when considering whether the revocation of a licence was justified, and that this would normally require an oral hearing where questions of fact were in issue see per Lord Bingham at paras 28 35. However, as Mr Southey rightly says, the House of Lords did consider the applicability of article 5. In para 36, Lord Bingham held that article 5(1) did not apply as the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall. In para 37, he turned to article 5(4), and appears simply to have assumed that it applied to the proceedings before the Parole Board, and went on to hold that the requirements of the article were satisfied by its statutory power, provided it is conducted in a manner that meets the requirement of procedural fairness already discussed. In para 37, Lord Bingham does not appear to have considered the effect of Ganusauskas or Brown, although he specifically cited and relied on them in para 36 in relation to article 5(1) and indeed in relation to article 6 in paras 40 and 42. Lord Hope agreed with Lord Bingham and while he also referred in para 81 to Ganusauskas and Brown in connection with article 6, he similarly appears to have assumed, at paras 72 75, that article 5(4) applied without considering whether that was consistent with those admissibility decisions or indeed with what he had said in Giles (which was cited in argument but not relied on in the judgments see [2005] 1 WLR 350, 351 352). Lord Walker and Lord Carswell simply agreed with Lord Bingham. Lord Slynn, who dissented in part, described his initial view as being that there are not two formal orders for detention as that recall from conditional release was itself empowered by the initial sentence of the court, but said that he had been persuaded by Mr Fitzgerald that this is too restrictive an approach paras 54 55. He justified this conclusion by reference to the decision of the Strasbourg court in Weeks v United Kingdom (1987) 10 EHRR 293, para 40. In R (Black) v Secretary of State for Justice [2009] 1 AC 949, the House of Lords considered a case where the respondent, who, after having been sentenced to 24 years in prison, had become eligible to be considered for discretionary release on licence. Under the statutory scheme then in force, he was eligible for discretionary release on licence after serving half his determinate sentence, but became entitled to it only after serving two thirds. Although the Parole Board recommended that he be released, the Secretary of State decided that the risk of re offending was too great. By a majority of four to one, the House rejected the respondents contention that his rights under article 5(4) were infringed. In the course of their reasoning, the Law Lords had to grapple with the argument that the decision in West in relation to article 5(4) was inconsistent with the reasoning of the Strasbourg court in Ganusauskas and Brown, as explained by Lord Hope in Giles. Lord Rodger, with whom Baroness Hale agreed, said that he agreed with Lord Brown, but explain[ed] shortly how [he saw] the position in the light of t[the English and Strasbourg] cases para 37. Relying on the constant jurisprudence of the European Court of Human Rights conveniently summarised by Lord Hope in Giles at para 40, he held that the answer to the question whether article 5(4) gives a long term prisoner, with a determinate sentence , the right to take legal proceedings at the halfway stage of his sentence, to determine the lawfulness of his continued detention was No paras 45 46. Lord Carswell referred to Lord Hopes observations in Giles, and then contrasted cases such as Van Droogenbroeck, where the executive authority possessed a discretion over the time when the prisoner would be released, which was not fixed at the outset by any judicial decision, with cases such as Ganusauskas and Brown, where the lawfulness of the detention was incorporated at the outset in the applicants original trial and the appeal procedures against conviction and sentence para 57. Lord Brown, with whom Baroness Hale agreed, considered the Strasbourg jurisprudence at paras 66 71, explaining at paras 66 67 that, so far as article 5 was concerned, the Strasbourg court has consistently appeared to treat determinate sentences quite differently from indeterminate sentences. He then considered the domestic decisions, including Giles and West, at paras 71 77. He next turned to his [c]onsiderations and conclusions, which he set out in paras 78 84. He stated at para 81 that [t]here is nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision. He then said that the fact that, by statute, the UK had chosen to give the Parole Board a role in the process, and statutory directions as to how to approach that role, and has chosen to fix precisely the period within a determinate sentence during which the prisoner is to be considered for parole [did not] mean that article 5(4) is necessarily thereby engaged so that the boards decision must be final paras 82 83. He explained this in para 83, where he said that [t]he administrative implementation of determinate sentences does not engage article 5(4); the decision when to release a prisoner subject to an indeterminate sentence does. However, in the course of his discussion of the domestic cases, Lord Brown did refer to the apparent conflict between Ganusauskas and Brown on the one hand and West on the other, in para 74, where he said this: Inescapably it follows from West that contrary to the view expressed in the Strasbourg courts admissibility decision in Brown, a prisoners recall for breach of his licence conditions does raise, new issues affecting the lawfulness of the detention such as to engage article 5(4). And that seems to me clearly correct: it would not be lawful to recall a prisoner unless he had breached his licence conditions and there could well be an issue as to this. I wonder, indeed, if the European Court would have decided Brown as they did had it followed, rather than preceded, the House's decision in West. Be that as it may, recall cases certainly so far as domestic law goes, are to be treated as akin both to lifer cases in the post tariff period and to the Van Droogenbroeck type of case where, upon the expiry of the sentence, a prisoner is subjected to an executive power of preventive detention. Lord Phillips, who dissented, effectively relied on the reasoning in West, on the basis that: This decision is in direct conflict with the reasoning of the Strasbourg court in Brown v United Kingdom. Lord Brown considers that its effect should be confined to the decision whether to release a prisoner after recall. I can see no reason for so confining it; the reasoning is applicable to any decision whether to release a prisoner on licence. (para 28) Discussion If one limits oneself to the decisions of the Strasbourg court to which I have referred, and the reasoning in Giles quoted above, the law appears to me to be clear. Where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). This is because, for the duration of the sentence period, the lawfulness of his detention has been decided by a court, namely the court which sentenced him to the term of imprisonment. That does not appear to me to be a surprising result. Once a person has been lawfully sentenced by a competent court for a determinate term, he has been deprived of his liberty in a way permitted by article 5(1)(a) for the sentence term, and one can see how it follows that there can be no need for the lawfulness of his detention during the sentence period to be decided speedily by a court, as it has already been decided by the sentencing court. If that is the law, it would follow that Mr Whistons appeal in this case must fail. On this approach, article 5(4) could not normally be invoked in a case where domestic discretionary early release provisions are operated by the executive in relation to those serving determinative terms. I accept that, in the absence of the clear Strasbourg jurisprudence, there would be an argument for saying that article 5(4) should apply in such cases. However, as already observed, the notion that the article is not engaged because of the original sentence appears entirely principled, and the consequence that a person under such a regime has to rely on his domestic remedies, at least unless other Convention rights are engaged, seems to me to be not unreasonable in practice. However, the issue is complicated by the decision of the House of Lords that article 5(4) was engaged in West, because, if the legal analysis just summarised were correct, article 5(4) would not have been engaged in West. I am bound to say that the decision in West appears to me to be unsatisfactory in relation to article 5(4) and, it should be emphasised, only in relation to article 5(4). First, although the relevant Strasbourg cases were cited in the judgments they were not followed on this point, and, save in the opinion of Lord Slynn, there was no explanation why not. Secondly, although Giles was referred to in argument, it was not cited in any opinion, and therefore no consideration appears to have been given to the observations of Lord Hope quoted above. Thirdly, at least in the four majority judgments it was not so much decided that article 5(4) was engaged; rather, it seems to have been simply assumed. Fourthly, in the fifth judgment, Lord Slynns explanation as to why he departed from his initial view that article 5(4) was not engaged was, with respect, plainly unsatisfactory, as the Strasbourg decision he relied on, Weeks, was a case involving an indeterminate sentence. When one turns to Black, the position can be said to be yet murkier. In their opinions, Lord Rodger (although he agreed with Lord Brown) and Lord Carswell steered clear of West, and simply treated the law on article 5(4) to be as stated by Lord Hope in Giles, para 40 (and, in the case of Lord Carswell, by the Strasbourg court in Van Droogenbroeck, Ganusauskas, and Brown). Lord Brown and Lord Phillips both considered that, so far as article 5(4) was concerned, West was inconsistent the Strasbourg jurisprudence. Lord Phillips (dissenting in the result) preferred to follow West, whereas Lord Brown in an obiter observation, preferred to limit the scope of West. The question, then, is what we should do about this unsatisfactory state of affairs. Mr Southey argues that we should follow Lord Browns approach in his obiter dictum in Black at para 73, and to conclude that article 5(4) applies in this case because Mr Whiston is seeking to be released after recall. Ms Lieven QC, for the Secretary of State, argues that we should follow the Strasbourg jurisprudence, as explained and applied in Giles, and hold that Mr Whiston cannot invoke article 5(4), as, so long as his sentence period was running, it had been satisfied by the sentence which was imposed at his trial. I have reached the clear conclusion, in agreement with the Court of Appeal, that we should reach the conclusion advocated by Ms Lieven. As already explained, it clearly appears to be the conclusion which the Strasbourg court would reach. The fact that Ganusauskas and Brown were admissibility decisions strengthens their force rather than weakens it: in each case, the court considered the applicants argument on article 5(4) to be so weak, for the reasons it gave, that it was not even worth proceeding to a decision. I have some difficulty with the notion, implied by Lord Brown in para 74 of Black, that a court in this country should hold that the reach of article 5(4) is, as it were, longer than the Strasbourg court has held. Assuming (as may well be right, and will no doubt have to be considered in a future case) that a United Kingdom court could, in principle, decide that article 5(4) applied in Mr Whistons case in the face of clear Strasbourg jurisprudence that it would not, I am quite unconvinced that it would be appropriate to do so. Unless and until I am persuaded otherwise on the facts of a particular case, it seems to me that the common law should be perfectly well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention. The decision in West demonstrates that the common law affords protection in such circumstances, and Lord Browns actual conclusion in Black underlines the very limited nature of any exception which he had in mind in his obiter observations. It would be wrong not to confront squarely the decision in West on article 5(4) and Lord Browns obiter dictum in Black, para 74. As Elias LJ said at [2014] QB 306, para 1, there is a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage article 5(4). As he added, [p]roblems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices. I believe that this makes it particularly important that we grasp the nettle and hold that (i) the decision in West was per incuriam so far as it involved holding (or assuming) that article 5(4) was engaged, and (ii) the obiter dictum of Lord Brown in Black, para 74 is wrong in so far as it suggests that the law of the UK in relation to article 5(4) differs from the Strasbourg jurisprudence as summarised by Lord Hope in Giles, paras 40 and 51. So far as West is concerned, I have already identified certain problems in para 41 above. Furthermore, and importantly, it is not as if the actual decision in West thereby stands in any way impugned. As the headnote records, at [2005] 1 WLR 350 351, the conclusion reached by the House of Lords was primarily based on the appellants common law rights, as is reflected in Lord Binghams opinion, which devotes nine paragraphs to the common law and one to article 5(4). I suspect that the reason that the appellants Convention rights were considered was that one of the appellants had not relied on the common law in the Court of Appeal (see para 33). Properly analysed, all five opinions in Black support the view that West was per incuriam to the extent I have suggested. Lord Phillips and Lord Brown both expressly said it is inconsistent with the Strasbourg jurisprudence, and Lord Rodger and Lady Hale agreed with Lord Brown. Lord Rodger (with whom Lady Hale also agreed) and Lord Carswell each made it clear that they regarded the law as accurately set by Lord Hope in Giles, which is inconsistent with West so far as the applicability of article 5(4) is concerned. As to Lord Browns observation in Black at para 74, apart from being no more than an obiter dictum, it is inconsistent with the analyses of Lord Rodger and Lord Carswell in the same case. I must also confess that, in agreement with Lord Phillips, it seems rather hard to reconcile the reasoning which led Lord Brown to dismissing the appeal with his observations in para 74. It is true that Lord Rodger and Baroness Hale agreed with Lord Brown, but I do not think it would be right to take such a general agreement as approving every sentence in Lord Browns opinion, at least in so far as a sentence is not part of his [c]onsiderations and conclusions. Quite apart from that, it does not appear to have been argued in Black that it was wrongly held or assumed in West that article 5(4) was engaged, and therefore it is unsurprising that, in so far as they considered West, the opinions in Black proceeded on the basis that it was rightly decided. Indeed, the inconsistencies and uncertainties on this issue engendered by the opinions in Black appear to me to support the view that West was wrong in so far as it held or assumed that article 5(4) was engaged. Having had the benefit of reading Lady Hales judgment, I would add that it may be that the Strasbourg court would want to reconsider their jurisprudence, but, at the moment, it appears to me that it has the effect discussed above. Conclusion For these reasons, which reflect the reasons expressed in the very clear judgment of Elias LJ in the Court of Appeal, I would dismiss this appeal. LADY HALE I agree that this appeal should be dismissed but I wish to sound a note of caution about some of the reasoning which has led Lord Neuberger to reach that conclusion. In my view, the present law draws a principled distinction between those determinate prisoners who have reached the point in their sentence at which they are entitled to be released on licence and those who have not. If the former are recalled from their licence, and their representations to the Secretary of State fall on deaf ears, they are entitled to have their case referred to the Parole Board. The latter, whose release on licence was discretionary, are not. In Brown v United Kingdom (unreported, Application No 986/04, 26 October 2004) the Strasbourg court pointed out that there was a crucial distinction between prisoners serving a determinate sentence of imprisonment and those serving a life sentence. Once the latter had served the punishment part of their sentences, the reason for detaining them was not to punish them for their original offence but because they posed a continuing risk to the public. Hence article 5(4) required that their continued imprisonment had be subject to periodic judicial scrutiny. A determinate sentence, on the other hand, had been imposed by a court as punishment for the offence and that justification continued for its duration. The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re offending (page 5). The court went on to say that The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis (page 5). However, the position in our law is rather stronger than an expectation of release on licence. The prisoner is legally entitled to be released at a certain point in his sentence. This is irrespective of the risk that those responsible for his imprisonment may consider that he poses to the public. In a very real sense, therefore, the sentence imposed by the court as punishment for the offence is half the actual term pronounced by the judge (and indeed the judge has to explain this to him when imposing it). I appreciate, of course, that the judge imposes the sentence which he or she thinks correct, without regard to the right to early release. The whole of the sentence is intended as punishment. Once released at the nine month point, the prisoner remains liable to recall for the remainder of the term. However, the reasons for his recall could then be subject to scrutiny by the Parole Board, which will focus upon whether or not he poses a risk of re offending or otherwise endangering the public. Thus it can be said that, once a prisoner has passed the point of mandatory release on licence, the basis for any later recall and detention is the risk of reoffending rather than the original order of the court, and article 5(4) applies. Drawing this distinction is in fact consistent with the results of the domestic authorities. In R (Giles) v Parole Board [2004] 1 AC 1, Mr Giles had been sentenced to term of imprisonment totalling seven years which was longer than commensurate with the offences he had committed. He was entitled to be considered for parole after he had served half of this and to be granted parole after he had served two thirds. His complaint related to the absence of automatic reviews once he had served whatever period the judge had thought commensurate with the gravity of his offending (which the judge was not required to and did not specify). The issue was whether a determinate sentence which was partly punitive and partly preventative was in the same category as an indeterminate sentence and thus incompatible with article 5(4) unless (at least after the commensurate part had been served) there was a review before a judicial body with power to order release. The issue was not whether a prisoner who had been released, still less a prisoner with the right to be released, had the same rights as an indeterminate prisoner if recalled. Furthermore, it is difficult to characterise the position after a prisoner has reached the point of mandatory release as simply the administration of the sentence which has been imposed by the court. Parliament has decided that the prisoner is entitled to release and the criteria for recall and re release are quite different from those which led the judge to impose the original sentence. In R (West) v Parole Board [2005] 1 WLR 350, Mr West and Mr Smith were recalled after their mandatory release. As with the more recent case of R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, the case was concerned with the procedures to be adopted by the Parole Board when considering whether they should be re released, and specifically whether the prisoner should be given an oral hearing. Although the opinions concentrate upon the common law requirements of fairness, I do not find it at all surprising that Lord Bingham appears to have taken it for granted that article 5(4) applied. Lord Slynn required to be convinced of that, but was persuaded by the analogy with the recall of a prisoner serving an indeterminate sentence. In Weeks v United Kingdom (1988) 10 EHRR 293, the Strasbourg court had held that article 5(4) applied. While I entirely accept that there is no analogy between a determinate and an indeterminate sentence, so as to require a review while the prisoner is still in prison, the analogy between the recall of a determinate sentence prisoner who was entitled to be released and the recall of an indeterminate sentence prisoner is much closer. In R (Black) v Secretary of State for Justice [2009] UKHL 1, [2009] 1 AC 949, Mr Black had not yet reached the point in his sentence when he was entitled to be released on licence. He was arguing that article 5(4) applied once he became eligible for discretionary release, so that it was a violation of his rights for the Secretary of State to reject the Parole Boards recommendation that he be released. So his too was not a case of recall after mandatory release. Once again, I do not find it surprising that Lord Brown considered that West was correctly decided; he was well aware of the difference between discretionary and mandatory release, but did not think that the opinions in West drew any distinction between them (para 73). I now think that this was a distinction which ought to have been given greater prominence and that it is a good reason for holding that their Lordships in West were correct in taking the view that article 5(4) applied. The only case which is not consistent with this analysis is Strasbourgs admissibility decision in Brown. Lord Neuberger is, of course, correct to say that the decision was based on the fundamental distinction between determinate and indeterminate sentences; but the court appears not to have considered whether there might be a distinction between recall after mandatory and discretionary release; further, the case had been considered by the Parole Board, which had the power to order his release, although this was before West, and so there had not been an oral hearing. Ganusauskas v Lithuania (unreported, Application No 47922/99, 7 September 1999), in contrast, not only appears to be a case of a proposed discretionary early release, but also one which was considered by a court. In this case, Mr Whiston was still serving the period of imprisonment which resulted from the sentence imposed upon him by the court: it is called the requisite custodial period. He was not yet entitled to release. Discretionary release subject a home detention curfew enforced by electronic monitoring may or may not be regarded as a continued deprivation of liberty, depending upon the length of the curfew, but it is very close to it. The prisoner may be recalled for the purely practical reason that it is not possible to monitor him at his address, which is nothing to do with whether he still constitutes a risk. It is the original sentence which means that he is still a prisoner. Hence it seems to me that our domestic law, which gives the Parole Board the power to decide upon the continued detention of a prisoner recalled after mandatory release on licence, but not after release on home detention curfew, draws a principled distinction. It is a distinction which is certainly consistent with the principles contained in article 5(1) and (4) of the European Convention. It is for that reason that, although agreeing with the ratio of the decision in this case, I would prefer it not to be taken further than the situation with which this case is concerned. I comfort myself that the views to the contrary expressed in Lord Neubergers judgment are, strictly speaking, obiter dicta.

UK-Abs

The question raised on this appeal is whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the Criminal Justice Act 2003, has rights pursuant to article 5(4) of the European Convention of Human Rights. Article 5 protects the right to liberty, and article 5(4) confers on an individual who has been deprived of their liberty an associated right to challenge that deprivation before a judicial body. On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18 months in prison for robbery. He was entitled to automatic release on licence after serving half his sentence on 5 July 2011. However, on 21 February 2011, he was released on licence under a so called home detention curfew pursuant to section 246 of the 2003 Act. On 7 April 2011, the Secretary of State decided to revoke the licence under section 255 of the 2003 Act, because the appellants whereabouts could no longer be monitored in the community, and he was recalled to prison. The decision of the Secretary of State was not subject to any statutory judicial control or review. The appellant contends that, as a result of the licence granted on 21 February 2011, he regained his liberty, and the subsequent revocation of his licence and his consequent recall to prison on 7 April 2011 therefore constituted a deprivation of his liberty which infringed article 5(4). The Secretary of State argues that, at least where the sentence in question is determinate, in any case where a prisoner who has been released on licence is recalled to prison during the currency of his requisite custodial period, the requirements of article 5(4) are satisfied by the original sentence lawfully passed by the court by which he was originally imprisoned. The Supreme Court unanimously dismisses the appeal. Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Hughes agree, gives the main judgment. Lady Hale gives a concurring judgment. Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, he is not, at least in the absence of unusual circumstances, able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). Where the Secretary of State exercises her discretion to release a prisoner before the end of the requisite custodial period of their sentence, article 5(4) is not infringed if that licence is subsequently revoked. All the statutory provisions relevant to this appeal are in the 2003 Act, as amended most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Where a person has been convicted and given a determinate prison sentence of twelve months or more (a sentence period), section 244(1) provides that, subject to certain specified exceptions, once he has served half his sentence it is the duty of the Secretary of State to release him on licence. A prisoner may also be released on licence during the requisite custodial period under section 246(1). A licence, whether under section 244 or 246, remains in place until the end of the sentence period, unless the licence is revoked and the person subject to the licence (the licensee) is recalled. The Secretary of State has the power to revoke a licence and recall a licensee back to prison pursuant to two different statutory provisions [3 8]. First, section 254(1) of the 2003 Act gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. Where the power of revocation is exercised under section 254(1), the licensee is entitled to be told the reasons for his recall and to make representations to the Secretary of State, and, ultimately, to the Parole Board. Secondly, section 255(1) confers a specific power on the Secretary of State to revoke a section 246 licence. This power of recall can only be exercised until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right. Unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of States section 255 power of recall [9 10]. Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). This is because, for the duration of the sentence period, the lawfulness of his detention has been decidedby a court, namely the court which sentenced him to the term of imprisonment [38]. On this approach, article 5(4) could not normally be invoked in a case where, in relation to those serving determinate terms, domestic discretionary early release provisions are operated by the executive. The notion that article 5(4) is satisfied by the original sentence appears entirely principled, and the consequence that a person under such a regime has to rely on his domestic remedies, at least unless other Convention rights are engaged, is not unreasonable in practice [40]. The common law should be well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention [45]. Consequently, in so far as it held that article 5(4) was engaged by the revocation of a mandatory licence, the House of Lords in Smith and West [2005] 1 WLR 350 were incorrect and the observations of Lord Brown in R (Black) v Secretary of State for Justice [2009] 1 AC 949 are wrong in so far as they suggest that the law of the United Kingdom in relation to article 5(4) differs from the Strasbourg jurisprudence [46]. Lady Hale agrees that the revocation of a discretionary licence does not infringe article 5(4). However, Lady Hale holds that the present law draws a principled distinction between those determinate prisoners who have reached the point in their sentence at which they are entitled to be released on licence and those who have not. If the former are recalled from their licence, and their representations to the Secretary of State are unsuccessful, they are entitled to have their case referred to the Parole Board. The latter, whose release on licence are discretionary, are not [50]. Once a prisoner has passed the point of mandatory release on licence, the basis for any later recall and detention is the risk of reoffending rather than the original order of the court, and, therefore, article 5(4) applies [52].

This appeal arises out of proceedings for ancillary relief following a divorce. The principal parties before the judge, Moylan J, were Michael and Yasmin Prest. He was born in Nigeria and she in England. Both have dual Nigerian and British nationality. They were married in 1993, and during the marriage the matrimonial home was in England, although the husband was found by the judge to have been resident in Monaco from about 2001 to date. There was also a second home in Nevis. The wife petitioned for divorce in March 2008. A decree nisi was pronounced in December 2008, and a decree absolute in November 2011. The husband is not party to the appeal in point of form, although he is present in spirit. The appeal concerns only the position of a number of companies belonging to the group known as the Petrodel Group which the judge found to be wholly owned and controlled (directly or through intermediate entities) by the husband. There were originally seven companies involved, all of which were joined as additional respondents to the wifes application for ancillary relief. They were Petrodel Resources Ltd (PRL), Petrodel Resources (Nigeria) Ltd (PRL Nigeria), Petrodel Upstream Ltd (Upstream), Vermont Petroleum Ltd (Vermont), Elysium Diem Ltd, Petrodel Resources (Nevis) Ltd (PRL Nevis) and Elysium Diem Ltd (Nevis). Three of these companies, PRL, Upstream and Vermont, all incorporated in the Isle of Man, are the respondents in this court. PRL was the legal owner of the matrimonial home, which was bought in the name of the company in 2001 but was found by the judge to be held for the husband beneficially. There is no longer any issue about that property, which is apparently in the process of being transferred to the wife. In addition, PRL was the legal owner of five residential properties in the United Kingdom and Vermont is the legal owner of two more. The question on this appeal is whether the court has power to order the transfer of these seven properties to the wife given that they legally belong not to him but to his companies. Part II of the Matrimonial Causes Act 1973 confers wide powers on the court to order ancillary relief in matrimonial proceedings. Section 23 provides for periodical and lump sum payments to a spouse or for the benefit of children of the marriage. Under section 24(1)(a), the court may order that a party to the marriage shall transfer to the other party. such property as may be so specified, being property to which the first mentioned party is entitled, either in possession or reversion. Section 25 provides for a number of matters to which the court must in particular have regard in making such orders, including, at section 25(2)(a), the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. The proper exercise of these powers calls for a considerable measure of candour by the parties in disclosing their financial affairs, and extensive procedural powers are available to the court to compel disclosure if necessary. In this case, the husbands conduct of the proceedings has been characterised by persistent obstruction, obfuscation and deceit, and a contumelious refusal to comply with rules of court and specific orders. The judge, Moylan J, recited in his judgment the long history of successive orders of the court which were either ignored or evaded, the various attempts of the husband to conceal the extent of his assets in the course of his evidence, and the collusive proceedings in Nigeria by which he sought declarations that certain of the companies were held in trust for his siblings. The only evidence on behalf of the respondent companies was an affidavit sworn by Mr Jack Murphy, a director of PRL and the corporate secretary of the three respondent companies, who failed to attend for cross examination on it. The judge rejected his excuse that he was in bad health, and found that he was unwilling rather than unable to attend court. His conclusion was that as a result of the husbands abject failure to comply with his disclosure obligations and to comply with orders made by the court during the course of these proceedings, I do not have the evidence which would enable me to assemble a conventional schedule of assets. However, he found that the husband was the sole beneficial owner and the controller of the companies, and doing the best that he could on the material available assessed his net assets at 37.5 million. By his order dated 16 November 2011, Moylan J ordered that the husband should procure the conveyance of the matrimonial home at 16, Warwick Avenue, London W2 to the wife, free of incumbrances, and that he should make a lump sum payment to her of 17.5 million and periodical payments at the rate of 2% of that sum while it remained outstanding, together with 24,000 per annum and the school fees for each of their four children. In addition he awarded costs in favour of the wife, with a payment of 600,000 on account. The judge ordered the husband to procure the transfer of the seven UK properties legally owned by PRL and Vermont to the wife in partial satisfaction of the lump sum order. He directed those companies to execute such documents as might be necessary to give effect to the transfer of the matrimonial home and the seven properties. Moreover, in awarding costs to the wife, the judge directed that PRL, Upstream and Vermont should be jointly and severally liable with the husband for 10% of those costs. Corresponding orders were made against certain of the other corporate respondents to the original proceedings, but they did not appeal, either to the Court of Appeal or to this court, and are no longer relevant, save insofar as the facts relating to them throw light on the position of the three respondents. No order was made (or sought) for the transfer of any assets of Upstream, but that company is interested in the present appeal by virtue of its liability under the judges order for part of the wifes costs. The distinctive feature of the judges approach was that he concluded that there was no general principle of law which entitled him to reach the companies assets by piercing the corporate veil. This was because the authorities showed that the separate legal personality of the company could not be disregarded unless it was being abused for a purpose that was in some relevant respect improper. He held that there was no relevant impropriety. He nevertheless concluded that in applications for financial relief ancillary to a divorce, a wider jurisdiction to pierce the corporate veil was available under section 24 of the Matrimonial Causes Act. The judge found that the matrimonial home was held by PRL on trust for the husband, but he made no corresponding finding about the seven other properties and refused to make a declaration that the husband was their beneficial owner. It is tolerably clear from his supplementary judgment of 16 November 2011 (on the form of the order), that this was because having decided that he was specifically authorised to dispose of the companies properties under section 24, it was unnecessary for him to do so and undesirable because of the potential tax consequences. It is not clear what potential tax consequences he had in mind, but his observation suggests that without them he might well have made the declaration sought. In the Court of Appeal, the three respondent companies challenged the orders made against them on the ground that there was no jurisdiction to order their property to be conveyed to the wife in satisfaction of the husbands judgment debt. This contention, which has been repeated before us, raises a question of some importance. For some years it has been the practice of the Family Division to treat the assets of companies substantially owned by one party to the marriage as available for distribution under section 24 of the Matrimonial Causes Act, provided that the remaining assets of the company are sufficient to satisfy its creditors. In the Court of Appeal, the practice was supported by Thorpe LJ, but the majority disagreed. Rimer LJ, delivering the leading judgment for the majority, held that the practice developed by the Family Division was beyond the jurisdiction of the court unless (i) the corporate personality of the company was being abused for a purpose which was in some relevant respect improper, or (ii) on the particular facts of the case it could be shown that an asset legally owned by the company was held in trust for the husband. He considered that the judge had rejected both of these possibilities on the facts, and that he ought not therefore to have made the order. In a short concurring judgment, Patten LJ said that the Family Division had developed an approach to company owned assets in ancillary relief applications which amounts almost to a separate system of legal rules unaffected by the relevant principles of English property and company law. The practice, he concluded, must now cease. This has significant practical implications. Unless the UK properties of the Petrodel Group are transferred to Mrs Prest, it is possible (she says likely) that the lump sum order in her favour will remain wholly unsatisfied. To date, the matrimonial home has been transferred to her but only subject to a pre existing charge in favour of BNP Paribas to secure a debt of undisclosed amount. 10% of the money ordered to be paid on account of costs has been paid by the three respondents, but only in order to satisfy a condition imposed on them upon their being granted leave to appeal to the Court of Appeal. Otherwise, apart from paying the childrens school fees, the husband has not complied with any part of Moylan Js order and shows no intention of doing so if he can possibly avoid it. The issues Subject to very limited exceptions, most of which are statutory, a company is a legal entity distinct from its shareholders. It has rights and liabilities of its own which are distinct from those of its shareholders. Its property is its own, and not that of its shareholders. In Salomon v A Salomon and Co Ltd [1897] AC 22, the House of Lords held that these principles applied as much to a company that was wholly owned and controlled by one man as to any other company. In Macaura v Northern Assurance Co Ltd [1925] AC 619, the House of Lords held that the sole owner and controller of a company did not even have an insurable interest in property of the company, although economically he was liable to suffer by its destruction. Lord Buckmaster, at pp 626 627 said: no shareholder has any right to any item of property owned by the company, for he has no legal or equitable interest therein. He is entitled to a share in the profits while the company continues to carry on business and a share in the distribution of the surplus assets when the company is wound up. In Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 the House of Lords held that documents of a subsidiary were not in the power of its parent company for the purposes of disclosure in litigation, simply by virtue of the latters ownership and control of the group. These principles are the starting point for the elaborate restrictions imposed by English law on a wide range of transactions which have the direct or indirect effect of distributing capital to shareholders. The separate personality and property of a company is sometimes described as a fiction, and in a sense it is. But the fiction is the whole foundation of English company and insolvency law. As Robert Goff LJ once observed, in this domain we are concerned not with economics but with law. The distinction between the two is, in law, fundamental: Bank of Tokyo Ltd v Karoon (Note) [1987] AC 45, 64. He could justly have added that it is not just legally but economically fundamental, since limited companies have been the principal unit of commercial life for more than a century. Their separate personality and property are the basis on which third parties are entitled to deal with them and commonly do deal with them. Against this background, there are three possible legal bases on which the assets of the Petrodel companies might be available to satisfy the lump sum order against the husband: (1) It might be said that this is a case in which, exceptionally, a court is at liberty to disregard the corporate veil in order to give effective relief. (2) Section 24 of the Matrimonial Causes Act might be regarded as conferring a distinct power to disregard the corporate veil in matrimonial cases. (3) The companies might be regarded as holding the properties on trust for the husband, not by virtue of his status as their sole shareholder and controller, but in the particular circumstances of this case. The judges findings: the companies Most of the judges findings of fact were directed to two questions which are no longer in dispute, namely whether the husband owned the Petrodel Group and what was the value of his assets. For present purposes, it is enough to summarise those which bear on the position of the three corporate respondents. At the time of the marriage, and throughout the 1990, the husband was employed by a succession of major international oil trading companies as a trader, but in 2001 he left his last employer, Marc Rich, and began to run his own companies. Initially, there were two principal companies involved, Aurora and the Petrodel companies. In 2004 Aurora was wound up and thereafter he operated mainly through the Petrodel companies. The principal operating company of this group was PRL, a company incorporated in the Isle of Man. Its financial statements record that it was incorporated on 4 May 1993, was dormant until 1996, and did not begin operations until 25 April 2002, i.e. after the husband had left Marc Rich and set up on his own. Between 1996 and 2002, it is described in its financial statements as a property investment company. Its sole function in that period appears to have been to hold title to the matrimonial home at 16, Warwick Avenue in London and five residential investment properties in London, and to act as a channel for funding property purchases by other companies of the group. The husbands evidence was that the company had engaged in substantial agricultural and oil related business in the 1990s, in part in association with his then employer, Marc Rich. But this was inconsistent with the companys financial statements, and the judge rejected it. Mr Le Breton, a former business colleague of the husband, gave evidence at the hearing which the judge accepted as reliable. Mr Le Breton said that from about 2001 PRL was engaged in a limited way in oil trading and shipping, and from 2006 moved into oil exploration and production in Nigeria and West Africa. The latest disclosed accounts of PRL are draft accounts for 2008 and 2009. The judge declined to attach any significant weight to the financial data in the 2008 accounts, which he considered to have been manipulated. All the disclosed accounts are now very much out of date. For what they are worth, the accounts for both years show a substantial turnover and large balances. The husbands evidence was that PRL ceased trading in 2010, when it lost its major exploration contract. Given his evident determination to frustrate his wifes claims on him, it cannot be assumed that the assets of the company recorded in the disclosed accounts are still there. Management control of PRL has always been in the hands of the husband, ostensibly as chief executive under a contract of employment conferring on him complete discretion in the management of its business. The judge found that none of the companies had ever had any independent directors. The husband is a director of PRL Nigeria, but otherwise the directors are all nominal or professional directors, generally his relatives, who accept directions from him. The directors of PRL are Mr Murphy (the principal of its corporate secretary) and a lady in Nevis who appears to have been the couples cleaner there. The ownership of the respondent companies proved to be more difficult to establish. The husband did not admit to having any personal interest in the shares of any company of the group, and declined to say who the ultimate shareholders were. Substantially all of the issued shares of PRL are owned by PRL Nigeria. Almost all the shares of that company are owned by PRL Nevis, a company about which very little is known, but whose accounts show substantial balances, apparently derived from trading. The husbands evidence was that the shares of PRL Nevis were owned by its own subsidiary PRL Nigeria. The judge described this as puzzling but made no finding as to whether it was true. More recently, it has been suggested that PRL Nevis is owned by a family trust about which, however, nothing has been disclosed. In the end, it did not matter, because the judge cut through the complexities of the corporate structure by accepting the evidence of the wife and Mr Le Breton that the husband was the true owner of the Petrodel Group, as he had always told them he was, even if the exact means by which he held it remained obscure. That accounted for PRL, PRL Nigeria and PRL Nevis. It also accounted for Vermont, whose shares are held 49% by PRL and 51% by PRL Nigeria, and Upstream, which had a single issued share held by PRL Nevis. Vermont was and possibly still is a trading company. The husbands evidence was that it began to ship crude oil in 2010. The exact nature of Upstreams business (if any) is unclear. It does not appear to trade. The husband declined to answer the question whether he received any benefits from PRL other than his salary, saying that this was an accounting question. The judge, however, made extensive findings about this. He found that his personal expenditure substantially exceeded his salary and bonuses as chief executive, and that the difference was funded entirely by the company. There was no formality involved. The husband simply treated the companies cash balances and property as his own and drew on them as he saw fit. The judge found that the husband had unrestricted access to the companies assets, unconfined by any board control or by any scruples about the legality of his drawings. He used PRLs assets to fund his and his familys personal expenditure, including the substantial legal costs incurred in these proceedings. The group was effectively the husbands money box which he uses at will. Piercing the corporate veil I should first of all draw attention to the limited sense in which this issue arises at all. Piercing the corporate veil is an expression rather indiscriminately used to describe a number of different things. Properly speaking, it means disregarding the separate personality of the company. There is a range of situations in which the law attributes the acts or property of a company to those who control it, without disregarding its separate legal personality. The controller may be personally liable, generally in addition to the company, for something that he has done as its agent or as a joint actor. Property legally vested in a company may belong beneficially to the controller, if the arrangements in relation to the property are such as to make the company its controllers nominee or trustee for that purpose. For specific statutory purposes, a companys legal responsibility may be engaged by the acts or business of an associated company. Examples are the provisions of the Companies Acts governing group accounts or the rules governing infringements of competition law by firms, which may include groups of companies conducting the relevant business as an economic unit. Equitable remedies, such as an injunction or specific performance may be available to compel the controller whose personal legal responsibility is engaged to exercise his control in a particular way. But when we speak of piercing the corporate veil, we are not (or should not be) speaking of any of these situations, but only of those cases which are true exceptions to the rule in Salomon v A Salomon and Co Ltd [1897] AC 22, i.e. where a person who owns and controls a company is said in certain circumstances to be identified with it in law by virtue of that ownership and control. Most advanced legal systems recognise corporate legal personality while acknowledging some limits to its logical implications. In civil law jurisdictions, the juridical basis of the exceptions is generally the concept of abuse of rights, to which the International Court of Justice was referring in In re Barcelona Traction, Light and Power Co Ltd [1970] ICJ 3 when it derived from municipal law a limited principle permitting the piercing of the corporate veil in cases of misuse, fraud, malfeasance or evasion of legal obligations. These examples illustrate the breadth, at least as a matter of legal theory, of the concept of abuse of rights, which extends not just to the illegal and improper invocation of a right but to its use for some purpose collateral to that for which it exists. English law has no general doctrine of this kind. But it has a variety of specific principles which achieve the same result in some cases. One of these principles is that the law defines the incidents of most legal relationships between persons (natural or artificial) on the fundamental assumption that their dealings are honest. The same legal incidents will not necessarily apply if they are not. The principle was stated in its most absolute form by Denning LJ in a famous dictum in Lazarus Estates Ltd v Beasley [1956] 1 QB 702, 712: No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever The principle is mainly familiar in the context of contracts and other consensual arrangements, in which the effect of fraud is to vitiate consent so that the transaction becomes voidable ab initio. But it has been applied altogether more generally, in cases which can be rationalised only on grounds of public policy, for example to justify setting aside a public act such as a judgment, which is in no sense consensual, a jurisdiction which has existed since at least 1775: Duchess of Kingstons Case (1776) 2 Smith's LC, 13th ed, 644, 646, 651. Or to abrogate a right derived from a legal status, such as marriage: R v Secretary of State for the Home Department, Ex p Puttick [1981] QB 767. Or to disapply a statutory time bar which on the face of the statute applies: Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304. These decisions (and there are others) illustrate a broader principle governing cases in which the benefit of some apparently absolute legal principle has been obtained by dishonesty. The authorities show that there are limited circumstances in which the law treats the use of a company as a means of evading the law as dishonest for this purpose. The question is heavily burdened by authority, much of it characterised by incautious dicta and inadequate reasoning. I propose, first, to examine those cases which seek to rationalise the case law in terms of general principle, and then to look at a number of cases in which the court has been thought, rightly or wrongly, to have pierced the corporate veil in order to identify the critical features of these cases which enabled them to do so. Almost all the modern analyses of the general principle have taken as their starting point the brief and obiter but influential statement of Lord Keith of Kinkel in Woolfson v Strathclyde Regional Council 1978 SC(HL) 90. This was an appeal from Scotland in which the House of Lords declined to allow the principal shareholder of a company to recover compensation for the compulsory purchase of a property which the company occupied. The case was decided on its facts, but at p 96, Lord Keith, delivering the leading speech, observed that it is appropriate to pierce the corporate veil only where special circumstances exist indicating that it is a mere facade concealing the true facts. The first systematic analysis of the large and disparate body of English case law was undertaken by a strong Court of Appeal in Adams v Cape Industries plc [1990] Ch 433 (Slade, Mustill and Ralph Gibson LJJ). The question at issue in that case was whether the United Kingdom parent of an international mining group which was, at least arguably, managed as a single economic unit was present in the United States for the purpose of making a default judgment of a United States court enforceable against it in England. Among other arguments, it was suggested that it was present in the United States by virtue of the fact that a wholly owned subsidiary was incorporated and carried on business there. Slade LJ, delivering the judgment of the court, rejected this contention: pp 532 544. The court, adopting Lord Keiths dictum in Woolfson v Strathclyde, held that the corporate veil could be disregarded only in cases where it was being used for a deliberately dishonest purpose: pp 539, 540. Apart from that, and from cases turning on the wording of particular statutes, it held at p 536 that the court is not free to disregard the principle of Salomon v A Salomon & Co Ltd [1897] AC 22 merely because it considers that justice so requires. Our law, for better or worse, recognises the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities. In Trustor AB v Smallbone (No 2) [2001] 1 WLR 1177, Sir Andrew Morritt V C reviewed many of the same authorities. Mr Smallbone, the former managing director of Trustor, had improperly procured large amounts of its money to be paid out of its account to a company called Introcom Ltd, incorporated in Gibraltar. Introcom was owned and controlled by a Liechtenstein trust of which Mr Smallbone was a beneficiary. Its directors acted on his instructions. At an earlier stage of the litigation, Trustor had obtained summary judgment on some of its claims against Introcom, on the footing that the payments were unauthorised and a breach of Mr Smallbones duty as managing director, that the company was simply a vehicle Mr Smallbone used for receiving money from Trustor, and that his knowledge could be imputed to the company. The Vice Chancellor was dealing with a subsequent application by Trustor for summary judgment against Mr Smallbone himself. It was accepted that there was an arguable defence to the claims against him for damages or compensation for breach of his duties as a director of Trustor. Accordingly the sole basis of the application was that he was liable to account as a constructive trustee on the footing of knowing receipt. This depended on the proposition that he was to be identified with Introcom and so treated as having received the money himself. It was submitted that the authorities justified piercing the corporate veil in three, possibly overlapping, cases: (i) where the company was a facade or sham; (ii) where the company was involved in some form of impropriety; and (iii) where it was necessary to do so in the interests of justice. In each of these cases, the right of the court to pierce the corporate veil was said to be subject to there being no third party interests engaged, such as unconnected minority shareholders or creditors. The Vice Chancellor concluded that the authorities supported the submission in case (i), and also in case (ii) provided that the impropriety was a relevant one, i.e. linked to the use of the company structure to avoid or conceal liability for that impropriety. He followed Adams v Cape Industries in rejecting the submission as applied to case (iii). In summary, the court was entitled to pierce the corporate veil and recognise the receipt of the company as that of the individual(s) in control of it if the company was used as a device or facade to conceal the true facts, thereby avoiding or concealing any liability of those individual(s): see para 23. For years after it was decided, Cape Industries was regarded as having settled the general law on the subject. But for much of this period, the Family Division pursued an independent line, essentially for reasons of policy arising from its concern to make effective its statutory jurisdiction to distribute the property of the marriage upon a divorce. In Nicholas v Nicholas [1984] FLR 285, the Court of Appeal (Cumming Bruce and Dillon LJJ) overturned the decision of the judge to order the husband to procure the transfer to the wife of a property belonging to a company in which he held a 71% shareholding, the other 29% being held by his business associates. However, both members of the court suggested, obiter, that the result might have been different had it not been for the position of the minority shareholders. Cumming Bruce LJ (at p 287) thought that, in that situation, the court does and will pierce the corporate veil and make an order which has the same effect as an order that would be made if the property was vested in the majority shareholder. Dillon LJ said (at p 292) that if the company was a one man company and the alter ego of the husband, I would have no difficulty in holding that there was power to order a transfer of the property. These dicta were subsequently applied by judges of the Family Division dealing with claims for ancillary financial relief, who regularly made orders awarding to parties to the marriage assets vested in companies of which one of them was the sole shareholder. Connell J made such an order in Green v Green [1993] 1 FLR 326. In Mubarak v Mubarak [2001] 1 FLR 673, 682C, Bodey J held that for the purpose of claims to ancillary financial relief the Family Division would lift the corporate veil not only where the company was a sham but when it is just and necessary, the very proposition that the Court of Appeal had rejected as a statement of the general law in Adams v Cape Industries. And in Kremen v Agrest (No 2) [2011] 2 FLR 490, para 46, Mostyn J held that there was a strong practical reason why the cloak should be penetrable even absent a finding of wrongdoing. There were of course dissenting voices, even in decisions on ancillary relief. Much the most significant of them for present purposes was that of Munby J. In A v A [2007] 2 FLR 467, paras 18 19, he drew attention to the robust approach which had always been adopted by judges of the Family Division in seeing through sham arrangements designed to hide the ownership of assets of the marriage by vesting them in relatives or companies which were in reality holding them as their nominees. But he warned against departing from fundamental legal principle. At para 21, he observed: In this sense, and to this limited extent, the typical case in the Family Division may differ from the typical case in (say) the Chancery Division. But what it is important to appreciate (and too often, I fear, is not appreciated at least in this division) is that the relevant legal principles which have to be applied are precisely the same in this division as in the other two divisions. There is not one law of sham in the Chancery Division and another law of sham in the Family Division. There is only one law of sham, to be applied equally in all three Divisions of the High Court, just as there is but one set of principles, again equally applicable in all three divisions, determining whether or not it is appropriate to pierce the corporate veil. In Ben Hashem v Al Shayif [2009] 1 FLR 115, another decision of Munby J, the difference between the approach taken in the Family Division and in other divisions of the High Court arose in a particularly acute form, because he was hearing the claim for ancillary relief in conjunction with proceedings in the Chancery Division. In the Family Division, the wife was seeking an order transferring to her a property which she was occupying but which was owned by a company controlled by the husband, while in the Chancery proceedings the company was seeking a possession order in respect of the same property. After reminding himself of what he had said in A v A and conducting a careful review of both family and non family cases, Munby J formulated six principles at paras 159 164 which he considered could be derived from them: (i) ownership and control of a company were not enough to justify piercing the corporate veil; (ii) the court cannot pierce the corporate veil, even in the absence of third party interests in the company, merely because it is thought to be necessary in the interests of justice; (iii) the corporate veil can be pierced only if there is some impropriety; (iv) the impropriety in question must, as Sir Andrew Morritt had said in Trustor, be linked to the use of the company structure to avoid or conceal liability; (v) to justify piercing the corporate veil, there must be both control of the company by the wrongdoer(s) and impropriety, that is (mis)use of the company by them as a device or facade to conceal their wrongdoing; and (vi) the company may be a facade even though it was not originally incorporated with any deceptive intent, provided that it is being used for the purpose of deception at the time of the relevant transactions. The court would, however, pierce the corporate veil only so far as it was necessary in order to provide a remedy for the particular wrong which those controlling the company had done. In VTB Capital plc v Nutritek International Corpn [2012] 2 Lloyds Rep 313, VTB Capital sought permission to serve proceedings out of the jurisdiction on the footing that the borrower under a facility agreement was to be identified with the persons who controlled it, so as to make the latter in law parties to the same agreement. The attempt failed in the Court of Appeal because the court was not satisfied that that would be the consequence of piercing the corporate veil even if it were legitimate to do so: see paras 90 91. The decision is not, therefore, direct authority on the question whether the court was entitled to pierce the corporate veil. But the court considered all the principal authorities on that question and arrived at substantially the same conclusions as Sir Andrew Morritt V C and Munby J. Munby Js statement of principle was adopted by the Court of Appeal subject to two qualifications. First, they said that it was not necessary in order to pierce the corporate veil that there should be no other remedy available against the wrongdoer, and so far as Munby J suggested that it was, he had set the bar too high. Secondly, they said that it was not enough to show that there had been wrongdoing. The relevant wrongdoing must be in the nature of an independent wrong that involves the fraudulent or dishonest misuse of the corporate personality of the company for the purpose of concealing the true facts: see paras 79 80. On this point, the case took the same course in the Supreme Court [2013] UKSC 5; [2013] 2 WLR 398, which dismissed VTB Capitals appeal. So far as piercing the corporate veil is concerned, the courts reasons were given by Lord Neuberger. He noted the broad consensus among judges and text book writers that there were circumstances in which separate legal personality of a company might be disregarded and the company identified with those who owned and controlled it. However, he declined to decide whether the consensus was right on an appeal from an interlocutory decision, given that, like the Court of Appeal, he considered that even if the veil were pierced the result would not be to make a companys controllers party to its contracts with third parties. But he adopted, as it seems to me, both the general reasoning of the Court of Appeal and the view of Munby J that any doctrine permitting the court to pierce the corporate veil must be limited to cases where there was a relevant impropriety: see paras 128, 145. In my view, the principle that the court may be justified in piercing the corporate veil if a companys separate legal personality is being abused for the purpose of some relevant wrongdoing is well established in the authorities. It is true that most of the statements of principle in the authorities are obiter, because the corporate veil was not pierced. It is also true that most cases in which the corporate veil was pierced could have been decided on other grounds. But the consensus that there are circumstances in which the court may pierce the corporate veil is impressive. I would not for my part be willing to explain that consensus out of existence. This is because I think that the recognition of a limited power to pierce the corporate veil in carefully defined circumstances is necessary if the law is not to be disarmed in the face of abuse. I also think that provided the limits are recognised and respected, it is consistent with the general approach of English law to the problems raised by the use of legal concepts to defeat mandatory rules of law. The difficulty is to identify what is a relevant wrongdoing. References to a facade or sham beg too many questions to provide a satisfactory answer. It seems to me that two distinct principles lie behind these protean terms, and that much confusion has been caused by failing to distinguish between them. They can conveniently be called the concealment principle and the evasion principle. The concealment principle is legally banal and does not involve piercing the corporate veil at all. It is that the interposition of a company or perhaps several companies so as to conceal the identity of the real actors will not deter the courts from identifying them, assuming that their identity is legally relevant. In these cases the court is not disregarding the facade, but only looking behind it to discover the facts which the corporate structure is concealing. The evasion principle is different. It is that the court may disregard the corporate veil if there is a legal right against the person in control of it which exists independently of the companys involvement, and a company is interposed so that the separate legal personality of the company will defeat the right or frustrate its enforcement. Many cases will fall into both categories, but in some circumstances the difference between them may be critical. This may be illustrated by reference to those cases in which the court has been thought, rightly or wrongly, to have pierced the corporate veil. The first and most famous of them is Gilford Motor Co Ltd v Horne [1933] Ch 935. Mr EB Horne had been the managing director of the Gilford Motor Co. His contract of employment precluded him being engaged in any competing business in a specified geographical area for five years after the end of his employment either solely or jointly with or as agent for any other person, firm or company. He left Gilford and carried on a competing business in the specified area, initially in his own name. He then formed a company, JM Horne & Co Ltd, named after his wife, in which she and a business associate were shareholders. The trial judge, Farwell J, found that the company had been set up in this way to enable the business to be carried on under his own control but without incurring liability for breach of the covenant. However the reality, in his view, was that the company was being used as the channel through which the defendant Horne was carrying on his business. In fact, he dismissed the claim on the ground that the restrictive covenant was void. But the Court of Appeal allowed the appeal on that point and granted an injunction against both Mr Horne and the company. As against Mr Horne, the injunction was granted on the concealment principle. Lord Hanworth MR said, at pp 961 962, that the company was a mere cloak or sham because the business was really being carried on by Mr Horne. Because the restrictive covenant prevented Mr Horne from competing with his former employers whether as principal or as agent for another, it did not matter whether the business belonged to him or to JM Horne & Co Ltd provided that he was carrying it on. The only relevance of the interposition of the company was to maintain the pretence that it was being carried on by others. Lord Hanworth did not explain why the injunction should issue against the company, but I think it is clear from the judgments of Lawrence and Romer LJJ, at pp 965 and 969, that they were applying the evasion principle. Lawrence LJ, who gave the fullest consideration to the point, based his view entirely on Mr Hornes evasive motive for forming the company. This showed that it was a mere channel used by the defendant Horne for the purpose of enabling him, for his own benefit, to obtain the advantage of the customers of the plaintiff company, and that therefore the defendant company ought to be restrained as well as the defendant Horne. In other words, the company was restrained in order to ensure that Horne was deprived of the benefit which he might otherwise have derived from the separate legal personality of the company. I agree with the view expressed by the Court of Appeal in VTB Capital, at para 63, that this is properly to be regarded as a decision to pierce the corporate veil. It is fair to say that the point may have been conceded by counsel, although in rather guarded terms (if the evidence admitted of the conclusion that what was being done was a mere cloak or sham). It is also true that the court in Gilford Motor Co might have justified the injunction against the company on the ground that Mr Hornes knowledge was to be imputed to the company so as to make the latters conduct unconscionable or tortious, thereby justifying the grant of an equitable remedy against it. But the case is authority for what it decided, not for what it might have decided, and in my view the principle which the Court of Appeal applied was correct. It does not follow that JM Horne & Co Ltd was to be identified with Mr Horne for any other purpose. Mr Hornes personal creditors would not, for example, have been entitled simply by virtue of the facts found by Farwell J, to enforce their claims against the assets of the company. Jones v Lipman [1962] 1 WLR 832 was a case of very much the same kind. The facts were that Mr Lipman sold a property to the plaintiffs for 5,250 and then, thinking better of the deal, sold it to a company called Alamed Ltd for 3,000, in order to make it impossible for the plaintiffs to get specific performance. The judge, Russell J, found that company was wholly owned and controlled by Mr Lipman, who had bought it off the shelf and had procured the property to be conveyed to it solely for the purpose of defeating the plaintiffs rights to specific performance. About half of the purchase price payable by Alamed was funded by borrowing from a bank, and the rest was left outstanding. The judge decreed specific performance against both Mr Lipman and Alamed Ltd. As against Mr Lipman this was done on the concealment principle. Because Mr Lipman owned and controlled Alamed Ltd, he was in a position specifically to perform his obligation to the plaintiffs by exercising his powers over the company. This did not involve piercing the corporate veil, but only identifying Mr Lipman as the man in control of the company. The company, said Russell J portentously at p 836, was a device and a sham, a mask which [Mr Lipman] holds before his face in an attempt to avoid recognition by the eye of equity. On the other hand, as against Alamed Ltd itself, the decision was justified on the evasion principle, by reference to the Court of Appeals decision in Gilford Motor Co. The judge must have thought that in the circumstances the company should be treated as having the same obligation to convey the property to the plaintiff as Mr Lipman had, even though it was not party to the contract of sale. It should be noted that he decreed specific performance against the company notwithstanding that as a result of the transaction, the companys main creditor, namely the bank, was prejudiced by its loss of what appears from the report to have been its sole asset apart from a possible personal claim against Mr Lipman which he may or may not have been in a position to meet. This may be thought hard on the bank, but it is no harder than a finding that the company was not the beneficial owner at all. The bank could have protected itself by taking a charge or registering the contract of sale. In Gencor ACP Ltd v Dalby [2000] 2 BCLC 734, the plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. For present purposes the claim which matters is a claim for an account of a secret profit which Mr Dalby procured to be paid by a third party, Balfour Beatty, to a BVI company under his control called Burnstead. Rimer J held, at para 26, that Mr Dalby was accountable for the money received by Burnstead, on the ground that the latter was in substance little other than Mr Dalbys offshore bank account held in a nominee name, and simply. the alter ego through which Mr Dalby enjoyed the profit which he earned in breach of his fiduciary duty to ACP. Rimer J ordered an account against both Mr Dalby and Burnstead. He considered that he was piercing the corporate veil. But I do not think that he was. His findings about Mr Dalbys relationship with the company and his analysis of the legal consequences show that both Mr Dalby and Burnstead were independently liable to account to ACP, even on the footing that they were distinct legal persons. If, as the judge held, Burnstead was Mr Dalbys nominee for the purpose of receiving and holding the secret profit, it followed that Burnstead had no right to the money as against Mr Dalby, who had in law received it through Burnstead and could properly be required to account for it to ACP. Burnstead itself was liable to account to ACP because, as the judge went on to point out, Mr Dalbys knowledge of the prior equitable interest of ACP was to be imputed to it. As Rimer J observed, the introduction into the story of such a creature company is. insufficient to prevent equitys eye from identifying it with Mr Dalby. This is in reality the concealment principle. The correct analysis of the situation was that the court refused to be deterred by the legal personality of the company from finding the true facts about its legal relationship with Mr Dalby. It held that the nature of their dealings gave rise to ordinary equitable claims against both. The result would have been exactly the same if Burnstead, instead of being a company, had been a natural person, say Mr Dalbys uncle, about whose separate existence there could be no doubt. The same confusion of concepts is, with respect, apparent in Sir Andrew Morritt V Cs analysis in Trustor AB v Smallbone (No 2) [2001] 1 WLR 1177, which I have already considered. The Vice Chancellors statement of principle at para 23 that the court was entitled to pierce the corporate veil if the company was used as a device or facade to conceal the true facts thereby avoiding or concealing any liability of those individual(s) elides the quite different concepts of concealment and avoidance. As I read his reasons for giving judgment against Mr Smallbone, at paras 24 25, he did so on the concealment principle. It had been found at the earlier stage of the litigation that Introcom was simply a vehicle Mr Smallbone used for receiving money from Trustor, and that the company was a device or facade for concealing that fact. On that footing, the company received the money on Mr Smallbones behalf. This conclusion did not involve piercing the corporate veil, and did not depend on any finding of impropriety. It was simply an application of the principle summarised by the Vice Chancellor at para 19 of his judgment, that receipt by a company will count as receipt by the shareholder if the company received it as his agent or nominee, but not if it received it in its own right. To decide that question, it was necessary to establish the facts which demonstrated the true legal relationship between Mr Smallbone and Introcom. Mr Smallbones ownership and control of Introcom was only one of those facts, not in itself conclusive. Other factors included the circumstances and the source of the receipt, and the nature of the companys other transactions if any. In Trustor, as in Gencor, the analysis would have been the same if Introcom had been a natural person instead of a company. The evasion principle was not engaged, and indeed could not have been engaged on the facts of either case. This is because neither Mr Dalby nor Mr Smallbone had used the companys separate legal personality to evade a liability that they would otherwise have had. They were liable to account only if the true facts were that the company had received the money as their agent or nominee. That was proved in both cases. If it had not been, there would have been no receipt, knowing or otherwise, and therefore no claim to be evaded. The situation was not the same as it had been in Gilford Motor Co v Horne and Jones v Lipman, for in these cases the real actors, Mr Horne and Mr Lipman, had a liability which arose independently of the involvement of the company. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement. It is not an abuse to cause a legal liability to be incurred by the company in the first place. It is not an abuse to rely upon the fact (if it is a fact) that a liability is not the controllers because it is the companys. On the contrary, that is what incorporation is all about. Thus in a case like VTB Capital, where the argument was that the corporate veil should be pierced so as to make the controllers of a company jointly and severally liable on the companys contract, the fundamental objection to the argument was that the principle was being invoked so as to create a new liability that would not otherwise exist. The objection to that argument is obvious in the case of a consensual liability under a contract, where the ostensible contracting parties never intended that any one else should be party to it. But the objection would have been just as strong if the liability in question had not been consensual. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the companys separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil. Like Munby J in Ben Hashem, I consider that if it is not necessary to pierce the corporate veil, it is not appropriate to do so, because on that footing there is no public policy imperative which justifies that course. I therefore disagree with the Court of Appeal in VTB Capital who suggested otherwise at para 79. For all of these reasons, the principle has been recognised far more often than it has been applied. But the recognition of a small residual category of cases where the abuse of the corporate veil to evade or frustrate the law can be addressed only by disregarding the legal personality of the company is, I believe, consistent with authority and with long standing principles of legal policy. In the present case, Moylan J held that he could not pierce the corporate veil under the general law without some relevant impropriety, and declined to find that there was any. In my view he was right about this. The husband has acted improperly in many ways. In the first place, he has misapplied the assets of his companies for his own benefit, but in doing that he was neither concealing nor evading any legal obligation owed to his wife. Nor, more generally, was he concealing or evading the law relating to the distribution of assets of a marriage upon its dissolution. It cannot follow that the court should disregard the legal personality of the companies with the same insouciance as he did. Secondly, the husband has made use of the opacity of the Petrodel Groups corporate structure to deny being its owner. But that, as the judge pointed out at para 219 is simply [the] husband giving false evidence. It may engage what I have called the concealment principle, but that simply means that the court must ascertain the truth that he has concealed, as it has done. The problem in the present case is that the legal interest in the properties is vested in the companies and not in the husband. They were vested in the companies long before the marriage broke up. Whatever the husbands reasons for organising things in that way, there is no evidence that he was seeking to avoid any obligation which is relevant in these proceedings. The judge found that his purpose was wealth protection and the avoidance of tax. It follows that the piercing of the corporate veil cannot be justified in this case by reference to any general principle of law. Section 24(1)(a) of the Matrimonial Causes Act 1973 If there is no justification as a matter of general legal principle for piercing the corporate veil, I find it impossible to say that a special and wider principle applies in matrimonial proceedings by virtue of section 24(1)(a) of the Matrimonial Causes Act 1973. The language of this provision is clear. It empowers the court to order one party to the marriage to transfer to the other property to which the first mentioned party is entitled, either in possession or reversion. An entitlement is a legal right in respect of the property in question. The words in possession or reversion show that the right in question is a proprietary right, legal or equitable. This section is invoking concepts with an established legal meaning and recognised legal incidents under the general law. Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. If a right of property exists, it exists in every division of the High Court and in every jurisdiction of the county courts. If it does not exist, it does not exist anywhere. It is right to add that even where courts exercising family jurisdiction have claimed a wider jurisdiction to pierce the corporate veil than would be recognised under the general law, they have not usually suggested that this can be founded on section 24 of the Matrimonial Causes Act. On the contrary, in Nicholas v Nicholas [1984] FLR 285, 288, Cumming Bruce LJ said that it could not. This analysis is not affected by section 25(2)(a) of the Matrimonial Causes Act 1973. Section 25(2)(a) requires the court when exercising the powers under section 24, to have regard to the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future. The breadth and inclusiveness of this definition of the relevant resources of the parties to the marriage means that the relevant spouses ownership and control of a company and practical ability to extract money or moneys worth from it are unquestionably relevant to the courts assessment of what his resources really are. That may affect the amount of any lump sum or periodical payment orders, or the decision what transfers to order of other property which unquestionably belongs to the relevant spouse. But it does not follow from the fact that one spouses worth may be boosted by his access to the companys assets that those assets are specifically transferrable to the other under section 24(1)(a). Moylan J considered that it was enough to justify his order to transfer the properties that the husband should have the practical ability to procure their transfer, whether or not he was their beneficial owner. He found that this was established in the present case because of the power which the husband had over the companies by virtue of owning and controlling them. The judge did not make any finding about whether the properties of the corporate respondents were held in trust for the husband, except in the case of the matrimonial home in Warwick Avenue, which he found to be beneficially his. What he held was that the assets of the companies were effectively the husbands property, because he treated them as such. He was able to procure their disposal as he may direct, based again on his being the controller of the companies and the only beneficial owner. The judge accepted that as a matter of company law, the husband as shareholder had no more than a right of participation in accordance with the companys constitution, and that that did not confer any right to any particular property of the company. But, what if the shareholder is, in fact, able to procure the transfer to them of a particular item of company property, such as a matrimonial home, the judge asked, as a result of their control and ownership of the company and the absence of any third party interests. The judges answer to that question was that the purpose and intention of the Matrimonial Causes Act 1973 was that the companies assets should be treated as part of the marital wealth. Effectively, he said, the husband, in respect of the companies and their assets, is in the same position he would be in if he was the beneficiary of a bare trust or the companies were his nominees. I do not accept this, any more than the Court of Appeal did. The judge was entitled to take account of the husbands ownership and control of the companies and his unrestricted access to the companies assets in assessing what his resources were for the purpose of section 25(2)(a). But he was not entitled to order the companies assets to be transferred to the wife in satisfaction of the lump sum order simply by virtue of section 24(1)(a). I do not doubt that the construction of section 24(1)(a) of the Act is informed by its purpose and its social context, as well as by its language. Nor do I doubt that the object is to achieve a proper division of the assets of the marriage. But it does not follow that the courts will stop at nothing in their pursuit of that end, and there are a number of principled reasons for declining to give the section the effect that the judge gave it. In the first place, it is axiomatic that general words in a statute are not to be read in a way which would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness. The words are those of Lord Atkin in Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014, 1031 1032, but the principle is very familiar and has been restated by the courts in many contexts and at every level. There is nothing in the Matrimonial Causes Act and nothing in its purpose or broader social context to indicate that the legislature intended to authorise the transfer by one party to the marriage to the other of property which was not his to transfer. Secondly, a transfer of this kind will ordinarily be unnecessary for the purpose of achieving a fair distribution of the assets of the marriage. Where assets belong to a company owned by one party to the marriage, the proper claims of the other can ordinarily be satisfied by directing the transfer of the shares. It is true that this will not always be possible, particularly in cases like this one where the shareholder and the company are both resident abroad in places which may not give direct effect to the orders of the English court. In an age of internationally mobile spouses and assets this is a more significant problem than it once was, but such cases remain the exception rather than the rule. Section 24 cannot be construed as if it were directed to that problem. Third, so far as a party to matrimonial proceedings deliberately attempts to frustrate the exercise of the courts ancillary powers by disposing of assets, section 37 provides for the setting aside of those dispositions in certain circumstances. Section 37 is a limited provision which is very far from being a complete answer to the problem, but it is as far as the legislature has been prepared to go. The recognition of a jurisdiction such as the judge sought to exercise in this case would cut across the statutory schemes of company and insolvency law. These include elaborate provisions regulating the repayment of capital to shareholders and other forms of reduction of capital, and for the recovery in an insolvency of improper dispositions of the companys assets. These schemes are essential for the protection of those dealing with a company, particularly where it is a trading company like PRL and Vermont. The effect of the judges order in this case was to make the wife a secured creditor. It is no answer to say, as occasionally has been said in cases about ancillary financial relief, that the court will allow for known creditors. The truth is that in the case of a trading company incurring and discharging large liabilities in the ordinary course of business, a court of family jurisdiction is not in a position to conduct the kind of notional liquidation attended by detailed internal investigation and wide publicity which would be necessary to establish what its liabilities are. In the present case, the difficulty is aggravated by the fact that the last financial statements, which are not obviously unreliable, are more than five years old. To some extent that is the fault of the husband and his companies, but that is unlikely to be much comfort to unsatisfied creditors with no knowledge of the state of the shareholders marriage or the proceedings in the Family Division. It is clear from the judges findings of fact that this particular husband made free with the companys assets as if they were his own. That was within his power, in the sense that there was no one to stop him. But, as the judge observed, he never stopped to think whether he had any right to act in this way, and in law, he had none. The sole shareholder or the whole body of shareholders may approve a foolish or negligent decision in the ordinary course of business, at least where the company is solvent: Multinational Gas & Petrochemical Co v Multinational Gas & Petrochemical Services Ltd [1983] Ch 258. But not even they can validly consent to their own appropriation of the companys assets for purposes which are not the companys: Belmont Finance Corpn Ltd v Williams Furniture Ltd [1979] Ch 250, 261 (Buckley LJ), Attorney Generals Reference (No 2 of 1982) [1984] QB 624, Director of Public Prosecutions v Gomez [1993] AC 442, 496 497 (Lord Browne Wilkinson). Mr Prest is of course not the first person to ignore the separate personality of his company and pillage its assets, and he will certainly not be the last. But for the court to deploy its authority to authorise the appropriation of the companys assets to satisfy a personal liability of its shareholder to his wife, in circumstances where the company has not only not consented to that course but vigorously opposed it, would, as it seems to me, be an even more remarkable break with principle. It may be said, as the judge in effect did say, that the way in which the affairs of this company were conducted meant that the corporate veil had no reality. The problem about this is that if, as the judge thought, the property of a company is property to which its sole shareholder is entitled, either in possession or reversion, then that will be so even in a case where the sole shareholder scrupulously respects the separate personality of the company and the requirements of the Companies Acts, and even in a case where none of the exceptional circumstances that may justify piercing the corporate veil applies. This is a proposition which can be justified only by asserting that the corporate veil does not matter where the husband is in sole control of the company. But that is plainly not the law. Beneficial ownership of the properties It follows from the above analysis that the only basis on which the companies can be ordered to convey the seven disputed properties to the wife is that they belong beneficially to the husband, by virtue of the particular circumstances in which the properties came to be vested in them. Only then will they constitute property to which the husband is entitled, either in possession or reversion. This is the issue which the judge felt that he did not need to decide. But on the footing that he was wrong about the ambit of section 24(1)(a), it does need to be decided now. The issue requires an examination of evidence which is incomplete and in critical respects obscure. A good deal therefore depends upon what presumptions may properly be made against the husband given that the defective character of the material is almost entirely due to his persistent obstruction and mendacity. In British Railways Board v Herrington [1972] AC 877, 930 931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said: The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence. The courts have tended to recoil from some of the fiercer parts of this statement, which appear to convert open ended speculation into findings of fact. There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a partys failure to rebut it. For my part I would adopt, with a modification which I shall come to, the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283, 300: In our legal system generally, the silence of one party in face of the other partys evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified. Cf. Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340. The modification to which I have referred concerns the drawing of adverse inferences in claims for ancillary financial relief in matrimonial proceedings, which have some important distinctive features. There is a public interest in the proper maintenance of the wife by her former husband, especially (but not only) where the interests of the children are engaged. Partly for that reason, the proceedings although in form adversarial have a substantial inquisitorial element. The family finances will commonly have been the responsibility of the husband, so that although technically a claimant, the wife is in reality dependent on the disclosure and evidence of the husband to ascertain the extent of her proper claim. The concept of the burden of proof, which has always been one of the main factors inhibiting the drawing of adverse inferences from the absence of evidence or disclosure, cannot be applied in the same way to proceedings of this kind as it is in ordinary civil litigation. These considerations are not a licence to engage in pure speculation. But judges exercising family jurisdiction are entitled to draw on their experience and to take notice of the inherent probabilities when deciding what an uncommunicative husband is likely to be concealing. I refer to the husband because the husband is usually the economically dominant party, but of course the same applies to the economically dominant spouse whoever it is. The facts, so far as the judge was able to make findings about them, are that the London properties were acquired as follows: December 1995 Flat 4, 27 Abbey Road was transferred to PRL by the husband for 1. It had been bought by him in 1991, before the marriage and before the incorporation of PRL. There are two charges on the property, in favour of Ahli United Bank and BNP Paribas, apparently to secure loans made to PRL. Neither the husband nor PRL has complied with orders to disclose the loan agreement and related documents. March 1996 1998 August 2000 May 2001 Flat 5, 27 Abbey Road was transferred to PRL on the same day, also for 1, by the husbands younger brother Michel. It had been bought in March of that year for 48,650 in Michels name. The wifes evidence was that, at the time, Michel was a student in London with no substantial assets of his own who was being supported by her husband. She said that her husband had led her to believe that he had paid for it. Flat 2, 143 Ashmore Road, is a leasehold property transferred to PRL for 1 by the wife. It had originally been bought by the husband in November 1992 in the name of someone called Jimmy Lawrence. There is no information about Jimmy Lawrence or the reasons for his involvement. According to the husbands evidence, the purchase money came from PRL, but since PRL was not incorporated until six months after that, this cannot be correct. At some stage, it is unclear when or how, the lease was transferred into the name of the wife, and she must have signed the transfer when it was conveyed to PRL, but she had no recollection of being involved or of ever having owned it. The wife transferred her interest in the freehold of 143 Ashmore Street to PRL. The freehold had originally been bought in 1996 in the name of the wife and one Esta Blechman, who was the leasehold owner of another flat in the building. There is no information about the consideration paid either in 1996 or in 1998. The husbands evidence was the funds to buy the wifes interest in 1996 came from PRL. Flat 6, 62 64 Beethoven Street was transferred to PRL by the husband for 85,000. He had originally bought it in 1988 (before the marriage) for 70,500. The property is charged to secure the loans made by Ahli United Bank and BNP Paribas. The matrimonial home, 16 Warwick Avenue, was bought in the name of PRL for 1.4 million July 2001 January 2004 that and subsequently refurbished at a cost of about 1 million. The judge rejected the husbands the purchase price and evidence refurbishment costs were funded by PRL, because at that stage the company had not commenced trading operations. He found that they were funded from bonuses earned by the husband, presumably, at this stage, from his last employer before he set up on his own. The judge found that PRL had always held this property on trust for the husband and that conclusion is not challenged on this appeal. The property is charged to secure the loans made by Ahli United Bank and BNP Paribas. In accordance with the judges order PRL has now conveyed it to the wife, but subject to the charges. Flat 310, Pavilion Apartments was bought in the name of Vermont for 635,000. The judge found that the money was derived from PRL. 11, South Lodge, Circus Road, was bought in the name of Vermont for 700,000. The judge found that the purchase price was also derived from PRL. The property is charged to secure the loans made to Ahli United Bank and BNP Paribas. The judge recorded the wifes evidence that the husband had once advised her that if anything were to happen to him, she should sell all the properties, move to Nevis and use the proceeds of sale to meet her living expenses there. The starting point is that in her points of claim the wife expressly alleged, among other things, that the husband used the corporate defendants to hold legal title to properties that belonged beneficially to him. All seven of the properties in dispute on this appeal were identified in her pleading as having been held for him in this way. In her section 25 statement, she gives evidence of her belief that he was their beneficial owner, supported in some cases by admittedly inconclusive reasons for that belief. Neither the husband nor the companies have complied with orders for the production of the completion statements on the purchase of the properties and evidence of the source of the money used to pay the purchase price. The companies were joined to these proceedings only because they were alleged to be trustees for the husband of the shareholdings and the properties and because orders were being sought for their transfer to the wife. Yet the companies failed to file a defence, or to comply with orders for disclosure. One of the few things that is clear from Mr Murphys affidavit was that the companies refusal to co operate was deliberate, notwithstanding that they were conscious that the London properties (unlike the other assets) were within the jurisdiction of the court, which was in a position directly to enforce any order that it might make in respect of them. The only explanation proffered for their contumacy was that the information was confidential to the companies shareholders or commercial partners. It is difficult to imagine that any commercial partners could enjoy rights of confidence over information concerning residential investment properties in London, and on the judges findings the only shareholder was the husband himself. The only directly relevant evidence given by Mr Murphy in his affidavit is a bald assertion that the companies are the sole beneficial owners of the shareholdings and the properties, but he declined to appear for cross examination on it. The judge rejected his explanation that his health was not up to it. The judges findings about the ownership and control of the companies mean that the companies refusal to co operate with these proceedings is a course ultimately adopted on the direction of the husband. It is a fair inference from all these facts, taken cumulatively, that the main, if not the only, reason for the companies failure to co operate is to protect the London properties. That in turn suggests that proper disclosure of the facts would reveal them to have been held beneficially by the husband, as the wife has alleged. Turning to what is known about the acquisition of the disputed properties, PRL acquired the legal interest in six London properties (including the matrimonial home) between 1995 and 2001. All of these properties were acquired by PRL before it began commercial operations and began to generate funds of its own. This was the main basis on which the judge found that the matrimonial home was held on trust for the husband from its acquisition in 2001. Since, as the judge found, no rent was paid to PRL for the familys occupation of the matrimonial home, this is a particularly clear case of the husband using PRL as a vehicle to hold legal title on trust for himself. Of the other five properties owned by PRL, the first category comprises the three properties (Flats 4 and 5, 27 Abbey Road, and Flat 2, 143 Ashmore Road) acquired by the company in December 1995 and March 1996, in each case for a nominal consideration of 1. Since no explanation has been forthcoming for the gratuitous transfer of these properties to PRL, there is nothing to rebut the ordinary presumption of equity that PRL was not intended to acquire a beneficial interest in them. The only question is who did hold the beneficial interest. Flat 4, 27 Abbey Road was transferred by the husband, who had originally bought it in his own name in 1991, before PRL was incorporated. There is therefore an ordinary resulting trust back to the husband, which is held by him subject to the charges in favour of Ahli United Bank and BNP Paribas. Flat 5, 27 Abbey Road was transferred to PRL by the husbands younger brother Michel. He had acquired title shortly before at a time when he could not have paid for it himself. The wifes evidence was that the husband paid for it. Again, there is no evidence to rebut the ordinary inference that the husband was the beneficial owner of the property at the time of the transfer to PRL, and that the company held it on a resulting trust for him. The leasehold interest in Flat 2, 143 Ashmore Road was transferred to PRL by the wife. The rather curious chain of title before that is summarised above. The circumstances suggest that the husband must have provided the purchase money and was the beneficial owner when the legal estate was held by Jimmy Lawrence and also at the time of its transfer from him to the wife. Either it then became the beneficial property of the wife (which is what equity would initially presume); or else it remained in the beneficial ownership of the husband, which is what I would on balance infer from the wifes evidence that the transfer was procured by the husband without her conscious involvement. In either case, the company as the legal owner can be required to transfer this property to the wife. I conclude that the husband was at all relevant times the beneficial owner of all three properties. The freehold interest in 143 Ashmore Road and Flat 6, 62 64 Beethoven Street come into a different category. Flat 6, 62 64 Beethoven Street is known to have been acquired by PRL from the husband in August 1998 for substantial consideration. Since PRL had not begun operations at that stage, I infer that the purchase money must have come from the husband. Virtually nothing is known about the terms of acquisition of the wifes interest in the freehold of 143 Ashmore Road, except that the husband says that the money came from PRL. I infer for the same reason that PRL was funded by the husband. In itself, that is consistent with PRL being the beneficial owner if, for example, the husband provided the money to the company by way of loan or capital subscription. But there is no evidence to that effect, and I would not be willing to presume it in the absence of any. I conclude that the husband was the beneficial owner of these two properties. That leaves the two London properties (Flat 310, Pavilion Apartments and 11, South Lodge, Circus Road) which were acquired in the name of Vermont for substantial consideration, in July 2001 and January 2004 respectively. Vermont is an oil trading company which according to the husband started lifting oil in 2010. In the companys financial statements for 2008, the two properties are listed as its only assets and there were no liabilities apart from the bank loans charged on Flat 310, Pavilion Apartments. Flat 310, Pavilion Apartments was acquired with funds derived from PRL at a time when the company had not begun trading operations. I infer that the funds were provided to PRL by the husband. The position is the same in the case of 11, South Lodge, except that this was bought with money provided by PRL at a time when it was an active trading company and could therefore have funded the purchase itself. However, it is right to note (i) that the ownership of residential investment property in London appears to have nothing to do with the oil trading business in which PRL was then engaged, and (ii) that at this stage of the history a consistent pattern can be discerned by which the husband causes properties to be acquired with funds provided by himself by companies under his control, nominally funded by PRL but in fact by himself. If 11, South Lodge was the exception, then it was a break with past practice. In the absence of any explanation of these transactions by the husband or his companies, I conclude that both of the properties acquired in the name of Vermont were beneficially owned by the husband. Whether assets legally vested in a company are beneficially owned by its controller is a highly fact specific issue. It is not possible to give general guidance going beyond the ordinary principles and presumptions of equity, especially those relating to gifts and resulting trusts. But I venture to suggest, however tentatively, that in the case of the matrimonial home, the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company. In many, perhaps most cases, the occupation of the companys property as the matrimonial home of its controller will not be easily justified in the companys interest, especially if it is gratuitous. The intention will normally be that the spouse in control of the company intends to retain a degree of control over the matrimonial home which is not consistent with the companys beneficial ownership. Of course, structures can be devised which give a different impression, and some of them will be entirely genuine. But where, say, the terms of acquisition and occupation of the matrimonial home are arranged between the husband in his personal capacity and the husband in his capacity as the sole effective agent of the company (or someone else acting at his direction), judges exercising family jurisdiction are entitled to be sceptical about whether the terms of occupation are really what they are said to be, or are simply a sham to conceal the reality of the husbands beneficial ownership. Nuptial settlement The wife sought special leave to argue that the companies constituted a nuptial settlement within the meaning of section 24(1)(c) of the Act. The court ruled in the course of the hearing that leave would be refused. The point was not argued below and does not appear to be seriously arguable here. Terms for permission to appeal Before parting with this case, I will only record my surprise that the companies were given permission to appeal on such undemanding terms. They were required to make a payment on account of costs, but they were not required to purge their contempt in failing to disclose documents or information, nor were they put on terms as to dealings with the properties. There may have been good reasons for not imposing such terms, but on the face of it the possibility was not even considered. Conclusion I would accordingly declare that the seven disputed properties vested in PRL and Vermont are held on trust for the husband, and I would restore paragraph 6 of the order of Moylan J so far as it required those companies to transfer them to the wife. Subject to any contrary submissions as to costs, I would also restore paragraph 14 of the judges order so far as it dealt with the costs payable by PRL and Vermont, and would order them to pay the costs of the appeal to the Court of Appeal and to this court. As at present advised, I would not require Upstream, against whom no relief has ever been sought, to pay any costs, but in the rather unusual circumstances of this case, I would not make any costs order in their favour either. LORD NEUBERGER I agree that Mrs Prests appeal succeeds. More particularly, I agree that her appeal should be (i) allowed on the basis that the properties were acquired and held by the respondents on trust for the husband, but (ii) dismissed in so far as it relies on piercing the veil of incorporation, or on section 24(1)(a) or (c) of the Matrimonial Causes Act 1973. I agree with all that Lord Sumption says on (i) the construction of section 24(1)(a) of the 1973 Act, in paras 37 42, (ii) the trust issue, in his masterly analysis of the facts and inferences to be drawn from them, in paras 43 52, (iii) the point sought to be raised under section 24(1)(c), in para 53, and (iv) his conclusions in paras 55 and 56, and there is nothing I wish to add on those issues. I wish, however, to add a little to what Lord Sumption says on the question of whether, and if so, in what circumstances, the court has power to pierce the corporate veil in the absence of specific statutory authority to do so. I agree that there are two types of case where judges have described their decisions as being based on piercing the veil, namely those concerned with concealment and those concerned with evasion. It seems to me that Staughton LJ had a similar classification in mind in Atlas Maritime Co SA v Avalon Maritime Ltd (No 1) [1991] 4 All ER 769, 779G (quoted in VTB Capital plc v Nutritek International Corpn [2013] UKSC 5; [2013] 2 WLR 378, para 118), where he sought to distinguish between lifting and piercing the corporate veil. I also agree that cases concerned with concealment do not involve piercing the corporate veil at all. They simply involve the application of conventional legal principles to an arrangement which happens to include a company being interposed to disguise the true nature of that arrangement. Accordingly, if piercing the corporate veil has any role to play, it is in connection with evasion. Furthermore, I agree that, if the court has power to pierce the corporate veil, Munby J was correct in Ben Hashem v Al Shayif [2009] 1 FLR 115 to suggest that it could only do so in favour of a party when all other, more conventional, remedies have proved to be of no assistance (and therefore I disagree with the Court of Appeal in VTB [2012] 2 Lloyds Rep 313, para 79, who suggested otherwise). However, as in the recent decision of this court in VTB, it is not necessary to decide whether there is a principle that it is open to a court, without statutory authority (or, possibly, in the absence of the intention of contracting parties), to pierce the veil of incorporation (the doctrine), and, if it is, the scope, or boundaries, of the doctrine. However, I can see considerable force in the view that it is appropriate for us to address those matters now. This is the second case in the space of a few months when the doctrine has been invoked before this court on what are, on any view, inappropriate grounds. It is also clear from the cases and academic articles that the law relating to the doctrine is unsatisfactory and confused. Those cases and articles appear to me to suggest that (i) there is not a single instance in this jurisdiction where the doctrine has been invoked properly and successfully, (ii) there is doubt as to whether the doctrine should exist, and (iii) it is impossible to discern any coherent approach, applicable principles, or defined limitations to the doctrine. In these circumstances, there is obvious value in seeking to decide whether the doctrine exists, and if so, to identify some coherent, practical and principled basis for it, if we can do so in this case. Any discussion about the doctrine must begin with the decision in Salomon v A Salomon and Co Ltd [1897] AC 22, in which a unanimous House of Lords reached a clear and principled decision, which has stood unimpeached for over a century. The effect of the decision is encapsulated at pp 30 31, where Lord Halsbury LC said that a legally incorporated company must be treated like any other independent person with its rights and liabilities appropriate to itself , whatever may have been the ideas or schemes of those who brought it into existence. Whether that is characterised as a common law rule or a consequence of the companies legislation (or an amalgam of both), it is a very well established principle of long standing and high authority. Writing extra judicially, Lord Templeman referred to the principle in Salomon as the unyielding rock on which company law is constructed, and on which complicated arguments might ultimately become shipwrecked Forty Years On (1990) 11 Co Law 10. The decision in Salomon plainly represents a substantial obstacle in the way of an argument that the veil of incorporation can be pierced. Further, the importance of maintaining clarity and simplicity in this area of law means that, if the doctrine is to exist, the circumstances in which it can apply must be limited and as clear as possible. Since the decision in Salomon, there have been a number of cases where the courts have considered piercing or lifting the corporate veil. The most important of those cases are discussed by Lord Sumption in paras 20 35 above. That discussion demonstrates, as I see it, the following: i. The decision of the International Court of Justice in In re Barcelona Traction, Light and Power Co, Ltd [1970] ICJ 3 recognises the doctrine; however, that is in the context of a civil law system which includes the principle of abuse of rights, and begs the question whether, in a common law system, the doctrine should be applicable by the courts in the absence of specific legislative sanction; ii. There are judgments in family cases based on obiter dicta in Nicholas v Nicholas [1984] FLR 285 (eg the judgments of Thorpe LJ in this case and of Mostyn J in Kremen v Agrest (No 2) [2011] 2 FLR 490), where the doctrine has been treated as valid and applicable; but the application of the doctrine, even if it exists, in these cases is unsound, as Munby J effectively (in both senses of the word) indicated in A v A [2007] 2 FLR 467 and Ben Hashem [2009] 1 FLR 115; iii. There are two cases outside the family law context which laid the ground for the establishment of the doctrine, namely the decisions of the Court of Appeal in Gilford Motor Co Ltd v Horne [1933] Ch 935, and of Russell J in Jones v Lipman [1962] 1 WLR 832; iv. There are two subsequent decisions, one of the House of Lords, Woolfson v Strathclyde Regional Council 1978 SC(HL) 90, the other of the Court of Appeal, Adams v Cape Industries plc [1990] vs Ch 433, in which it was assumed or accepted that the doctrine existed, but they cannot amount to more than obiter observations, as in neither of them did the doctrine apply; In subsequent cases in the Court of Appeal and High Court, it has been (unsurprisingly) assumed that the doctrine does apply, two recent examples being the Court of Appeal decisions in VTB [2012] 2 Lloyds Rep 313 and Alliance Bank JSC v Aquanta Corpn [2013] 1 Lloyds Rep 175; vi. However, in only two of those subsequent cases (the first instance decisions in Gencor ACP Ltd v Dalby [2000] 2 BCLC 734 and Trustor AB v Smallbone (No 2) [2001] 1 WLR 1177) has the doctrine actually been relied on, and they each could have been decided the same way without recourse to the doctrine, and therefore involved illegitimate applications of the doctrine on any view (see para 62 above). On closer analysis of cases mentioned in subpara (iii) above, it does not appear to me that the facts and outcomes in Gilford Motor and Jones provide much direct support for the doctrine. However, the decisions can fairly be said to have rested on the doctrine if one takes the language of the judgments at face value. Further, they indicate that, where a court is of the view (albeit that I think that it was mistaken in those cases) that there is no other method of achieving justice, the doctrine provides a valuable means of doing so. In Gilford Motor, the legal argument at first instance and on appeal seems to have concentrated on the validity of the restrictive covenant (see at [1933] Ch 935, 936 937 and 950 952). It is also clear from the judgment of Lord Hanworth MR at p 961 that counsel for the company conceded that if, contrary to his contention, the company was a mere cloak or sham and that the business was actually being carried on by Horne in breach of the restrictive covenant, then the company should also be restrained. Further, in my view, as that passage indicates, the case was one of concealment, and therefore did not really involve the doctrine at all. In any event, it seems to me that the decision in Gilford Motor that an injunction should be granted against the company was amply justified on the basis that the company was Hornes agent for the purpose of carrying on the business (just as his wife would have been, if he had used her as the cloak); therefore, if an injunction was justified against Horne, it was justified against the company. There is nothing in the judgments in Gilford Motor to suggest that any member of the Court of Appeal thought that he was making new law, let alone cutting into the well established and simple principle laid down in Salomon. It is by no means inconceivable that the three members of the Court of Appeal in Gilford Motor were using the expression cloak or sham to suggest, as a matter of legal analysis, a principal and agent relationship. Lord Hanworth relied on a passage in a judgment of Lindley LJ in Smith v Hancock [1894] 2 Ch 377, 385 (where the expression cloak or sham appears to have originated), and in that passage, it seems to me that the cloak or sham is treated as amounting to the business being carried on for the defendant. This view is supported by something Lord Denning MR said in Wallersteiner v Moir [1974] 1 WLR 991, 1013, namely it was quite clear that the companies in that case: were just the puppets of Dr Wallersteiner. Transformed into legal language, they were his agents to do as he commanded. He was the principal behind them. At any rate, it was up to him to show that any one else had a say in their affairs and he never did so: cf Gilford. As for Jones, I am unconvinced that it was necessary for Russell J to invoke the doctrine in order to justify an effective order for specific performance, as sought by the plaintiffs in that case. An order for specific performance would have required Lipman not merely to convey the property in question to the plaintiffs, but to do everything which was reasonably within his power to ensure that the property was so conveyed see eg Wroth v Tyler [1974] Ch 30, 47 51. Lipman and an employee of his solicitors were the sole shareholders and directors of the company, and its sole liability appears to have been a loan of 1500 to a bank (borrowed to meet half the 3000 which it paid for the property). In those circumstances, it seems clear that Lipman could have compelled the company to convey the property to the plaintiffs (on the basis that he would have to account to the company for the purchase price, which would have ensured that the bank was in no way prejudiced). Indeed, I consider that the company could fairly have been described and treated as being Lipmans creature, without in any way cutting into the principle established in Salomon. The history of the doctrine over 80 years of its putative life (taking Gilford Motor as the starting point) is, therefore, at least as I see it, a series of decisions, each of which can be put into one of three categories, namely: i. Decisions in which it was assumed that the doctrine existed, but it was rightly concluded that it did not apply on the facts; ii. Decisions in which it was assumed that the doctrine existed, and it was wrongly concluded that it applied on the facts; iii. Decisions in which it was assumed that the doctrine existed and it was applied to the facts, but where the result could have been arrived at on some other, conventional, legal basis, and therefore it was wrongly concluded that it applied (see para 62 above). (The doctrine has been invoked in cases not considered by Lord Sumption, but they take matters no further see the decisions mentioned and briefly considered in VTB [2013] 2 WLR 398, paras 125 and 127). The lack of any coherent principle in the application of the doctrine has been commented on judicially in many of the major common law jurisdictions. In this country, Clarke J in The Tjaskemolen [1997] 2 Lloyds Rep 465, 471 said that [t]he cases have not worked out what is meant by piercing the corporate veil. In Australia, in Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549, 567, Rogers AJA in the New South Wales Court of Appeal observed that there is no common, unifying principle, which underlies the occasional decision of courts to pierce the corporate veil, and that there is no principled approach to be derived from the authorities. In Constitution Insurance Co of Canada v Kosmopoulos [1987] 1 SCR 2, 10, Justice Wilson in the Supreme Court of Canada said that [t]he law on when a court may [lift] the corporate veil follows no consistent principle. The New Zealand Court of Appeal in Attorney General v Equiticorp Industries Group Ltd (In Statutory Management) [1996] 1 NZLR 528, 541, said that to lift the corporate veil is not a principle. It describes the process, but provides no guidance as to when it can be used. In the South African Supreme Court decision, Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A), 802 803, Smalberger JA observed that [t]he law is far from settled with regard to the circumstances in which it would be permissible to pierce the corporate veil. Judges in the United States have also been critical, even though the doctrine has been invoked and developed to a much greater extent than in this jurisdiction. In Secon Serv Sys Inc v St Joseph Bank & Trust Co, 855 F2d (7th Cir, 1988), 406, 414, Judge Easterbrook in the US Court of Appeals described the doctrine as quite difficult to apply, because it avoids formulating a real rule of decision. This keeps people in the dark about the legal consequences of their acts . And in Allied Capital Corp v GC Sun Holdings LP, 910 A2d (2006) 1020, 1042 1043, the Delaware Court of Chancery said that the doctrine has been rightfully criticized for its ambiguity and randomness, and that its application yield[s] few predictable results. The doctrine has fared no better with academics. Easterbrook and Fischel, Limited Liability and the Corporation (1985) 52 Univ Chicago L Rev 89, pithily observe that [p]iercing seems to happen freakishly. Like lightning, it is rare, severe, and unprincipled. The jurisprudence on the doctrine has been described as incoherent and unprincipled by Farrar, Fraud, Fairness and Piercing the Corporate Veil (1990) 16 Can Bus LJ 474, 478. C Mitchell, in Lifting the Corporate Veil in the English Courts: An Empirical Study (1999) 3 Co Fin and Ins LR 15, 16 observes that courts have often used conclusory terms to express their decisions on the point, which for all their vividness tell us nothing about the reasoning which underpins these decisions. Neyers in Canadian Corporate Law, Veil Piercing, and the Private Law Model Corporation (2000) 50 Univ Toronto LJ 173, 180, asks rhetorically: How can the legal person doctrine that is so central to corporate law in one sentence be disregarded so casually in the next? D Michael in To Know A Veil (2000) 26 J Corp Law 41, 55, refers to the doctrine as a non existent and false doctrine. Ramsay and Noakes, Piercing the Corporate Veil in Australia (2001) 19 C & SLJ 250, 251, note that the doctrine is far from clear in the case law. Oh, Veil Piercing (2010) 89 Texas Law Review 81, 84 says that [t]he inherent imprecision in metaphors has resulted in a doctrinal mess. This last view has some resonance with my remarks in VTB [2013] 2 WLR 398, para 124, about the use of pejorative expressions to mask the absence of rational analysis. It also chimes with Justice Cardozos reference to the mists of metaphor in company law, which, starting as devices to liberate thought, end often by enslaving it, in Berkey v Third Ave Ry 155 NE 58, 61 (1926). In these circumstances, I was initially strongly attracted by the argument that we should decide that a supposed doctrine, which is controversial and uncertain, and which, on analysis, appears never to have been invoked successfully and appropriately in its 80 years of supposed existence, should be given its quietus. Such a decision would render the law much clearer than it is now, and in a number of cases it would reduce complications and costs: whenever the doctrine is really needed, it never seems to apply. However, I have reached the conclusion that it would be wrong to discard a doctrine which, while it has been criticised by judges and academics, has been generally assumed to exist in all common law jurisdictions, and represents a potentially valuable judicial tool to undo wrongdoing in some cases, where no other principle is available. Accordingly, provided that it is possible to discern or identify an approach to piercing the corporate veil, which accords with normal legal principles, reflects previous judicial reasoning (so far as it can be discerned and reconciled), and represents a practical solution (which hopefully will avoid the problems summarised in para 75 above), I believe that it would be right to adopt it as a definition of the doctrine. Having read what Lord Sumption says in his judgment, especially in paras 17, 18, 27, 28, 34 and 35, I am persuaded by his formulation in para 35, namely that the doctrine should only be invoked where a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. It appears to me that such a clear and limited doctrine would not fall foul of at least most of the strictures which have been made of the doctrine. In particular, (i) it should be of value in the few cases where it can be properly invoked, (ii) it is, I believe and hope, sufficiently clear as to render it unlikely to be raised in inappropriate cases, and (iii) it does not cut across the rule in Salomon because it is consistent with conventional legal principles. It is only right to acknowledge that this limited doctrine may not, on analysis, be limited to piercing the corporate veil. However, there are three points to be made about that formulation. In so far as it is based on fraud unravels everything, as discussed by Lord Sumption in para 18, the formulation simply involves the invocation of a well established principle, which exists independently of the doctrine. In any event, the formulation is not, on analysis, a statement about piercing the corporate veil at all. Thus, it would presumably apply equally to a person who transfers assets to a spouse or civil partner, rather than to a company. Further, at least in some cases where it may be relied on, it could probably be analysed as being based on agency or trusteeship especially in the light of the words under his control. However, if either or both those points were correct, it would not undermine Lord Sumptions characterisation of the doctrine: it would, if anything, serve to confirm the existence of the doctrine, albeit as an aspect of a more conventional principle. And if the formulation is intended to go wider than the application of fraud unravels everything, it seems to me questionable whether it would be right for the court to take the course of arrogating to itself the right to step in and undo transactions, save where there is a well established and principled ground for doing so. Such a course is, I would have thought, at least normally, a matter for the legislature. Indeed Parliament has decided to legislate to this effect in specified and limited circumstances with protection for third parties, in provisions such as section 37 of the Matrimonial Causes Act 1973 and section 423 of the Insolvency Act 1986. LADY HALE (with whom Lord Wilson agrees) I agree that this appeal should succeed, on the basis that the properties in question were held by the respondent companies on trust for the husband. As he is beneficially entitled to them, they fall within the scope of the courts power to make transfer of property orders under section 24(1)(a) of the Matrimonial Causes Act 1973. It also means that the court has power to order that the companies, as bare trustees, transfer these properties to the wife. The reasons for holding that these properties were beneficially owned by the husband have been amply explained by Lord Sumption. I would only emphasise the special nature of proceedings for financial relief and property adjustment under the Matrimonial Causes Act, which he explains in para 45. There is a public interest in spouses making proper provision for one another, both during and after their marriage, in particular when there are children to be cared for and educated, but also for all the other reasons explored in cases such as Miller v Miller [2006] UKHL 24, [2006] 2 AC 618. This means that the courts role is an inquisitorial one. It also means that the parties have a duty, not only to one another but also to the court, to make full and frank disclosure of all the material facts which are relevant to the exercise of the courts powers, including of course their resources: see Livesey (formerly Jenkins) v Jenkins [1985] AC 424. If they do not do so, the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are. I also agree, for the reasons given by Lord Sumption, that section 24(1)(a) does not give the court power to order a spouse to transfer property to which he is not in law entitled. The words entitled, either in possession or reversion refer to a right recognised by the law of property. This is clear, not only from the statutory language, but also from the statutory history. The words entitled to any property either in possession or reversion first appeared in the Matrimonial Causes Act 1857, which introduced judicial divorce to the law of England and Wales. Section 45 gave the court power, when granting a decree of divorce on the ground of the wifes adultery, to settle such property for the benefit of the husband and/or the children of the marriage. The same words were used in section 3 of the Matrimonial Causes Act 1884, when extending the same power to a husbands application for restitution of conjugal rights. They were carried through, respectively, into section 191(1) and (2) of the Supreme Court of Judicature (Consolidation) Act 1925, then into section 24(1) and (2) of the Matrimonial Causes Act 1950, then into sections 17(2) and 21(3) of the Matrimonial Causes Act 1965. The decree of restitution of conjugal rights was abolished in the comprehensive package of matrimonial law reforms which came into force on 1 January 1971. That package included, in section 4(a) of the Matrimonial Proceedings and Property Act 1970, the power to order either spouse to transfer to the other property to which the first mentioned party is entitled, either in possession or reversion. This was an expansion, for the benefit of either spouse and to outright transfer as well as settlement, of the earlier power to settle the wifes property. Section 4(a) later became section 24(1)(a) of the Matrimonial Causes Act 1973. There is nothing in the language, the history, or indeed the Report of the Law Commission which led to the 1970 Act (Law Com No 25), to suggest that those words should be read to include property over which the first mentioned party has such control that he could cause himself to become entitled, either in possession or reversion. But of course such property can be taken into account when computing that partys resources for the purpose of section 25(2) of the 1973 Act, which lays down a non exhaustive list of factors to be taken into account by the court when deciding how to exercise its various powers to make financial and property adjustment orders. Nor is there anything in the language of section 24(1)(a) to suggest that it was Parliaments intention to grant the divorce courts an express power to pierce the corporate veil in such a way as to treat property belonging to a limited company as property belonging to the spouse who owns and/or controls the company. The question nevertheless arises as to whether, in a case such as this, the courts have power to prevent the statutes under which limited liability companies may be established as separate legal persons, whether in this or some other jurisdiction, being used as an engine of fraud. I agree with Lord Sumption that piercing the corporate veil is an example of that general principle, with which family lawyers are familiar from the case of R v Secretary of State for the Home Department, Ex p Puttick [1981] QB 767. Lord Sumption refers to the process compendiously as disregarding the separate personality of the company at para 16. When considering its scope, however, it may be helpful to consider what the purpose of doing this is. In Salomon v A Salomon and Co Ltd [1897] AC 22 the purpose was to go behind the separate legal personality of the company in order to sue Aron Salomon personally for a liability that was legally that of the company which he had set up (with himself and members of his family as shareholders) to conduct his leather and boot making business. This succeeded at first instance and in the Court of Appeal, Lindley LJ going so far as to say that Mr Aron Salomons scheme is a device to defraud creditors: [1895] 2 Ch 323, 339. They did not think that Parliament had legislated for the setting up of limited liability companies in order that sole traders should be able to conduct their businesses on limited liability terms. But the House of Lords disagreed: the company was a separate person from Mr Salomon and he could not be made liable for the companys debts. They did not think that there was any fraud involved simply in using a limited liability company as a vehicle for conducting a legitimate business. Thus was the legal structure of modern business born. But there are a few cases where the courts have apparently been prepared to disregard the separate personality of a company in order to grant a remedy, not only against the company, but also against the individual who owns and/or controls it. Both Gilford Motor Co Ltd v Horne [1933] Ch 935 and Jones v Lipman [1962] 1 WLR 832 are examples of this. In both those cases, it so happened that the controller had a pre existing legal obligation which he was attempting to evade by setting up a company, in the one case a contractual obligation not to compete with his former employers, in the other case a contractual obligation to sell some land to the claimant. In In re Darby [1911] 1 KB 95, on the other hand, the liquidator of a creditor company was permitted to go behind the separate personality of a debtor company registered in Guernsey in order to obtain a remedy personally against its promoters who had fraudulently creamed off the profit from the sale by the Guernsey company to the creditor company of a worthless licence to run a slate quarry in Wales. I am not sure whether it is possible to classify all of the cases in which the courts have been or should be prepared to disregard the separate legal personality of a company neatly into cases of either concealment or evasion. They may simply be examples of the principle that the individuals who operate limited companies should not be allowed to take unconscionable advantage of the people with whom they do business. But what the cases do have in common is that the separate legal personality is being disregarded in order to obtain a remedy against someone other than the company in respect of a liability which would otherwise be that of the company alone (if it existed at all). In the converse case, where it is sought to convert the personal liability of the owner or controller into a liability of the company, it is usually more appropriate to rely upon the concepts of agency and of the directing mind. What we have in this case is a desire to disregard the separate legal personality of the companies in order to impose upon the companies a liability which can only be that of the husband personally. This is not a liability under the general law, for example for breach of contract. It is a very specific statutory power to order one spouse to transfer property to which he is legally entitled to the other spouse. The argument is that that is a power which can, because the husband owns and controls these companies, be exercised against the companies themselves. I find it difficult to understand how that can be done unless the company is a mere nominee holding the property on trust for the husband, as we have found to be the case with the properties in issue here. I would be surprised if that were not often the case. There is a statutory power to set aside certain dispositions made with the intention of defeating a claim for financial provision or property adjustment in section 37 of the Matrimonial Causes Act 1973. It is not suggested in this case that the expenditure involved in buying these properties, all of which were bought long before the marriage broke down, was made with that intention. If it had been, there might have been an argument that the exception for bona fide purchasers for value contained in section 37(4) did not apply to a company where the controlling mind was acting with that intention. But that is not this case. Stone & Rolls Ltd v Moore Stephens (a firm) [2009] AC 1391 is an example of going behind the separate legal personality of the company in order to get at the person who owned and controlled it, not for the purpose of suing him, but in order to attribute his knowledge to the company so that its auditors could raise a defence of ex turpi causa to the companys allegation that they had negligently failed to detect the fraudulent nature of its business. For all those reasons, in addition to those given by Lord Sumption, I would dismiss this appeal on all but the issue of whether either party had a beneficial interest in the properties in question but allow it on that ground. I fervently hope that the wife will gain some benefit from the outcome of all this litigation, although in the light of the mortgages which apparently encumber the properties I am not optimistic that she will. I agree that the appeal should be allowed for the reasons given by Lord LORD MANCE Sumption, supplemented in their essence by Lord Neuberger. I agree with Lord Sumptions analysis of the domestic case law to date in which the metaphor of piercing the veil has been deployed as part of the reasoning for a decision representing an exception to the basic principle in Salomon v A Salomon & Co Ltd [1897] AC 22. In the upshot, the only cases which Lord Sumption identifies in which a principle of piercing the veil can be said to have been critical to the reasoning can be rationalised as falling within what he describes as the evasion principle. In other cases, the corporate entity was simply being used to conceal the real actor, or some other analysis or relationship existed (such as principal and agent, nominee or trustee beneficiary) to explain the decision. It is however often dangerous to seek to foreclose all possible future situations which may arise and I would not wish to do so. What can be said with confidence is that the strength of the principle in Salomons case and the number of other tools which the law has available mean that, if there are other situations in which piercing the veil may be relevant as a final fall back, they are likely to be novel and very rare. In this connection, I have however in mind that, in giving the recent Privy Council judgment in La Gnrale des Carrires et des Mines v FG Hemisphere Associates LLC [2012] UKPC 27, I said at para 77 (in a context where Gcamines was a state corporation, not susceptible of being wound up): The alternative way in which Hemisphere puts its case is to submit that, if Gcamines is otherwise accepted as a separate juridical entity, the facts found justify the lifting of the corporate veil to enable Hemisphere to pursue Gcamines as well as the State. In the Boards view, this involves a misapplication of any principles upon which the corporate veil may be lifted under domestic and international law. Assuming for the sake of argument that the unceremonious subjecting of Gcamines to the controlling will of the state involved a breach by the State of its duty to respect Gcamines as a separate entity, that might conceivably justify an affected third party, possibly even an aggrieved general creditor of Gcamines, in suggesting that the corporate veil should be lifted to make the State, which had deprived Gcamines of assets, liable for Gcamines debts. The Board need express no further view on that possibility. It represents the inverse of the present situation. There is no basis for treating the States taking or Gcamines use of Gcamines assets for State purposes, at which Hemisphere directs vigorous criticism, as a justification for imposing on Gcamines yet further and far larger burdens in the form of responsibility for the whole of the debts of the Democratic Republic of the Congo. In international law as in domestic law, lifting the corporate veil must be a tailored remedy, fitted to the circumstances giving rise [to] it. It may be that the possibility on which I touched in para 77 would evaporate as a possible further exception to the principle in Salomons case. It is certainly a different situation to those which Lord Sumption discusses. But one would wish to hear further argument on this or any other suggested exception, in a case where it was directly relevant, before deciding this. No one should, however, be encouraged to think that any further exception, in addition to the evasion principle, will be easy to establish, if any exists at all. The evident absence, under the close scrutiny to which Lord Sumption has subjected the case law, of authority for any further exception speaks for itself. LORD CLARKE I agree with the other members of the court that the appeal should be allowed for the reasons given by Lord Sumption. I only wish to add a word on piercing the corporate veil. I agree that there is such a doctrine and that its limits are not clear. I also agree that Munby J was correct in Ben Hashem v Al Shayif [2009] 1 FLR 115 to suggest that the court only has power to pierce the corporate veil when all other more conventional remedies have proved to be of no assistance. It is thus likely to be deployed in a very rare case. Lord Sumption may be right to say that it will only be done in a case of evasion, as opposed to concealment, where it is not necessary. However, this was not a distinction that was discussed in the course of the argument and, to my mind, should not be definitively adopted unless and until the court has heard detailed submissions upon it. I agree with Lord Mance that it is often dangerous to seek to foreclose all possible future situations which may arise and, like him, I would not wish to do so. I expressed a similar view in VTB Capital plc v Nutritek International Corpn [2013] 2 WLR 378 and adhere to it now. However, I also agree with Lord Mance and others that the situations in which piercing the corporate veil may be available as a fall back are likely to be very rare and that no one should be encouraged to think that any further exception, in addition to the evasion principle, will be easy to establish. It will not. LORD WALKER Lord Sumption has comprehensively analysed the rather confused evidence relating to beneficial ownership of the London properties. His conclusion that they are all in the beneficial ownership of Mr Prest is in my view irresistible, based as it is on positive evidence of the sources from which the purchases were funded, as well as on inferences drawn from the failure of Mr Murphy, a director of PRL, to attend court for cross examination. I also agree with all Lord Sumptions observations as to the construction and effect of the Matrimonial Causes Act 1973, to which Lady Hale has added a full account of its legislative history. The appeal should be allowed in the terms proposed by Lord Sumption. In these circumstances it is not strictly necessary for this Court to add further general comments on the vexed question of piercing the corporate veil. But for my part I think it would be a lost opportunity even perhaps a minor dereliction of duty if we were to abstain from any further comment. I do therefore welcome the full discussion in the judgments of Lord Neuberger, Lady Hale, Lord Mance and Lord Sumption. residual category in which the metaphor operates independently no clear example has yet been identified, but Stone & Rolls Ltd v Moore Stephens (a firm), mentioned in Lady Hales judgment, is arguably an example. I am reluctant to add to the discussion but for my part I consider that piercing the corporate veil is not a doctrine at all, in the sense of a coherent principle or rule of law. It is simply a label often, as Lord Sumption observes, used indiscriminately to describe the disparate occasions on which some rule of law produces apparent exceptions to the principle of the separate juristic personality of a body corporate reaffirmed by the House of Lords in Salomon v A Salomon and Co Ltd [1897] AC 22. These may result from a statutory provision, or from joint liability in tort, or from the law of unjust enrichment, or from principles of equity and the law of trusts (but without any false invocation of equity in the phrase used by C Mitchell in the article mentioned by Lord Neuberger). They may result simply from the potency of an injunction or other court order in binding third parties who are aware of its terms. If there is a small

UK-Abs

This appeal arises out of proceedings for financial remedies following a divorce between Michael and Yasmin Prest. The appeal concerns the position of a number of companies belonging to the Petrodel Group which were wholly owned and controlled by Michael Prest, the husband. One of the companies was the legal owner of five residential properties in the UK and another was the legal owner of two more. The question on this appeal is whether the court has power to order the transfer of these seven properties to the wife given that they legally belong not to the husband but to his companies. Under Section 24(1)(a) of the Matrimonial Causes Act 1973 (the 1973 Act), the court may order that a party to the marriage shall transfer to the other partysuch property as may be so specified, being property to which the first mentioned party is entitled, either in possession or reversion. In the High Court, Moylan J concluded that there was no general principle that entitled him to reach the companies assets by piercing the corporate veil. He nevertheless concluded that a wider jurisdiction to pierce the corporate veil was available under section 24 of the 1973 Act. In the Court of Appeal, three of the companies challenged the decision on the ground that there was no jurisdiction to order their property to be conveyed to the wife. The majority in the Court of Appeal agreed and criticised the practice of the Family Division of treating assets of companies substantially owed by one party to a marriage as available for distribution under section 24 of the 1973 Act. The Supreme Court unanimously allows the appeal by Yasmin Prest and declares that the seven disputed properties vested in the companies are held on trust for the husband on the ground (which was not considered by the courts below) that, in the particular circumstances of the case, the properties were held by the husbands companies on a resulting trust for the husband, and were accordingly property to which the [husband] is entitled, either in possession or reversion. Lord Sumption gives the leading judgment and Lord Neuberger, Lady Hale, Lord Clarke and Lord Walker add concurring judgments. There are three possible legal bases on which the assets of the companies might be available to satisfy the lump sum order against the husband: (1) that this is a case where, exceptionally, the Court may disregard the corporate veil in order to give effective relief; (2) that section 24 of the 1973 Act confers a distinct power to disregard the corporate veil in matrimonial cases; or (3) that the companies hold the properties on trust for the husband, not by virtue of his status as sole shareholder and controller of the company, but in the particular circumstances of the case [9]. After surveying the authorities, the Court holds that there is a principle of English law which enables a court in very limited circumstances to pierce the corporate veil. It applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil but only for the purpose of depriving the company or its controller of the advantage which they would otherwise have obtained by the companys separate legal personality. In most cases the facts necessary to establish this will disclose a legal relationship between the company and its controller giving rise to legal or equitable rights of the controller over the companys property, thus making it unnecessary to pierce the veil. In these cases, there is no public policy imperative justifying piercing the corporate veil. But the recognition of a small residual category of cases where the abuse of the corporate veil to evade or frustrate the law can be addressed only by disregarding the legal personality of the company is consistent with authority and long standing principles of legal policy. [35] The principle has no application in the present case because the husbands actions did not evade or frustrate any legal obligation to his wife, nor was he concealing or evading the law in relation to the distribution of assets of the marriage upon its dissolution [36]. Some of the concurring judgments reserve the possibility of a somewhat wider test, but not in respects which affect its application to the present case. The Court rejects the argument that a broader principle applies in matrimonial proceedings by virtue of section 24(1)(a) of the 1973 Act. The section invokes concepts of the law of property with an established legal meaning which cannot be suspended or taken to mean something different in matrimonial proceedings [37]. Nothing in the statutory history or wording of the 1973 Act suggests otherwise [86 9]. General words in a statute are not to be read in a manner inconsistent with fundamental principles of law unless this result is required by express words or necessary implication [40]. The trial judges reasoning cut across the statutory scheme of company and insolvency law which are essential for protecting those dealing with companies [41]. It follows that the only basis on which the companies could be ordered to convey properties to the wife is that they belong beneficially to the husband, by virtue of the particular circumstances in which the properties came to be vested in them [43]. After examining the relevant findings about the acquisition of the seven disputed properties, the Court finds that the most plausible inference from the known facts was that each of the properties was held on resulting trust by the companies for the husband. The trial judge found that the husband had deliberately sought to conceal the fact in his evidence and failed to comply with court orders with particular regard to disclosing evidence [4]. Adverse influences could therefore be drawn against him. [45]. The Court inferred that the reason for the companies failure to co operate was to protect the properties, which suggested that proper disclosure would reveal them to beneficially owned by the husband [47]. It followed that there was no reliable evidence to rebut the most plausible inference from the facts [49 51].

This challenge to the making of a care order, made with a view to the childs adoption, requires the court to consider (a) (b) (c) aspects of the threshold to the making of a care order set by section 31(2) of the Children Act 1989; the application to the decision whether to make a care order of the requirement under article 8 of the European Convention on Human Rights 1950, the Convention, that the nature of any interference with the exercise of the right to respect for family life should be proportionate legitimate aim, the proportionality requirement; and, perhaps in particular, the boundaries beyond which it is wrong for this court, or any other appellate court, to set aside the grant or dismissal by a trial judge of a local authoritys application for a care order. The mother, M, supported by the father, F, with whom she lives, appeals against an order of the Court of Appeal (Rix, Black and Lewison LJJ) dated 14 November 2012. By its order, the Court of Appeal dismissed Ms appeal against an order made by HHJ Cryan in the Principal Registry of the Family Division dated 14 June 2012. By his order, the judge made a care order in relation to the daughter of M and F upon the basis of a care plan that she should be placed for adoption. Amelia (being the name which Lady Hale proposes that we should attribute to the daughter) was born in April 2010 so is now aged three. At birth she was placed with a foster mother on what was intended to be a short term basis; she remains living with her pending the determination of this appeal. M is aged 42 and F is aged 45. The applicants for the care order are the London Borough of Barnet, where the parents were living when Amelia was born. Since then they have moved to Islington. M and F each have other children. M has another daughter, aged 14, whom, in accordance with Lady Hales proposal, I will call Teresa and with whom M has no contact. F has four other daughters aged between 17 and six. They live with their mother; F has an amiable relationship with them but, for reasons which I will explain in para 15 below, his has not been a stable or responsible presence in their lives and, on a practical level, his involvement with them has been marginal. Teresas father is Ms step father, Mr E, with whom M lived for many years. In 2010, following her separation from him, M applied for a residence order in relation to Teresa. It was in that application that Judge Cryan first became acquainted with the family. He conducted a fact finding hearing over 20 days which led in April 2011 to his handing down a judgment of 180 paragraphs. The relevant local authority, West Sussex, thereupon issued care proceedings in relation to Teresa, in which the judge conducted three further substantial hearings. With Ms support, he ordered the removal of Teresa from the home of Mr E into foster care, where she remains. The hearing which led to the making of the care order in relation to Amelia also proceeded for 20 days and led to the judgment under challenge, which extends to 203 paragraphs. It follows that, in arriving at his conclusion that it was not safe for Amelia to be placed with the parents and that it was necessary in her interests that she should be adopted, Judge Cryan drew on extensive exposure to the problems of the family. Indeed the extent of it is beyond my own experience of service for 12 years in the Family Division. M scarcely challenged the judges findings of fact in the Court of Appeal; and her challenge to them in this court is, inevitably, so faint that there is no need to add to the reasons which Black LJ gave for rejecting them in her judgment in the Court of Appeal, [2012] EWCA Civ 1475, at paras 133 to 136. What follows represents as brief a summary as possible of the facts found by Judge Cryan. Greater detail is to be found in the judgment of Black LJ. THE FACTS M is the victim of grave misfortune. Her life has been hugely dysfunctional. In 1975, when she was aged four, the marriage of her parents broke down and, with her sisters, she moved to live with her grandparents. Several years after her mothers marriage to Mr E in 1977, M and her sisters moved to live with them. The family was enlarged by the birth of two sons born to Ms mother by Mr E in 1985 and 1986. Mr Es influence on the family in general, and on M in particular, was malign in almost every sense. He is egocentric; aggressive; domineering and dishonest. By 1986, although married to her mother, Mr E was having sexual relations with M, then aged 15; in that year she became pregnant by him and had an abortion. Prior to 1999, when she gave birth to Teresa, M was to have six further abortions consequent upon her relationship with him. Mr E also inflicted grave and protracted physical abuse on one of Ms sisters. When in 1989 the family went to live in Greece, of which Mr E was a citizen, they left the sister behind. In due course the sister was taken permanently into care. Meanwhile the family had returned from Greece. In 1990 Ms mother left Mr E. For the following 19 years the family in effect comprised Mr E, M, her two half brothers and, once born, Teresa. On numerous occasions until 2002, when they settled in West Sussex, the family moved home. In the early years, when the half brothers were still minors and prior to the birth of Teresa, local authorities and police forces became concerned about their safety at the hands of Mr E; and for a month in 1997 they were taken into care. In 2003 M was found guilty of a series of frauds, which had yielded 30,000 and for which she was sentenced to imprisonment for two years. Her defence had been that the prosecuting officer had conspired with a man who had allegedly raped one of her half brothers to present a false case against her. In this regard she was later found guilty of attempting to pervert the course of justice and sentenced to a further term of 27 months. Judge Cryan found that, in perpetrating the frauds and concocting the false defence, she had been heavily influenced by Mr E. Nevertheless the convictions, the gravity of which was reflected in the sentences passed upon her in respect of them, represent the first example of conduct on the part of M which, taken together, was to lead the judge to describe her as an habitual and purposeful liar. For the purposes of her second criminal trial Ms solicitors invited a consultant psychiatrist, Dr Taylor, to assess her fitness to plead. His conclusion was that she was fit to do so; but, following examination of her extensive medical records, he concluded that she suffered from a somatisation disorder. This is a chronic psychiatric disorder, of which the main features are multiple complaints about physical symptoms and requests for medical investigations in circumstances in which, if organic disorder is present at all, it fails to account for the symptoms or for the extent of the sufferers pre occupations. In short it is a condition which drives the sufferer to misuse physical symptoms in order to elicit care from others or for other purposes. For use in the proceedings before Judge Cryan, another consultant psychiatrist, Dr Bass, was instructed to appraise Ms psychological condition in the light of her more recent medical records. Dr Bass, who has considerable expertise in this area, confirmed Dr Taylors diagnosis that M suffers a somatisation disorder; and in effect it became an agreed fact. But, as I will explain in para 17 below, Dr Bass went further. While investigating the allegations of fraud against M, the police discovered paedophilic images in a computer in the family home. Mr E contended that the police had planted them there. In 2004 Mr E complained to the General Medical Council that the family GP had sexually assaulted one of the half brothers, then aged 18. The complaint was dismissed. Following her ultimate release from prison in 2004, M made various complaints to probation officers, hospitals and social workers that Mr E was abusing her physically and sexually. By June 2009 her life in the home had become intolerable and she left. She did not take Teresa with her; no doubt Mr E would not have allowed her to do so. In effect it marked the end of her relationship with Teresa who, under Mr Es influence, has refused to have any further dealings with her. Judge Cryans conclusion was that, within her long relationship with Mr E, M could fairly be regarded as his victim but that her role had not been entirely inert and that she had actively conspired with him in the many lies, deceptions and false accusations which had been generated in the household. In the summer of 2009 M met F. They began a relationship which continued following Ms move to Barnet late in 2009; but they did not fully cohabit until late in 2011. F has a long criminal history and has spent about 15 years of his adult life in prison. He was convicted of 52 offences between 1980 and 2008. Some related to drugs; some included violence but most were offences of dishonesty. In the 1990s he sustained three convictions for robbery, for each of which he received sentences of imprisonment of between two and three and a half years. In 2001 he was sentenced to four years for burglary. In 2007 he was sentenced to three years for further burglary; and the pre sentence report recorded his admission of a crack cocaine habit and of the occasional use of heroin. But, following his release on licence in May 2009, F has sustained no further convictions. For the first year following his release he was subjected to regular drug tests, of which two proved positive. At a hearing in June 2010 into whether an interim care order in relation to Amelia should be continued, F refused a judges invitation to submit strands of his hair to drug testing; and he later announced that Barnet could kiss [his] arse when they next wanted to test him. Ultimately, in July 2011, he underwent a test which showed use of cannabis but not of Class A drugs; and there was no evidence before Judge Cryan that, although admitting to the continued use of cannabis, F was then also using Class A drugs. I turn to an important part of the history which, it is clear, made Judge Cryans decision particularly difficult. It relates to the amount and quality of the contact which M and F have had with Amelia following her removal, at birth, into care. From May 2010 until the judges decision in June 2012, contact took place under supervision for one and a half hours on five days a week; since the decision it has taken place for the same duration on three days a week. M and F have been assiduous in attending, in effect, all the periods of contact; and the supervisors reports of its quality have been uniformly positive. The judge found that: (a) The most striking feature of the relationship between the parents was the strength of their united wish that Amelia should be placed in their care. (b) They had put a massive effort into making a success of the periods of contact. (c) They were devoted to Amelia. (d) They each had a warm and loving relationship with her. (e) During contact periods they had not put a foot wrong and had given her child centred love and affection in spades. It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond abnormal personality traits and in addition to, and more significantly than, her somatisation disorder, M suffers a factitious disorder of mild to moderate intensity. This is a related psychiatric disorder in which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories. There is therefore a deceptive dimension to the disorder which was replicated in a mass of other evidence before the judge, unrelated to Ms medical condition, which raised questions about her ability, and for that matter also the ability of F, to behave honestly with professionals. Dr Bass stressed that Ms psychiatric disorders required psychotherapy which might last for a year and which could be undertaken only if she were to acknowledge the problems and to engage honestly with the therapist. THE JUDGES CONCLUSIONS There was debate before Judge Cryan about the effect on Amelia of being placed in the care of M in the event that she was to continue to suffer somatisation and factitious disorders. In the event the judge found that there were risks that she would suffer harm in that regard. They were that M might present Amelia for medical treatment, and, worse, that she might receive medical treatment which was unnecessary; and that in any event Amelia might grow up to believe that the way in which M presented herself for treatment was appropriate and might model herself on it. But Judge Cryans concerns went far wider than that. It was his wider concerns which drove him to the key conclusion that it was not safe for Amelia to be placed with the parents. The wider concerns related to the mass of evidence that each of the parents was fundamentally dishonest, manipulative and antagonistic towards professionals. The expert evidence before the judge as to whether Amelia could safely be placed with the parents was in conflict: Ms Summer, of Marlborough Family Service, and Dr Bass both agreed with Barnet that she could not safely be so placed. Dr Dale, who has a background in social work and is not a medical doctor, suggested otherwise; and the Childrens Guardian, whose contribution, constrained by lack of resources at CAFCASS, was described by the judge as superficial and who sadly died within weeks of the hand down of his judgment, agreed with Dr Dale. But, importantly if inevitably, all the experts agreed that Amelia could not conceivably be placed in the care of the parents other than pursuant to a programme of multi disciplinary monitoring and support, which could be implemented only in the event of honest cooperation on the part of the parents. It was, in particular, their cooperation with the local authority which was described by Dr Taylor as very important and by Dr Bass as critical. The judges key conclusion was that their honest co operation with professionals would not be forthcoming; and his subsidiary conclusion was that it might in any event be damaging for a child to grow up in a household permeated by dishonesty and animosity towards professionals in that she would find such attitudes confusing even assuming that she did not find them attractive. It would not be usual, at this level, to descend into the mass of evidence by reference to which Judge Cryan sought to justify his key conclusion. But I consider that I need to cite 16 examples of it: Later M successfully claimed housing benefit and child benefit When late in 2009 she moved to London, M told a local authority (i) housing department that her violent step father was responsible for her pregnancy and that he was a solicitor. (ii) on the basis that Amelia was living with her. (iii) In April 2010, when Barnet first became involved with the family, M obstructed their attempts to find out about Teresa by lying about where she lived. (iv) (v) She also falsely told them that her mother was dead. F, for his part, refused to provide them with his surname. In November 2010 F told a social worker that, if Amelia died, it In 2011 M falsely told an officer of the Lucy Faithfull Each parent refused to provide them with a genogram. In August 2010 F refused further to participate in Barnets (vi) (vii) intended assessment of the capacity of the parents to care for Amelia. (viii) would be on her head and he would go to prison. (ix) Foundation that her father had raped her when she was aged 12. F told Ms Summer that, if he was concerned about Amelia, there (x) was no way in which he would call social services but that he might call the police. Ultimately both parents withdrew their cooperation with Ms (xi) Summer in the production of a viability assessment; during the final session with Ms Summer M played a game on her mobile telephone. (xii) When he learnt that his half sister had told Barnet that she would try to explain their concerns to him, Fs response was to threaten to punch her. (xiii) When later M learnt that the half sister had withdrawn her candidacy to care for Amelia, she was so angry that she made an anonymous call designed to obstruct the half sisters adoption of a child whom she was fostering. (xiv) 2002. It was the practice of the parents to wash Amelias laundry but, (xv) when Barnet told her that cigarette butts had been found in the laundry returned to the foster mother, M responded that Barnet had planted them there. (xvi) Between April 2010 and December 2011 M made 23 complaints about professionals attempting to work with her (and about the foster F falsely told Dr Dale that he had ceased to take hard drugs in mother) including to the General Social Care Council, to the Local Authority Ombudsman, to the Patient Advice and Liaison Service of the NHS and to her MP. In relation to her habitual making of false complaints of a highly unpleasant character about professionals, Judge Cryan described M as an accomplished pupil of Mr E. He accepted the following evidence of Dr Bass: I have major concerns about the capacity of [M] to protect any child in her care because of ongoing concerns about her capacity for deception because it is such a dominant feature of her personality, allied to this lack of insight and this lack of acknowledgment and evasiveness and inconsistency. The judge observed: Provided whoever [M] is dealing with appears to be going along with her without challenge, she will cooperate to achieve her ends. If she is questioned, challenged or thwarted, cooperation is abandoned and entirely unacceptable hostility begins. The judge concluded: Ultimately, I find that I am persuaded. that what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe. In short I cannot see that there is any sufficiently reliable way that I can fulfil my duty to [Amelia] to protect her from harm and still place her with her parents. I appreciate that in so saying I am depriving her of a relationship which, young though she is, is important to her and depriving her and her parents of that family life which this court strives to promote. The judge ended by stating that in those circumstances adoption was the only viable option for Amelias future care. THE THRESHOLD SET BY SECTION 31(2) Judge Cryan was well aware that, before he could even consider whether to make a care order, section 31(2) of the 1989 Act required him to be satisfied (a) that, when she was first taken into care, namely at birth, Amelia had been likely to suffer significant harm and (b) that the likelihood was attributable to the care likely to be given to her if the order were not made not being what it would be reasonable to expect a parent to give to her. But little separate attention was paid to these threshold requirements in submissions to the judge. Mr Feehan QC, on behalf of the mother, submitted to him that the evidence barely crosses the threshold. The guardian presumably considered that the threshold was crossed because at one stage she was advocating a supervision order. But counsel for the father disputed that it was crossed. In the event the judge expressed himself satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. And, following brief explanation, he turned to the welfare stage of the inquiry. But in the Court of Appeal, and in particular in this court, much greater attention has been paid to what the threshold requires. It is common ground that, as recently reaffirmed by this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649, a likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. In the context of the present case it is also noteworthy that, by section 31(9), harm means ill treatment or the impairment of health or development. and development includes emotional. development. Beyond this, however, the debate surrounds two matters. The first matter is the meaning of the word significant. In this regard Parliament chose to help the court to a limited extent by providing in section 31(10) as follows: Where the question of whether harm suffered by a child is significant turns on the childs health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. When we read this subsection together with the definition of harm in the preceding subsection, we conclude that, whereas the concept of ill treatment is absolute, the concept of impairment of health or development is relative to the health or development which could reasonably be expected of a similar child. This is helpful but little more than common sense. In my view this court should avoid attempting to explain the word significant. It would be a gloss; attention might then turn to the meaning of the gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from the word itself. Nevertheless it might be worthwhile to note that in the White Paper which preceded the 1989 Act, namely The Law on Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60: It is intended that likely harm should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does occur. It follows that when, in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Hale LJ (as my Lady then was) said, at para 28, that a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not, she was faithfully expressing the intention behind the subsection. But the other interesting feature of the sentence in the White Paper is the word unacceptable. I suggest that it was later realised that whether the risk was unacceptable was a judgement which fell to be made at the welfare stage of the inquiry; and so a different adjective was chosen. In Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282, [2007] 1 FLR 1068, the Court of Appeal allowed an appeal by parents against a judges conclusion that their children had suffered and were likely to suffer significant harm and it remitted the issue for re hearing. The professional evidence had been that the parents deficiencies had had subtle and ambiguous consequences for the children; and it was not difficult for me, at para 31(a) of my judgment in that court, to conclude that such consequences could not amount to significant harm. The rehearing was conducted by Hedley J and, by his judgment reported as Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, he declined to hold that the threshold was crossed. He observed, at para 50, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent; and, at para 51, that significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it but that it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy. submits that: In the present case Mr Feehan seeks to develop Hedley Js point. He many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or model them in their own lives but those children could not be removed for those reasons. I agree with Mr Feehans submission; but the question arises whether, in the light of the judges key conclusion, it misses the point. Mr Feehan proceeds to submit that the proportionality requirement under article 8 of the Convention applies, albeit perhaps only very obliquely, to whether harm is significant for the purposes of the subsection; and he cites observations by Ward LJ in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, at para 54, that, although it has more relevance to the welfare stage of the inquiry, article 8 does, none the less, inform the meaning of significant and serves to emphasise that there must be a relevant and sufficient reason for crossing the threshold. I consider that, with respect to him, Ward LJ there introduced an inappropriate layer of complexity to the inquiry whether harm is significant. It is the interference with the exercise of the right to respect for family life which article 8 addresses. No interference occurs when a judge concludes that the threshold is crossed. The interference occurs only if, at the welfare stage, the judge proceeds to make a care or supervision order; and it is that order which must therefore not fall foul of article 8. I regard section 31(2) as an admirable domestic provision which, by setting a threshold, may make it more likely, although far from inevitable, that any care or supervision order will not fall foul of article 8. But I conclude that the crossing of the threshold does not, of itself, engage the article; and I am fortified in my conclusion by the fact that Lord Neuberger, at para 62, Lady Hale, at para 186, and Lord Clarke at para 134, agree with it and that Lord Kerr, at para 129, tends to agree with it. The second matter relates to Mr Feehans submission that the threshold set by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if, in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty, animosities and obstructionism of the parents represent deficits only of character and that, if and insofar as they might cause harm to Amelia, whom they love, the harm is neither deliberate nor intentional. The first of these alternative submissions represents a false dichotomy: for the character of the parents is relevant to each stage of the inquiry whether to make a care order only to the extent that it affects the quality of their parenting. The second of them is misconceived: for there is no requisite mental element to accompany the actions or inactions which have caused, or are likely to cause, significant harm to the child. Section 31(2)(b)(i) requires only that the harm or likelihood of harm should be attributable to the care given or likely to be given to the child not being what it would be reasonable to expect a parent to give to him. Such is a requirement only of causation as between the care and the harm. The provision was prefigured in the White Paper, Cm 62, cited above, also at para 60: The court will also have to make a decision as to whether the harm was caused or will in future be caused by the child not receiving a reasonable standard of care or by the absence of adequate parental control. This is not intended to imply a judgment on the parent who may be doing his best but is still unable to provide a reasonable standard of care. ARTICLE 8 Judge Cryans care order in relation to Amelia with a view to her adoption represented an interference with the exercise by Amelia, by M and by F of their rights to respect for their family life. It was therefore lawful only if, within the meaning of article 8(2) of the Convention, it was not only in accordance with the law but also necessary in a democratic society for the protection of the right of A to grow up free from harm. In Johansen v Norway (1996) 23 EHRR 33 the European Commission of Human Rights observed, at para 83, that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportional to the legitimate aim pursued. In a number of its judgments the European Court of Human Rights, the ECtHR, has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. Only a year ago, in YC v United Kingdom (2012) 55 EHRR 967, it said: 134 The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the childs best interests in a particular case, two considerations must be borne in mind: first, it is in the childs best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the childs best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to rebuild the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the childs health and development, a parent is not entitled under article 8 to insist that such ties be maintained. Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them. In my view it is important not to take any one particular sentence out of its context in the whole of para 134 of the YC case: for each of its propositions is interwoven with the others. But the paragraph well demonstrates the high degree of justification which article 8 demands of a determination that a child should be adopted or placed in care with a view to adoption. Yet, while in every such case the trial judge should, as Judge Cryan expressly did, consider the proportionality of adoption to the identified risks, he is likely to find that domestic law runs broadly in parallel with the demands of article 8. Thus domestic law makes clear that: (a) it is not enough that it would be better for the child to be adopted than to live with his natural family (In re S B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7); and (b) a parents consent to the making of an adoption order can be dispensed with only if the childs welfare so requires (section 52(1)(b) of the Adoption and Children Act 2002); there is therefore no point in making a care order with a view to adoption unless there are good grounds for considering that this statutory test will be satisfied. The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word requires in section 52(1)(b) was plainly chosen as best conveying. the essence of the Strasbourg jurisprudence (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125). What is the proper approach of an appellate court to a challenge to the proportionality of a care order made with a view to adoption? Section 6(1) of the Human Rights Act 1998 makes it unlawful for public authorities, which include appellate courts, to act in a way which is incompatible with a Convention right. So the question becomes whether, as the mother submits, section 6(1) dictates that an appellate court should depart from its normal function of secondary review and instead should make a fresh determination of its own when the allegation is that the order made below has violated a Convention right. An analogous submission was made in MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, in which two Algerian nationals and a Jordanian national appealed to the Court of Appeal, and from there to the House of Lords, against the dismissal by the Special Immigration Appeals Commission of their appeals against orders for deportation. Their case was that deportation would infringe their rights under article 3 of the Convention; and, by reference to section 6 of the 1998 Act, they claimed to be entitled to a fresh determination of their case both in the Court of Appeal and in the House of Lords. The appellate committee rejected their claim. Lord Phillips pointed out, at paras 67 and 69, that, by section 7 of the Special Immigration Appeals Commission Act 1997, appeal lay from the Commission to the Court of Appeal only on a point of law and that, for the purposes of section 6(2)(a) of the 1998 Act, Parliament had therefore precluded the Court of Appeal from conducting any such fresh determination as the appellants sought. More broadly, however, Lord Hoffmann observed: 190. There is nothing in the Convention which prevents the United Kingdom from according only a limited right of appeal, even if the issue involves a Convention right. There is no Convention obligation to have a right of appeal at all. If there is a right of appeal, then of course it must offer a fair hearing before an independent and impartial tribunal in accordance with article 6. But there is no obligation to provide an appeal against the determination of a Convention right. The only concern of the European court with the court structure of the member state is that it should provide a remedy for breach of a Convention right in accordance with article 13. If a SIAC hearing does so, that is an end of the matter and the extent of the right of appeal, if any, is irrelevant. It is therefore clear that the Convention itself does not require appellate courts to address issues arising under it with any particular degree of intensity. Appellate courts must discharge their domestic duty under section 6(1); but the manner in which they seek to do so is a matter for Parliament or for rules made under its authority. No one suggests, for example, that the appellate court should itself rehear all the evidence relevant to a Convention issue. On any view it will adopt much of the relevant material from the survey conducted by the trial judge. Civil appellate courts other than the Supreme Court operate in accordance with rule 52.11 of the Civil Procedure Rules 1998, made pursuant to the Civil Procedure Act 1997. Paragraph 1 of the rule provides that every appeal will be limited to a review of the decision of the lower court unless. (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re hearing. Such courts should in my view seek to discharge their duty under section 6 of the 1998 Act by determining a Convention issue in accordance with this paragraph. In paras 83 to 90 of his judgment Lord Neuberger provides fuller reasons for concluding that section 6 of the 1998 Act does not mandate fresh appellate determination of a Convention related issue. Like Lord Clarke, at para 136 of his judgment, I agree with Lord Neubergers reasons as well as with his conclusion; it follows that, with respect, I do not agree with the contrary opinions expressed by Lady Hale at para 205 and by Lord Kerr at paras 116 to 127 of their judgments. Although the view of the majority is therefore that the requisite appellate exercise is that of conventional review, a question still remains about the criterion for review apt to appeals against determinations made in care proceedings. APPELLATE REVIEW OF DETERMINATIONS MADE IN CARE PROCEEDINGS G v G [1985] 1 WLR 647 was a dispute between parents as to which of them should have residence of the children. Lord Fraser gave the classic exposition of the role of the appellate court in reviewing a trial judges order in a dispute between members of a family about arrangements for a child. He described the order, at p 649, as having been made in the exercise of the judges discretion. This classification, which was not controversial, is hard wired into the mind set of family lawyers in England and Wales; and, although in Kacem v Bashir, [2011] 2 NZLR 1, the Supreme Court of New Zealand made an interesting suggestion, at para 32, that the decision in such a case was evaluative as opposed to discretionary, this is not the moment to consider whether subject to para 45 below to depart from the conventional classification or the consequences, if any, of doing so. Lord Fraser said at p 651: The Jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judges decision was wrong, and unless it can say so, it will leave his decision undisturbed. He added, at p 652: Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as blatant error used by the President in the present case, and words such as clearly wrong, plainly wrong, or simply wrong used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. The concept of the generous ambit of reasonable disagreement was derived from the judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, at p 345, which Lord Fraser had already quoted. Lord Fraser proceeded, at p 653, to quote with approval from the judgment of Bridge LJ in In re F (A Minor)(Wardship: Appeal) [1976] Fam 238. This was a dispute between a father and a grandmother about the residence of a child. Bridge LJ, at p 266, reminded himself that, in granting residence to the grandmother, the trial judge had been exercising a discretion. He observed that none of the factors which often vitiate the exercise of a discretion and so require it to be re exercised namely that the judge had considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle was present. The judges error, according to Bridge LJ, was in the balancing exercise, in other words that he had given too little weight to the factors favourable to the fathers case or too much weight to those adverse to them. Bridge LJ went on to hold that, where a judges conclusion was not justified by his advantage in seeing and hearing the witnesses and was vitiated by an error in the balancing exercise, an appellate court could set it aside. It is clear, however, that, in quoting with approval the proposition of Bridge LJ that even only an error in the balancing exercise might justify appellate intervention, Lord Fraser was not intending to redraw any part of his earlier delineation of the boundaries of intervention. Thus an error in the balancing exercise justifies intervention only if it gives rise to a conclusion that the judges determination was outside the generous ambit of reasonable disagreement or wrong within the meaning of the various expressions to which he had referred. Into its review of a trial judges determination of a child case an appellate court needs to factor the advantages which the judge had over it in appraising the case. In Piglowska v Piglowski [1999] 1 WLR 1360 Lord Hoffmann said, at p 1372: The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judges evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1, 45: The need for appellate caution in reversing the trial judges evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. of which time and language do not permit exact expression, but which may play an important part in the judges overall evaluation. Lord Hoffmanns remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact finder who has seen and heard the witnesses of fact. In a child case the judge develops a face to face, bench to witness box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just is this true? or is this sincere? but what does this evidence tell me about any future parenting of the child by this witness? and, in a public law case, when always hoping to be able to answer his question negatively, to ask are the local authoritys concerns about the future parenting of the child by this witness justified? The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judges decision about the future arrangements for a child. In In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258, Lord Nicholls said: 16. There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child. 19. Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judges decision. In this appeal M challenges both Judge Cryans determination that the threshold set by section 31(2) was crossed and, alternatively, his ultimate determination that Amelias welfare demanded that he should make the care order. The time has come for me to address the criterion for appellate review of each of these determinations; but, whatever the criterion, the appellate court will factor into its review the trial judges enjoyment of the advantages to which I have referred. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been open to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been plainly wrong to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJs reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judges determination had been open to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been plainly wrong. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does plainly add to wrong? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong. I turn to the criterion for appellate review of the ultimate determination of whether to make a care order. This is an order which the court may make (section 31(1) of the 1989 Act), albeit that the determination is governed by the paramountcy of the childs welfare (section 1(1)) and can be made only following regard to specified factors (section 1(3) and (4) (b)). The courts apparent discretion whether to make a care order has led family practitioners readily to assume that the criterion for appellate review is identical to that applicable to review of what are taken to be discretionary determinations relating to children in private law, namely that explained by Lord Fraser in G v G cited above; and it was not controversial when Sir Mark Potter P formally so ruled in Re C (Adoption: Best Interests of Child) [2009] EWHC 499 (Fam), [2009] 2 FLR 1293, at para 33. But, by contrast with the issue between the members of this court as to the impact of section 6(1) of the 1998 Act upon the role of the appellate judge, there is no issue that, since that Act came into force, the task of the trial judge in applications for care (or supervision) orders and indeed in such applications for private law orders as can sensibly be said to represent a suggested interference with a persons right to respect for his or her family life is more than to exercise a discretion. His task is to comply with an obligation under the subsection not to determine the application in a way which is incompatible with that right. It follows therefore that the review which, according to the majority, falls to be conducted by the appellate court must focus not just on the judges exercise of a discretion but on his compliance or otherwise with an obligation. The criterion enunciated in G v G, in particular the concept of the generous ambit of reasonable disagreement, is in my view inapt to that review (as opposed, for example, to a review of a case management decision made within care proceedings: see Re TG (A Child) [2013] EWCA Civ 5, at para 38). Lord Neuberger, at paras 90 and 91, and Lord Clarke, at para 139, suggest that the criterion for appellate review of an ultimate determination to make (or to refuse to make) a care order should, as in respect of the threshold, be whether it was wrong (or vitiated by serious irregularity). Just as in my view rule 52.11(1) of the Civil Procedure Rules helps to identify the role of an appellate court in a challenge to the determination of a Convention related issue, so, as Lord Clarke there suggests, rule 52.11(3) helps to identify the criterion which it should adopt in that it provides: The appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity. I agree. To be driven to jettison the principles in G v G in this context is not to say that the factors which often vitiate the exercise of a discretion namely that the judge considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle become irrelevant. On the contrary they may well generate a conclusion that the determination was wrong and should be set aside and either that it should be reversed or that the application should be remitted for consideration afresh. By contrast a judges failure to give adequate reasons for his determination is likely to lead to its being set aside as unjust within the meaning of rule 52.11(3) (b). There is therefore an attractive symmetry between the criterion for review of a determination of whether the threshold is crossed and that for review of a determination of whether a care order should be made. In each case it is no more and no less than whether the determination is wrong. But the simplicity of the criterion should not disguise the difficulty, in some cases, of its application. CONCLUSION As Mr Verdan QC on behalf of the new Childrens Guardian submits (in the course of a series of submissions of a quality which partly compensates for the deficiencies of the previous Guardian), Judge Cryan was not wrong to determine that the threshold to the making of a care order in relation to Amelia, set by section 31 of the 1989 Act, was crossed. Nor in my view was he wrong to proceed to make a care order in relation to her with a view to her adoption. In the present case the reasons for each of the two determinations can be summarised together. There were a number of features relative to the personalities of the parents and to the psychiatric conditions of the mother which raised a real possibility that, in their care, Amelia would suffer impairment of her emotional development. Nor is there anything to suggest that, in principle, emotional harm is less serious than physical harm. But Barnet realistically concede that, in the absence of one particular feature, the court might not have concluded that the likely harm was significant nor, alternatively, have felt driven to make the care order with a view to adoption. That one feature relates to the judges key conclusion that the characters of the parents disabled them from offering the elementary cooperation with professionals which Amelias safety in their home would require. Family courts regularly make allowance for the negative attitude of parents towards the social workers who personify their employers applications for care orders. But the level of the dishonest, manipulative, antagonistic obstructionism of the parents in this case was of a different order. Such attributes of course betokened a lack of insight into the needs of Amelia which raised wider concerns; but more immediately, they precluded the success of any rehabilitative programme, whatever its precise composition. It would have been risking enough in terms of Amelias welfare for the judge to have countenanced any further delay in her long term placement following what by then had already been two years in foster care; but, had there been evidence that a way might be found of lowering the barriers erected by the parents, he might have directed an adjournment, to be measured surely in no more than a few months, in order to explore it. It might have been the proportionate response to the positive features of the parents case and loyal to the decision of the ECtHR in Kutzner v Germany (2002) 35 EHRR 653, at para 75, that it was questionable whether the domestic administrative and judicial authorities [had] given sufficient consideration to additional measures of support as an alternative to what is by far the most extreme measure, namely separating the children from their parents. In the present case, however, that avenue was not open to the judge. In a concluding sentence which correctly reflected both domestic law and the Conventions proportionality requirement, he described adoption as the only viable option for Amelias future care. There was no halfway house, said Lewison LJ in his reluctant concurrence in the Court of Appeals dismissal of the appeal. Its dismissal was in my view the disposal which accorded with principle. This court should uphold it. LORD NEUBERGER Introductory The point which His Honour Judge Cryan ultimately had to decide in this case was whether to make a care order in respect of a child, Amelia, with a view to her being adopted, against the wishes of her natural parents. To determine this point, the Judge had to resolve two main issues. The first issue was whether, in the light of the evidence, the threshold in section 31(2) of the Children Act 1989 (the 1989 Act) was satisfied. If he decided (as he did) that that threshold was crossed, the second main issue for the Judge was whether it was appropriate to make a care order. The first main issue: the crossing of the section 31(2) threshold Section 31(2) of the 1989 Act (section 31(2)) is set out in para 177 of Lady Hales judgment. In order to determine whether it was crossed in this case, the task the Judge faced can be analysed as involving three steps. He was required (i) to determine the factual issues, which involved resolving a substantial amount of disputed evidence, (ii) to identify the nature of the threshold, which involved construing section 31(2), and (iii) to decide whether on the primary facts he had found and the assessments he had made, that threshold was crossed. Having resolved the disputed primary facts, he decided that, in the light of those facts and the assessments he had made of the various witnesses (including Amelias mother and father, and a number of other factual and expert witnesses), the threshold had been crossed, without expressly discussing its nature. The threshold: findings of primary fact As to the first step, Lady Hale, in paras 146 175, and Lord Wilson, in paras 2 22, have set out the unusual and troubling facts as agreed or as found by the Judge, as well as the procedural history. There is no question of this court interfering with, or indeed being asked to interfere with, the findings of primary fact made by the Judge. Bearing in mind that it is a second appeal tribunal, the Supreme Court is virtually never even asked to reconsider findings of primary fact made by the trial judge. The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judges findings of primary fact. As Lady Hale and Lord Kerr explain in para 200 and para 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first). The second and third steps involved in the threshold issue can be combined into the single question of whether the primary facts found and assessments made by the Judge were capable of justifying the conclusion he reached that the threshold contained in section 31(2) was satisfied. The threshold: the meaning of section 31(2) The second step is to determine the meaning of section 31(2), which is an issue of pure law. In relation to such an issue, the function of this Court (like that of the Court of Appeal) is uninhibited by the fact that it is an appellate tribunal. That is because there is a single right or wrong answer, which an appellate court has to determine for itself, although it often derives assistance from the reasoning of the court or courts below. As to the meaning of section 31(2), and in particular the meaning of likely to suffer significant harm and care likely to be given, Lord Wilson is rightly anxious not to encumber the comparatively simple wording of section 31(2), as expanded somewhat by section 31(10), with too much judicial encrustation. However, it seems to me that some authoritative guidance for judges and lawyers in this very important and difficult area is appropriate, in order to ensure as much predictability as possible and to minimise the likelihood of appeals. In my view, such guidance may be found in the analyses of Lady Hale at paras 179193, Lord Wilson at paras 23 31, and Lord Kerr at para 108. I would not think it helpful to expand on what constitutes significant harm save to emphasise that it is interrelated with the likelihood of it being suffered, so that, as Lady Hale explains in para 188 and as she said in In re S B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678, para 9, the more significant the harm, the less the required level of likelihood, and vice versa. The threshold: the Judges decision that it was crossed The final step in relation to the section 31(2) threshold issue required the Judge to address the question whether, on the primary facts he had found and assessments he had made, the threshold was crossed in this case. The decision on that question is certainly not one of law, but it is not one of primary fact either. It is a type of decision which is often described as involving the exercise of judgement, but it may fairly be said that this is not a very illuminating characterisation, because the determination of an issue of law or of an issue of fact also involves the exercise of judgement. As Lady Hale at para 199 and Lord Wilson at para 44 each say, it can be categorised as a value judgment (as Ward LJ said in In re MA (Care: Threshold) [2010] 1 FLR 431, para 56, and Black LJ said below, [2012] EWCA Civ 1475, para 9). It can also be said to be an appraisal, as Lord Kerr describes it in para 109, or an evaluation, to use Clarke LJs characterisation in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, paras 16 and 17, cited with approval by the House of Lords in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, para 46. In many cases, reversing the trial judges evaluation on an issue such as whether the section 31(2) threshold has been crossed, would involve an appellate court effectively disagreeing with (i) primary findings of fact made by the judge, or (ii) the impressions he obtained from seeing the witnesses (eg in terms of trustworthiness as to future conduct). In such cases, depending on the precise basis on which the appeal is mounted, the reasons for giving primacy to the trial judges conclusion (good sense, policy, cost, delay, and practicality) will either apply in the same way as, or will apply with somewhat less force than, they do in relation to findings of primary fact. This point is tellingly made by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372 (citing his earlier remarks in Biogen Inc v Medeva plc [1997] RPC 1, 45), in a passage quoted by Lord Wilson at para 41. It is perhaps worth adding that, immediately after that passage, Lord Hoffmann observed: The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment but also of a reserved judgment based upon notes. In the following paragraph of his judgment, para 42, Lord Wilson suggests that Lord Hoffmanns remarks apply all the more strongly to an appeal against a decision involving the future of a child, and that is supported by an observation of Lord Nicholls quoted at the end of the paragraph. I agree: in a case such as this, the court is concentrating its focus on future multi factorial possibilities, as opposed to present or past questions, such as the present needs of divorcing spouses (as in Piglowska) or past likely opinions which would have been formed by skilled people as in (Biogen). When it comes to an evaluation, the extent to which the benefit of hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal will vary from case to case. Accordingly, it is not possible to lay down any single clear general rule as to the proper approach for an appeal court to take where the appeal is against an evaluation (see also in this connection Robert Walker LJ in Bessant v South Cone Inc [2002] EWCA Civ 763, para 26, May LJ in EI du Pont de Nemours & Co v ST Dupont [2003] EWCA Civ 1368, para 94, and Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56, para 44). Accordingly, as already explained, even where the issue raised is not one of law, the reasons which justify a very high hurdle for an appeal on an issue of primary fact apply, often with somewhat less force, in relation to an appeal on an issue of evaluation. I therefore agree with what Lord Wilson and Lord Kerr say about the right approach of an appellate court in relation to a question of evaluation in para 44 and in paras 110 and 113 respectively. Whether article 8 of the European Convention on Human Rights (the Convention) has a part to play in relation to the threshold seems to me to be rather an arid issue: the important point is that the court acknowledges that no substantive order is made without all Convention rights being taken into account. Having said that, I consider that article 8 of the Convention (article 8) has no part to play in deciding whether the threshold is crossed, although it obviously comes very much into play when considering the issue of whether to make a care order. The threshold merely represents a hurdle which has to be crossed before the court can go on to consider whether to make a substantive order i.e. an order which actually has an effect on a child and her parents (and sometimes on others). It is, of course, common ground that the court must consider any Convention rights before deciding whether to make a substantive order. In this case, Lady Hale in paras 206 214 considers the evidence and findings in relation to this third step involved in this issue and concludes, albeit, with some hesitation, that the Judge was entitled to reach the conclusion that, on the primary factual findings and assessments of the parties which he had made, the threshold had been crossed. Lord Wilson in para 48 has less hesitation in reaching the same conclusion, as does Lord Kerr for the reasons he gives at paras 131 132. In agreement with Lord Wilson and Lord Kerr, I consider that the Judge was fully justified in coming to the conclusion that the threshold was crossed on the primary facts as he had found them, and in the light of his assessment of the witnesses and of the risks facing Amelia if she remained with her parents. I have in mind in particular the ultimate views he formed (based on the primary facts he had found and the opportunity he had had to assess the witnesses) which are identified by Lady Hale at paras 169 170 and by Lord Wilson at paras 20 22. The nature of the harm which concerned Judge Cryan was (i) the emotional harm to [Amelia] likely to be caused by (a) the Mothers somatisation disorder and factitious illness disorder, (b) concerns about the parents personality traits, (c) her mothers lying, (d) her fathers active, but less chronic, tendency to dishonesty and vulnerability to the misuse of drugs, and (ii) physical harm to [Amelia] which cannot be discounted, for example, by over treatment or inappropriate treatment by doctors. As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelias parents did not have the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe. He explained that the result of this was that he could think of no sufficiently reliable way in which he could fulfil [his] duty to Amelia to protect her from harm and still place her with her parents. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are evaluations which are also plainly dependant on the Judges overall assessment of the witnesses, and in particular on his opinion as to the character and dependability of Amelias mother and father, and as to the reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong. I understand the concern which Lady Hale expresses in her judgment at paras 208 222, which in many respects reflect the very wise remarks made by Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, 2063. Although they have been referred to by Lady Hale at paras 181 182 and Lord Wilson at para 27 and were set out in full by Black LJ in the Court of Appeal, [2012] EWCA Civ 1475, para 116, those remarks merit repetition, not least because they have resonance in relation to both main issues in this case: 50. What about the court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in In re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, 812, said this: The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done. 51. That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the courts and social services powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in section 31(2) is made out. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in In re H [1996] AC 563 that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy. It is true that much of the harm which the Judge considered could befall Amelia in this case might be said to flow from eccentric, barely adequate [or] inconsistent parenting, and that it can also be said that the harm would result, to an extent at any rate, from her mothers and fathers characteristics rather than from their parenting. There are, however, two answers to that. The first is that it is a question of fact and degree whether the defective parenting which Amelia would undergo if she remained with her parents fell outside the wide spectrum of the acceptable very diverse standards (to quote Hedley J) such as would justify the state stepping in. I agree with Black LJ when she said at para 128 in her judgment in the Court of Appeal, that that was an issue which the Judge was particularly well placed to assess, and, while he could have discussed the issue more fully than he did, it seems to me that, particularly bearing in mind the very unusual facts, the expert evidence, the combination of risks, and the value of seeing the witnesses over a long hearing, it is impossible to fault the Judges conclusion. The importance of a trial judge giving clear and coherent reasons for his decision carries particular force where the judgment is very likely to result in a child being adopted against her parents wishes. However, even in such a case, an appellate court must be careful of placing an unrealistically high burden on the trial judge. As Lord Hoffmann acknowledged in the passage quoted by Lord Wilson from Piglowska (quoting from an earlier judgment he gave), specific findings of fact, even by the most meticulous judge are inherently an incomplete statement of the impression which was made upon him by the primary evidence. In her recent judgment in In re L and B (Preliminary Findings: Power to Reverse) [2013] 1 WLR 634, para 46, Lady Hale, while emphasising the importance of a fully and properly reasoned judgment, as a means of achieving finality, recognised the vicissitudes which can beset any judge. Secondly, in so far as it is said that the threatened harm was attributable to the character of Amelias parents rather than to their parenting activities, the parents characteristics which concerned the Judge would inevitably be reflected in the way they looked after, or parented, Amelia. In particular, it was not merely the potential emotional (and even physical) harm to Amelia owing to her parents deficiencies which worried the Judge. It is of central importance to understanding his conclusion that he was also concerned by the fact that the parents (especially the mother) would, or at least appeared very likely to, impede the professional people who would need access to Amelia in order to mitigate the risk or effect of any harm she might suffer. That not only served to reinforce the degree of risk (or at least to remove a way of mitigating the risk); it also amounted to a finding that, by their activities the parents would actively impede an important and beneficial source of mitigating and monitoring the harm which Amelia would face. That, on any view, must amount to defective parenting, and, in the circumstances of this case in the light of the risks which the Judge thought that Amelia would face, I consider that it amounted to defective parenting which a judge could reasonably conclude satisfied the section 31(2) threshold. The second main issue: the Judges decision to make a care order I turn, then, to the second main issue which the Judge had to decide, namely, given his finding that the threshold had been crossed, whether he should make a care order in respect of Amelia. He decided that he should do so, and, in that connection, it seems to me that three potential questions arise on an appeal against such a decision. Those questions are: (i) whether the judge applied the right legal test when resolving to make the care order; (ii) if he applied the right test, the correct approach of an appellate court on an appeal against the decision to make a care order; and (iii) whether the judges decision can stand, if the appellate tribunal subjects it to that test. The care order: the correct legal test I turn to consider the first question, which involves first identifying the correct test. The effect of section 1(1) of the 1989 Act is that, when considering whether to make a care order, the court must treat the welfare of the child as the paramount consideration, and this involves taking into account in particular the factors identified in section 1(3), which includes, in para (g), the range of powers available to the court As Lady Hale (who knows more about this than anybody) says in para 194, the 1989 Act was drafted with the Convention in mind; in any event, with the coming into force of the Human Rights Act 1998 (the 1998 Act), the 1989 Act must now, if possible, be construed and applied so as to comply with the Convention. So too the Adoption and Children Act 2002 (the 2002 Act) must, if possible, be construed and applied so as to comply with the Convention. It also appears to me that the 2002 Act must be construed and applied bearing in mind the provisions of the UN Convention on the Rights of the Child 1989 (UNCRC). A care order in a case such as this is a very extreme thing, a last resort, as it would be very likely to result in Amelia being adopted against the wishes of both her parents. As already mentioned, it is clear that a judge cannot properly decide that a care order should be made in such circumstances, unless the order is proportionate bearing in mind the requirements of article 8. It appears to me that, given that the Judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By necessary, I mean, to use Lady Hales phrase in para 198, where nothing else will do. I consider that this conclusion is clear under the 1989 Act, interpreted in the absence of the Convention, but it is put beyond doubt by article 8. The conclusion is also consistent with UNCRC. It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195 198 make it clear that such an order can only be made in exceptional circumstances, and that it could only be justified by overriding requirements pertaining to the childs welfare, or, putting the same point in slightly different words, by the overriding necessity of the interests of the child. I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in Re C and B [2001] 1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore that point further. The high threshold to be crossed before a court should make an adoption order against the natural parents wishes is also clear from UNCRC. Thus, Hodgkin and Newell, Implementation Handbook for the Convention on the Rights of the Child, Unicef, 3rd ed (2007), p 296, state that there is a presumption within the Convention that childrens best interests are served by being with their parents wherever possible. This is reflected in UNCRC, which provides in article 7 that a child has as far as possible, the right to know and be cared for by his or her parents, and in article 9, which requires states to ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Having identified the test, the other aspect of the first question is whether the Judge purported to apply that test in this case. In my view, he did, or, to put it at its lowest, his conclusions were expressed in a way which makes it clear that he considered that the test was satisfied. In the passage to which I have already referred, quoted by Lord Wilson in para 22, the Judge said that he could not see any sufficiently reliable way that [he could] fulfil [his] duty to [Amelia] to protect her from harm and still place her with her parents, and he immediately went on to explain that this was despite the fact that this court strives to promote her relationship with her parents and their family life together. He also described adoption as the only viable option for Amelias future care. As a matter of ordinary language, it seems to me clear that the Judge was there applying the test laid down by the Strasbourg court, and concluding that it was satisfied. The care order: the appellate courts approach It is next necessary to address the question of the approach to be adopted by an appellate court when an appeal is brought against a judges decision to make a care order in a case such as this, and where the judge has applied, or at least has purported to apply, the correct test. As a matter of pure domestic law, this is an evaluative exercise and therefore it might appear that the approach discussed in paras 57 61 above applies. However, the issue is potentially complicated by the fact that article 8 is engaged. There is no doubt but that Judge Cryan, as the trial judge, the first instance tribunal, was required to decide for himself whether the care order which he was proposing to make satisfied the test, which the Strasbourg jurisprudence establishes is required by article 8. The issue to be addressed concerns the correct approach of an appellate court when confronted by an appeal against the making of such an order. What the Strasbourg jurisprudence requires (and, I would have thought, what the rule of law in a modern, democratic society would require) is that no child should be adopted, particularly when it is against her parents wishes, without a judge deciding after a proper hearing, with the interests of the parents (where appropriate) and of the child being appropriately advanced, that it is necessary in the interests of the child that she is adopted. So far as any appeal against such a decision is concerned, as Lord Hoffmann said in a passage quoted by Lord Wilson in para 35, [t]here is no Convention obligation to have a right of appeal at all. However, to an extent at any rate, that begs the question as to the correct approach for an appellate court to adopt where there is a right of appeal. In that connection, I respectfully disagree with Lady Hales view as expressed in para 204 that an appellate court is under a positive obligation on every such appeal to assess the question of proportionality for itself, if that means that the Court of Appeal in this case was required to decide for itself, effectively de novo, whether the requirements of article 8, as explained in the cases mentioned in paras 195 198 of Lady Hales judgment, were satisfied so far as the making of a care order in respect of Amelia was concerned. It is well established that a court entertaining a challenge to an administrative decision, ie a decision of the executive rather than a decision of a judge, must decide the issue of proportionality for itself see the statements of principle in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, paras 29 30 and 63, and in Belfast City Council v Miss Behavin Ltd [2007] 1 WLR 1420, paras 12 14, 24 27, 31, 42 46 and 89 91. However, this does not mean that an appellate court entertaining a challenge to a judicial decision, as opposed to an executive decision, must similarly decide the issue of proportionality for itself. If it did, it would mean that (subject to obtaining permission to appeal) litigants would be entitled to (or forced to undergo) two separate sequential judicial assessments of proportionality. I do not consider that there is anything in the Strasbourg jurisprudence or in the 1998 Act which suggests that such an entitlement should exist, even where there is a right of appeal. That is not to say that the fact that Convention rights are involved is irrelevant if there is a right of appeal. The appeal process must offer a fair hearing before an independent and impartial tribunal in accordance with article 6 (to quote again from Lord Hoffmann in MT (Algeria)), and, if the appeal process involves a challenge to the trial judges assessment of proportionality, that challenge would have to be properly and fairly addressed. But in my view, the fact that a Convention right is involved does not require an appellate domestic court to consider again the issue of proportionality for itself. What it requires is that a court considers the question of proportionality and that, if there is an appeal, any appeal process involves a proper consideration of the question of proportionality. In other words, the court system as a whole must fairly determine for itself whether the requirement of proportionality is met, but that does not mean that each court up the appeal chain does so. I agree with Lord Wilson at para 36 that, subject to the requirements of article 6 of the Convention, it must be a question of domestic law as to how the challenge to proportionality is to be addressed on an appeal. There is, in my view, no reason why the Court of Appeal in a case such as this should not have followed the normal, almost invariable, approach of an appellate court in the United Kingdom on a first appeal, namely that of reviewing the trial judges conclusion on the issue, rather than that of reconsidering the issue afresh for itself. That this is the normal function of the Court of Appeal is made clear by CPR 52.11, which states that, save in exceptional cases, every appeal is limited to a review rather than a rehearing and the appeal will be allowed only where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The exceptional cases are, as a matter of principle and experience, almost always limited to those where the Court of Appeal (i) decides that the judge has gone wrong in some way so that his decision cannot stand, and (ii) feels able to reconsider, or rehear, the issue for itself rather than incurring the parties in the cost and delay of a fresh hearing at first instance. As I see it, this limitation on the function of an appellate court is based on similar grounds as are set out in paras 53 and 57 61 above see per Lord Diplock in Hadmor Productions Ltd v Hamilton [1983] AC 191, 220 and per May LJ in EI du Pont para 94. If, after reviewing the judges judgment and any relevant evidence, the appellate court considers that the judge approached the question of proportionality correctly as a matter of law and reached a decision which he was entitled to reach, then the appellate court will not interfere. If, on the other hand, after such a review, the appellate court considers that the judge made a significant error of principle in reaching his conclusion or reached a conclusion he should not have reached, then, and only then, will the appellate court reconsider the issue for itself if it can properly do so (as remitting the issue results in expense and delay, and is often pointless). Not only is this consistent with the normal practice of an appeal court in this jurisdiction but it is also consistent with good sense. In many cases, and this is one, the trial judge will have seen the witnesses and had a full opportunity to assess the primary facts and to make relevant assessments (I refer again to what Lord Wilson says at paras 41 42). Once one accepts that this means that the appellate court should defer to the trial judge at least to some extent (as Lady Hale rightly does in para 205), then, unless the appellate court is confined to a primarily reviewing function, it will have some sort of half way house role between review and reconsideration. This would seem to me to be unprincipled and to be liable to cause confusion to actual and potential litigants as well as to the judiciary. Additionally, the introduction of a second layer of judicial assessment of proportionality is likely to lead to increased cost and delay in many cases. Of course, where the trial judge has not heard oral evidence or where his findings have not depended on his assessment of the witnesses reliability or likely future conduct, then the appellate court will normally be in as good a position as the trial judge to form a view on proportionality. The argument that the Convention or the 1998 Act requires the Court of Appeal to form its own view in every case where a trial judges decision on proportionality is challenged, appears to me to be wrong in principle and potentially unfair or inconvenient. The argument is wrong in principle because, if the function of the Court of Appeal is as I have described, then, in my view, there can be no breach of the Convention or the 1998 Act, if it conducts a review of the trial judges decision and only reverses it if satisfied that it was wrong. The only basis for challenging that view is, on analysis, circular, as it involves assuming that the Court of Appeals primary function is to reconsider not to review. The argument is potentially unfair or inconvenient, because in cases where the appeal court could not be sure whether the trial judge was right or wrong without hearing the evidence and seeing the witnesses, it would either to have to reach a decision knowing that it was less satisfactorily based than that of the judge, or it would have to hear the evidence and see the witnesses for itself. That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judges conclusion on proportionality in such a case, unless it decides that that conclusion was wrong. I do not agree with the view that the appellate court has to consider that judges conclusion was plainly wrong on the issue of proportionality before it can be varied or reversed. As Lord Wilson says in para 44, either plainly adds nothing, in which case it should be abandoned as it will cause confusion, or it means that an appellate court cannot vary or reverse a judges conclusion on proportionality of it considers it to have been merely wrong. Whatever view the Strasbourg court may take of such a notion, I cannot accept it, as it appears to me to undermine the role of judges in the field of human rights. I appreciate that the attachment of adverbs to wrong was impliedly approved by Lord Fraser in the passage cited from G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 652, by Lord Wilson at para 38, and has something of a pedigree see eg per Ward LJ in Assicurazioni [2003] 1 WLR 577, para 195 (although aspects of his approach have been disapproved see Datec [2007] 1 WLR 1325, para 46). However, at least where Convention questions such as proportionality are being considered on an appeal, I consider that, if after reviewing the trial judges decision, an appeal court considers that he was wrong, then the appeal should be allowed. Thus, a finding that he was wrong is a sufficient condition for allowing an appeal against the trial judges conclusion on proportionality, and, indeed, it is a necessary condition (save, conceivably, in very rare cases). There is a danger in over analysis, but I would add this. An appellate judge may conclude that the trial judges conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judges view is in category (i) to (iv) and allowed if it is in category (vi) or (vii). As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judges decision was not based on his assessment of the witnesses reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judges decision was wrong, then I think that she should allow the appeal. I am conscious that the analysis in paras 80 90 appears to differ somewhat from that of Lady Hale in paras 204 205 and of Lord Kerr in paras 116 127. However, at least in my opinion, it would, essentially for two reasons, be a very rare case where their approach would produce a different outcome from mine. First, it is only my category (iv) which gives rise to disagreement, in that they would not, as I understand it, accept that such types of case exist. However, many, probably most, cases that on my approach would fall into that category would, on their approach (especially in the light of what they say about the weight to be given to the trial judges assessment) be in category (iii), which would yield the same outcome. Secondly, the advantage which the trial judge has in hearing the evidence and seeing the witnesses will mainly apply to his findings of primary fact, inferences of fact, and assessment of probable outcomes, which then feed into his assessment of proportionality (and, in this case, necessity). When those factors come to be weighed on the question of proportionality (or necessity), the advantage the trial judge has will normally be of less significance, and sometimes even of very little, if any, significance. It is unnecessary to decide whether the approach described in paras 85 90 is appropriate to any appeal concerning an evaluation even where no Convention right is involved, including the sort of issue considered in G v G, in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 and in Assicurazioni. I am not convinced that the approach is necessarily different from that advocated in those cases, although the precise formulation is undoubtedly different. However, it was not a topic on which we had any argument, as the submissions were limited to the proper approach on an appeal on proportionality, or necessity, under the Convention, and I say no more about it. The care order: should it be upheld? So I reach the final question on this second issue, and on this appeal: was the Judges decision to make a care order in this case proportionate, in the light of the conclusions he reached on the primary facts and on the assessments he made, and bearing in mind the strong general desirability of maintaining the family unit, and the possibility of other remedies? In other words, in the light of these factors, was it necessary to make such order to protect Amelia, bearing in mind the overriding necessity of the interests of the child? In the light of the Judges findings, quoted by Lord Wilson in para 21, when considered against the detailed findings of primary fact and assessment which he made, it seems to me that he directed himself appropriately and came to a decision which I cannot possibly characterise as wrong. I agree with Lord Wilsons analysis in para 48, as well as with what Lord Kerr says at paras 131 133. While I understand, and have real sympathy with, the points made by Lady Hale in paras 216 223, I do not view the enquiries she wishes to be made on any remission as realistically open to an appellate court in the light of the various conclusions reached by the Judge. I take this view above all because of his finding, which is admirably explained by Lord Kerr in para 132 as the inescapable difficulty that the parents have been found to be incapable of co operating to the necessary extent with professionals whose intervention is considered to be indispensable to the safeguarding of Amelias happy and fulfilled future. That was a finding plainly open to the Judge, not least in the light of all his unchallenged findings of primary fact and his assessment of Amelias parents. To put the point another way, if we were to remit the case on the basis proposed by Lady Hale, it would be to enable another judge to draw conclusions as to the future behaviour or attitude of Amelias mother and/or father, which were inconsistent with the findings made by Judge Cryan. He concluded that the parents would not co operate with professionals whose access to Amelia, for whose well being such access would be essential. But, as I have already said, those findings were ones with which an appellate court had no grounds, in my opinion, for interfering. It follows that I cannot accept that this case is one which could be properly remitted. In deference to Lady Hales conclusions, I see how it could be argued that (i) the question of co operation was given too much weight by the Judge or (ii) the possibility of setting up a system whereby co operation was assured could have been more fully explored at the hearing. However, to allow the appeal on either ground would, I think, be wrong, in principle and in practice. In principle, because the Judges view was justified in the light of his findings as to the past behaviour of the parents, the impression which he formed of the parents and other important witnesses, and his assessment of the future likelihoods and risk, all of which were open to him. In practice, it is almost always possible for parties who have lost a case because of the judges assessment of their likely behaviour, to contend that they should be given a second chance to explore matters more fully with a view to achieving a different result. To allow this appeal on that ground would justify a remittal for fuller consideration in any case where a party was dissatisfied with a trial judges decision based on the assessment of the future. Of course, the issue in the present case is particularly important and sensitive, but finality is important, not just in the public interest, but for the good of Amelia (and her parents). Concluding remarks Having reached this conclusion, it is only right to refer to the very brief, but important judgments of Rix and Lewison LJJ in the Court of Appeal, which proleptically echo the concerns expressed by Lady Hale. They agreed with Black LJs full and careful reasons for dismissing the appeal, but Lewison LJ, at para 147, was worried that the Judge might have fallen foul of Hedley Js wise remarks quoted in para 67 above, and Rix LJ wondered at para 150: whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk. These observations are also reflected by concerns expressed more broadly by Sloan, Conflicting rights: English adoption law and the implementation of the UN Convention on the Rights of the Child [2013] CFLQ 40. That Article at pp 49 50, suggests that, whereas UNCRC is neutral about the desirability of adoption (quoting Hodgkin and Newell, op cit p 294), the 2002 Act unashamedly aimed to bring about more adoptions more quickly for children in care (quoting Harris Short, New Legislation: The Adoption and Children Bill A Fast Track to Failure? [2001] CFLQ 405). More specifically, the Article identifies a suggested inconsistency between the approach of the Court of Appeal in Re C (A Child) (Adoption: Duty of Local Authority), reported as C v XYZ County Council [2008] Fam 54, at para 15, and that of the High Court in Re A (A child) (Disclosure of Childs Existence to Paternal Grandparents, reported as Birmingham City Council v S [2007] 1 FLR 1223, at paras 73 and 76. In Re C, it was said that the 2002 Act does not privilege the birth family over the adoptive parents simply because they are the birth family. In the Birmingham case, which Sloan suggests is more in line with the policy of UNCRC, Sumner J described adoption as a last resort for any child to be invoked only when neither of the parents nor the wider family and friends can reasonably be considered as potential carers for the child, and he went on to recognise a childs right to be brought up by her own family. We were not addressed on this Article or on those two cases. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents wishes should only be contemplated as a last resort when all else fails. Although the childs interests in an adoption case are paramount (in the UK legislation and under article 21 of UNCRC), a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them. Hodgkin and Newell, op cit, suggest that, under UNCRC, an adoption can only occur if parents are unwilling or are deemed by judicial process to be unable to discharge their responsibilities towards the child. The assessment of that ability to discharge their responsibilities must, of course, take into account the assistance and support which the authorities would offer. That approach is the same as that suggested by Hedley J in the passage quoted in para 67 above, and I agree with it. It means that, before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support. In this case, I revert to the melancholy fact that the Judge was satisfied that (i) without such assistance and support, the parents would not discharge their responsibilities to Amelia, (ii) that, as a result, there would be a grave risk of harm to her, and, crucially, (iii) that the parents would seriously impede the authorities in providing such essential assistance and support. There was ample evidence to support that conclusion, and therefore the appeal must be dismissed. LORD KERR Three different types of judicial decision in care proceedings have been authoritatively identified by Lady Hale in para 199 of her judgment. The first concerns factual decisions on the evidence; the second involves consideration of whether the statutory threshold has been crossed; and the third deals with decisions as to the type of order that should be made. For the reasons that she has given, with which I agree, it is important to recognise the different intellectual exercise which is in play in each of these contexts because that will dictate the proper approach of the appellate court to a challenge about the correctness of a judges decision. A conclusion by a judge at first instance on which facts have been proved, and which have not been, involves the judge sifting the evidence that has been led, assessing it and then deciding whether it has brought him or her to the necessary point of conviction of its truth and accuracy. Although an appellate court is competent to hear appeals against the findings of fact that the judge has made, of necessity, its review of those findings is constrained by the circumstance that, usually, the initial fact finder will have been exposed to a wider range of impressions that influence a decision on factual matters than will be available to a court of appeal. This is not simply a question of assessing the demeanour of the witnesses who gave evidence on factual matters, although that can be important. It also involves considering the initial impact of the testimony as it unfolds did it appear frank, candid, spontaneous and persuasive or did it seem to be contrived, lacking in conviction or implausible. These reactions and experiences cannot be confidently replicated by an analysis of a transcript of the evidence. For this reason a measure of deference to the conclusions reached by the initial fact finder is appropriate. Unless the finding is insupportable on any objective analysis it will be immune from review. The second species of decision in care proceedings (whether the threshold has been crossed) is of a plainly different order from that of fact finding. In deciding whether a child is suffering or is likely to suffer significant harm, a judge must exercise judgment. There may be factual elements to the decision such as, for instance, whether a particular type of harm occurred. Ultimately, however, the dominant character of the decision is that of an appraisal by the judge as to whether the harm is significant. With due respect to Hallett LJs contrary view in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, para 42, this cannot be characterised as a finding of fact. It is a judgment made on the import of the facts found, rather than a factual finding. Given that the determination as to whether the threshold has been crossed is one involving the exercise of judgment, what should the approach of the appellate court be to a review of that decision? Leaving aside for the moment the question of proportionality, there is much to be said for the proposition that the measure of deference that an appellate court should show to this decision approximates to that which is appropriate to a review of factual findings. Like Lord Neuberger, however, I believe that to cast the test of reviewability in this sphere as an examination of whether the judge was plainly wrong is potentially misleading. A finding on whether the threshold has been crossed will, in many cases, be a matter for fine judgment, however. The conclusion on this issue will be informed, at least to some extent, on the judges impression of the evidence. While the weight to be given to his or her conclusion as to whether the threshold has been crossed operates in a different way from that where the judge reaches a conclusion on disputed facts, since the assessment of the evidence is influential in the threshold decision, a degree of reticence on the part of an appellate court on whether to interfere with the decision is warranted. If the appellate court considers that the judge was wrong, however, it should not shrink from reversing his or her decision. The third species of decision in care proceedings (the selection of the appropriate disposal) is, as Lady Hale has said (in para 199), on the face of it, a matter of discretion. One proceeds on the basis that there is a range of options available to the judge, all of which are defensible, but that one is chosen, in the exercise of the judges discretion, as that considered best to meet the judges perception of what is needed to fulfil the requirements of the particular case. In truth, of course, this decision partakes of the exercise of judgment as well as discretion. The distinction (although it cannot be a sharp edged one) between a decision on disposal and the threshold decision is that in the latter case, the judge must arrive at a firm conclusion as to whether the appropriate standard has been met whereas, in the case of disposal, the judge can acknowledge that there is an array of possible disposals from which he or she selects what is considered to be the best. Where what is under review by an appellate court is a decision based on the exercise of discretion, provided the decision maker has not failed to take into account relevant matters and has not had regard to irrelevant factors and has not reached a decision that is plainly irrational, the review by an appellate court is at its most benign. Truly, in that instance, an appellate court which disagrees with the challenged decision of the judge will be constrained to say, even though we would have reached a different conclusion, we cannot interfere. Absent the proportionality dimension, that is probably also true of a review of the decision on whether the threshold has been crossed. The judgment as to whether there has been or is likely to be significant harm to the child must be influenced to a large extent by what the judge finds to have been proved as a matter of fact. To reverse a decision on this will almost invariably involve a review of the correctness of the judges conclusion on some of the facts. For the reasons given earlier, this is potentially perilous territory for the appellate court. So, even if it feels that it would have reached a different conclusion, it should refrain unless it concludes that the decision of the trial judge is simply insupportable. Likewise and obviously where what is under challenge is the selection of the order deemed by the judge to be required to meet the particular circumstances of the individual case, the view of the appellate court that it would have reached a different conclusion should not, apart from proportionality, prevail. Although this decision consists of the exercise of judgment as well as discretion, it is essentially one in which the judge is selecting one of a possible range of options about what is best required to meet the requirements of a particular case. Because that decision is inevitably influenced by, among other things, the judges impression of the evidence, the appellate court should be slow to substitute its view of what is best required. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision maker, at whatever level the decision is made, to starkly confront the question, is this necessary. If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate. Lord Wilson has said in para 36 that the European Convention on Human Rights does not require appellate courts to address issues as to Convention rights with any particular degree of intensity. He also says that it is not incumbent on appellate courts to re hear all the evidence relevant to a Convention issue. I agree with both propositions. But an appellate court which is required to review the proportionality of a decision may not discharge its duty under section 6(1) of the Human Rights Act 1998 by merely saying that the lower court has reached a decision which is not wrong. The observations of Lord Phillips and Lord Hoffmann in MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, which Lord Wilson quotes in para 35 of his judgment, address the argument that an appellate court was required to conduct a full blown investigation of the facts surrounding the question whether a Convention right had been violated. What was in issue was how an appellate court should inquire into a claim that a Convention right had been breached. The passages quoted were not concerned with the quite different question as to what the appellate court had to decide. In the present case both appellate courts, the Court of Appeal and this court, have to decide whether the making of a care order was proportionate. Neither court is required to conduct a complete re hearing of the evidence. But both courts must address directly the question whether they have been satisfied that the making of a care order is proportionate. They may not do so by reference only to the defensibility of Judge Cryans decision. What the appellate courts are required to decide, therefore, is not whether Judge Cryans conclusion is wrong. What they must decide is whether the decision was proportionate and that is a matter for their judgment, not one on which they may defer to the judgment of others. Deferring to the judgment of others is, of course, quite a different thing from taking into account the judgment of others. An appellate court, tasked with the function of deciding whether a decision is proportionate, may indeed, should take into consideration any properly reasoned conclusion by a judge at first instance as to proportionality. Each member of the appellate court must ask whether he or she is satisfied that the decision is proportionate but that does not mean that the first instance judges reasoning should be disregarded. The distinction between examining a first instance judges decision to see whether it falls within the generous ambit of reasonable disagreement and considering it in order to decide what influence it should have on ones own decision may seem somewhat narrow but the two assessments are importantly different from each other. In the first instance, one is not concerned (or at least not principally concerned) with whether one would have reached a different conclusion. In the second, that question is of critical importance but it can properly be influenced by an earlier process of reasoning with which one can agree. Another, perhaps more simple, way of expressing that concept is this: where an appellate court is in the realm of review of a lower court's decision without the dimension of proportionality, if the decision is not one which the appellate court would have reached, it is obliged to consider whether the lower courts conclusion nevertheless falls within the generous ambit of permissible decisions. If it does, it should not be reversed. If, on the other hand, the review must comprehend proportionality, that is not the approach. Generous ambit considerations do not arise. But that does not mean that the appellate court may completely disregard the reasons given by the first instance judge for his or her conclusion. These must be taken into account and given such weight as they deserve, bearing in mind that the judge has had the advantage of seeing the witnesses, hearing the evidence given in real time etc. Ultimately, however, the appellate court must frankly address the question "is the challenged measure proportionate", "is it really necessary". If the court of appeal concludes that it is not, then, notwithstanding its consideration of the first instance judge's view, the decision must be reversed. The decision by an appellate court on whether the making of an adoption order is proportionate cannot be determined by an approach which is geared solely to testing the adequacy of the trial judges assessment of the proportionality issue. In my view this is impermissible because it removes the appellate court from the area of responsibility which it has to ensure that a Convention right is not infringed. Moreover, an approach that contemplates the endorsement by an appellate court of a decision on proportionality which it does not affirmatively find to be correct involves an abdication of the courts statutory duty as a public authority. Section 6 of the Human Rights Act makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. The inaptness of review of the trial judges decision on proportionality rather than the appellate court reaching its own conclusion on the issue can, perhaps, be best illustrated by a series of sequential propositions: (a) Where the parents do not consent, a court may only sanction the adoption of a child (and any ancillary or preparatory steps) where that is proportionate (necessary); (b) Parents therefore enjoy a Convention right not to have their child freed for adoption unless that course is proportionate/necessary; (c) No public authority (including a court) may lawfully act in a way which is incompatible with that right; (d) In order to address the question whether it would be acting unlawfully (in breach of section 6 of HRA) a court, at whatever level, which is called on to sanction an adoption must ask itself whether this is a proportionate/necessary interference with the parents Convention right; (e) The question in (d) cannot be answered by saying that another public authority/court has said that the adoption is proportionate. In my view, an appellate court cannot avoid the imperative of section 6 of HRA by viewing the matter of proportionality through the prism of the defensibility of the trial judges decision. An appeal in an adoption case requires the appellate court to confront the possibility that its decision could involve the infringement of a Convention right. The duty not to act in a way which is incompatible with such a right gives rise to an inevitable, concomitant duty to inquire whether the order that the court makes would have that consequence. That is an inquiry which cannot be satisfactorily answered by the conclusion that another agency has so decided. The inquiry must require the appellate court to decide for itself if the freeing order is proportionate/necessary. It is simply not an option for the appellate court to adopt a stance of agnosticism and say, well we have not reached a firm conclusion ourselves but we cannot be sure that the trial judge was wrong and therefore his decision on proportionality holds the field. That is not to say that the trial judges decision is irrelevant. It is entirely consistent with the proper discharge of the duty under section 6 of HRA for an appellate court to give considerable weight to the decision of the first instance judge, endowed as he is with the conspicuous advantage of having heard the evidence unfold for the first and most pertinent time. But giving the trial judges conclusion on the question of proportionality appropriate weight is a crucially different exercise from saying that it withstands review because it is defendable. Giving it weight because of the benefits it enjoys involves the appellate court reaching its own decision, influenced by the conclusion of the trial judge. Deferring to the judges decision because it is immune from review does not require (or, indeed, permit) the appellate court to reach its own view except as a test of the viability of the judges view. Lord Neuberger considers that neither the HRA nor the ECHR requires in terms that an appellate court must decide proportionality for itself. I agree. I also agree that ECHR does not require that there be a system of appeals in every case. What ECHR requires is that, where an appeal is available, it must be conducted in a way which is Convention compliant. What Convention compliant means in the context of this case is important and I will say something about that presently. The critical point, it seems to me, is to identify what an appellate court is about in deciding an appeal in a care proceedings case. Ultimately, its decision comes down to the question whether to allow the parents wishes to be overridden. It may only do so if that course is proportionate. The fact that the decision is taken on an appeal from an earlier judicial finding does not detract from that central element of the appellate courts function. The difficult question of how, in the context of a decision on proportionality, an appeal court should exercise its appellate role must begin at this fundamental starting point. In the final analysis, the decision to allow the parents wishes to be overborne, by whatever court that decision is taken, must be shown to be necessary. The statement that an appeal must be conducted in a Convention compliant way is normally made in relation to such issues as equality of arms, access to relevant material, the ability to know the case against one etc. But it must also mean that the appeal is conducted in a way that will mean that the Convention right is vindicated in a way that is practical and effective. To have these attributes the right must not be interfered with unless the interference is proportionate and the court (any court) which deals with that question must be satisfied of that. And satisfied of that for itself. So, although neither HRA nor ECHR requires in terms that an appellate court has to decide proportionality for itself, the outworking of the courts duty under section 6 of HRA in particular makes a decision on the proportionality of a freeing order unavoidable for any court deciding that question. This does not mean, however, that the appellate court has to conclude that it is in as good a position as the trial judge or that it has to order that the evidence be heard again. The appellate court decides whether it is satisfied that the decision is proportionate on the basis of the material that is put before it in accordance with the normal rules that attend the hearing of an appeal. That material includes the judges rehearsal of the evidence, the factual findings that he has made and the reasoning which underpins his decision on the question of proportionality. All of these go into the appellate mix. Ultimately, however, the appellate court has to say to itself, are we persuaded that the decision was proportionate. I cannot see how that question can be avoided or elided if faith is to be kept with the duty under section 6 of HRA. A suggested formulation for the test of reviewability in this area has been, was the first instance judge wrong. As I understand the suggestion, this is something which goes to result as well as process so that the appellate court is not merely inquiring whether the lower court went about it the right way but also whether it arrived at the right outcome. If that is so, the question arises, how does the appellate court address the question, did the lower court get it right or wrong (as opposed to did it follow the correct route to its conclusion)? It seems to me that it can only do so by asking what is the right result; in other words, by deciding the issue for itself. Proportionality does not arise in relation to fact finding by the trial judge. It plainly is relevant to the question of disposal in care proceedings. Does it arise in relation to the crossing of the threshold? Lord Wilson thinks not. He considers that proportionality becomes material only when interference with the right to respect for family life under article 8 is in prospect and this only occurs when the threshold has been crossed and the making of a care order is in contemplation. Ward LJ in Re MA (Care Threshold) [2010] 1 FLR 431, at para 54 thought that, given the underlying philosophy of the Human Rights Act, the requirement in article 8 to have respect for family life informed the meaning of significant harm and emphasised the need for a sufficient reason for crossing the threshold. I tend to agree with Lord Wilson that this may introduce an unnecessary layer of complexity to the inquiry whether the harm was significant. The backdrop to the decision whether sufficiently serious harm has occurred or is apprehended in order to hold that the threshold has been crossed is that this opens the gateway to a possible care order. Recognition that this is a draconian step provides sufficient emphasis on the need for the harm to be significant without adding further colour by recourse to article 8. Whether or not article 8 has any part to play in the threshold decision, it certainly comes into full flower at the disposal stage. Lady Hale and Lord Wilson have both referred to emphatic statements by ECtHR in such cases as Johansen v Norway (1996) 23 EHRR 33, K and T v Finland (2001) 36 EHRR 255, R and H v United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236 and YC v United Kingdom (2012) 55 EHRR 967 concerning the stringent requirements of the proportionality doctrine where family ties must be broken in order to allow adoption to take place. I agree with Lady Hales statement (in para 198 of her judgment) that the test for severing the relationship between parent and child is very strict and that the test will be found to be satisfied only in exceptional circumstances and where nothing else will do. I also agree with what Lord Wilson has said in para 34 of his judgment, that a high degree of justification is required before an order can properly be made. Both Lady Hale (with some reluctance) and Lord Wilson (more readily) have accepted that the threshold in this case was crossed. I am happy to acknowledge the great strength of their combined experience and expertise in this area of the law. Quite apart from this, however, I am personally satisfied that the threshold was indeed crossed. The psychiatric conditions from which the mother has suffered and the way in which the parents have reacted in the past must be set against the apparently exemplary care and concern that they have exhibited towards Amelia (to use Lady Hales pseudonym). But the latter does not, in my estimation, counteract the former factors. Without rehearsing the facts which have been so extensively reviewed in the judgments of Judge Cryan, Black LJ, Lady Hale and Lord Wilson, it seems to me clear that there is a sufficient likelihood that the way in which, however well intentioned they may be, the parents care for Amelia would be blighted by their well established difficulties and that her emotional well being and development would suffer significantly in consequence. The inescapable difficulty in this case is that the parents have been found to be incapable of co operating to the necessary extent with professionals whose intervention is considered to be indispensable to the safeguarding of Amelias happy and fulfilled future. Of course this was not a question to be judged solely by reference to experience in previous relations with social services. As Lady Hale has pointed out, the evidence in relation to this was not universally adverse. But the established inability to co operate, combined with the dishonesty and antagonism displayed by the parents, unmistakably presaged the impossibility of ensuring that this child would not suffer significant harm. My conclusion on the threshold issue leads me inexorably to the same view on the question of disposal. If the difficulties that the parents presented could not be overcome and, on my analysis of the evidence, there was no prospect of this there really was no alternative to the care order. While I do not entirely agree with Lord Wilson on what I understand to be his view as to how an appellate court should approach the question of proportionality, I do agree with him as to the outcome of the appeal. I consider that it should be dismissed. LORD CLARKE I agree that this appeal should be dismissed for the reasons given by Lord Wilson, Lord Neuberger and Lord Kerr. I do not detect any difference between them save as to the correct test to be adopted by an appellate court in a case of this kind. Which test is adopted does not, as I see it, affect the correct answer to each of the questions for determination in the particular circumstances of this case, namely the correct analysis of the facts, whether the section 31(2) threshold was crossed and whether a care order with a view to adoption should have been made. However, there is a difference in principle between the approaches of an appellate court to the making of a care order adopted by Lord Wilson and Lord Neuberger on the one hand and Lord Kerr and Lady Hale on the other. I suspect that in the vast majority of cases that difference would not affect the ultimate disposal of a case of this kind, in which it is agreed on all sides that a care order cannot be made unless it is necessary in the best interests of the child. Nothing less than necessity will do, either under our domestic law or under the European Convention on Human Rights. Only in a case of necessity will an adoption order removing a child from his or her parents be proportionate. The importance of this court addressing the difference is that one of its roles is to give guidance to the courts below and it is, to my mind, critical that there should, at the very least, be a clear majority for one approach. I agree with Lord Neuberger and Lord Wilson that the correct approach of an appellate court to the making of a care order is to treat the exercise as an appellate exercise and not as a fresh determination of necessity or proportionality. On that basis the question arises how the exercise should be approached by the appellate court. In the course of argument there was some debate whether, absent some error of principle, the Court of Appeal could only interfere with the decision of the judge if satisfied that the judge was plainly wrong. In England and Wales the jurisdiction of the Court of Appeal is set out in CPR 52.11(3), which provides that the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serous procedural or other irregularity in the proceedings in the lower court. The rule does not require that the decision be plainly wrong. However, the courts have traditionally required that the appeal court must hold that the judge was plainly wrong before it can interfere with his or her decision in a number of different classes of case. I referred to some of them in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, to which Lord Neuberger refers at para 57, at my paras 9 to 23. It seemed to me then and it seems to me now that the correct approach of an appellate court in a particular case may depend upon all the circumstances of that case. So, for example, it has traditionally been held that, absent an error of principle, the Court of Appeal will not interfere with the exercise of a discretion unless the judge was plainly wrong. On the other hand, where the process involves a consideration of a number of different factors, all will depend on the circumstances. As Hoffmann LJ put it in In re Grayan Building Services Ltd [1995] Ch 241 at 254, generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision. In the present context, it seems to me, in agreement with Lord Neuberger at para 58, that the court should have particular regard to the principles stated by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372, which are quoted by Lord Wilson at para 41. As I read their judgments, Lord Neuberger, Lord Kerr and Lord Wilson all conclude that on the question whether the section 31 threshold was crossed the test is whether the judge was wrong, not whether he was plainly wrong. Lord Neuberger and Lord Wilson have reached the same conclusion on the ultimate question, namely whether a care order should be made. I agree with them. CPR 52.11(3) provides that the appeal court will allow an appeal where the decision of the lower court was wrong. As already indicated, I appreciate that the courts have given the expression wrong a different meaning in different contexts. However, in the context of care orders, where the court must be satisfied that it is necessary make the order, the better course is to ask whether the judge was wrong to make the order and not to ask whether he was plainly wrong. In ordinary language there is a difference between wrong and plainly wrong. If a plainly wrong test is adopted, it will be possible for an appellate court to hold that the judge was wrong to make an adoption order but was not plainly wrong to do so. How it might then be asked can it be said that it was necessary to make the order? If it was a wrong order how can it have been a necessary order? This consideration seems to me to argue strongly for the approach adopted by Lord Neuberger and Lord Wilson. For simplicity, I would apply the same test to decisions as to whether or not the threshold is crossed. For the avoidance of doubt, as I see it, this does not mean that the judge will only be held to be wrong if he or she has made a decision which no reasonable judge could have come to. It means that the judges decision is wrong if the case is in one of the three categories identified by Lord Neuberger in para 93 as (v), (vi) or (vii). That is where the view expressed by the judge is one which the appellate court is doubtful about but on balance concludes was wrong, or one which the appellate court concludes was wrong or insupportable. These categories are to be contrasted with Lord Neubergers categories (i), (ii), (iii) and (iv). They include category (iv), where the appellate court cannot say whether the judges view was right or wrong. In short, I agree with the approach proposed by Lord Neuberger in paras 93 and 94. I would only add that, as I read Lord Kerrs judgment, he is of the opinion that, if (contrary to his view) the exercise is that of an appellate court and not that of a court determining the issue of necessity or proportionality for itself, the correct test (absent an error of principle) is whether the decision of the judge was wrong, not whether it was plainly wrong. If that is correct, there is a majority in favour of the appellate approach (Lord Neuberger, Lord Wilson and myself) and, on such an approach, a majority in favour of the test being whether the judge was wrong (Lord Neuberger, Lord Kerr, Lord Wilson and myself). This approach will simply mean that a care order can only be made where a judge has held that such an order was necessary and the Court of Appeal (or this court on appeal from the Court of Appeal) has declined to hold that the judge was wrong. I would expect appeals to this court in adoption cases to be very rare indeed, since on this approach there will very rarely be any basis for a further appeal to this court, with all the expense and delay such an appeal entails. LADY HALE This case raises some profound questions about the scope of courts powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention. How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents? Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents character and behaviour before we separate them for good? Perhaps above all, however, this case raises the issue of when it is proper for an appellate court to interfere in the decisions of the trial judge who has heard and read all the evidence and reached his conclusions after careful cogitation following many days of hearing in court and face to face contact with the people involved. We all agree that an appellate court can interfere if satisfied that the judge was wrong. We also all agree that a court can only separate a child from her parents if satisfied that it is necessary to do so, that nothing else will do. I have come to the conclusion that the judge was indeed wrong to be so satisfied in this case. As my fellow Justices have reached a different conclusion, I must explain myself. The facts We are concerned with a little girl, whom I shall call Amelia, who was born on 22 April 2010 and is now nearly three years old. Her mother, Ms M, was born in 1970 and is now 42 years old. Ms parents separated when she was around five years old and when she was around seven years old her mother remarried Mr E, who thus became Ms step father. They had two sons, born in February 1985 and 1986, who are Ms half brothers. In her early teens M, who had been living with her grandparents, moved in with her mother and Mr E. In 1986, when M was 15 years old, Mr E began a sexual relationship with her, she became pregnant by him and had an abortion. In 1987, Ms younger sister J, then aged 12, also moved in with them. Within a remarkably short time J was the subject of care proceedings arising from a major assault upon her in November 1987. The family left her behind when they moved to Greece for several months in 1989. While there, M again became pregnant by Mr E and had another abortion (she later had five more). After the family returned to this country, Ms mother left Mr E and their two sons, then aged five and three and a half, and she began divorce proceedings in 1990. M (then 20) and the two boys remained living with Mr E. On 17 March 1999, when M was aged 29, she and Mr E had a daughter, whom I shall call Teresa. She is now nearly 14 years old. In 2003, M was convicted of a series of frauds against financial institutions. She was sentenced to two years imprisonment. In her defence, she alleged that the proceedings were a conspiracy between a BT engineer and a police officer and that the police officer had indecently assaulted her. She was prosecuted for and convicted of perverting the course of justice and perjury in respect of the latter allegation and sentenced to a further three years imprisonment, which was reduced to 27 months on appeal because of her serious psychological problems. M now says that Mr E was the prime mover behind all these offences, telling her how to accomplish the frauds, taking her to the premises and waiting for her outside, and also concocting her defence. Judge Cryan heard and accepted evidence from the barrister who defended her at the time, to whom it was apparent that M was completely dominated by Mr E. Judge Cryan held that Mr E knew all along the nature of Ms defence and, at least, was in league with her or, perhaps even, was the driving force behind it (Judgment of 27 April 2011, para 101). But he also held that M was a habitual and purposeful liar and an accomplished fraudster (para 98). In 2003, in the first criminal proceedings, Dr Spoto, presumably a consultant forensic psychiatrist, prepared a report on M, suggesting a diagnosis of Munchausens syndrome. We have not seen that report, but we do know from the later reports that M has a long and complicated history of frequent complaints to a large number of hospitals and medical practitioners for which a physical explanation could not always be found. In 2004, there was a report in the second criminal proceedings from Dr Taylor, who is a consultant forensic psychiatrist. M complained to him of sexual abuse by her own father but not by Mr E. His diagnosis was somatisation disorder: that is, the repeated presentation of physical symptoms, together with persistent requests for medical investigations, but where any physical symptoms present do not explain the nature and extent of the symptoms or the distress and preoccupation of the patient. M had had some real disorders, but these were not such as to explain her repeated presentations with complaints primarily of vaginal bleeding and abdominal pain. But he disagreed with Dr Spoto: there was no definitive evidence that she had feigned or fabricated symptoms, so he did not then diagnose Munchausens syndrome (or factitious disorder as it is now known) still less Munchausens syndrome by proxy (which is the reporting of feigned or fabricated symptoms in a child in order to secure medical attention for the child). In June 2009, M was admitted again to hospital for medical investigations and this time she did not return to the family home with Mr E, her half brothers and her daughter, Teresa. She began to make serious allegations of abuse to the Surrey police against Mr E. Mr E countered these with allegations against her. He made an ex parte application to the court and obtained an interim residence order in relation to Teresa. While M was accommodated in a refuge in Eastbourne, Mr E traced her and harassed her by telephone call and text, necessitating her move to a refuge in Hastings. While there, her younger half brother sought her out and harassed her to come home, which Judge Cryan found highly likely to be a joint exercise involving Mr E. It was during this period that M met Amelias father, F, in Hastings and soon began a relationship with him. He has a great many convictions for serious criminal offences and has also used class A drugs. He has been a somewhat distant father to his four older children. Amelia must have been conceived in August 2009. In November 2009, the couple moved with the support of the police to live in the London Borough of Barnet. The first social work statement to the court reports that M accessed ante natal care appropriately throughout her pregnancy. In January 2010, a midwife asked her about scarring on her body and M told hospital staff that she was fleeing domestic violence, that she had a ten year old daughter who was still living with her partner, and described 23 years of serious abuse by Mr E. In March 2010, Barnet midwifery services made a referral to Barnet social services, because of their concerns about the wellbeing of M and the safety of Teresa. Barnet began an initial assessment but although M gave information over the phone she was reluctant to attend appointments or receive home visits. On 17 March 2010, West Sussex County Council held an initial child protection case conference about Teresa. Ms solicitors later sent the Minutes of this case conference to Barnet social services. From these they learned, not only of the serious allegations which M was making against Mr E, but also of the (less serious) allegations which he was making against her, of her criminal record and reported Munchausens syndrome. Amelia was born on 22 April 2010 at only 32 weeks gestation and was placed in the special baby care unit. On 6 May 2010, Barnet began care proceedings in respect of her and asked for an interim care order. They did not send the parents the usual pre proceedings letter setting out their concerns and asking for the parents response. But both the parents had been evasive and obstructive with them. An interim care order was granted on 10 May 2010 and Amelia was placed in foster care immediately on discharge from the hospital. Greatly to her benefit, to the credit of the local authority and her foster carer, and despite the barrage of complaints from the parents which they had to endure in the early days, she has remained with the same foster carer ever since. Given the complexity of the situation at that point, and the difficulties they were having with the parents, it is understandable that the local authority applied for an interim care order and that the court granted it. Their concerns will have become even greater in September 2010, when Dr Bass, a consultant liaison psychiatrist and renowned authority on somatisation and factitious illness disorders, made his first report. He examined Ms medical history in great detail and agreed with Dr Taylor that she satisfied the diagnostic criteria for somatisation order. He also concluded from the evidence that she exaggerates and possibly fabricates her biographical history as well as her medical history that she had factitious disorder as well. So he wished to re interview her after the fact finding hearing. The fact finding hearing began in March 2011 before Judge Cryan and lasted 20 days. Technically, it was part of the private law proceedings concerning Teresa, M having made a cross application for a residence order in October 2010. West Sussex County Council took an active part in the proceedings but Barnet did not. But it was contemplated that the care proceedings about Amelia would heard together with the residence proceedings about Teresa. On 27 April 2011, Judge Cryan delivered a long and detailed judgment considering the allegations made by M against Mr E, by Ms mother against Mr E, by J against Mr E, and by Mr E against M. He prefaced this judgment with a comment on the forensic challenge with which we can all sympathise: The history is chaotic and complex, and it is a forensic challenge made all the more difficult by the unreliability of almost all of the main witnesses, particularly [M and Mr E] (para 7). In general, he concluded that Mr E was a violent, controlling and bullying personality, who used violence from time to time (para 172), and that M finally left home, not for fear of any particular danger or increase in risk, but rather the cumulative effect of highly intolerable conduct (para 175). His conclusions are summarised in a Scott schedule prepared by the advocates, which the judge confirms is a reasonable reflection of his findings. Items 1 14 are Ms allegations against Mr E. Items 1 3 are allegations of rape. The judge found that there was a lengthy sexual relationship which began when M was 15 years old, when she was not able to give her consent, she became pregnant and had an abortion at his instigation to cover up that fact. After she reached 16, their relationship was not to be characterised as rape but was part of a dysfunctional relationship in which he was the dominant partner. Items 4 6 are allegations of repeated violence towards her. No specific findings were made, save where these were corroborated by other evidence (for example, of an assault outside court during the criminal proceedings against her), but Mr E was a domineering, bullying and occasionally violent man who controlled the household by these means. He did not find that the extensive scarring to Ms body was caused by the offensive actions of Mr E but see above. He did not find item 8, that Mr E forced M to have sex with other people so that he could watch, proved. But he did find proved item 7, that Mr E placed undue influence on M in respect of the criminal proceedings; item 9, that Mr E made threats to kill M; item 10, that Mr E would continue his abuse of M regardless of the presence of their child; item 11, that Mr E placed offensive material about M on her Facebook account; item 12, that Mr E constructed or used a website to post offensive photographs of M, and make defamatory claims about her; item 13, that he harassed her after she left, intending to intimidate her into returning to the home of her child [Teresa] in order that he could continue his abuse of her; and item 14, that his actions have caused her physical and emotional injury, whilst living in his home she was in fear for her own safety, and in fleeing from his home she has remained in fear for her own safety as a result of his continuing threatening behaviour. Items 15 16 concerned his behaviour towards his wife, Ms mother; the judge found that there was domination of and violence towards her, together with some sexually aberrant behaviour. Items 17 26 concerned his very serious physical and psychological abuse of J, all of which the judge found proved. In addition the judge found that paedophile pornographic material had twice been found on the familys computer; on the second occasion M could not have been involved as she had already left; on the first, he did not find that she had been involved. Items 27 to 34 consisted of Mr Es allegations against M. Save for one (that M had alleged that her brother had assaulted her in Hastings which allegation was true), none of these allegations were found to be proved. Mr E had engaged in seriously dishonest conduct and lied to this and other courts, he had coached [Teresa] into making false allegations against M, and persuaded his sons to give false evidence on his behalf. The immediate result was that West Sussex County Council issued care proceedings in relation to Teresa, initially seeking an interim supervision order, but changing this to an interim care order in the light of Mr Es attitude towards them. In a second judgment, dated 24 May 2011, Judge Cryan granted that application. The care proceedings relating to Teresa had not been completed when the case came before us, but she has maintained the negative view of her mother into which the judge found that she was coached by Mr E, and steadfastly refuses to have anything to do with her. Dr Bentovim, a well known child psychiatrist, has produced two reports confirming the brainwashing of Teresa and the effect upon her emotional development. Also in those proceedings there has been a report from the Lucy Faithfull Foundation, dated 2 August 2011, pointing to the possible links between the sexual and other abuse suffered by M and her somatisation disorder, and taking the view that the risks of sexual abuse and of exposure to the effects of the mothers mental ill health were currently low and could be managed. Meanwhile, the care proceedings relating to Amelia continued. Dr Bass produced his second report, in the light of the fact finding hearing, on 4 July 2011. If M had ceased attending doctors with complaints of pelvic pain and vaginal bleeding since September 2009, it did demonstrate an improvement. He confirmed the diagnosis of somatisation disorder, but it was difficult to be clear about evidence that she habitually exaggerates and lies about symptoms (para 5.2). His main concern was that she had remained so long with an abusive partner and reared her daughter in this abusive environment, so that he could not be confident that she would keep a child in her care safe. There was also a risk that she might expose Amelia to unnecessary medical attention and she could present a moral risk to her child as a result of her habitual lying and deception (para 5.3). Dr Taylor produced a second report on 12 July 2011. He accepted that there were incidents providing some evidence of co existing factitious disorder, but he thought that her repeated presentations to doctors with unexplained symptoms were predominantly as a result of somatisation disorder rather than factitious disorder (para 7). He also had some concerns extrapolating the presence of factitious disorder to the risk of fabricated or induced illness in children (para 8). Dr Bass had said that a parenting assessment might help to identity any abnormalities in Ms parenting style and attachment to her child. In September 2011, Barnet instructed the Marlborough Family Service to conduct a viability assessment. Their parenting assessment co ordinator, Ms Summer (a psychologist), produced a report on 4 November 2011 concluding that further assessment of either the mother or the father would not assist the Court, because neither of them can be relied upon to be honest in their reporting of events and to work cooperatively with child protection workers and agencies. The parents, however, with the support of the childs guardian, sought a further parenting assessment from Dr Dale, an experienced social work consultant and researcher. He did not form such a negative view of the parents ability to co operate. His two reports, dated 20 January 2012 and 22 February 2012, concluded that Amelia should be reunified into the care of her parents in the context of a risk management and family support programme without delay (para 9.1). He commented that this case raises important social policy questions worthy of public debate, about the nature and level of perceived risks of future emotional harm required for a local authority to recommend to a court that an infant be subject to compulsory adoption (para 17.4). The final hearing of these proceedings began on 5 March 2012. The guardian, in her report dated 7 March 2012, was unable to make a recommendation to the court. She understood the local authoritys concerns based upon the reports of Dr Bass and Dr Taylor but she was unsure whether these were enough to warrant permanent removal from the parents. She felt that Amelia had been lost in the ongoing battle between the local authority and the parents. In an addendum report after hearing the evidence of the experts and M, but not the father, she concluded that adoption was too draconian and should only be utilised if there was no alternative. She firmly believed that there was an alternative and recommended a supervision order. She acknowledged that M and F may not be the very best parents. However, they had shown 100% commitment to contact, attending assiduously for one and a half hours, five days a week. The quality of the contact was appropriate and there were no major concerns from the supervisors. Amelia was clearly attached to her parents and knows them as her mum and dad. The mother of the fathers four daughters confirmed that he had always been a good, if often absent, father. When he was with them he was caring, loving and attentive. There was also nothing to suggest that M had taken Teresa to the doctor excessively. The judgment The hearing before Judge Cryan lasted some 15 days. Once again, his judgment, dated 14 June 2012, is long (203 paragraphs), careful and detailed. He reviews in detail the evidence about the father, about the relationship between the father and the mother, about the conduct of the mother since Amelias birth, and about the mothers dishonesty. The most striking feature of the parents relationship was the strength of and consistency of their united wish to have their daughter placed in their care. They had attended all the court hearings, all the statutory meetings with the local authority, and every contact session. Throughout the contact they had behaved unimpeachably towards their daughter. They each have a warm and loving relationship with her. But M had not lost the tendency, developed when living with Mr E, of seeking to control by complaint and make false allegations as a way of diverting attention. There were numerous examples of the mothers dishonesty throughout the evidence. He then reviewed the expert evidence, beginning with that of Dr Bass and Dr Taylor. Both maintained their diagnosis of somatisation disorder. Both described the resulting risk to Amelia as the intergenerational transmission of abnormal health behaviour. Dr Bass also considered that there was an unquantifiable risk of Amelia being subject to excessive medicalisation (para 111). However, there were no ongoing presentations at hospital or medicalisation of stresses or emotional problems (para 114). Further, in cross examination, Dr Bass had clearly modified his view of the mothers factitious disorder and reached the conclusion that it was less severe than one normally sees, putting it at mild to moderate (para 117). But both experts agreed that her somatisation disorder brought future risk and necessitated a plan and strategy for the future to ensure that all health care professionals are aware of [the mothers] past and are able to intervene to protect [Amelia] should the symptoms resurface (para 114). He next reviewed at length the evidence of risk management from Ms Nabi of the Lucy Faithfull Foundation, Ms Summer of the Marlborough Family Service, Dr Dale, and the guardian. He shared Ms Summers concerns about how any child would cope with the high levels of dishonesty exercised by her mother (para 155). He noted that even [Dr Dale] considers that here there is a risk which would require management by a risk management and family support programme (para 177). The guardian, although firmly of the view that adoption was the wrong order here, had modified her recommendation from a supervision order to placement with the parents under a care order (paras 180, 182). Overall, he found the guardian an unimpressive witness whose input to this complex case was little short of superficial (para 188). Turning to his conclusions, he found that the threshold required by section 31(2) of the Children Act 1989 has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been (para 189). He did not there spell out the nature and degree of the future harm which Amelia would be likely to suffer if an order were not made, or the degree of likelihood that such harm would materialise, but referred back to the risk identified by Dr Bass and Dr Taylor and to Ms Summers concerns about the mothers willingness to leave Teresa exposed to the risks of living with Mr E and her quite exceptional proneness to lie. Having found the threshold crossed, he went on to consider Amelias welfare in terms of the checklist of factors set out in section 1(3) of the 1989 Act. Under her physical, emotional and educational needs he set out the perceived risks in clearer terms than he had done when finding the threshold crossed: The concerns of the local authority focus primarily on the emotional harm to [Amelia] likely to be caused by the Mothers somatisation disorder and the factitious illness disorder. Those emotional risks are coupled with the concerns expressed by Drs Bass and Taylor and by Ms Summer, which I have accepted, about the parents personality traits, and her mothers vulnerability to accommodation disorder, her mothers lying and her fathers active, but less chronic tendency to dishonesty and vulnerability to the misuse of drugs. Whilst primarily these are engines for emotional harm, it is submitted, and I accept, that physical harm to [Amelia] cannot be discounted, for example by over treatment or inappropriate treatment by doctors (para 192). As to what to do about it, he rejected the views of Dr Dale and the guardian. Dr Dales criticisms of the local authority and Ms Summer had been unfair. He considered that the parents were controlling and wilful. Their unacceptable behaviour was not merely reactive to the mishandling of events by others. He concluded (para 197): Ultimately, I find that I am persuaded by the other group of witnesses that what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe and protected from emotional and/or physical harm identified by Drs Bass and Taylor. The father would not be able to protect Amelia from the risks because he simply did not accept them. Amelia could not be placed with her father alone because there was a high probability that the parents would not separate in any meaningful sense. There would be no way in which the situation could be effectively monitored (para 199). In any event, he had very serious reservations about the father, who has lived a turbulent life with a very serious history of criminality, imprisonment and drug abuse (para 200). Adjournment to make further enquiries of the extended paternal family would simply delay the inevitable (para 201). So he was left with the local authoritys care plan as the only viable option (para 203). The Court of Appeal On appeal, it was argued that the risks identified were not sufficient to constitute significant harm, that they were not imminent, and that it was disproportionate to respond to them by permanent removal of the child. Various criticisms were made of the judges treatment of the evidence, in particular of his failure to deal with the detailed criticisms of Dr Basss diagnosis of factitious illness, with the numerous factual errors and invalid assumptions in Ms Summers evidence, with the detailed rebuttal of and explanation of the allegations in relation to Ms dishonesty and lack of cooperation, and on the other hand to refer to the Lucy Faithfull Foundations view that M did not present a risk or to mention the social workers evidence that there was no physical, sexual or educational risk to the child, and no suggestion that the parents would not offer her adequate physical care and emotional warmth, and that the parents attitude had never prevented her from undertaking her work properly with Amelia. The father also had a number of criticisms of the judges decision not to allow him to be assessed with a view to caring for Amelia on his own. It is no doubt an indication of the complex and troubling nature of this case that Black LJ, who delivered the principal judgment, took enormous care in reviewing the evidence and considering the detailed criticisms made by the parents of the judges approach to that evidence: [2012] EWCA Civ 1475. She reminded herself that the Court of Appeal must avoid approaching the case as if it were making the determination at first instance (para 112). She took the view that the judge was aware of the need to separate the issue of what harm there actually was from the question of whether the parents would cooperate sufficiently with social services. He had intervened to explain to the social worker that it did not matter how unco operative parents were with social services if there was no risk against which social services needed to guard (para 121). The harm was of two kinds: that stemming from the mothers illness related behaviour (para 122) and that stemming from her chronic lying and the fathers dishonesty (para 123). Black LJ attached particular importance to the mothers position in Mr Es household, where she could not argue that her role had been entirely inert she was a habitual and purposeful liar and an accomplished fraudster and her use of complaining tactics since she left Mr E had shown her to be his accomplished pupil. Her vindictive behaviour when a relative of the father had withdrawn her offer of help was redolent of the E household (para 125). Counsel had argued that these non medical risks were not what the Children Act was driving at, but she agreed with the local authority that it was a question of degree which the judge was best placed to assess and make the necessary value judgment (para 128). She concluded In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy (an echo of the words of Hedley J quoted at para 182 below). The judge was entitled to conclude that any strategy to manage the risks would have to go beyond the watchful eye of the GP and involve social services and that the parents would not be able to engage with professionals to ensure that Amelia was safe from harm (para 130). She went on to reject the detailed criticisms made of the judges approach to some of the evidence. Lewison and Rix LJJ were clearly deeply troubled by the case. Lewison LJ was concerned about proportionality: here was a child who had not suffered any harm, who had a warm and loving relationship with her parents; the threshold had not been crossed in the most extreme way, but the order made was the most extreme that could have been made (para 142). But their task was not to make the decision but to examine whether it fell outside the generous ambit within which reasonable disagreement is possible so he would not push his doubts to dissent (para 148). Rix LJ also acknowledged the difficulties in the case, but agreed that one should trust the judge of trial. Lewison LJ associated himself with Rix LJs concluding sentence: I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk (para 150). This appeal It is not the task of this court to review the factual findings of the judge in order to decide whether he was entitled to make them in the light of the evidence before him. The Court of Appeal has already performed that task with conspicuous care. This Court gave permission to appeal because of the general public importance of, and concern about, the point made by Rix LJ. On giving permission, the Court identified four specific, though inter related, questions of law: (i) the meaning of significant harm; (ii) the relationship between the nature and gravity of the harm which is feared and the degree of likelihood of that harm being suffered in the future; (iii) the proportionality of a care order with a care plan for adoption in a case such as this; and (iv) the proper approach of the Court of Appeal to a finding that the threshold has been crossed, and (although this was not expressly referred to) to the issue of proportionality. The first two questions relate to the threshold criteria in section 31(2) of the Children Act 1989, the third relates to the approach of the court once the threshold has been crossed, and the fourth to the appellate function. The threshold The threshold set by section 31(2) of the Children Act 1989 requires that the court be satisfied: (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the childs being beyond parental control. By section 31(9) harm means ill treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill treatment of another; ill treatment includes sexual abuse and forms of ill treatment which are not physical; health means physical or mental health; and development means physical, intellectual, emotional, social or behavioural development. There is no definition of significant, but section 31(10) provides that Where the question of whether harm suffered by a child is significant turns on the childs health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. Thus, while the standard of parenting expected by section 31(2)(b) is the objective standard of a reasonable parent, the level of development expected of the child is the subjective level to be expected of a child like him. Furthermore, as Munby J said in In re K, A Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at para 26, the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family. Since well before the Children Act came into force, the courts have recognised that there is a line to be drawn between parents whose personal characteristics mean that they may be less than perfect parents and parents who may cause harm to their children. Lord Templeman put the point this way in his well known words in In re KD (A Minor)(Ward: Termination of Access) [1988] AC 806, 812: The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the childs moral and physical health are not endangered. Public authorities cannot improve on nature. If, by that last sentence, Lord Templeman was making a factual statement, then some might disagree: if local authorities remove children from unsatisfactory parents at birth and swiftly place them with highly satisfactory adoptive parents they can undoubtedly improve on nature. But in my view Lord Templeman was making a normative statement: public authorities have no right to improve on nature. That thought has been followed through in numerous cases since. As Wall LJ pointed out in Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282, [2007] 1 FLR 1068, at 1084, There are, of course, many statements in the law reports warning of the dangers of social engineering, citing in particular Butler Sloss LJ in Re O (A Minor) (Custody: Adoption) [1992] 1 FLR 77, 79: If it were a choice of balancing the known defects of every parent with some added problems that this father has, against idealised perfect adopters, in a very large number of cases, children would immediately move out of the family circle and towards adopters. That would be social engineering . Re L is an important case because it concerned parents with learning difficulties, very considerable in the case of the mother. The judge had found significant harm on the basis of the report of a psychologist who had not been asked to assess this. She had acknowledged that there was no obvious harm, no explicit malicious abuse or extreme abuse: On the contrary my concern in this family relates to the more subtle and ambiguous consequences on the children flowing from parental deficiencies. Wilson LJ commented: So which was it? Significant harm or subtle and ambiguous consequences? Speaking for myself, I regard the two concepts as mutually exclusive (para 31). For these and many other concerns about the report, the case was sent back to be re heard in the High Court. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, at 2063, Hedley J, having quoted Lord Templeman, continued (para 50): It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance [semble: province] of the state to spare children all the consequences of defective parenting. But clearly we do remove some of those children. The difficulty is to identify what it is that tips the case over the threshold. Although every parent, every child, every family is different, and, as Hedley J put it, significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it, there must be some consistency in the approach of both local authorities and the courts. Hedley J went on say that it must be something unusual; at least something more than commonplace human failure or inadequacy. It does appear that he considered that the children were suffering, and likely to suffer, some harm to their intellectual development as a result of their parents inadequacies, but that it was not of a character or significance to justify the compulsory intervention of the state. The Court of Appeal wrestled with the problem of separating harm from significant harm in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431. The trial judge had found that although the parents had ill treated another child, whose presence in their household remained something of a mystery, their own children were well cared for, healthy, well nourished and had strong bonds with their parents. The eldest child had been slapped, kicked and hit on the head by one or other of her parents. But that was not significant harm. Wilson LJ, at para 29, quoted Booth J in Humberside County Council v B [1993] 1 FLR 257, at p 263: Significant harm was defined by Miss Black, in accordance with the dictionary definition, first as being harm that the court should consider was either considerable or noteworthy or important. Then she expressed it as harm which the court should take into account in considering a childs future. Wilson LJ went on to comment that while I might not have expressed myself in quite such broad terms, they certainly foreshadow the view of Lord Nicholls, expressed three years later, that, in relation to the likelihood of harm, the threshold is set at a comparatively low level. At paragraph 51, Ward LJ emphasised, correctly in my view, that Lord Nicholls remark, in In re H [1996] AC 563, was directed, not at the threshold as a whole, nor at the threshold of significant harm, but at the threshold of likelihood of harm in the future. Lord Nicholls said nothing in that case, or in any later case, to suggest that the threshold of significance was comparatively low. Ward LJ went on, at para 54, to express the difference between harm and significant harm thus: Given the underlying philosophy of the Act, the harm must, in my judgment, be significant enough to justify the intervention of the state and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. The point can fairly be made, both of this definition and of the second of the two definitions suggested by Miss Black to Booth J (para 183 above), that they are somewhat circular: the state is justified in intervening if the harm is sufficient to justify the states intervening. But it serves to make the point that not all harm which children may suffer as a result of their parents care falling short of what it is reasonable to expect is significant for this purpose. The dictionary definition, considerable, noteworthy or important, is to my mind more helpful. It chimes with the Guidance given by the Department of Health and Social Security when the Act first came into force: It is additionally necessary to show that the ill treatment is significant, which given its dictionary definition means considerable, noteworthy or important (para 3.19). There would be no point in the threshold if it could be crossed by trivial or unimportant harm. As to the suggestion made by Ward LJ (at para 54), that article 8 of the European Convention on Human Rights does inform the meaning of significant, I agree that it is only the courts order, and not its finding that the threshold has been crossed, which constitutes an interference with the article 8 right. However, the reason why the threshold is crossed forms part of the courts reasons for making the order, and these must be relevant and sufficient. It is not sufficient that the child would be better off in another family. That is the reason for the existence of the threshold (which was substituted for the more precise criteria laid down in the Children and Young Persons Act 1969 and the Child Care Act 1980). Furthermore, there is a relationship between this debate and the approach taken to proportionality, discussed in paragraph 197 below, which I believe to be common ground between us. If permanent removal is proportionate if it is the only way of avoiding the identified risk of harm, then it is also important that the threshold of harm is not set at too low a level, for otherwise the reasons for removal will not be sufficient: say, for example, that it is highly likely that a child will turn into an unhealthy couch potato like her parents, and only permanent removal could reliably prevent this, it would nevertheless not be a justifiable interference with family life to permit this. Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 that likely does not mean probable or more likely than not. It means, in Lord Nicholls well known words, a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 2 WLR 649. It is in this respect, and this respect alone, that Lord Nicholls observed that the threshold is comparatively low. The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nicholls did not contemplate that a relatively small degree of likelihood would be sufficient in all cases. The corollary of the more serious the harm, the less likely it has to be is that the less serious the harm, the more likely it has to be. Of course, another reason for adopting a test of real possibility, rather than more likely than not, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the childs immediate future. However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The childs resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as to justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the real possibility solidify. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him (s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen. Allied to this is the definition of harm itself (see para 178 above). It is wide, but it is not infinite. The focus is upon the child suffering that harm, so upon the child suffering ill treatment or suffering the impairment of her health or development. Ill treatment will generally involve some active conduct, whether physical or sexual abuse, bullying or other forms of active emotional abuse. Impairment may also be the result of active conduct towards the child, but it could also be the result of neglecting the childs needs, for food, for warmth, for shelter, for love, for education, for health care. Generally speaking, however, the harm is likely to be the result of some abusive or neglectful behaviour towards the child. But this is not invariably the case, as is shown by the inclusion, by way of example, impairment suffered from seeing or hearing the ill treatment of another. We now know that serious harm may be done to the development of children who see or hear domestic violence between their parents. I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind: (1) The courts task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed. (2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development. (3) Significant harm is harm which is considerable, noteworthy or important. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened. (4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect. (5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a risk is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649. Proportionality Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the courts paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the checklist of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights. It is well established in the case law of the European Court of Human Rights that the mutual enjoyment by parent and child of each others company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by article 8 of the Convention (Johansen v Norway (1996) 23 EHRR 33, among many others). However, such measures may be justified if aimed at protecting the health or morals and the rights and freedoms of children. But they must also be necessary in a democratic society. The court has recently summed up the principles in the context of an order freeing a child for adoption, in R and H v United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236, at para 81: In assessing whether the freeing order was a disproportionate interference with the applicants article 8 rights, the court must consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of article 8 of the Convention (see, among other authorities, K and T v Finland (2001) 36 EHRR 255, para 154). The court would also recall that, while national authorities enjoy a wide margin of appreciation in deciding whether a child should be taken into care, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v Germany (2000) 34 EHRR 1412, para 49, and Kutzner v Germany (2002) 35 EHRR 653, para 67). For these reasons, measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the childs best interests (see Aune v Norway (Application No 52502/07) 28 October 2010, para 66; Johansen v Norway (1996) 23 EHRR 33, para 78; and, mutatis mutandis, P, C and S v United Kingdom (2002) 35 EHRR 31, para 118). The Strasbourg court itself has consistently applied a stricter standard of scrutiny to the national courts decisions to restrict or curtail contact between parent and child than it has to the decision to take a child into care in the first place. This is because, as stated, for example, by the Grand Chamber in K and T v Finland (2001) 36 EHRR 255, at para 178, there is: . the guiding principle whereby a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Thus it is not surprising that Lewison LJ was troubled by the proportionality of planning the most drastic interference possible, which is a closed adoption, in a case where the threshold had not been crossed in the most extreme way (see para 174 above). However, I would not see proportionality in such a linear fashion, as if the level of interference should be in direct proportion to the level of harm to the child. There are cases where the harm suffered or feared is very severe, but it would be disproportionate to sever or curtail the family ties because the authorities can protect the child in other ways. I recall, for example, a case where the mother was slowly starving her baby to death because she could not cope with the colostomy tube through which the baby had to be fed, but solutions were found which enabled the child to stay at home. Conversely, there may be cases where the level of harm is not so great, but there is no other way in which the child can be properly protected from it. Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the childs welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34, Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child. The appellate function The judgments involved in care proceedings are of (at least) three different types. First are the decisions on the facts: for example, who did what to whom and in what circumstances. Second is the decision as to whether the threshold is crossed, which involves the various questions set out in para 193 above. In In re MA (Care: Threshold) [2010] 1 FLR 431, at para 56, Ward LJ was inclined to think that this was a value judgment rather than a finding of fact; and in the Court of Appeal in this case, Black LJ was also inclined to categorise it as a value judgment rather than as a finding of fact or an exercise of discretion (para 9). I agree and so, I think, do we all. It is certainly not a discretion and it will entail prior findings of fact but in the end it is a judgment as to whether those facts meet the criteria laid down in the statute. Third is the decision what order, if any, should be made. That is, on the face of it, a discretion. But it is a discretion in which the requirements, not only of the Children Act 1989, but also of proportionality under the Human Rights Act 1998, must be observed. What is the role of an appellate court in relation to each of these three decisions? As to the first, the position is clear. The Court of Appeal has jurisdiction to hear appeals on questions of fact as well as law. It can and sometimes does test the judges factual findings against the contemporaneous documentation and inherent probabilities. But where findings depend upon the reliability and credibility of the witnesses, it will generally defer to the trial judge who has had the great advantage of seeing and hearing the witnesses give their evidence. The question is whether the findings made were open to him on the evidence. As Lord Hoffmann explained in Biogen Inc v Medeva plc [1997] RPC 1, the need for appellate caution is based upon much more solid grounds than professional courtesy. Specific findings of fact are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance . In child cases, as Lord Wilson points out, there is the additional very important factor that the courts role is as much to make predictions about the future as it is to make findings about the past. As to the second, in Piglowska v Piglowski [1999] 1 WLR 1360, 1371, Lord Hoffmann cautioned the same appellate restraint in relation to the trial judges evaluation of the facts as to his factual findings themselves. In In re MA, Wilson LJ would have allowed the appeal on the stark basis that, on the evidence before him, it was not open to Roderic Wood J, of all people, to reach the conclusion which he did (para 34). Hallett LJ considered the question to be one of fact and was not persuaded that the judge was plainly wrong to decline to find that the threshold has been crossed (para 44). Ward LJ, having inclined to the view that it was a value judgment rather than a finding of fact, held that it does not matter for the test this court has to apply is essentially similar, namely whether he has exceeded the generous ambit within which there is room for reasonable disagreement (para 56). In this case, Black LJ adopted the approach of Ward LJ in In re MA (para 9). In fact, the generous ambit or plainly wrong tests were developed, not in the context of value judgments such as this but in the context of a true discretion. In G v G (Minors: Custody Appeals) [1985] 1 WLR 647, Lord Fraser of Tullybelton approved the statement of Asquith LJ in Bellenden (formerly Satterthwaite) v Sattherthwaite [1948] 1 All ER 343, at 345: It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere. In relation to evaluating whether the threshold has been crossed, we are all agreed that the proper appellate test is whether the trial judge was wrong to reach the conclusion he did. This is the test laid down in CPR 52.11(3) and there is no reason why it should not apply in this context. Plainly adds nothing helpful, unless it is simply to explain that the appellate court must be in one of the three states of mind described by Lord Neuberger at paragraph 93 considering the trial judges decision (v) on balance wrong, (vi) wrong or (vii) insupportable. Lord Neuberger, Lord Clarke and Lord Wilson would adopt the same approach to the question of proportionality. The question here is what section 6(1) of the Human Rights Act requires of appellate courts. This is not a case such as R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, in which the courts were engaged in the careful scrutiny of the proportionality of a decision which Parliament had given to the executive to make. The courts are the primary decision makers in care cases. They are not conducting a judicial review of the local authoritys decisions. Local authorities have a range of statutory duties to help children in need and their families, to investigate and to take steps to protect children from harm. It is right, it seems to me, that they should generally follow a precautionary principle. But they do not have the power to intervene compulsorily between parent and child without the sanction of a court order. The courts are the guardians of the rights of both the children and their parents. Hence the courts, as public authorities, have the statutory duty under section 6(1) not to act incompatibly with the Convention rights. This means that the courts have the duty to assess the proportionality of the proposed interference for themselves. Does this mean that an appellate court has the same duty to assess the proportionality of the proposed interference as does the court at first instance? This is a difficult question, but it seems to me that if the court has the duty to assess the proportionality of the decisions of a board of school governors, or of the Secretary of State, or of the immigration appellate authorities, it must a fortiori have the duty to assess the proportionality of the decisions of the trial judge in a care case. It must of course give due weight to the enormous benefit which he has had of reading and hearing all the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days and weeks. And it must be alive to the risks of being over critical of the way in which a judge has expressed himself, bearing in mind the wise words of Lord Hoffmann in Biogen quoted earlier. But the court which makes the final decision is the public authority which is responsible for the invasion of Convention rights. I agree with Lord Kerr that it must decide for itself whether the order will be compatible with those rights. But I also agree that this will only make a difference in cases within Lord Neubergers category (iv), where the appellate judge cannot say whether the trial judge was right or wrong. Application to this case The judge collected all his self directions on the law at the beginning of his judgment, including references to In re H, Re MA, Re L, Re B, and Re C and B. In themselves these directions can scarcely be faulted. But when he gave his reasons for concluding that threshold was crossed he did not clearly spell out (i) what the feared harm was, (ii) whether it was significant, and (iii) how likely it was to happen. Both in the Court of Appeal and in this court it was necessary for us to try and do so. (1) The nature of the harm feared Black LJ was alive to the need to separate the nature of the harm feared from the question of whether the parents would co operate with social services (para 121). The parents have no legal duty to co operate with social services (as opposed to the health and educational services) unless the threshold is crossed. She identified two kinds of harm : (i) that Ms medical behaviour would reassert itself and that Amelia would therefore be harmed by the intergenerational transmission of abnormal health behaviour and by excessive medicalisation (para 122); and (ii) that Amelia would be confused and experience conflicting loyalties as a result of her mothers (and to a lesser extent her fathers) chronic lying and dishonesty and her mothers use of complaining tactics learned in the household of Mr E (paras 123 to 125). (2) Is it significant? Black LJ considered that this was a matter of degree, which the trial judge was best placed to assess (para 128). For my part, I would draw a distinction between the harm stemming from over medicalisation and the other harms identified. A child whose mother actively feigns or fabricates symptoms undoubtedly suffers significant harm, but that was not the harm which the judge found here. A child whose mother exaggerates and sees the worst and thereby exposes her to unnecessary medical investigations and even treatment may well suffer significant harm. But it will be a question of degree, depending upon its frequency and severity. Many of us are anxious mothers and take our children to the doctor far more often than we should. Some of us, of course, are not anxious enough and do not take our children to the doctor when we should. There was evidence that the mother was over anxious during the early days when Amelia was in foster care and that she over dramatised an occasion when Amelia was taken to hospital with breathing difficulties. On the other hand, there was no evidence at all that her older daughter had been subject to excessive medicalisation, despite the fact that the mother was then much more actively engaged in her own over medicalisation. It is clear that the judge did not place a great deal of weight upon this feature, simply commenting that it cannot be discounted (para 192). The other harms, it seems to me, present much more of a problem. They are indeed the harms which stem from parental character defects. In relation to the mothers somatisation disorder, the harm would be the emotional (and possibly also physical) damage which Amelia would suffer from copying her mothers behaviour. In relation to the parents dishonesty and use of complaining tactics, the harm would be the emotional damage which Amelia would suffer, either from copying this behaviour, or from the confusion and divided loyalties resulting from her growing realisation that her mothers version of the truth differed from her own. I accept entirely that the significance of such harms must be a question of degree. I also accept that the mothers problems are indeed out of the ordinary. But then so were the learning difficulties of the parents in Re L. Put at their highest, these do not seem to me to come very high in the hierarchy of bad behaviours which children may learn from their parents. The fathers serious criminality, including violence, and drug abuse would come much higher. (3) How likely are they to be suffered? The issue of significance and the issue of likelihood are inter related. It is very difficult, reading the judgment of the judge, to get any impression of how likely he thought it was that these harms would materialise. I have the impression that he did not think it very likely, though he could not discount, that Amelia herself would be subject to over medicalisation. It is difficult to gauge the likelihood of the other risks materialising, bearing in mind that the mothers behaviour had been different since extricating herself from the household of Mr E, and the other protective factors there might be in play. It is one thing to say that the father does not take the local authoritys concerns seriously enough. It is another thing to say that this father, who is a very different person from Mr E, would not be able to counteract some of the prospective harm. In any event it is clear that these are subtle and slowly developing harms which will only materialise, if they materialise at all, in the longer term. It is possible to get too close to the trees. I have the gravest doubts as to whether, properly analysed, the harm which is feared here is of sufficient significance or sufficient likelihood to justify a finding that the threshold has been crossed. It is difficult to discern whether the judge ever asked himself the question of degree, particularly in relation to the degree of likelihood. It is one thing to find that there are risks which the professionals have identified. It is another thing to find that those risks amount to a sufficient likelihood of sufficiently significant harm to meet the statutory threshold for compulsory intervention in the family. However, I have to bear in mind that this extremely careful and experienced judge spent many weeks with this case. He will undoubtedly have acquired a feel for those questions of degree which no appellate judge could possibly acquire however close her reading of the appellate papers. Provided that we can be satisfied that he asked himself the right questions, it would be difficult indeed to interfere with his assessment. The questions which the judge must ask himself are different from the questions which the professionals must ask themselves. I would have preferred him to spell out his conclusions more clearly and confronted head on the question posed by Hedley J in Re L. But it has to be accepted that the behaviours which caused concern were both extremely unusual and unusually persistent. No one wants to compound the abuse which a parent, often a mother, has suffered in her own childhood by finding that that abuse renders her unable to parent her own children safely. It would be possible to see this mother wholly as a victim the victim of the abuse which she suffered in childhood, from which her own mother was not able to protect her, and the victim of the relationship with her wicked stepfather which was established while she was still a child and from which she was unable to extricate herself for more than 20 years. But that is not the whole picture. As Black LJ identified, although she deserves our sympathy for what she has endured, the judges findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur (para 125). The judge addressed the issue when he commented of the mother: Clearly, she was for many years under the thrall of Mr E, and might fairly be thought of as a victim within that long standing relationship. However, having seen and heard her over a long period and having regard to her subsequent conduct, I find it difficult to see her role as being entirely inert (para 22). We are all these days very well aware of how difficult the victims of domestic violence and abuse can find it to escape, because of the variety of subtle and not so subtle ways in which they can be dominated by their oppressors. But the picture which the judge gained of this mother was more complicated than that and involved a degree of collusion in the abusive environment in which her half brothers and her older daughter Teresa were being brought up. Not without some hesitation, therefore, I am driven to the conclusion that this court is not in a position to interfere with the judges finding that the threshold was crossed in this case. (4) Was the order proportionate? But that is not the end of the story. We all agree that an order compulsorily severing the ties between a child and her parents can only be made if justified by an overriding requirement pertaining to the childs best interests. In other words, the test is one of necessity. Nothing else will do. The judge referred to proportionality when directing himself as to the law at the beginning of his judgment, but he did not remind himself of the test when it came to making his decision. The basis of his decision was the inability of the parents to work with professionals. But it must first be asked what work with professionals would be necessary, before asking whether the parents would co operate. Mr Feehan complains that neither the judge nor the Court of Appeal responded adequately to the detailed criticisms which he had made of the local authoritys case about this. Dr Bass and Dr Taylor had said that the mothers diagnosis necessitated a plan and strategy for the future to ensure that all health care professionals are aware of Ms past and are able to intervene to protect Amelia should the symptoms resurface (para 114). What reason was there to suppose that the parents would not co operate with health care professionals? There was no evidence that Teresa had been exposed to inappropriate attention from the medical professions. The mother had accessed ante natal care appropriately during her pregnancy. The mother had co operated with the investigations conducted by Dr Bass and Dr Taylor and the father had co operated with Dr Bass. The mother had been, of course, a frequent user of medical services, and this was the main reason for concern. But none of this evidence suggests that it would not be possible to devise a plan and strategy to enable the health care professionals to be aware of the situation and take appropriate action should it become necessary. But what about the need for co operation with the social services? Even Dr Dale, the professional who was most supportive of the parents case, accepted that there would need to be a risk management and family support programme (First report, para 20.1) although details would require clarification. There was little evidence about what this might entail, other than the brief enquiries made by the guardian during the hearing. There was conflicting evidence about the parents ability to co operate with such a programme, whatever it might be. On the one hand, West Sussex social services confirmed that the mother had tried to get them to intervene to protect Teresa after she had left and her solicitors had sent a copy of the case conference minutes about Teresa to Barnet social services while she was pregnant with Amelia. She had also cooperated with the enquiries by the Lucy Faithfull Foundation and by Dr Dale (as was to be expected). The parents had been able to co operate with a succession of workers who were supervising their contact with Amelia over the whole of her life. Their initial relationship with the foster carer was not a happy one, but it had much improved. And they had been able to co operate with the childs guardian. On the other hand, they had not been so co operative with Barnet social services. As the judge found, from the start she has failed to co operate reasonably with the local authority and at times has behaved in a singularly unconstructive way (para 140). This was, as some of the examples given by Lord Wilson show, putting it mildly. Perhaps this is not to be wondered at. Their original contact was in the context of concern about Teresa and the household of Mr E. The response was to seek an interim care order separating mother and baby without taking the usual step of a pre proceedings letter explaining matters to them. Anyone who has had to leave a premature baby in a special baby care unit can empathise with the feelings of a mother who is prevented from taking her baby home when, miracle of miracles, that baby is well enough to be discharged from hospital. Of course, the first social work statement to the court explained why the authority was making the application. But the scene was set for a rocky relationship. And this will not have been improved by the parents frequent complaints about Amelias progress in foster care. The other negative relationship was with Ms Summer of the Marlborough Family Service. In her oral evidence, Ms Nabi of the Lucy Faithfull Foundation, who was generally supportive of the mother, was surprised and worried by this. Ms Summer had adopted the method of challenging the parents about the various aspects of their behaviour which were a matter of concern. This had clearly not gone down well with them, they had been at times dishonest, evasive, petulant and immature. In effect, the parents were willing to be helpful when they perceived that a professional was helping them but not when they perceived the professional to be the enemy. But it was essential to set all this evidence against the evidence of the harm which was feared that Amelia might suffer in the future and the sort of programme which might be needed to protect her. It was not established that the mother was immediately in need of the sort of intensive psychological therapy which would make such challenging demands upon her. The question was what monitoring and support was an overriding requirement pertaining to the childs best interests. It must not be forgotten that this is a child who as yet has suffered no harm at all (except possibly the harm of being separated from her mother so soon after birth). She has had the advantage of remaining with the same foster carer throughout, where she is doing well. She has also had the enormous advantage of establishing a strong and loving relationship with her parents, who have given her child centred love and affection in spades, as the judge put it. Their commitment has been excellent and the fact that in all the circumstances their behaviour during contact has attracted so little criticism and so much praise is extraordinary. She will eventually have to move on from her foster home and the only question is whether she moves to a completely new home with adoptive parents as yet unidentified or whether she moves to live with the parents she knows and loves and who know and love her. Conclusion In all the circumstances, I take the view that it has not been sufficiently demonstrated that it is necessary to bring the relationship between Amelia and her parents to an end. In the circumstances of this case, it cannot be said that nothing else will do when nothing else has been tried. The harm that is feared is subtle and long term. It may never happen. There are numerous possible protective factors in addition to the work of social services. There is a need for some protective work, but precisely what that might entail, and how the parents might engage with it, has not yet been properly examined. Accordingly, I would have allowed the appeal and sent the case back for a fresh and in depth enquiry by the childs new guardian (her original guardian having sadly died soon after the judges judgment), who would be able to examine both the necessity for and the viability of the sort of measures which were only beginning to be explored by the previous guardian. My understanding of the careful submissions made to us on her behalf is that this would have been her preferred solution had we not now been so far down the road. Of course the safest solution for Amelia now is almost certainly adoption. But I take the view that the judge was indeed wrong to hold this a proportionate response to the risks which he had identified and that it is my duty to say so.

UK-Abs

The case concerns the application of the criteria for making a care order under section 31 of the Children Act 1989 when the risk is of future psychological or emotional harm and the role of the appellate courts once the trial judge has made an order. The child concerned was removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step father. She also has criminal convictions for dishonesty and a history of making false allegations. She has been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found. In the course of the proceedings she was also diagnosed with factitious disorder, a related psychiatric condition involving the deliberate exaggeration or fabrication of symptoms and the recitation of a false medical history. In 2009 she escaped the abusive relationship with her stepfather, leaving behind their ten year old daughter, and quickly formed a relationship with the father of this child, who has been convicted of many serious offences. He has four older daughters, with whom he has an amiable relationship but his involvement in their lives has been marginal, not least because of the many years he has spent in prison. While the child was in interim care, the parents visited frequently and formed a good relationship with their daughter. They had shown their commitment to her in spades. The trial judge found that, if placed in her parents care, there was a risk that the child would be presented for and receive unnecessary medical treatment, that she might grow up to copy her mothers behaviour, and at the very least be confused at the difference between the real world and her mothers dishonest presentation of it. There would have to be a multi disciplinary programme of monitoring and support to avert these risks and the parents would not be able to co operate with such a programme because of their fundamentally dishonest and manipulative approach towards social workers and other professionals whom they perceived to be challenging of their points of view. Accordingly, there was no other way in which the feared harm to the child could be prevented than by a care order with a view to adoption. The Court of Appeal upheld that judgment. Both parents appealed to the Supreme Court. The Supreme Court by a majority of 4:1 (Lady Hale dissenting) dismisses the appeal. The High Court judge was entitled to conclude that the threshold conditions for the making of a care order had been satisfied in this case [48, 64, 131]: Before a care order may be made under section 31 of the 1989 Act, the judge has to be satisfied that: (a) the child is suffering or is likely to suffer significant harm; and (b) the harm or likelihood of harm is attributable to the care likely to be given to the child if a care order is not made, not being what it would be reasonable to expect a parent to give to the child, or to the childs being beyond parental control [23, 177]. A likelihood of significant harm means no more than a real possibility that it will occur, but a conclusion to that effect must be based upon a fact or facts established on the balance of probabilities. Harm means ill treatment or impairment of health or development, and development includes emotional development. Whereas the concept of ill treatment is absolute, the concept of impairment of health or development is relative to the health or development which could reasonably be expected of a similar child [24, 25, 178]. Courts should avoid seeking to explain the meaning of the word significant. However, the severity of the harm required is inversely correlated with the likelihood of the harm, i.e. the less likely the harm is to occur the more serious the harm will need to be [26, 56, 188]. Article 8 of the ECHR is not engaged when a court assesses whether or not harm is significant for these purposes; that provision will only be engaged in a case such as this if there is an interference with the right to respect for family life, which can only occur at the stage of determining whether or not a care or supervision order should be made [29, 62, 189]. The character of the parents is relevant at every stage of the inquiry, including the assessment of whether the threshold conditions set out in section 31(2) of the 1989 Act have been satisfied because the character of the parents may affect the quality of their parenting [31, 71]. The conduct of the parents giving rise to harm or the likelihood of harm is not required to be intentional or deliberate; the harm or likelihood of harm need only be attributable to the care given by the parents or the care likely to be given by them not being what it would be reasonable to expect a parent to give to the child [31]. A determination as to whether the threshold conditions for a care order have been satisfied depends on an evaluation of the facts of the case as found by the judge at first instance; it is not an exercise of discretion. An appellate court may interfere with such a decision only if it is wrong, but it need not have been plainly wrong [44, 61, 110, 139, 203]. In determining whether the threshold conditions for a care order are satisfied and whether it is appropriate to grant a care order, an appellate court must have regard to the advantages which the judge at first instance had over an appellate court, including the judges ability to assess what may happen to the child in the future on the basis of the oral evidence given by the candidates for the care of the child [40 42, 58 60]. The High Court judge was also entitled to conclude that the making of a care order in relation to Amelia, with a view to her being adopted was necessary and did not violate the rights of Amelia, M, or F to respect for their family life under article 8 of the ECHR [48, 98, 131 133]: A high degree of justification is needed under article 8 if a decision is to be made that a child should be adopted or placed in care with a view to adoption against the wishes of the childs parents. Domestic law runs broadly in parallel with article 8 in this context: the interests of the child must render it necessary to make an adoption order. A care order in a case such as this must be a last resort [34, 74 78, 82, 130, 135, 198, 215]. Section 6 of the Human Rights Act 1998 does not require an appellate court to determine afresh issues relating to Convention rights; an appellate court, including the Supreme Court, is required only to conduct a review of the lower courts decision [36 37, 83 90, 136]. The making of a care order, however, is not a purely discretionary decision; a trial judge has an obligation under section 6 of the 1998 Act to ensure that he/she does not violate article 8 of the ECHR. Accordingly, it is not appropriate for an appellate court reviewing such a decision to apply the test normally used when reviewing a purely discretionary decision, i.e. whether the lower court exceeded the generous ambit within which reasonable disagreement is possible [45]. The appropriate test is whether the lower court was wrong [47, 91 92, 139]. Lady Hale and Lord Kerr disagree with this analysis, taking the view that an appellate court reviewing whether a care order violates article 8 of the ECHR must consider that issue for itself on the basis of the material put before it (whilst attributing appropriate weight to the reasons given by the lower court) [115 120, 204 205]. There are a number of features relative to the personalities of Amelias parents, and to the psychiatric conditions of M, which raised a real possibility that, in their care, Amelia would suffer impairment of her emotional development. The key feature of this case which justified the judges decision not only that the threshold conditions for making a care order were satisfied but that such an order was appropriate was that Amelias parents were unable to offer the elementary cooperation with professionals that her safety in their home would require. Adoption was the only viable option for Amelias future [48, 99 100, 132, 106]. Lady Hale takes the view that this was a case based on the mere possibility that the child would suffer psychological harm in the future. There was no risk that these parents would neglect or abuse their child. Even if this were sufficient to cross the threshold laid down in section 31(2) of the Children Act 1989, it had not been demonstrated that a care order with a view to adoption was necessary to protect the child that nothing else would do when nothing else had been tried. The care order was not, therefore, a proportionate response to the harm which is feared.

This is a remarkable case in more than one respect. The appeal depends upon whether the Court is bound to stay action 2006 Folio 815 (the 2006 proceedings) under Article 27 of Regulation 44/2001 of the Council of the European Union (the Regulation) and, if not, whether it should do so under Article 28. Before Burton J (the judge), the respondents expressly disclaimed any intention to rely upon Article 27 but relied upon Article 28 in support of a submission that the court should stay the 2006 proceedings in favour of proceedings in Greece. The judge refused to grant a stay and gave summary judgment for the appellants against the respondents. The judge granted the respondents permission to appeal to the Court of Appeal on various grounds, including a ground based on Article 27. The Court of Appeal (Longmore, Toulson and Rimer LJJ) held that it was bound to stay the action under Article 27. It also gave some consideration to Article 28 but held that it was not necessary to reach a final conclusion in that regard because of its decision under Article 27. It declined to consider the issues relevant to summary judgment on the ground that, if there was to be a stay, those issues should be determined by the courts in Greece. The facts and the 2006 proceedings I can take the relevant events from the judgment of Longmore LJ in the Court of Appeal. He in turn took them from the judgment of the judge. On 3 May 2006 the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth, with considerable loss of life. Her owners were Starlight Shipping Company (Starlight). They made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of the assured, namely Starlight. The insurers also said that Starlight had failed properly to report and repair damage to the vessel in accordance with Class Rules. Starlight, through their solicitors Messrs Ince & Co, made a number of serious allegations against the insurers which fell into two categories, as summarised by Longmore LJ at para 4: (1) allegations of misconduct by the insurers and their underwriters involving alleged tampering with and bribing of witnesses, in particular the bosun, a Mr Miranda, to give false evidence, coupled with other allegations of spreading false and malicious rumours (described for some reason as malicious scuttlebutt) against Starlight in the course of purported investigation of their claims; and (2) deliberate failure by the insurers to pay up under the policy, said to have had consequential financial impact upon Starlight, and to have led to substantial recoverable loss and damage. The insurers also relied upon material non disclosure. Those allegations were made before the issue of proceedings and, in particular, in a letter dated 18 July 2006 from Ince & Co to the insurers solicitors, who were Hill Dickinson LLP, then Hill Taylor Dickinson, whom I will together call HD. On 15 August 2006 Starlight issued the 2006 proceedings in the Commercial Court against various insurers. The first four defendants have been described as the Company Market Insurers (CMI) and the fifth to seventh defendants as the Lloyds Market Insurers (LMI). The policies issued by both the CMI and the LMI contained exclusive jurisdiction clauses. They provided for English law and each party expressly agreed to submit to the exclusive jurisdiction of the Courts of England and Wales. Overseas Marine Enterprises Inc (OME) were identified in the policies as managers. In paras 5 to 8 of his judgment Longmore LJ spelled out in some detail issues between the parties in the 2006 proceedings. It is plain that the points raised by Ince & Co to which I have referred were both pleaded and central to the issues between the parties in those proceedings. Thus, in para 7 Longmore LJ referred to a witness statement in which Mr Crampton of Lax & Co, who were now acting for Starlight, asserted that the allegations made by the insurers in defence of the claim were based on false evidence which they had obtained from the bosun. He also relied upon significant payments said to have been made to the bosun on behalf of the insurers in this connection. In addition, a witness statement was introduced in support of a proposed amendment of the claim form alleging that Starlight had sustained losses beyond the measure of indemnity in the relevant policy. It was alleged that, but for the failure of the insurers to pay under the policy, Starlight would have purchased a replacement vessel and had lost between US$ 45 million and US$ 47.7 million by way of increased capital cost and chartering losses. However, on 14 December 2007, Tomlinson J refused to allow the amendment on the basis of the decision of the Court of Appeal in Sprung v Royal Insurance [1999] Lloyds Rep IR 111, approving the decision in The Italia Express (no. 2) [1992] 2 Lloyds Rep 281. As Longmore LJ explained in para 1, as a matter of English law, an insurer commits no breach of contract or duty sounding in damages for failure promptly to pay an insurance claim.1 The law deems interest on sums due under a policy to be adequate compensation for late payment; this is so, even if an insurer deliberately 1 Toulson LJ noted at paras 74 and 75 that the present state of English law was criticised by the Law Commission and the Scottish Law Commission in para 2.87 of a joint consultation paper on Insurance Law; Post Contract Duties (LCCP201/SLCDP152) published on 20 December 2011. The Commissions have provisionally proposed that the law should be reformed. withholds sums which he knows to be due under a policy. If parties agree that English law is to apply to a policy of insurance, this principle is part of what they have agreed. English law, moreover, gives no separate contractual remedy to an insured who complains that an insurer has misconducted himself before settling a claim. In either case the remedy of the insured is to sue the insurer and, if no settlement is forthcoming, proceed to judgment. The trial was fixed for 14 January 2008. The settlements On 13 December 2007, which was the day before the hearing before Tomlinson J referred to above, the 2006 proceedings had been settled between Starlight and OME and the LMI for 100% of the claim, but without interest and costs, in full and final satisfaction of the claim. It was a term of the settlement agreement that Starlight would obtain a stay by way of a Tomlin Order, and a Tomlin Order by consent between Starlight and the LMI was accordingly made on 20 December 2007, backdated to 14 December, in these terms: Save for the purposes of carrying into effect the terms agreed between the Claimant and the Fifth to Seventh Defendants, all further proceedings between the Claimant and the Fifth to Seventh Defendants shall be stayed with effect from 14 December 2007 or such earlier date as may be agreed between the parties or otherwise ordered hereafter. A similar settlement agreement dated 3 January 2008 was made between Starlight and OME and the CMI and a similar Tomlin Order was made on 7 January 2008, but with immediate effect. In each settlement agreement the Assured were defined as being [OME] and Starlight as Managers and/or Owners and/or Associated and/or Affiliated Companies for their respective right and interest in the ship Alexandros T. The CMI settlement agreement then provided: 1. Each Underwriter agrees to pay on or before 18 January 2008 their due proportions of the sum of US$16m being 100% of their due proportions of the sum insured being 50% of the US$32m without interest or costs. 2. The Assured and Claimant agree to accept the EURO equivalent of each Underwriters due proportion of US$16m in full and final settlement of all and any claims it may have under Policy No 302/CF 000220Z against the Underwriters in relation to the loss of Alexandros T, including all claims for interest and costs (including in respect of all costs orders made to date in the proceedings) but without effect to any other insurance policy in which each Underwriter may be involved. 3. The Assured and Claimant agree to Indemnify each Underwriter against any claim that might be brought against it by any of the Assureds or the Claimant's associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under Policy No 302/CF000220Z. 4. Following the signing of this agreement, and in consideration of the promises herein, the Claimant and the Underwriters will apply to stay the Proceedings as against the Underwriters, the Proceedings to be stayed for all purposes save for the purposes [of] carrying the terms agreed herein into effect, such stay to have effect from the first obtainable date after 27 December 2007 5. Following the due and proper payment by the Underwriters of the amount specified in paragraph 1 above, the Assured and Claimant and the Underwriters agree to file a consent order dismissing the Proceedings, with no order as to costs. 6. This agreement is subject to English law and to the exclusive jurisdiction of the High Court in London. 2. The underwriters agree to pay on or before 24 December 2007 the sum of US$8M being 100% of their due proportions of the sum insured being 25% of US$32m without interest or costs 3. The Assured and claimant agree to accept the EURO equivalent of US$8M in full and final settlement of all and any claims it may have under Policy No against the Underwriters signing below in relation to the loss of Alexandros T 4. The Assured and Claimant agree to indemnify the underwriters signing below against any claim that might be brought against them by any of the Assureds or the Claimant's associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under Policy The LMI settlement agreement provided in similar but not identical terms: 5. This agreement is subject to English law and the jurisdiction of the High Court of London. The Greek proceedings After setting out the terms of the settlement agreements, Longmore LJ wryly observed at the end of para 12 of his judgment that one might have expected that to be that, but it was not to be. He described what then happened in paras 13 to 15. More than three years later, in April 2011, nine sets of Greek proceedings, in materially identical form, (Greece 1), were issued by Starlight, by OME, by their co assureds under an associated Fleet Policy and by individual officers of those companies, against the LMI and the CMI, some of their employees or underwriters, and HD and some of their partners and employees (the HD defendants). The claims are for compensation for loss of hire and loss of opportunity by Starlight totalling approximately US$ 150 million and for pecuniary compensation due to moral damage amounting to 1 million. The claims also include similarly substantial claims by the other claimants in respect of alleged acts, all done unlawfully and in breach of good faith for the alleged purpose of avoiding the performance by the defendants of their legal obligations. All the claims rely upon breaches of the Greek Civil and Criminal Code. However the factual allegations, which Longmore LJ noted had been said by the judge to be entirely familiar, include the allegation that the appellants were responsible for using false affidavits of witnesses (primarily Mr Miranda) with intention to harm the claimants, described thus by Mr Crampton in a statement summarising the Greek claims: The underwriters pursued this criminal effect by intentionally fabricating false evidence with the purpose that the underwriters (who were responsible for the payment of insurance indemnity for the vessel) avoid paying this insurance indemnity, contrary to their contractual obligations and their legal obligations and in particular contrary to the provisions of the insurance contract, providing for the timely payment of the insurance indemnity. They also include the claim that the appellants were asserting and disseminating false information to third parties, although they were aware of their falsity, damaging the claimants reputation and credibility with the purpose that the underwriters (who were responsible for the payments of the insurance indemnity for the vessel) avoid paying the insurance indemnity, contrary to their contractual obligation and their legal obligation and in particular contrary to provisions of the insurance contract providing for the timely payment of the insurance indemnity Mr Crampton then turned to what he called the [i]ntentional fabrication of false evidence for defrauding the English court and [t]he moral instigation alternatively complicity of the underwriters to perjury and on the defrauding of the court by the underwriters. He summarised the position in this way in paragraph 20 of his witness statement: The essence of the complaint against the Defendants in the Greek proceedings concerns the allegation that the Defendants obtained false evidence in Greece from the bosun of the Alexandros T, Aljess Miranda This evidence was then deployed in these proceedings in England and also in the Greek proceedings. There is a substantial section of the Greek pleadings relating to the financial consequences of the failure by the insurers to comply with their obligations under the policy and the way in which they allegedly handled the investigations. In a further set of proceedings, known as Greece 2, two additional heads of loss are claimed by Starlight and OME, arising out of substantially the same allegations. As Longmore LJ put it in para 15, in apparent recognition of the problem raised by the fact that such claims had either not been brought in England or had been ruled out as a matter of English law by Tomlinson J, Mr Crampton, in paragraph 27 of his witness statement, explained that the claims are advanced in two ways in the Greek pleadings: first, that as a result of the underwriters intention to avoid payment of the insurance indemnity, eventually resulting in late payment of the policy proceeds, the claimants missed the opportunity to use the policy proceeds to invest in three vessels (not just the one referred to in the 2006 proceedings); and, secondly, that, as a result of the defendants actions in acquiring the false evidence of Mr Miranda, his clients were not able to insure the vessels and without insurance they would not have been able to trade them and could not purchase them. He stated that his clients would amend their pleadings prior to the hearing of the disputes in Greece so as to clarify this head of claim, such that no claim is made in respect of the late payment of the policy proceeds. The expert evidence from the defendants is that it is not possible to amend the pleadings in the Greek courts, but, treating the proposed draft amendment, which he exhibited, as a clarification, it did not seem to the judge that it in any way cured the defect, if defect there was. It is further said that the insurance of the three potential new vessels was rendered impossible, since all the London insurers refused to quote for the vessels because of the refusal of the defendant underwriters to quote for them and because of the defamatory accusations spread as to the unseaworthiness of the Alexandros T. All these allegations arise out of the alleged manner in which the defendants handled Starlight's claim in respect of the Alexandros T, and, even though the consequences and the consequential losses have expanded, and the claim for moral damages has been included, and although it seems that Starlight now rely on an expanded affidavit of Mr Miranda, the allegations, even though put into the context of Greek law, were said by the judge to be materially identical to those made prior to the settlement agreement. The acts complained of are all said to have constituted delicts under Greek law akin to the torts of defamation and malicious falsehood under English law. The present position Since the issue of the Greek proceedings, as Longmore LJ explained in para 16 (and the judge at his para 14), the insurers have taken further steps and brought further proceedings in England as follows. By applications issued in the 2006 proceedings on 25 July and 3 August 2011, the CMI and the LMI respectively sought, pursuant to the Tomlin Orders (if necessary after lifting the stay imposed by them) summary relief pursuant to CPR Part 24 by way of declarations and damages against Starlight. The LMI, because permission was given to them to join OME as a third party, also sought summary relief pursuant to Part 24 against OME (which filed an acknowledgment of service and a defence) to enforce the LMI settlement agreement, to which it also was a party. In addition, fresh proceedings (2011 Folio 702) were commenced by the LMI, without prejudice to their case that sufficient relief could and would be obtained in the 2006 proceedings, against both Starlight and OME, and, after an acknowledgment of service and defence were filed, an application was made under Part 24 for similar relief to the claim in the 2006 proceedings. The LMI also brought fresh proceedings (2011 Folio 1043) against Starlight's co assured and, again after acknowledgments of service and defence had been filed, sought declaratory relief and damages for breach of the exclusive jurisdiction clause in their insurance policies, by virtue of the issue of the Greek proceedings by those co assured. Also in fresh proceedings (2011 Folio 894), the CMI brought claims against OME and the same co assured in respect of similar claims for breach of the exclusive jurisdiction clause in the policy, and in respect of OME by reference to breach of the terms of the settlement agreement. Judgment in default was entered by the CMI against all those defendants on 26 October (amended on 14 November) 2011. Those proceedings are not the subject of this appeal and no issue therefore currently arises with respect to them. Finally, and by separate application, the HD defendants were joined as defendants in the 2006 proceedings so that, in due course, they too might be able In summary, the claims made in the various proceedings are these. to claim relief by seeking declaratory relief within the original proceedings. Starlight and their associates applied to stay both the 2006 proceedings in their current form and 2011 Folios 702 and 1043. (a) The 2006 proceedings. (1) The CMI claim against Starlight and, through Part 20 proceedings, against OME (i) a declaration that the Greek claims fall within the terms of the release in the CMI settlement agreement; (ii) a declaration that the bringing of the Greek claims was a breach of the release in the settlement agreement; (iii) damages for breach of the release in the settlement agreement; (iv) a declaration that the bringing of the Greek claims was a breach of the jurisdiction clauses in the settlement agreement and the policies; (v) damages for breach of the jurisdiction clauses in the policies and CMI settlement agreement; and (vi) an indemnity under clause 3 of that agreement in respect of claims brought by Starlight and/or its associated companies in the various Greek proceedings; (2) the LMI claim against Starlight (i) declarations that the LMI settlement agreement settles any claim against them by Starlight in respect of the loss of the Alexandros T and covers Starlights claims in the Greek proceedings (para 3); (ii) a declaration that Starlight is in breach of that agreement in bringing the Greek proceedings; (iii) damages for breach of the settlement agreement; and (iv) a declaration that the agreement entitles the LMI to an indemnity against Starlight in respect of the matters covered by the indemnity, which includes all claims by Starlight and its associated companies in the Greek proceedings; and (3) the LMI claims against OME by Part 20 proceedings: (i) like relief to that which the LMI claim against Starlight, as summarised above; and possibly (ii) damages for breach of the exclusive jurisdiction clause in the policy, although this claim is not repeated among the prayers. (b) Action 2011 Folio 702. The LMI claim against Starlight and OME: (i) declarations that the LMI settlement agreement settles any claim against them by Starlight and/or OME in respect of the loss of the Alexandros T and covers Starlights and/or OMEs claims in the Greek proceedings; (ii) damages for breach of that agreement; (iii) damages for breach of the jurisdiction clause in the policy; and (iv) damages for breach of the jurisdiction clause in the settlement agreement. (c) Action 2011 Folio 1043. The LMI claim against five of Starlights co assureds for breach of their policy jurisdiction clauses. The decisions of the judge and the Court of Appeal The insurers sought to enforce the settlement agreements referred to in the Tomlin Orders and, in a judgment handed down on 19 December 2011, having refused a stay under Article 28, the judge held that they were entitled to summary judgment for (inter alia) a declaration that the matters sought to be raised in Greece were part of the settlement of the claim and that Starlight (and OME) are bound to indemnify the insurers against any costs incurred and any sums that may be adjudged against them in the Greek proceedings. As stated above, the Court of Appeal held that it was bound to stay the 2006 proceedings and 2011 Folio 702 and 1043 under Article 27, made no final determination of the position under Article 28 and declined to consider the issues of summary judgment. The Court of Appeal also held that it was not too late for the respondents to rely upon Article 27 or Article 28. The issues In this Court the appellants challenge the correctness of the Court of Appeals conclusion under Article 27 and, on the respondents cross appeal, submit that the judge was correct to refuse a stay under Article 28. If the appellants succeed under both articles, the case will have to be remitted to the Court of Appeal to consider the respondents appeal from the summary judgment granted by the judge. Article 27 The questions for decision under Article 27 are whether, in the events which happened, the Court of Appeal was wrong to hold that it was not too late for the respondents to rely upon Article 27, whether the proceedings in Greece and the proceedings in England involve the same cause of action, whether they are between the same parties and which court was the court first seised. For reasons which will appear, I will defer consideration of the too late point until after consideration of the other issues. Article 27 must be construed in its context. The immediate context of Articles 27 and 28 is that they form part of Section 9 of Chapter II of the Regulation, which must be read in the light of Recitals 2 and 15 of the preamble. It is apparent from Recital 2 that the Regulation aims, in the interests of the proper functioning of the internal market, to put in place: Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation. Recital 15 provides: In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. There must be a clear and effective mechanism for resolving cases of lis pendens and related actions and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation that time should be defined autonomously. The mechanism referred to in Recital 15 is provided by Section 9 of Chapter II of the Regulation, which includes Articles 27 and 28: Section 9 Lis pendens related actions Article 27 1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 28 1. Where related actions are pending in the courts of different member states, any court other than the court first seised may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Article 29 Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 30 For the purposes of this Section, a court shall be deemed to be seised: 1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or 2. if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court." The Regulation is the successor to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the Brussels Convention), in which the equivalent provisions to Articles 27 and 28 were Articles 21 and 22 respectively. The Court of Justice of the European Union (the CJEU) has held that the principles developed in its case law with regard to Articles 21 and 22 of the Brussels Convention apply equally to Articles 27 and 28 of the Regulation: see Folien Fischer AG v Ritrama SpA (Case C 133/11) [2013] QB 523 at paras 31 and 32. The CJEU was of course previously the European Court of Justice (ECJ). Although some of the decisions to which I refer were made by the ECJ, for simplicity I will refer to all the European decisions as those of the CJEU. The CJEU has laid down a number of general principles which are of some importance. They include the important principle that a court in a Member State must not grant an anti suit injunction to restrain the bringing or continuing of proceedings in another Member State, whether to restrain an abuse of process or to restrain proceedings brought or continued in breach of an exclusive jurisdiction clause: see eg Turner v Grovit (Case C 159/02) [2005] 1 AC 101 and West Tankers Inc v Allianz SpA (The Front Comor) (Case C 185/07) [2009] 1 AC 1138. They also include the following, with specific reference to Articles 27 and First, the purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State: Gubisch Maschinenfabrik KG v Palumbo (Case C 144/86) [1987] ECR 4861 at para 8. Second, the objective of Article 28 is to improve co ordination of the exercise of judicial functions within the European Union and to avoid conflicting and contradictory decisions, thus facilitating the proper administration of justice: see eg The Tatry (Case C 406/92) [1999] QB 515 at paras 32, 52 and 55 and Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32, per Lord Saville at 39F H. The CMI claims: same causes of action? 28. It is convenient to consider first the position of the CMI claims. The first specific question is whether the 2006 proceedings involve the same cause or causes of action as the Greek proceedings, by which I mean Greece 1 and Greece 2. The principles of EU law which are relevant to the determination of this question are in my opinion clear. They have been considered in a number of cases in the CJEU and are essentially as submitted on behalf of the CMI. They may be summarised in this way. i) ii) iii) iv) The phrase "same cause of action" in Article 27 has an independent and autonomous meaning as a matter of European law; it is therefore not to be interpreted according to the criteria of national law: see Gubisch at para 11. In order for proceedings to involve the same cause of action they must have "le mme objet et la mme cause". This expression derives from the French version of the text. It is not reflected expressly in the English or German texts but the CJEU has held that it applies generally: see Gubisch at para 14, The Tatry at para 38 and Underwriting Members of Lloyds Syndicate 980 v Sinco SA [2009] Lloyd's Rep IR 365, per Beatson J at para 24. Identity of cause means that the proceedings in each jurisdiction must have the same facts and rules of law relied upon as the basis for the action: see The Tatry at para 39. As Cooke J correctly stated in JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyd's Rep 665 at para 42, The expression 'legal rule' or 'rule of law' appears to mean the juridical basis upon which arguments as to the facts will take place so that, in investigating 'cause' the court looks to the basic facts (whether in dispute or not) and the basic claimed rights and obligations of the parties to see if there is co incidence between them in the actions in different countries, making due allowance for the specific form that proceedings may take in one national court with different classifications of rights and obligations from those in a different national court. Identity of objet means that the proceedings in each jurisdiction must have the same end in view: see The Tatry at para 41, Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV (Case C 111/01) [2003] ECR I 4207 at para 25, Primacom at para 42 and Sinco at para 24. v) The assessment of identity of cause and identity of object is to be made by reference only to the claims in each action and not to the defences to those claims: see Gantner at paras 24 32, where the CJEU said this in relation to Article 21 of the Brussels Convention: . in order to determine whether two claims brought between the same parties before the courts of different Contracting States have the same subject matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant. See also to similar effect Kolden Holdings Ltd v Rodette Commerce Ltd [2008] 1 Lloyd's Rep 434, per Lawrence Collins LJ at para 93 and Research in Motion UK Ltd v Visto Corporation [2008] 2 All ER (Comm) 560, per Mummery LJ at para 36. vi) It follows that Article 27 is not engaged merely by virtue of the fact that common issues might arise in both sets of proceedings. I would accept the submission on behalf of the CMI that this is an important point of distinction between Articles 27 and 28. Under Article 28 it is actions rather than claims that are compared in order to determine whether they are related. vii) After discussing Gubisch, The Tatry, Sarrio, The Happy Fellow [1998] 1 Lloyds Rep 13 and Haji Ioannou v Frangos [1999] 2 Lloyds Rep 337, Rix J summarised the position clearly and, in my opinion, accurately in Glencore International AG v Shell International Trading and Shipping Co Ltd [1999] 2 Lloyds Rep 692 at 697: It would appear from these five cases, of which the first two were in the European Court of Justice, and the latter three in the domestic Courts of England, that, broadly speaking, the triple requirement of same parties, same cause and same objet entails that it is only in relatively straightforward situations that art 21 bites, and, it may be said, is intended to bite. After all, art 22 is available, with its more flexible discretionary power to stay, in the case of related proceedings which need not involve the triple requirement of art 21. There is no need, therefore, as it seems to me, to strain to fit a case into art 21. The European Court, when speaking in Gubisch (at para 8) of the purpose, in the interests of the proper administration of justice within the European Community, of preventing parallel proceedings in different jurisdictions and of avoiding in so far as it is possible and from the outset the possibility of irreconcilable decisions, was addressing arts 21 and 22 together, rather than art 21 by itself. Thus a prime example of a case within art 21 is of course where party A brings the same claim against party B in two jurisdictions. Such a case raises no problem. More commonly, perhaps, the same dispute is raised in two jurisdictions when party A sues party B to assert liability in one jurisdiction, and party B sues party A in another jurisdiction to deny liability, or vice versa. In such situations, the respective claims of parties A and B naturally differ, but the issue between them is essentially the same. The two claims are essentially mirror images of one another. Gubisch and The [Tatry] are good examples of this occurrence. On the other hand, Sarrio v KIA is a case where the same claimant was suing the same defendant on different bases giving rise to different issues and different financial consequences, and where liability on one claim did not involve liability (or non liability) on the other. Haji Ioannou v Frangos illustrates the situation where even though the cause is the same, and even though there is some overlap in the claims and issues, nevertheless different claims, there the proprietary claim to trace, may raise sufficiently different issues of sufficient importance in the overall litigation for it to be concluded that the objet differs. The authority of The Happy Fellow at first instance may be somewhat shaken by the reservations expressed by Lord Justice Saville on appeal, but it too may be said to illustrate the process of analysing the claims and issues in the respective proceedings to identify whether they are the same. Where, for instance, there is no dispute over a shipowners right to limit should he be found liable (a separate question, which need not even be resolved at the time when a limitation action is commenced or a decree given), I do not for myself see why it should be held that the liability action and the limitation action involve the same cause of action for the purposes of art 21. How do these principles provide an answer to the question whether the 2006 proceedings involve the same cause or causes of action as the Greek proceedings? It is necessary to consider the claims advanced by the CMI and the LMI separately and, in the case of each cause of action relied upon, to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded. The essential question is whether the claims in England and Greece are mirror images of one another, and thus legally irreconcilable, as in Gubish and The Tatry, in which case Article 27 applies, or whether they are not incompatible, as in Gantner, in which case it does not. Thus in Gantner a claim for damages for repudiation of a contract and a claim for the price of goods delivered before the repudiation could both have succeeded and the fact that a set off of the damages would make the price less beneficial to the seller did not make them incompatible. And in Maersk Olie & Gas A/S v Firma M de Haan en W De Boer (Case C 39/02) [2004] ECR I 9657 owners of a vessel which damaged a pipeline (owned by Maersk) sought a declaration that they were entitled to limit their liability under the 1957 International Convention relating to the Limitation of Liability of Owners of Sea going Ships and the Dutch legislation that gave effect to it and that a limitation fund be established. Maersk subsequently commenced proceedings in Denmark claiming compensation for damage to the pipeline. The CJEU held that the causes of action were not the same: see paras 35 to 39. The CJEU underlined both the principle in Gantner that account should be taken only of the claims and not of the defences advanced and the principle in The Tatry that the cause of action comprised both the facts and the legal rule invoked as the basis of the application. It held on the facts, at para 38, that: the unavoidable conclusion is that, even if it be assumed that the facts underlying the two sets of proceedings are identical, the legal rule which forms the basis of each of those applications is different. The action for damages is based on the law governing non contractual liability, whereas the application for the establishment of a liability limitation fund is based on the 1957 Convention and the Netherlands legislation which gives effect to it. The CJEU thus distinguished Gantner and The Tatry on the basis that in those cases, by contrast, the claim brought in the second set of proceedings mirrored that brought in the first set. What then is the position on the facts? The CMI advance the claims referred to in para 18 above under three heads, each of which relies upon provisions either of the CMI settlement agreement or the policies. It is convenient to consider the claims under the three heads in this order: indemnity, exclusive jurisdiction and release. Indemnity claims These are based on clause 3 of the settlement agreement set out above. The claims are simple. By clause 3 the Assured as defined agreed to indemnify the CMI against any claim that might be brought against them by any of the Assureds or the Claimants associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under the relevant policy. The CMI say that the Greek proceedings are in respect of such claims and that they are entitled to be indemnified against the consequences of those proceedings. They say that that claim under clause 3 does not give rise to the same claim or cause of action as any claim or cause of action in the Greek proceedings. They say that, on the contrary, it assumes that the Greek proceedings will proceed and that the claimants in Greece may succeed. I would accept that submission. In my opinion, none of the causes of action relied upon in the Greek proceedings has identity of cause or identity of object with the CMIs claim for an indemnity. As to cause, the subject matter of the two claims is different. The former are claims in tort (or its Greek equivalent) and the claim for an indemnity is a claim in contract. As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas, as for example in the case of a claim on an insurance policy, the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability. Further, whereas Starlight and its co assureds and the individual officer claimants in the Greek proceedings are seeking each to recover its or his own loss, the indemnity clause will, if the indemnity claim is otherwise good, entitle the CMI to recover from Starlight not just any sum awarded in Greece to Starlight, but also any sums awarded to any of Starlights co claimants. So the object of the English indemnity claim against Starlight differs from, and is in fact much wider than, the object of Starlights claim in the Greek proceedings. Moreover, the claim for an indemnity in the 2006 proceedings in England does not interfere in any way with the Greek proceedings or vice versa. There is no attempt in Greece to impugn the settlement agreements or the indemnity agreements contained in them. The respondents do not assert, for example, that the indemnities do not apply to some or all of the Greek claims. I would determine this point in favour of the CMI on this simple basis. The CMIs cause of action for an indemnity under clause 3 of the settlement agreement is not the same cause of action as any of the causes of action relied upon in Greece, which are tortious. The respective causes of action have neither the same object (le mme objet) nor the same cause (la mme cause). Exclusive jurisdiction clauses The same is in my opinion true of the CMIs claims that the respondents have brought the proceedings in Greece in breach of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies. Clause 6 of the settlement agreement expressly provides that it is subject to English law and the exclusive jurisdiction of the High Court in London. The CMI say that, in bringing the Greek proceedings, the respondents are in breach of clause 6 and that they are entitled to damages as a result. They do not seek an anti suit injunction to restrain the Greek proceedings. They simply seek a declaration that the claims brought by Starlight and OME in Greece 1 and Greece 2 fall within the scope of the settlement agreement. Moreover the respondents do not assert in the Greek proceedings that the settlement agreements do not preclude the bringing of their claims in Greece. It may be that the reason they do not advance that argument is that they would be met with the response that a dispute as to the meaning and effect of the settlement agreements is subject to the English jurisdiction clause so that the court in Greece would have to decline jurisdiction. However that may be, they do not in fact advance the argument. It follows that in this respect too the Greek proceedings are not the mirror image of the English proceedings or vice versa and that the cause or causes of action based on an alleged breach of clause 6 of the CMI settlement agreements are not the same cause or causes of action as are advanced by the respondents in Greece. They do not have le mme objet et la mme cause. As I see it, the position is the same in the case of the alleged breach of the exclusive jurisdiction clauses in the insurance policies. There is an established line of cases in England to the effect that claims based on an alleged breach of an exclusive jurisdiction clause or an arbitration clause are different causes of action from claims for substantive relief based on a breach of the underlying contract for the purposes of Article 21 of the Brussels Convention and Article 27 of the Regulation: see eg Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 per Steyn LJ (giving the judgment of the Court of Appeal) at 595H 596C; Alfred C Toepfer International GmbH v Molino Boschi Sarl [1996] 1 Lloyds Rep 510 per Mance J at 513; Toepfer International GmbH v Socit Cargill France [1997] 2 Lloyds Rep 98, per Colman J at 106; Sinco per Beatson J at paras 50 and 54; and WMS Gaming Inc v Benedetti Plus Giocolegale Ltd [2011] EWHC 2620 (Comm) per Simon J at para 32. Those cases support the conclusion that the claims of the CMI in the 2006 proceedings for breach of the exclusive jurisdiction clauses in the insurance policies (or indeed in the settlement agreement) do not involve the same cause or causes of action within the meaning of Article 27 as the respondents claims in (or akin to) tort in the Greek proceedings. I understand that this point has been reserved for decision by the Court of Appeal but, as I see it at present, nothing in the relief sought by the CMI offends the principle of mutual trust and confidence which underlies the Regulation: see eg Erich Gasser GmbH v MISAT Srl (Case C 116/02) [2005] QB 1. The CMI do not seek to stop the Greek proceedings or to restrain Starlight and OME from pursuing them. They merely seek declarations as to the true position under the settlement agreements which are both governed by English law and subject to the exclusive jurisdiction of the English courts and under the clauses in the insurance contracts which also provide for the exclusive jurisdiction of the English courts. This has the advantage that the courts with exclusive jurisdiction decide what is the true meaning of the settlement agreements and the jurisdiction clauses. Release The same is also, in my opinion, true of the claims based on what are called the release provisions in the CMI settlement agreement. It is said that the provision that the sums agreed to be paid under the CMI settlement agreement are to be paid in full and final settlement of all and any claims it may have under the policy precludes the payment of any further sums arising out of the loss of the vessel insured. It is said that, in the light of the agreement, the CMI are entitled to a declaration that the Greek claims fall within the terms of the agreement, that they are entitled to a declaration that the bringing of those claims is a breach of the agreement and that they are entitled to damages for that breach. The question is whether these claims involve le mme objet et la mme cause as the claims in the Greek proceedings. In my opinion they do not for the same reasons as in the case of the claims for an indemnity and the claims arising out of the exclusive jurisdiction clauses. The Greek claims are claims in tort and these are contractual claims. The factual bases for the two claims are entirely different. Moreover the object of the two claims is different. This is to my mind clear in the case of the claims for damages for breach of the release provisions in the settlement agreements and for a declaration that the bringing of the Greek claims is a breach of the settlement agreement. The nature of the claims is almost identical to the nature of the claims for breach of the jurisdiction agreements. In both cases the alleged breach is the bringing of the claims in Greece. Moreover, like the claims for an indemnity, the claim for damages for breach of the settlement agreement assumes that the claims in Greece may succeed. Is the position different in respect of the claim for a declaration that the Greek claims fall within the terms of the release in the settlement agreements? In my opinion the answer is no. All these claims have the same thing in common. It is that the legal basis for the claims in Greece is different from the legal basis of the claims in England. In Greece the legal basis for the claims is tortious, whereas in England the legal basis of the claims is contractual. It is thus not a case like Gubisch, where, as the CJEU put it at para 15, the same parties were engaged in two legal proceedings in different Contracting States which were based on the same cause of action, that is to say the same contractual relationship. The cause was therefore the same. Equally the objet of the actions was the same, namely to determine the effect if any of the contract. As the CJEU put it at para 16, the action to enforce the contract was aimed at giving effect to it, while the action for its rescission or discharge was aimed precisely at depriving it of any effect. The question whether the contract was binding lay at the heart of the two actions. That is not true here because the object of the English action is to enforce the contract, whereas the object of the Greek proceedings is to establish a different liability in tort. Lord Mance takes a different view in one respect. So far as the claims for damages for breach of the releases in the settlement agreements, the claims for a declaration and damages for breach of the jurisdiction clauses and the claims for indemnities are concerned, there is no difference between us. However, so far as the claims for a declaration that the Greek claims fall within the terms of the release in the settlement agreements is concerned, Lord Mance takes a different view. He notes in para 140 the terms in which the claims are pleaded. The formulation in paragraph 18(a) above, which was adopted by the respondents, is in fact derived from the declaration made by the judge. However, to my mind nothing turns on this difference. Moreover, I do not see that it makes any difference that the respondents discharged their obligations under the settlement agreements. The critical point is that on the facts here the legal basis of the claims in tort in Greece is different from the legal basis of the contractual claims in England. It is true that, if successful, a declaration that the tortious claims have been settled or released will or may afford the appellants a defence to the Greek proceedings but the cases show that defences are irrelevant. Viewed through the perspective of the claims, the two claims are not the mirror image of one another. Even if (contrary to my view) the two sets of proceedings had in this respect le mme objet they did not have la mme cause, whereas the cases show that, in order to involve the same cause of action, they must have both le mme objet et la mme cause. The position would be different if the CMI were to advance a claim in the English proceedings claiming a declaration that they are not liable to the respondents in Greece. That claim would be the mirror image of the claims being brought by the respondents in Greece and would fall within the principles laid down in Gantner and The Tatry. In fact, after the judge had delivered his judgment, the CMI did, as I understand it, make an application for such a negative declaration in the light of the fact that Starlight and OME had commenced Greece 2. We were told that in the event the application was never determined and that the CMI do not pursue it. It has been confirmed that any such claim has now been abandoned. For these reasons, subject to a possible reference to the CJEU discussed in paras 58 59 below, I would hold that Article 27 does not apply to any of the causes of action advanced by or against the CMI. I appreciate that, in reaching these conclusions I have reached a different view from that of the Court of Appeal. Before I express my reasons, I should say that I suspect that the focus of the argument in the Court of Appeal was somewhat different from that in this Court. The reasons are I think twofold. First, in para 40 of his judgment Longmore LJ distinguished Sinco on the basis that the difference between this case and that is that in that case, in contradistinction to this, there was no settlement agreement which could, as he put it, supposedly deny the Greek claimants the right to bring proceedings at all. I do not see that as correct. As explained above, the CMI do not seek to deny the respondents the right to commence proceedings in Greece but merely say that the causes of action in the two sets of proceedings are different. The second point is perhaps more significant. In para 46 Longmore LJ correctly notes that the CMIs case is that the bringing of the Greek proceedings is a breach of the jurisdiction clauses in the policies and a breach of the terms of the settlement agreement and, again correctly, states that the primary relief claimed by the CMI in England is a declaration that Starlight will be liable to indemnify the CMI against any costs incurred in the Greek proceedings and any liability in those proceedings. I have already given my reasons for concluding that those are different causes of action from the causes of action in tort relied upon by the respondents in Greece. They are not a mirror image of one another. As I see it, the Court of Appeal treated the question as a broad one focusing on the overall result in each jurisdiction. This can be seen from paras 47 to 50 of Longmore LJs judgment. In paras 46 and 47 he summarised the claims of both the CMI and the LMI. He then said this at paras 48 and 49: 48. It is clear that the first 3 paragraphs of the LMI application are in terms an assertion that LMI are not liable in respect of the claims in Greece. CMI's allegation that the Greek claimants are in breach of the settlement agreements is in effect a similar assertion. It may be said that there are other causes of action in the English proceedings which are not exactly mirror images of the allegations in the Greek proceedings but to the extent that they are not, they are essentially the same in the sense that the key assertion in Greece is that there are non contractual claims and the key assertion in England is that those non contractual claims have been compromised by the settlement agreements. The claims for damages and indemnity are in any event parasitic on the central contention that, once a settlement had been reached, all matters in issue had been compromised. It is, of course, elementary that Article 27 has regard to causes of action rather than proceedings and that is why it is necessary to concentrate on the allegations relating to the settlement agreement. It is certainly the case that there is a considerable risk of inconsistent judgments if one of the sets of proceedings is not stayed and the rationale behind Article 27 therefore favours a stay if the Greek court was the court first seised. 49. I therefore conclude that, in so far as the English proceedings assert non liability by reason of the settlement agreements, there is an identity of issues and the respective causes of action are the same. To the extent that allegations are made in England that the Greek parties are in breach of the settlement agreements or in breach of the exclusive jurisdiction clauses in either the insurance policy or the settlement agreements themselves (and that they should therefore indemnify the insurers for the cost of the Greek proceedings) they are parasitic and dependent on the basic cause of action in England for a declaration of non liability. They cannot proceed in their own right until the underlying question of the ambit of the settlement agreements as a defence to the Greek actions in tort has been resolved. In my opinion that analysis is not consistent with the principles laid down by the CJEU set out above. As already stated, those principles require a comparison of the claims made in each jurisdiction and, in particular, consideration of whether the different claims have le mme objet et la mme cause without regard to the defences being advanced. As I see it, Article 27 involves a comparison between the causes of action in the different sets of proceedings, not (as in Article 28) the proceedings themselves. In para 48 Longmore LJ recognises that there are causes of action in the English proceedings which are not (as he puts it) exactly mirror images of the allegations in the Greek proceedings but says that, to the extent that they are not, they are essentially the same in the sense that the key assertion in Greece is that there are non contractual claims and the key assertion in England is that those non contractual claims have been compromised by the settlement agreements. And at the end of para 49 he says that the claims in England cannot proceed in their own right until the underlying question of the ambit of the settlement agreements as a defence to the Greek action in tort has been resolved. I respectfully disagree with that approach. It focuses on the nature of the settlement agreements as a defence to the Greek action in tort, which the authorities in the CJEU show is irrelevant. Given the fact that defences are irrelevant, the analysis cannot involve a broad comparison between what each party ultimately hopes to achieve. The analysis simply involves a comparison between the claims in order to see whether they have the same cause and the same object. In so far as Andrew Smith J treated the question as a broader one in Evialis SA v SIAT [2003] 2 Lloyds Rep 377 I respectfully disagree with him, although, as Beatson J observed in Sinco at para 50, Evialis was distinguishable on the facts because the insured had brought a substantive claim in the English proceedings in addition to their claim in the Italian proceedings, which rendered the former a mirror image of the latter. This case can be distinguished on the same basis, at least in the case of the CMIs claims. I also note in connection with Sinco that at para 40 Longmore LJ observed that the difference between that case and this was that in that case there was no settlement agreement which could supposedly deny the right of the Greek claimants to bring proceedings at all. For the reasons I have given I would respectfully disagree with that approach. A settlement agreement might be a defence to a claim. It could not deny the right of the Greek claimants to bring proceedings at all. For these reasons I would hold that Article 27 has no application to the case of the CMI. Moreover, subject to one point discussed at paras 58 59 below, I would not order a reference to the CJEU on this question because the relevant principles are clearly set out in its jurisprudence and are acte clair. In these circumstances, where none of the causes of action in the English proceedings is the same as the causes of action in the Greek proceedings, it is not necessary in the case of the CMI to consider the other issues which might arise, namely the position in relation to other parties and which court was the court first seised for the purposes of Article 27. The LMI claims: same causes of action? Save possibly for two points, the position of the LMI is essentially the same as in the case of the CMI. The first point is that the jurisdiction clause in clause 5 of the LMI settlement agreement differs from that in clause 6 of the CMI settlement agreement in that it does not expressly provide for the exclusive jurisdiction of the High Court in London but merely for the jurisdiction of the High Court in London. However, subject to its detailed provisions, Article 23 of the Regulation provides that, where parties have agreed that a court or the courts of a Member State shall have jurisdiction, that court or those courts shall have jurisdiction and, moreover, that such jurisdiction shall be exclusive unless the parties have agreed otherwise. The question whether the parties had agreed otherwise was discussed by the judge at paras 19 to 23 of his judgment, where he held that the parties had not agreed otherwise and that clause 5 of the LMI was an exclusive jurisdiction clause. No appeal was brought against that part of the judges ruling. The second point is this. I had understood during the argument that the LMI were seeking a negative declaration of the kind which the CMI were not. It now appears that I was mistaken. I understand that the LMI had indicated an intention of doing so if the CMI proceeded with an application for permission to do so but, since they did not, nor did the LMI, who have now expressly stated that, like the CMI, they will not do so. As I see it, in these circumstances the position of the LMI is the same as that of the CMI. The causes of action advanced in England in the 2006 action and in 2011 Folio 702, as summarised on behalf of the LMI, are claims by the LMI against Starlight and OME based on clauses 3, 4 and 5 of the LMI settlement agreement. Those advanced in 2011 Folio 1043 are claims by the LMI against the co assureds to enforce the English jurisdiction clause in the insurances. Since, on this basis, the relief sought by the LMI is not a declaration of non liability, the conclusions and reasoning set out above on the question whether the causes of action are the same apply to it. It follows that I would allow the appeals of both the CMI and the LMI on the Article 27 point. However these conclusions are subject to the question whether any of the issues discussed above should be referred to the CJEU. Left to myself, I would not refer any of them because the principles of European law are clear and the only question is how they should be applied in the instant case. However, Lord Mance has arrived at a different view from me on the question whether Article 27 applies to the claims by both the CMI and the LMI for a declaration that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled. In short he is of the view that those claims are essentially for declarations of non liability. In these circumstances, I have reached the conclusion that the position is the same as I previously considered it to be when I thought that the LMI were seeking a declaration of non liability. That is that, unless the CMI and the LMI abandon those claims within 14 days, we should refer the question whether the claims for those declarations involve the same cause of action as the claims in Greece within the meaning of Article 27. Lord Neuberger has also given reasons why, absent such abandonment, this question should be referred. On the other hand, if the CMI and the LMI do abandon those claims, I would allow both their appeals under Article 27 and refuse a mandatory stay of the proceedings under it. If they do not abandon those claims, I would allow the appeals under Article 27 in respect of the other claims but refer the question referred to above to the CJEU and defer a decision on that issue until the CJEU has determined the question. Seisin under Article 27 It is not I think in dispute (and is in any event correct) that a court is only seised of claims by or against new parties from the date that those parties are added to the proceedings. In relation to the 2006 proceedings, the English court was only seised of claims against OME once OME was joined to the proceedings on 20 September 2011 and, for example, to the extent that the LMI in action 2011 Folio 702 are seeking declarations relying on the settlement agreement as a settlement of or defence to Starlight's and OME's claims in the Greek proceedings, the English courts were only seised of that action in 2011. It follows that, in each of those cases the court first seised was the Greek court and not the English court, and that, to the extent that the LMI advance claims for a declaration that the Greek claims fall within the terms of the release in the settlement agreement or that under the agreement the tort claims have been settled, unless the English court is the court first seised, they will be entitled to a stay under Article 27. The same is essentially true of the CMI claims. The question is which court is first seised of what in circumstances where some of the claims brought in England are different from and based on different causes of action from those brought in Greece and one of them in each case, namely the claim for the declaration or declarations referred to above, is based on the same cause of action. The approach of the parties is starkly different. It is submitted on behalf of the appellants that the answer is to be found in the language of Articles 27 and 30 and is that the court first seised is that in which the proceedings were first brought and that the court remains the court first seised of the proceedings even where those proceedings are subsequently amended by the addition of new claims or otherwise. It is submitted on behalf of the respondents, by contrast, that if a new claim is added by amendment, the court is seised of the proceedings so far as that amendment is concerned when the amendment is made and not at the time of the institution of the original, unamended proceedings. It seems to me that there is considerable force in the appellants analysis of the language of the Regulation but the respondents case has support both in the English cases and in the textbooks. In the course of this judgment I will consider the issues (interesting as they are) only briefly because I have reached the conclusion that, if the appellants persist in their claims for the declarations referred to in paras 58 and 59 above and this issue is critical for the resolution of the appeal, the proper course is to refer the question to the CJEU. The case for the appellants can be summarised thus. Article 27 is concerned with proceedings involving the same cause of action. So, for the purposes of deciding whether to grant a stay of its proceedings under Article 27, the court must compare the cause or causes of action in each set of proceedings. It is Article 30 that determines when the court is deemed to be seised and, by Article 30(1), it provides that (subject to the limited exceptions at the end of Article 30(1) and in Article 30(2)), it is deemed to be seised when the document instituting the proceedings or an equivalent document is lodged with the court. Where the question is which of two courts is first seised, the two dates on which the courts are deemed to be seised are compared and the court deemed to be seised first is the court first seised. The appellants also rely upon the transitional provisions in Article 66, which they say support the proposition that proceedings have only one date upon which they are instituted and is inconsistent with the idea that they can have several such dates as and when new claims are added by amendment. The appellants say that in this case the answer is that the English court was the court first seised because the Greek court was not seised until some five years later. They say that this is a simple rule which is easy to apply and that there is no warrant in the language of the Regulation for concluding that it was intended that the court should be seised anew each time a new claim is added by amendment, which would be complicated and unnecessary and give rise to endless interlocutory disputes. The appellants criticise Longmore LJ for asking in para 52 whether it can be said that the English court was first seised of the relevant causes of action now pursued in Greece and for noting that Article 27 only has regard to "causes of action" rather than proceedings. They say that that is inconsistent with Articles 27 and 30 because Article 27(1) uses the word "proceedings" twice and it is used again in Article 30(1). They recognise that for the purpose of deciding whether there is le mme objet or la mme cause the court must look to the claims made but, for the purpose of deciding which court is deemed to be "first seised" under Article 27, the autonomous test in Article 30 is applied. Finally, they say that Article 30 does not mention "causes of action" and that the Court of Appeal overlooked the word "proceedings" used twice in Article 27, and did not refer to Article 30 at all. Moreover, although the word "proceedings" is not defined in the Regulation, it appears nearly 50 times in the Regulation used as a word of general application. The uses of the word show that issues or causes of action (or claims) may change during the course of the "proceedings". The appellants further criticise Longmore LJ in the Court of Appeal by reference to paras 53 and paras 64 66. They contrast the reference in para 53 to Article 27 having regard only to causes of action rather than proceedings, with the reference in para 64, with apparent approval, to this quote from the judgment of Saville LJ in The Happy Fellow at pages 17 18: article 21 is concerned with proceedings and article 22 with actions. The questions are whether the proceedings involve the same cause or object or whether the actions are related. It is thus a misreading of the Convention to ask which Court is first seised of issues which are or might be raised within the proceedings or actions. If such were the case, then the articles would achieve precisely the opposite of their intended purpose which is, to achieve the proper administration of justice within the Community . " Saville LJ was there considering the position under what is now Article 28. However the appellants say that the word action in Article 28 means the same as proceedings in Article 27 and that Longmore LJ was correct in paras 64 66 and wrong in para 53. Although the appellants case has to my mind the merit of simplicity and of the avoidance of time consuming and expensive satellite litigation, the respondents say that it is simplistic and contrary to both principle and authority. It is fair to say that there is considerable support in the authorities and the text books for the proposition that the new claims added to the 2006 proceedings, which were founded on the Greek proceedings and thus made second in time, were new claims, that the English court should be regarded as seised of them only when they were added to the 2006 proceedings and that the Greek court was the court first seised within the meaning of Article 27. In the important case of FKI Engineering Ltd v Stribog Ltd [2011] 1 WLR 3264, which was itself a case on Article 28, the Court of Appeal considered Article 27 and a number of cases decided under it. At para 84 Rix LJ said that the essence of the cases was that, where the same cause of action or the same parties are introduced only by way of service, or amendment, the relevant proceedings are only brought at the time of such service or amendment, not at the time of the institution of the original, unamended proceedings. Neither Mummery LJ nor Wilson LJ expressed a different view. The respondents also rely upon Sinco per Beatson J at paras 61 to 68 and, in that connection, upon this comment in Briggs on Civil Jurisdiction and Judgments, 5th edition, 2009 at para 2.235, page 327, note 1: In [Sinco] the proposition that an English court was first seised of a claim for damages for breach of a jurisdiction clause, which could only have been brought before the English court after the objected to proceedings were instituted before the foreign court, was rather challenging. And in Research in Motion UK Ltd v Visto Corporation [2007] EWHC 900 (Ch), Lewison J said at para 19: It is also common ground that the counterclaim is to be treated as an action in its own right for the purposes of the judgment regulation. It seems to me that once RIM's English non infringement action is out of the way the only relevant proceedings are Visto's counterclaim and the Italian proceedings. Of those two, the Italian court is plainly the first seised. Indeed it cannot be otherwise since the very fact of the Italian claim is part of the foundation of the counterclaim. The respondents rely upon Briggs at para 2.235, where, as I read it, their case is supported, although some doubts are expressed as to the desirability of this approach. The respondents also relied upon the 15th edition, 2012 of Dicey, Morris and Collins on The Conflict of Laws at paras 12 060 and 12 069, where they say this: 12 060. Each lis between a plaintiff and a defendant has to be considered individually to determine which court was seised of it first in time, and article 27 applied accordingly. 12 069. Where a claim form which has been issued and served is amended by the addition of an additional claim, or by the introduction of a claim or counterclaim against another party, the material question is whether the date of seisin in respect of the additional claim is the date on which the amended claim form is reissued (which may, depending on the circumstances, be only after obtaining the permission of the court), or the date of the original issue. As it is difficult to see how a court can be said to be seised of a claim which has not been made and does not appear in the claim form, it cannot be correct that as long as a claim form has been issued and served, the court already has temporal priority over any issue which may later be added by amendment. It would follow from a conclusion that the court is not seised of the new claim until the amended claim form is reissued that the defendant may be able to pre empt the amendment by commencing an action of his own in another Member State. The court seised with such pre emptive proceedings will obviously be regarded as being seised later than the court before which the original action was brought, but institution of the later action may serve to prevent the proposed, and now duplicative, amendment of the original action; and there is no basis in the Regulation for refusing to give effect to a use of the rules which might be characterised as sharp practice. Finally, the respondents rely upon Fentiman on International Commercial Litigation, 2010, at para 11.27: Principle suggests that an amended claim arising from the same facts as the original claim might be consolidated with the original claim for the purposes of Article 30 but not where the facts arose subsequently. In the latter case it does no violence to the expressions 'actions' or 'proceedings' to differentiate the claims. While these expressions of view undoubtedly provide strong support for the respondents submissions, some of them seem to me to be expressed in a somewhat tentative way and I am not sure that the textbook writers grapple with the points made by the appellants on the language of the Regulation. However that may be, as indicated earlier, I am of the opinion that this issue is by no means acte clair and, if the appellants maintain their claim or claims in England for a declaration that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled, I would refer an appropriate question to the CJEU before forming a concluded view with regard to the applicability to that claim or claims. If they abandon them, I would hold that the respondents are not entitled to a stay under Article 27, refuse them a mandatory stay in respect of all the claims and allow the appellants appeal. Article 28 The question whether those claims which are not within Article 27 should be stayed depends upon whether they should be stayed under Article 28. As stated above, in the exercise of his discretion the judge refused the respondents application for a stay under Article 28. The appellants say that he was right to do so. The respondents case is that the English court was second seised for the purpose of Article 28 and that a stay should be granted as a matter of discretion. Seisin under Article 28 It is plain from the express terms of Article 28(1) that the discretion in Article 28 is limited to any court other than the court first seised. It follows that, if the English court was first seised, it has no discretion to stay. Article 28 moreover applies to related actions pending in the courts of different member states and, by Article 28(3), actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. It is not in dispute in these appeals that the various proceedings are related proceedings for the purposes of Article 28 and I would in any event so hold. The questions remain whether the actions are pending, whether the English court is the court first seised and, if it is not, how the discretion should be exercised. In Stribog the Court of Appeal considered the correct approach to Article 28. It held that two questions arise, namely (1) whether the two sets of proceedings are related, taking account of any amendments which have been made at the time of the enquiry and (2) which set of proceedings were commenced first? Rix LJ expressed the position clearly at paras 119 and 120. He explained that it is only when there are related and pending actions in separate member states that Article 28 comes into issue. The question whether they are related is, as he put it, the Article 28(3) question. He then said: 119. The question of when seisin occurs and thus which of the courts is the court first seised is the article 30 question. FKIs submission in effect seeks to roll the two questions together and ask: which of the two courts is the first to be seised of an action which at the time of its seisin was a related action? This is the concept of the first related action, a concept found in neither article 28 nor article 30. Stribog on the other hand asks: once you have found two related and pending actions and seek to stay one of them, invoking article 28, which of the two courts was the first to achieve seisin of one or other of those actions? 120. In my judgment, the latter question is the correct one, and is to be preferred to the former . See also per Mummery LJ at paras 40 to 44, where he stressed in particular that the question is whether the court concerned is seised of an action and not of a particular issue in an action. He also stressed that the time at which the comparison between the two actions is made is the time of the hearing of the application for the stay. Wilson LJ noted at paras 132 134 that Mummery and Rix LJJ asked the relevant questions in a slightly different order: Mummery LJ asked which court was first seised in a pending action before asking whether the actions were related, whereas Rix LJ preferred to ask them in the reverse order. Wilson LJ said that he did not see why the order matters but that Rix LJ seemed to have the terminology of Article 28 on his side. I agree. The question whether the actions are pending is closely related to the question whether the English court remains first seised. The respondents say that there was no action pending in England when the Greece 1 proceedings were commenced. In the alternative they say that, if the original action is still alive, the English court is not first seised because the claims now brought are entirely new claims, which they say should be equated with new proceedings. I will consider these points in turn. On the first point, the appellants say, by contrast, that the 2006 proceedings are still on foot, and thus pending, having been stayed but not finally concluded. I would accept the appellants submissions. The settlement agreements were in this respect in identical terms. It was a term of them that Starlight would obtain a stay by way of Tomlin Orders. The orders were both in the same terms, which are standard in such cases, and (as quoted in para 7 above) provided that save for the purposes of carrying into effect the terms agreed all further proceedings shall be stayed. It appears to me that, on the true construction of those orders, the actions remained unstayed for the purposes of carrying into effect the terms agreed and were otherwise stayed. As I see it, in so far as the actions remained unstayed, it follows that the court remained seised of them, presumably at least until there was no longer any need for the terms agreed to be carried out. It is plain from the language of Article 28(1) that the court first seised means the court first seised of the action, which must mean first seised of the proceedings, not of particular claims or causes of action within the proceedings. It seems to me to follow that, in so far as the appellants are seeking to enforce the provisions of the settlement agreements, as they are, the English court remains first seised. I arrive at this conclusion by a construction of Article 28(1) and of the Tomlin Order. The appellants were able to pursue these claims without issuing further proceedings. In this regard I would accept the analysis of the judge at paras 24 to 29. I would adopt the analysis of Sir Andrew Morritt V C in Bargain Pages Ltd v Midland Independent Newspapers Ltd [2003] EWHC 1887 (Ch) and I would not follow the reasoning of the Court of Appeal in Hollingsworth v Humphrey, (1987) CAT 1244. What then of the parts of the actions which are stayed under the Tomlin Orders? These would include the claims for breach of the exclusive jurisdiction clauses in the policies of insurance, which do not depend upon the terms of the settlement agreements. The appellants rely upon principles developed by the English courts as a matter of English, not European, law. However, this is in my opinion a permissible approach. Article 30 of the Regulation provides for the circumstances in which a court is deemed to be seised. I recognise of course that the concept of seisin is an autonomous European law device but Article 30 does not make express provision for the circumstances in which it ceases to be seised. In these circumstances, it seems to me to be appropriate for national courts to have regard both to the nature of seisin in European law and to their own procedural rules in deciding whether their courts are no longer seised of a particular set of proceedings. The appellants rely upon the decision of the Court of Appeal in Rofa Sport Management AG v DHLK International (UK) Ltd [1989] 1 WLR 902, where the Court of Appeal held that a stay of proceedings is not equivalent to a dismissal or discontinuance and therefore that an action in which all further proceedings have been stayed, even if by consent of all parties after a settlement, remains in being. See in particular per Neill LJ at 909H to 910D and 911A C. He concluded that, for the sake of clarity and certainty, the word stay in an order should not be treated as a possible equivalent of a dismissal or discontinuance. Although the action cannot continue without an order of the court, nor can it, he said, be regarded as dead in the same way as an action which has been dismissed or discontinued by order. I agree. The reasoning in Rofa supports the conclusion that in circumstances in which the 2006 proceedings have been stayed and not dismissed or discontinued the court remains seised of them. It is not and could not be disputed that the court was seised of the proceedings in accordance with Article 30 when the claim form in the 2006 proceedings was issued. It is not suggested that the appellants failed to take any of the steps referred to in Article 30(1) or (2) which would have nullified that effect. The question is whether anything happened subsequently from which it can be inferred that the court was no longer seised. I would answer that question in the negative. Although Rofa was not a decision on the construction of the Regulation, the correct approach is to consider whether anything occurred which could lead to the conclusion that the approach adopted there should not be applied to the stay incorporated in the Tomlin Orders and, if not, whether there is anything which leads to the conclusion that the court is not still seised of the proceedings. I would answer both those questions in the negative. Although it is true that the CMI settlement agreements contained a provision that, on payment of the settlement sum, the parties would file a consent order dismissing the proceedings, no such consent order was made or filed. The LMI settlement agreement does not contain any such provision. In all these circumstances, I can see no sensible basis upon which it can be said that the English court is no longer seised of the proceedings. There remain significant disputes arising out of the settlement agreements and the insurances. The second point taken on behalf of the respondents under this head is that, even if the original action is still alive, the claims now brought are new claims, which should be equated with, or treated as, new proceedings. They rely upon this dictum of Rix LJ in Stribog at para 129: Seventhly, there is nothing in the ECJ or English jurisprudence to support the judges approach in this case. It is possible that the introduction of entirely new causes of action or parties is to be recognised as the bringing of entirely new proceedings, so that the timing of seisin (the article 30 question) has to be looked at from that point of view, as occurs for the purposes of article 27. Even so, it is not clear to me that in this connection article 27 and article 28 work in the same way: for article 27 is worded in terms of the bringing of actions with the same parties and the same cause of action (Where proceedings are brought in the courts) whereas article 28 is worded in terms of the pendency of related actions (Where related actions are pending in the court) (emphasis added). That emphasises that the article 28 question is asked with relation to pending actions, and not, as the article 27 question is asked, with relation to the bringing of actions. In any event, the judge is in my respectful judgment mistaken to think that any amendment is analogous to the bringing of new causes of action or the addition or substitution of new parties. For my part, I would not accept that approach as applied to Article 28. In para 68 above I referred to the statement of Rix LJ at para 84 of Stribog. In para 63 of his judgment in the instant case Longmore LJ quoted para 84, where Rix LJ said that, where proceedings are amended to add new claims, the court is only seised of the relevant proceedings so far as the new claims are concerned at the time of the amendment. Immediately after the quote, Longmore LJ correctly pointed out that those observations were made in relation to Article 27 and not Article 28. He then quoted the second sentence from the above quotation from para 129 of Rix LJs judgment. Longmore LJ then asked whether this tentative expression of view in relation to "the introduction of entirely new causes of action" being tantamount to "the bringing of entirely new proceedings" means, for the purpose of this case, that the Greek courts are to be regarded as first seised of the relevant related action? He said at para 64 that, in his opinion it did not. He gave two reasons. He said that in the first place Rix LJ had already quoted the passage from the judgment of Saville LJ in The Happy Fellow which I set out in para 66 above. At para 65 Longmore LJ said that, in the second place, Rix LJ provided his tentative response to his tentative view in the remainder of paragraph 129 which he then quoted. That response is to my mind telling. Longmore LJ then expressed his conclusion at para 66. He expressed doubt about Rix LJs distinction between entirely new causes of action as opposed to partially new causes of action. However that may be, his conclusion seems to me to be contained in the last two sentences of para 66: As Saville LJ said in The Happy Fellow it is a misreading of Article 28 to ask which court is first seised of issues; it must likewise be wrong in an Article 28 context to ask which court is first seised of causes of action. That is Article 27 territory because, for the purpose of Article 28, one has to ask which court is first seised of an action, not a cause of action and, still less, an issue. On that basis Longmore LJ concluded at para 67 that, if the original English action and the subsequent Greek actions are related, as he concluded they are, it was the English court that was the court first seised. I agree. First, the contrary view seems to me to be inconsistent with the two stage approach to Article 28 adopted in Stribog. As Longmore LJ observed at para 66, in the context of Article 28 it is wrong in principle to ask which court is first seised of a cause of action, because Article 28 is concerned with related actions as a whole. Secondly, I would accept the appellants submission that on the facts of this case the claims now brought are not (as Rix LJ put it) entirely new. On the contrary, applying the broad and common sense approach favoured by Lord Saville in Sarrio, the claims now brought by the appellants are unquestionably related to the original action within the meaning of Article 28. I would only add in conclusion that it seems to me that it would be very odd indeed if a court which is seised of proceedings and stays those proceedings by way of a Tomlin order on the express terms that it retains jurisdiction to take further steps by way of implementation or policing of the order were prevented from exercising that jurisdiction, either by lifting the stay or otherwise, on the ground that it was no longer seised of the proceedings. It seems to me to be at least arguable that those steps should properly be treated as part of the existing proceedings. They might perhaps be treated as part of the same procedural unit as discussed by the CJEU in Purrucker v Vallz Prez (No 2) (Case C 296/10) [2011] Fam 312 at para 80. The case was on very different facts but was concerned with two paragraphs in a regulation which were identical to Articles 27 and 30 of the Regulation. In any event to treat the enforcement action as something entirely new seems to me to be wrong. It is never easy to decide what is an entirely new claim, what is a new claim and what is an expansion of an old claim. These claims are not new or entirely new because they are brought by way of enforcement of the outcome of the original dispute, in the same way as execution on a money judgment. In these circumstances it makes sense to hold that these claims, which largely arise out of the settlement agreements, arise out of the attempts made by the respondents to avoid the effect of those agreements and, in particular, the exclusive jurisdiction agreements. This solution would, as I see it, be consistent with the overall policy of the Regulation to avoid a multiplicity of proceedings. However, I can see that there is scope for argument under this head and, if the issue of first seised were critical to the decision, it might be appropriate to refer an appropriate question to the CJEU. I therefore turn to the issue of discretion on the assumption that the English court is second seised for the purposes of Article 28. Discretion On that assumption, the question arises whether the action or actions should be stayed as a matter of discretion. The judge held that no such stay should be granted. Given that the shape of the case has changed considerably since the matter was before the judge, it appears to me that this Court should consider for itself whether to grant a stay. I have reached the clear conclusion that it should not. I have reached that conclusion essentially for the reasons advanced on behalf of the appellants. They may be summarised in this way. In Owens Bank Ltd v Bracco (Case C 129/92) [1994] QB 509, at paras 74 79, Advocate General Lenz identified a number of factors which he thought were relevant to the exercise of the discretion. They can I think briefly be summarised in this way. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay. Indeed, he appears to have approved the proposition that there is a strong presumption in favour of a stay. However, he identified three particular factors as being of importance: (1) the extent of the relatedness between the actions and the risk of mutually irreconcilable decisions; (2) the stage reached in each set of proceedings; and (3) the proximity of the courts to the subject matter of the case. In conclusion the Advocate General said at para 79 that it goes without saying that in the exercise of the discretion regard may be had to the question of which court is in the best position to decide a given question. On the facts here those questions can be considered together. As I see it, the issues are not dissimilar from those considered by Cooke J in Primacom at para 65, where he said this: Even if I had found that these two sets of proceedings and the German proceedings were related within the meaning of article 28, 'the strong presumption' which 'lies in favour of the applicant' on an application for a stay would be overridden here by virtue of the terms of the SSFA. Although the ECJ decision in Gasser means that a stay is mandatory where article 27 applies, there is no reason why weight should be given to that decision in the context of article 28, where a discretion is given to the court, the jurisdiction of which has been agreed by the parties as exclusive. It is nothing to the point that an English court could not have issued an anti suit injunction to prevent the German proceedings (as per C 159/02 Turner v Grovit [[2005] 1 AC 101]). The injustice of giving precedence to proceedings brought in breach of an exclusive jurisdiction clause where the parties have agreed that England is the appropriate forum is self evident. To breach the clause and to gain the benefit of priority for the German courts by such breach offends justice, where the court has a discretionary decision to make. In my opinion, similar considerations apply here. Although the true construction of the settlement agreements and the question whether Starlight and OME are in breach of them is ultimately a matter for the court which finally determines the summary judgment application or for the court at trial, there is a strong argument (to put it no higher) that the Greek proceedings have been brought by Starlight and OME in breach of the settlement agreements, which are subject to the exclusive jurisdiction of the English courts and/or in breach of the exclusive jurisdiction clauses in the insurance contracts. I would reject the submission that those considerations are impermissible in the light of the decision in Gasser. It was there held that, if the criteria for ordering a mandatory stay under Article 27 are satisfied, then the court second seised must stay its proceedings even if the court second seised has jurisdiction under an exclusive jurisdiction clause falling within Article 23. That conclusion was reached on the basis that, under Article 27, where there are two sets of proceedings which involve the same cause of action and the same parties, the court second seised is obliged to order a stay. The Regulation only permits one set of proceedings to continue. The position is quite different under Article 28, which clearly contemplates that where there are two related sets of proceedings they may proceed in parallel. That conclusion follows from the proposition that the grant of a stay is discretionary and not mandatory. In these circumstances, I can see no reason why, in exercising that discretion under Article 28, the court second seised should not take into account the fact that the parties had previously agreed (or arguably agreed) an exclusive jurisdiction clause in favour of that court. On the contrary, depending upon the circumstances of the particular case, that seems to me to be likely to be a powerful factor in support of refusal of a stay. After all, Recital 14 expressly provides: The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation. There is a close relationship between the claims in England and the subject matter of the claims in Greece. The natural court to consider the issues raised by the CMI and the LMI is the High Court in England because they raise contractual questions governed by English law and because it is at least arguable that the parties have agreed that they should be decided by the High Court, where the proceedings are more advanced than in Greece. After all, the judge granted summary judgment as long ago as December 2011. The court in Greece will then have the benefit of the decision of the court which, in the Advocate Generals language, is in the best position to decide these issues. Once there is a final judgment of the English courts, it will be recognisable in Greece, as elsewhere in the EU and will assist the Greek court. In this way, the principles of mutual trust upon which the Regulation is founded will be respected and there will be no risk of irreconcilable judgments. In these circumstances I would uphold the decision of the judge in refusing a stay under Article 28. There is no need for a reference to the CJEU because the question I would have referred does not arise given my conclusion on the exercise of discretion. It was at one time suggested that there is a referable question as to whether Article 28 gives the court second seised a choice between staying the proceedings under Article 28(1) and declining jurisdiction under Article 28(2). However, that suggestion was abandoned before the hearing. I would in any event have rejected it as unarguable. There is no support whatever for it in the language of Article 28 and none of the sources referred to supports the conclusion. The discretion is to stay or not to stay under Article 28(1) and to decline or not to decline jurisdiction under Article 28(2). The Court may thus both refuse to stay and refuse to decline jurisdiction. As the Advocate General explained in Bracco, all depends upon the circumstances. Too late? The remaining question is whether the Court of Appeal was wrong to reject submissions made on behalf of the appellants that it was too late for the respondents to rely upon Article 27. This is another part of the case where the facts seem to me to be startling. The appeal on this point is brought by the LMI and not the CMI but it is I think accepted that, if the appeal succeeds, the CMI will be able to take advantage of it. The most important point raised by this part of the appeal is whether the courts had a discretion to hold that the LMI should not be permitted to rely upon various procedural acts and omissions on the part of the respondents in response to their attempt at a late stage to rely upon Article 27 of the Regulation or whether, once the point was brought to its attention, the Court of Appeal was bound to consider Article 27 (as quoted at para 24 above) because it expressly provides that, where the conditions are satisfied any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. I have reached the conclusion that the answer is that the appellants were entitled to rely upon the acts or omissions of the respondents and that, having regard to what had happened before Judge Mackie QC and the judge, the Court of Appeal was not bound to take the point of its own motion. Moreover, subject to a possible reference, I would hold that the Court of Appeal should have considered the acts or omissions of the respondents and have held that it was too late for the respondents to rely upon Article 27. The question of the scope of the Court of Appeals duty to take the point of its own motion in circumstances of this kind is however an important point on the construction of Article 27 and, if it were necessary for the determination of the appeal, I would refer it to the CJEU. However, if the LMI abandon their claim or claims for a declaration of non liability a reference will not be necessary for the determination of the appeal. If they do not, my present view is that it will. The relevant chronology, which I take from the Statement of Facts and Issues, is briefly as follows. I will omit references to the CMI proceedings, in which the applications were heard at the same time as those in the LMI proceedings. By application notice dated 3 August 2011, the LMI applied for wide ranging relief against Starlight to enforce the LMI settlement agreement. By application notice dated 18 August 2011 the LMI sought permission to join OME and to serve OME out of the jurisdiction. As explained earlier, the LMI commenced 2011 Folio 702 against Starlight and OME in order to enforce the LMI settlement agreement. They also commenced 2011 Folio 1043 only against the co assureds, which was an action founded solely on the exclusive jurisdiction clause in the policies. On 20 September 2011 the LMI obtained permission from Judge Mackie QC to issue a Part 20 claim against OME in 2006 Folio 815 and, lest it be needed, to serve that Part 20 claim form and the claim forms in 2011 Folios 702 and 1043 out of the jurisdiction and to serve them on Lax & Co in London. The applications were supported by a witness statement by their solicitor, Mr Zavos, in which he referred both to possible stays under Article 27 and Article 28 giving reasons why stays should not be granted. The orders gave notice to each of Starlight, OME and the co assureds that: You may apply within seven days after the date of service of this Order on you to have the Order set aside or varied. This time limit does not apply to an application to dispute the jurisdiction of the Court in respect of which the procedure in CPR Part 11 as modified by CPR Part 58 applies No such application was made. Starlight did not serve evidence within the time provided in the CPR. However, on 4 November 2011 they served evidence which included an express request by Mr Crampton of Lax & Co that the relief sought by the appellants on the merits be denied, alternatively that the matter be referred to a full trial, with provision for disclosure and exchange of witness and expert evidence. On 7 November Starlight, OME and the co assureds each filed a defence on the merits in the relevant action, having first obtained an extension of time for doing so. Each of the defences included a paragraph which stated: The claims in the Greek Proceedings fall outside the jurisdiction clause in the policy and the jurisdiction clause in the Settlement Agreement. It is respectfully denied therefore that the High Court of Justice of England and Wales has jurisdiction to determine the claims in the Greek Proceedings The grounds on which Starlight, OME and the co assureds opposed the appellants claims and applications for summary relief, were in summary that the claims brought in the Greek proceedings (1) did not fall within the scope of the releases contained in the LMI settlement agreement or the CMI settlement agreement; (2) did not fall within the scope of the indemnities contained in the settlement agreements; and (3) did not fall within the scope of the jurisdiction clauses contained in the settlement agreements or in the policies. Following service of the defences, the LMI applied for summary judgment in all the actions and all the applications were fixed to be heard on 28 and 29 November at the same time as the application for summary relief against Starlight in the 2006 proceedings. In their skeleton argument prepared for those hearings, which were served on 23 November 2011, the LMI included the following: 71. There has been no application for a mandatory stay under Article 27 of the Judgments Regulation in respect of the [LMIs] claims to enforce the jurisdiction clause in the contract of insurance, and to enforce the terms of the [LMI] Settlement Agreement. This is (no doubt) because the claims are different claims from the claims advanced by the Assureds in Greece. On 25 November 2011, Starlight, OME, and the co assureds, through their former counsel, James Drake QC and Emma Hilliard, provided their skeleton argument to the court, which expressly disavowed any application under Article 27, in these terms: 69. It is well established that in order for Article 27 to operate there must, when comparing the two sets of proceedings in issue, be three identities: of parties, of cause, and of objet: see generally Briggs & Rees, Civil Jurisdiction and Judgments (5th ed 2009) at paras 2 227 to 2 231. 70. Starlight does not here contend that there is here an identity of cause and objet between the Greek proceedings and the Insurers applications. Although designed to preclude in so far as possible, and from the outset a clash of verdicts, the operation of Article 27 (as distinct from Article 28) is highly restricted in its actual operation. Comparison must be made between the claims made in the two actions, regardless of possible defences, to see whether they proceed on essentially the same facts and under the same rule of law. In the footnotes they referred to the cases I have discussed earlier, including Gubisch, Gantner and The Tatry. It is thus plain that before the matter came before the judge the respondents had made a clear and reasoned decision not to rely upon Article 27. Moreover, there is no reason to think that the judge did not consider the points they made and accept them. They relied only on Article 28. They did so pursuant to an application made by application notice dated 24 November 2011. However that application was out of time. So, by further application notices in each action dated 28 November 2011, the respondents applied for permission to make the Article 28 application out of time, and for relief from sanctions pursuant to CPR Part 3. The sanction referred to was that imposed by CPR Part 11, which provides that a defendant who files an acknowledgment of service and fails to apply to the court within the time allowed under the CPR for an order declaring that it has no jurisdiction or should not exercise any jurisdiction which it may have, is to be treated as having accepted that the court has jurisdiction to try the claim: CPR rule 11(5). As stated in para 19 above, the judge dismissed the stay application under Article 28 and held that the appellants were entitled to summary judgment. He held that (1) each of the claims made by Starlight, OME, and the co assureds against the appellants in Greece is in breach of the exclusive English jurisdiction agreement in the policies; (2) each of the claims made by Starlight and OME against the appellants in Greece is in breach of the jurisdiction agreements in the settlement agreements which provide for exclusive English jurisdiction; (3) each of the claims made by Starlight and OME against the appellants in Greece is in breach of the terms of the settlement agreements; (4) each of Starlight, OME and the co assureds is liable in damages to the insurers for breach of contract and under Section 50 of the Senior Courts Act 1981; and (5) each of Starlight and OME is bound to indemnify and hold the insurers harmless against each of the claims in the Greek proceedings pursuant to the indemnities in the settlement agreements. The judge handed down his judgment on 19 December 2011 and fixed 2 February 2012 for the hearing of consequential applications. In the meantime, on 7 December 2011 Thomas Cooper had replaced Lax & Co as the respondents solicitors. On 24 January 2012 draft grounds of appeal were served which included for the first time reliance on Article 27. They were considered in a somewhat amended form by the judge. The judge granted permission to appeal on a number of grounds including the Article 27 point. As to that he said that he would not have given permission on that point alone, as he put it, not least because the Article 27 case could become the subject of an independent application at first instance at any time hereafter. He recognised that this would have the effect of turning the Court of Appeal into a first instance court but concluded that it could be argued without the need for further evidence and without a great addition of time. In the Court of Appeal the appellants relied upon the provisions of CPR Part 11, but the Court of Appeal held that it did not apply because applications under Articles 27 and 28 are not challenges to the jurisdiction. It further held that it was bound to take the Article 27 point of its own motion. The LMI say that the Court of Appeal was wrong on both points. CPR Part 11 provides, so far as relevant as follows: (1) A defendant who wishes to (a) dispute the court's jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction, may apply to the court for an order declaring that it has no such jurisdiction or; should not exercise any jurisdiction which it may have. (2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10. (3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the courts jurisdiction. (4) An application under this rule must (a) be made within 14 days after filing an acknowledgment of service; and (b) be supported by evidence. (5) If the defendant (a) files an acknowledgment of service; and (b) does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim. (6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including (a) setting aside the claim form; (b) setting aside service of the claim form; (c) discharging any order made before the claim was commenced or before the claim form was served; and (d) staying the proceedings. In an action in the Commercial Court such as this CPR 11(4) is varied by CPR 58.7(2) so that the application under CPR 11(1) must be made within 28 days after filing an acknowledgment of service and not 14 days. As I understand it acknowledgments of service were filed in each case. The position under CPR Part 11 is different from the position under the former Rules of the Supreme Court, under which the equivalent rule, namely RSC Order 12 rule 8(1), did not include an application for a stay. By contrast CPR 11(1)(b) applies to an application for an order that the court should not exercise its jurisdiction. An application for a stay is precisely that. An application for a stay under Article 27 is thus an application within CPR 11(1)(b). The applicant must file an acknowledgment of service and must make an application within 28 days. The respondents did not do that. Nor did they seek an extension of time to so do within the CPR. It is arguable that the effect of CPR 11(5) is that their failure to do so means that they are treated as accepting that the court both has jurisdiction and that it is free to exercise it. The difficulty is that the wording of paragraph (5) may only relate to the existence of the jurisdiction rather than the exercise of it. This point was left open in Texan Management Ltd v Pacific Electric Wire & Cable Company Ltd [2009] UKPC 46 at paras 68 and 69. However that may be, the LMI rely upon the voluntary submission to the jurisdiction evidenced by the acknowledgment of service and the service of a defence. They also rely upon the clear and unequivocal statement of the respondents position in their skeleton argument before the judge. It is plain from the terms of the concession quoted at para 106 above that serious thought had been given to the question both of whether to make the concession and of the basis on which it was to be made. In these circumstances, unless there is some rule of European law to the contrary, it appears to me that the Court of Appeal should have considered whether, in the exercise of their discretion to permit argument on a new point, they should exercise that discretion in favour of the respondents or not. Moreover, it appears to me that, given the clear basis on which the concession was made and, given that the judgment had proceeded on that basis, the Court of Appeal should have held that it had a discretion under CPR rule 11(1) to permit an application under the rule to be made out of time but should have refused to exercise it. However it is said that on the true construction of Article 27, the court, including on these facts the Court of Appeal, has a duty to consider the application of Article 27 of its own motion whenever the point is taken. This strikes me as extremely improbable. I would accept the submissions of the LMI in this respect. The CJEU has recognised the importance of national rules of procedure. Thus, for example, in Shevill v Presse Alliance SA (Case C 69/93) [1995] 2 AC 18 the CJEU said: 35. the object of the [Brussels] Convention is not to unify the rules of substantive law and of procedure of the different contracting states, but to determine which court has jurisdiction in disputes relating to civil and commercial matters in relations between the contracting states and to facilitate the enforcement of judgments: see Kongress Agentur Hagen G.m.b.H vs Zeehaghe B.V. (Case C 365/88) [1990] E.C.R. 1 1845, 1865, para. 17. 36. Moreover, the court has consistently held that, as regards procedural rules, reference must be made to the national rules applicable by the national court, provided that the application of those rules does not impair the effectiveness of the Convention: paragraphs 19 and 20 of [Kongress Agentur Hagen G.m.b.H. vs Zeehaghe B.V. (Case C 365/88) [1990] E.C.R. 1 1845]." I would accept the LMIs submission that Article 27 is part of European law and overrides national law which is incompatible with it. It does not however follow from this proposition that English procedural rules were overridden. A national procedural rule must not impair the effectiveness of Article 27. It must not render the exercise of rights conferred by EU law impossible or excessively difficult: Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595, [1985] 2 CMLR 658. This is the principle of effectiveness, which involves considering whether the rule can operate consistently with Article 27, or whether it is incompatible with it. The procedural rule should not be less favourable than those governing similar domestic actions, which is the principle of equivalence: see eg Interfact Ltd v Liverpool City Council [2011] QB 744, Kapferer v Schlank and Schlick GmbH (Case C 234/04) [2006] ECR I 2585 at paras 19 to 22, Kbler v Austria (Case C 224/01) [2004] QB 848; and Eco Swiss China Time Ltd v Benetton International NV (Case C 126/97) [1999] ECR I 3055. I refer only to Interfact, where the Court of Appeal refused to exercise its discretion to allow cases to be reopened under CPR 52.17, so as to give a remedy for infringement of a provision of European law. Lord Judge CJ, delivering the judgment of the Court of Appeal, said : 41 In general, EU law does not require national courts to disapply their own procedural rules in order to secure the vindication of EU rights. In Kapferer v Schlank & Schick GmbH the Austrian Supreme Court was seised of an appeal in which the respondent had failed to lodge within the time stipulated a respondent's notice taking a point on jurisdiction under the Brussels Convention. The court referred to the Court of Justice the questions whether it was, nevertheless, bound to take the point of EU law of its own motion and whether EU law required a national court to review and set aside a final judicial decision in circumstances where it later became apparent that the decision of the court was in breach of EU law. The Court of Justice held that a national court is not so bound 44 . [Kapferer] establishes as a matter of general principle that EU law does not require a national court to reopen a final judicial decision, even if failure to do so would make it impossible to remedy an infringement of a provision of EU law: see the Kapferer case, at para 21; Amministrazione dell'Economia e delle Finanze and Agenzia delle Entrate v Fallimento Olimpiclub Srl (Case C 2/08) [2009] ECR I 7501, para 23; Asturcom Telecommunicaciones SL v Rodrguez Nogueira (Case C 40/08) [2010] 1 CMLR 865 para 37. 49. The Court of Justice has upheld national time limits and limitation periods on grounds of legal certainty and the need to ensure finality in decision making, even though the effect has been to preclude enforcement of an EU law right: see, for example, Palmisani v Istituto Nazionale della Previdenza Sociale (INPS) (Case C 261/95) [1997] ECR I 4025; Fantask A/S v Industriministeriet (Ehrvervsministeriet) (Case C 188/95) [1997] ECR 1 6783. Finally, I would accept these submissions made by the LMI. Under English law a final judgment on the merits should not be set aside without very solid grounds: Brown v Dean [1910] AC 373 at 374, per Lord Loreburn. Interest republicae ut sit finis litium. This is part of the common tradition of the legal systems of the Member States: Rewe Zentralfinanz eG and Rewe Zentral AG v Landwirtschaftskammer fr das Saarland (Case C 33/76) [1976] E.C.R. 1989. As quoted above, in Interfact the Court of Appeal rejected the argument that, where an appellate court has a discretion to exercise under national procedural law to allow a final judgment to be challenged on appeal, it must exercise that discretion so as to remedy the infringement of EU law. In my judgment, there is no sensible basis upon which it can be said that the time limit under CPR 11(4), which can in an appropriate case be extended under CPR 3.1(2)(a), is contrary to EU law. The time limit satisfies the principle of equivalence because it is the same rule that applies in all cases. It fulfils a legitimate aim, namely making sure that points going to whether the proceedings are to be tried on their substantive merits in England are taken promptly and without unnecessary costs. It satisfies the principle of legal certainty because parties need to know where they stand. The absence of a time limit would allow a litigant to take the point years afterwards. Moreover, the time limit does not render the right to apply for a stay under Article 27 (or Article 28) impossible or excessively difficult to exercise. It allows sufficient time for the point to be raised, especially given the express rule permitting an extension of time in appropriate cases. As to the expression of its own motion in Article 27, there are a number of different parts of the Regulation that have a similar provision. On the facts here the potential for a stay under Article 27 was before the courts on at least two occasions. The position was explained to Judge Mackie QC on the without notice application referred to above. There is no reason to think that he did not give consideration to the position. More importantly perhaps the position was explained to the judge in the skeleton arguments to which I have referred. He was given both reasons and authority on the question whether a stay should be granted under Article 27. It seems to me that the judge was entitled to accept those submissions, which were made on the respondents behalf by experienced counsel and solicitors. For these reasons I would hold that the Court of Appeal should have refused to allow the respondents to rely upon Article 27 in the Court of Appeal. That said, I would accept that the meaning and effect of the duty to consider Article 27 of its own motion are matters of some potential importance and I have (somewhat reluctantly) reached the conclusion that they are not acte clair. I would therefore refer an appropriate question to the CJEU if it were necessary in order to resolve the appeal. If the appellants abandon the claims to the declarations referred to in paras 58 and 59 above, such a reference will not be necessary because, for the reasons given above, I would allow the appeals under Article 27 in their entirety. It seems to me that rather different considerations apply to Article 28 and that the Court of Appeal were entitled to consider Article 28 as part of the appeal from the decision of the judge who had considered it in detail. CONCLUSIONS For these reasons I would invite the CMI and the LMI to consider whether they wish to pursue their claims for declarations (referred to in paras 58 and 59 above) that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled. As Lord Neuberger observes, those are the claims described in para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) above. They should indicate their position within 14 days of this judgment being handed down. If they persist in their claims, some limited questions should be referred to the CJEU as described above. The decision whether to stay those claims would then await the result of the reference, although I would allow the appeal under Article 27 in respect of the other claims. If they abandon them, I would allow all the appeals of both the CMI and the LMI under Article 27. I would in any event dismiss the respondents cross appeal under Article 28 and I would hold that their application for a stay under Article 28 should be refused as a matter of discretion. The parties should make written submissions on the form of order and costs within 21 days of the handing down of this judgment. Finally, I would like to thank all counsel and solicitors for their assistance in this unusual and in some respects difficult case. LORD NEUBERGER Subject to one point, I entirely agree with Lord Clarkes reasoning and conclusions. The one point concerns the issue discussed in paras 44 46 and 58 59 of Lord Clarkes judgment and in Lord Mances judgment. That issue is whether (i) LMIs claim in England for a declaration that the Greek claims have been settled, and (ii) CMIs claim in England for a declaration that the Greek claims were compromised (the English declaration claims, described in para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) of Lord Clarkes judgment) should be stayed under Article 27. In my view, if that issue remains live, it should be referred to the CJEU, as I do not regard it as acte clair. I see the force of Lord Clarkes view that the English declaration claims do not have le mme objet et la mme cause, if one gives that expression a very narrow effect. I also accept that, particularly in the light of the existence of Article 28, there is good reason to give Article 27 a relatively narrow meaning, as Rix J pointed out in Glencore International AG v Shell International Trading and Shipping Co Ltd [1999] 2 Lloyds Rep 692, 697. I also accept that the decisions of the CJEU cited by Lord Clarke at paras 26 28 of his judgment support the contention that Article 27 has a relatively narrow ambit of application. However, it is also important to appreciate that the fundamental purpose of Article 27, as explained by the CJEU, is to ensure that judgments obtained in one member state are enforceable in other member states, and that the consequence of this is that one should avoid mutually inconsistent judgments. The purpose of Article 27 is to help achieve that end. It seems to me that, if the Greek court were to give Starlight and OME judgment for a particular sum in respect of its Greek claims, and the English court were to give judgment in favour of LMI and CMI in the form of a declaration that those very claims have been settled or compromised, the two judgments would be incompatible as a matter of principle and logic. It is not possible for a court to award a claimant damages in respect of a claim which has been compromised with the defendant. To put the point another way, to say that a defendant currently owes a claimant damages in respect of a claim which the defendant has settled or compromised with the claimant involves an illogicality. Accordingly, it seems to me that there is a real case for saying that the English declaration claims should be stayed. The difference between the English declaration claims and CMIs and LMIs claims in England for an indemnity and damages for breach of the settlement agreements (the English indemnity and damages claims, as described in paras 18(a)(1)(iii), (v) and (vi), 18(a)(2)(iii) and (iv) and 18(b)(ii), (iii) and (iv) of Lord Clarkes judgment) may appear to be relatively small, but I believe that there is a crucial distinction, as a result of which it is acte clair that the English damages and indemnity claims do not fall foul of Article 27. The crucial difference is that, if those claims were successful, they could not lead to inconsistent judgments in England and Greece. I accept that, if they were successful, the English indemnity and damages claims could be fairly said to neutralise, at any rate in commercial terms, any benefit to Starlight and OME of a judgment in the Greek claims. However, crucially in my view, success for LMI and CMI in the English indemnity and damages claims would not be logically inconsistent in any way with success for Starlight in the Greek claims. It is not inconsistent (although it is commercially pointless) to say that a defendant is liable to pay a claimant a sum by way of damages, while the claimant is bound to indemnify the defendant in respect of the whole of that sum (or is bound to pay an equivalent sum to the defendant). Indeed, the indemnity is not merely logically consistent with the liability: it is positively meaningless without the liability for damages, and the liability for damages, though rendered nugatory by the indemnity, is not logically inconsistent with the indemnity. LORD MANCE General I am in substantial but not complete agreement with the reasoning and conclusions reached in the course of the judgment prepared by Lord Clarke, although, ultimately, as will appear, we agree on the proper disposition of these appeals. The differences between Lord Clarke and myself relate to the significance and operation of article 27 of the Council Regulation (EC) No 44/2001 (the Brussels Regulation) with regard to the respondents Greek claims. I have no difficulty in agreeing with Lord Clarkes conclusions regarding the English claims made by CMI and LMI for damages for (i) breach of the exclusive jurisdiction clauses in the Settlement Agreements and insurance policies and (ii) indemnity under clauses 3 and 4 of the respective Settlement Agreements. Such claims do not assert that there is no tort liability because of the Settlement Agreements. They assert (i) that the respondents are claiming in the wrong jurisdiction and (ii) that the respondents have agreed to indemnify them in respect of any tort claims (valid or not) by the respondents themselves as well as by others arising from the loss of the vessel. However, I do not accept the reasoning by which Lord Clarke reaches his conclusions with regard to these claims for damages and the further release claims (as Lord Clarke conveniently calls them) which he addresses in paras 40 to 59 of his judgment. This difference becomes important in relation to the first head of the release claims, as I shall show. One strand of Lord Clarkes reasoning is that the English claims based on the Settlement Agreements cannot be the mirror image of the Greek tort claims, because they involve contract and tort claims and cannot constitute the same cause of action: para 34, third sentence, para 41, second and third sentences and para 43, second and last sentences. Another strand is that it is relevant or conclusive that the English and Greek claims do not interfere with each other, and, in particular, that the Greek claims do not impugn the settlement agreements: para 35, first and second sentences and para 37, in its entirety. Neither of these strands of reasoning is in my opinion sustainable, for reasons which I will explain. The release claims The release claims need a little analysis. There are three heads. The first head is summarised by the respondents themselves and by Lord Clarke (para 18(a)) as involving claims for declarations that the Greek claims fall within the terms of the release. But this head is in fact pleaded by LMI as a claim for a declaration that the Greek claims have been settled (application notice, para (1) 1 and 3), while CMI plead that the Greek claims were compromised (particulars of additional claim, para 10) and follow this with a claim for a declaration that the Greek claims fall within clause 2 of the CMI Settlement Agreement (particulars of additional claim, para 27(a)). These are clear statements (right or wrong as they may prove to be) that the Greek claims have been settled or compromised within the terms of the Settlement Agreements. The second and third heads are claims for a declaration that the bringing of the Greek claims was a breach of the release in each of the Settlement Agreements and for damages for such breach. They must stand or fall together. They raise different considerations from the first head. The first head of release claim The English claims that the Greek claims have been settled or were compromised are in my opinion mirror images of the Greek tort claims. The English pleas mean, and can only mean that the English claimants are not liable for the Greek tort claims. The legal effect of these English statements is (under English eyes and, I am confident, European law) that the Greek claims are no more. If an English court were to give a judgment to that effect, and there was no prior Greek judgment or other reason for non recognition, the Greek court ought under the Brussels Regulation to accept it. It cannot make any difference to the application of article 27 that the reason for non liability is a contractual settlement agreement. The only point of enforcing the contract is to show that there are no valid Greek tort claims. The Greek claims aim to enforce tort liabilities. The first head of the English claims aims to establish that there are no such valid tort liabilities, because they have been settled. The Greek and English claims cannot stand together. The concepts used in article 27 (such as cause of action or the concept of same object which one must read into the English text) are autonomous European concepts: Gubisch v Palumbo Case 144/86, [11] and The Tatry Case C 406/92, [47]. In the latter case, the European Court of Justice said that the cause of action comprises the facts and the rule of law relied on as the basis of the action and that the object of the action for the purposes of article [27] means the end the action has in view [39] [41]. An analysis of the cases helps to understand what was meant. Gubisch v Palumbo happened to concern a situation where the mirror image claims were in a general sense contractual. The German claim was for the price of machinery delivered. The later Italian claim by the buyer was, firstly, that there was no liability because he had revoked his offer before it had reached the seller for acceptance strictly, this was not a contractual claim, but a claim that there was no contract and, secondly, that, if there was a contract, his consent was vitiated and the contract should be set aside for mistake or on the ground of the sellers fraud, or, thirdly, that any contract had been discharged on account of the sellers late delivery. Both the question referred and the Court of Justices summary of the facts embraced all three aspects of the Italian claim: see e.g. judgment [2] and [4]. The subsequent reasoning and the answer given refer to mirror image claims, one seeking enforcement, the other seeking rescission or discharge, of a contract: see [13] and [15] and the Courts answer. The Court said [17] that it must be held that the two actions have the same subject matter, for that concept cannot be restricted so as to mean two claims which are entirely identical. The absence of express reference at these points to the first Italian claim (that no contract had ever been concluded) cannot mean that the Court was drawing any distinction between that claim and the other two. On the contrary, the inference is that it saw it as posing no different issue. It could not have made any difference to the Court of Justices conclusions if, instead of or in addition to some or all of the pleas actually made in the Italian proceedings, the Italian claimants had alleged that the contract had been rescinded or discharged under some separate subsequent agreement, whether, for example, by novation or by some compromise relating to the parties past dealings or outstanding issues. Nor, in a situation in which concurrent contract and tort claims are possible (see e.g. Henderson v Merrett Syndicates Ltd [1994] UKHL 5; [1995] 2 AC 145), could it be crucial to the application of article 27 whether the foreign claim was being pursued in contract or tort, when the later English claim asserted a settlement agreement wide enough to cover both. Lord Clarke cites at para 28(iii) a useful encapsulation by Cooke J in JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyds Rep 665, [42], of the meaning of the expression legal rule or rule of law which the Court of Justice used in The Tatry Case C 406/92, [39]. Cooke J suggested that, in investigating cause, it was necessary, after looking at the basic facts, to look at the basic claimed rights and obligations of the parties. Here, the basic claimed rights and obligations of the parties are, in Greece, that the English claimants are liable in tort, and, in England, under the first head which asserts that the Greek claims have been settled, that there is no or no further liability for the Greek claims. The way in which article 27 was applied in The Tatry is also of interest. Having said that the cause of action comprises the facts and the rule of law relied on as the basis of the action [39], the Court of Justice went on: 40 Consequently, an action for a declaration of non liability, such as that brought in the main proceedings in this case by the shipowners, and another action, such as that brought subsequently by the cargo owners on the basis of shipping contracts which are separate but in identical terms, concerning the same cargo transported in bulk and damaged in the same circumstances, have the same cause of action. Here, the English claim that the Greek claims fall within the release and have been settled or compromised concerns, and seeks to negative, the same tort claims as the Greek actions seek to enforce. It can make no difference that the Greek claimants have not sought, pre emptively, to refer to, address or impugn in their Greek claims a possible defence (the Settlement Agreements) that might be raised in the Greek proceedings. One would not expect them to do so, any more than the German claimants in Gubisch v Palumbo addressed or would be expected to address every or any of the multiple arguments that the Italian claimants later deployed. The fact that the English claims do not seek directly to interfere with the Greek claims is also irrelevant. It would anyway be impermissible to claim in England an injunction restraining the Greek proceedings, but, quite apart from that, article 27 and the principle in Gubisch v Palumbo do not depend upon one set of proceedings seeking directly to prevent another. They derive from the principle that Member States must recognise each others judgments, and the aim of avoiding inconsistent judgments. As to the same object, the end which the Greek and English proceedings have in view is the same in each case, to decide the issue of liability for the torts alleged in Greece. That this is what is meant by the same object is clear from both Gubisch v Palumbo and The Tatry. The matter is directly addressed in the latter case in paras 42 to 45: 42 The question accordingly arises whether two actions have the same object when the first seeks a declaration that the plaintiff is not liable for damage as claimed by the defendants, while the second, commenced subsequently by those defendants, seeks on the contrary to have the plaintiff in the first action held liable for causing loss and ordered to pay damages. 43 As to liability, the second action has the same object as the first, since the issue of liability is central to both actions. The fact that the plaintiff's pleadings are couched in negative terms in the first action whereas in the second action they are couched in positive terms by the defendant, who has become plaintiff, does not make the object of the dispute different. 44 As to damages, the pleas in the second action are the natural consequence of those relating to the finding of liability and thus do not alter the principal object of the action. Furthermore, the fact that a party seeks a declaration that he is not liable for loss implies that he disputes any obligation to pay damages. 45 In those circumstances, the answer to the fifth question is that, on a proper construction of Article 21 of the Convention, an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. The reference in [44] to a partys claim for a declaration of non liability implying that it disputes any obligation to pay damages is equally applicable to the present English claims that the Greek tort claims fall within the release or have been settled or compromised. The English claims imply that the Greek claims are disputed. In short, the issue of liability is central to both the Greek and the English proceedings here, as it was to the Dutch and English proceedings in The Tatry. Not merely the same cause of action but also the same object is involved in the present case, as it was in The Tatry. The two sets of proceedings would, if pursued to judgment, lead to judgments which were legally and directly incompatible. It is therefore necessary under article 27 to consider whether it is the Greek or the English courts which fall in this connection to be regarded as first seised. The second and third heads of the release claims The second and third heads are more elusive. Claims for a declaration that the bringing of the Greek claims was a breach, and for damages for the breach, of the release in the Settlement Agreements may on one view be seen as little different from the claims made under the first head. But I have come to the conclusion that this would be wrong. The second and third heads postulate, and for present purposes at least we must accept, that the releases contain some positive continuing promise which the respondents by their Greek claims are now breaching. The terms of the releases were in each case (clause 2 in the case of CMI, clause 3 in the case of LMI) that the respondents would accept underwriters due proportion of the relevant payment in full and final settlement of all and any claims it may have under Policy no. against the Underwriters in relation to the loss of Alexandros T. One must make the assumption, for present purposes, that the Greek tort claims fall within this agreement. The difficulty is that the agreement was performed, in the sense that there was not merely an accord, but an accord and satisfaction. All policy claims were thus not just agreed to be settled, but they actually were settled, and, if and to the extent that that is the nature of the second and third heads of English release claim, they would not in reality differ from the first head. The question therefore arises, what if any outstanding promise could there be left to perform which the second and third heads claim to enforce? I have come to the conclusion that the acceptance of the sums paid in full and final settlement involves, certainly very arguably, a continuing outstanding promise not further to pursue claims of the nature identified in clauses 2 and 3 respectively. Even after the settlement, the pursuit of such claims could cause CMI and LMI loss. Most obviously, such loss could consist in the costs of defending the Greek claims. If they let the Greek proceedings go undefended, it could, subject to issues arising from the potential recognition of any Greek judgment under the Brussels Regulation, include the amount of any judgment awarded against them in the Greek proceedings. Likewise potentially, though subject to additional questions arising from any potential issue estoppel or application of the rule in Henderson v Henderson (1843) 3 Hare 100, even if they unsuccessfully defended the Greek claims. The consequences Accordingly, the second and third heads of release claims, analysed as I have analysed them, are outside the scope of article 27. As regards the first head, the remaining issue is whether the Greek or the English courts fall for the relevant purpose to be regarded as first seised. In so far as the first head of release claims was added into the pre existing English proceedings by an amendment made after the Greek proceedings were begun, is it to be viewed discretely as a new claim of which the English court is second seised? Or does it fall to be viewed as part, by amendment, of a single set of English proceedings commenced well before any Greek proceedings? I agree with Lord Clarke at para 60 that a court is only seised of claims by or against new parties from the date that those parties are added to the proceedings. In relation to the 2006 proceedings, the English court was only seised of claims against OME once OME was joined to the proceedings on 20 September 2011 and, as against OME therefore, the English courts were only seised of the first head of release claims made by CMI and LMI in 2011. Since the first head of release claims is in my opinion the mirror image of the Greek tort claims, article 27 must, on that basis, apply to preclude the pursuit of the first head of release claims as against OME in England. The respondents submit that article 27 also applies to preclude the pursuit in the English proceedings of the first head of claim against Starlight, which was party to the English proceedings from their outset. The Court of Appeal accepted this submission. CMI and LMI challenge it. Lord Clarke has in his paras 61 to 71 set out and discussed the respective submissions. To my mind, the sense of the Regulation as well as the case law and the academic guidance all point in one direction. The chronological priority contemplated by the Regulation cannot be gained, or subverted, by the addition by amendment of a new claim in proceedings otherwise second brought (any more than it can be affected by the addition of new claimants or defendants, as Lord Clarke accepts: para 60). To the authorities under the current Regulation to which Lord Clarke refers, I would only add that similar thinking is to be found under the predecessor provisions of Article 21 and 22 of the Brussels Convention in the decisions at both levels in Grupo Torras SA v Shekh Fahad Al Sabah [1995] 1 Lloyds Rep 374, 418 419 (Mance J) and [1996] 1 Lloyds Rep 7, 24 (CA). Conclusion It follows that the conclusions I would reach, were all the issues to be finally decided now, would be that: The first head of English release claims would be precluded under i) article 27, having regard to what I conclude are in this respect the prior Greek claims. ii) All the remaining heads are outside the scope of article 27 and are permissible. It is however necessary to consider whether these conclusions are founded on principles of European law which are so clear that no reference to the Court of Justice is required. A reference to the Court of Justice In relation to the conclusion expressed in para 161ii, we are all in agreement in our conclusions. Any differences in reasoning regarding article 27 are irrelevant, and no reference is necessary. As to para 161i, Lord Clarke would reach the opposite conclusion to that which I have expressed and he considers in the light of my judgment that a reference is called for, if the English appellants persist in their first head of release claims. With the latter view I agree. The differences between Lord Clarkes and my reasoning are not, I believe, simple differences regarding the application to facts of clear principles of European law. I might by myself have thought that all the relevant principles of European law were clear, but I certainly do not dissent from the proposition that the differences, being material to our respective conclusions, require a reference. If the appellants wish to persist in, rather than abandon, the first head of release claims, there should accordingly be a reference as Lord Clarke suggests. Ultimately, therefore, although by different reasoning, Lord Clarke and I arrive at the same conclusions regarding the appropriate disposition of these appeals.

UK-Abs

On 3 May 2006, the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth with considerable loss of life. Her owners were Starlight Shipping Company (Starlight). Starlight made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of Starlight. In response, Starlight made a number of serious allegations against their insurers including allegations of misconduct involving tampering with and bribing of witnesses. On 15 August 2006, Starlight issued proceedings in the Commercial Court against various insurers (the 2006 proceedings). One group of insurers was described as the Company Market Insurers (CMI) and the other group was described as the Lloyds Market Insurers (LMI). Before the hearing, the 2006 proceedings were settled between Starlight and the insurers and the proceedings were stayed by way of a Tomlin Order. In April 2011, nine sets of Greek proceedings, in materially identical form, were issued by Starlight although they were expressed as torts actionable in Greece. The insurers sought to enforce the earlier settlement agreements. Starlight applied for a stay of these proceedings, firstly pursuant to Article 28 then Article 27 of Council Regulation (EC) No 44/2001 (the Regulation) The judge refused to grant a stay under Article 28 and gave summary judgment to the insurers. The Court of Appeal held that it was bound to stay the 2006 proceedings under Article 27, which provides for a mandatory stay, and it was not therefore necessary to reach a final determination of the position under Article 28. Before the Supreme Court, the insurers challenge the correctness of the Court of Appeals conclusion under Article 27 and submit that the judge was correct to refuse a stay under Article 28. Starlight cross appeal on the Article 28 point. Subject to the possibility of a reference to the CJEU on some limited questions, the Supreme Court unanimously allows the CMIs and LMIs appeal. Lord Clarke gives the lead judgment, with which Lord Sumption and Lord Hughes agree. Lord Neuberger agrees adding a short judgment of his own. Lord Mance agrees with the result. Article 27 Article 27 must be construed in its context. The purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State [23, 27]. In the case of each cause of action relied upon, it is necessary to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded [29]. The essential question is whether the claims in England and Greece are mirror images of each other and thus legally irreconcilable [30]. There are three heads of claim in England: indemnity, exclusive jurisdiction and release [32]. None of the causes of action relied upon in the Greek proceedings has identity of cause or identity of object with the CMIs claim for an indemnity. The subject matter of the claims is different. The Greek proceedings are claims in tort (or its Greek equivalent) and the claims in England are claims in contract. As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability and to claim damages for breach of the exclusive jurisdiction clauses [34]. The same is true of the CMIs claims in respect of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies [36]. The causes of action based upon an alleged breach of the settlement agreement are not the same causes of action as are advanced in Greece [37]. The same is also true of the claims based on the release provisions in the CMI settlement agreement [40]. The Greek claims are claims in tort and the English proceedings are contractual claims. The factual bases for the two claims are entirely different. Moreover, the object of the two claims is different [41]. The Supreme Court is unanimous that that is the position with regard to the claims for damages for breach of the release provisions in the settlement agreements. However, in so far as the insurers claim declarations, while the majority reaches the same conclusion, Lord Mance reaches a different conclusion on the basis that the claims for declarations in the two jurisdictions are mirror images of each other. The court unanimously decides that, unless the insurers abandon those claims for declarations, the relevant question should be referred to the CJEU for an opinion [59]. In the event, the CMI have now abandoned their claims for declarations based on the release provisions and it is not necessary to refer the question to the CJEU. It follows that the CMIs appeals under Article 27 are allowed. The position of the LMI is essentially the same as in the case of the CMI [55]. If the LMI do the same within the time permitted, their appeals will also be allowed under Article 27. A similar position has been reached in respect of LMIs submission that the appeals under Article 27 should have been rejected by the Court of Appeal as being too late [123]. Article 28 The discretion to stay claims under Article 28 is limited to any court other than the court first seised [74]. On the assumption that the English court is second seised for the purposes of Article 28, the question arises whether the actions should be stayed as a matter of discretion [91]. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay [92]. However, the natural court to consider the issues raised by CMI and LMI is the High Court in England because they raise contractual questions governed by English law and because it is at least arguable that the parties have agreed that they should be decided by the High Court, where the proceedings are more advanced than in Greece [96]. The decision of the judge in refusing a stay under Article 28 is upheld and the cross appeal is dismissed [97, 125].

This is a remarkable case in more than one respect. The appeal depends upon whether the Court is bound to stay action 2006 Folio 815 (the 2006 proceedings) under Article 27 of Regulation 44/2001 of the Council of the European Union (the Regulation) and, if not, whether it should do so under Article 28. Before Burton J (the judge), the respondents expressly disclaimed any intention to rely upon Article 27 but relied upon Article 28 in support of a submission that the court should stay the 2006 proceedings in favour of proceedings in Greece. The judge refused to grant a stay and gave summary judgment for the appellants against the respondents. The judge granted the respondents permission to appeal to the Court of Appeal on various grounds, including a ground based on Article 27. The Court of Appeal (Longmore, Toulson and Rimer LJJ) held that it was bound to stay the action under Article 27. It also gave some consideration to Article 28 but held that it was not necessary to reach a final conclusion in that regard because of its decision under Article 27. It declined to consider the issues relevant to summary judgment on the ground that, if there was to be a stay, those issues should be determined by the courts in Greece. The facts and the 2006 proceedings I can take the relevant events from the judgment of Longmore LJ in the Court of Appeal. He in turn took them from the judgment of the judge. On 3 May 2006 the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth, with considerable loss of life. Her owners were Starlight Shipping Company (Starlight). They made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of the assured, namely Starlight. The insurers also said that Starlight had failed properly to report and repair damage to the vessel in accordance with Class Rules. Starlight, through their solicitors Messrs Ince & Co, made a number of serious allegations against the insurers which fell into two categories, as summarised by Longmore LJ at para 4: (1) allegations of misconduct by the insurers and their underwriters involving alleged tampering with and bribing of witnesses, in particular the bosun, a Mr Miranda, to give false evidence, coupled with other allegations of spreading false and malicious rumours (described for some reason as malicious scuttlebutt) against Starlight in the course of purported investigation of their claims; and (2) deliberate failure by the insurers to pay up under the policy, said to have had consequential financial impact upon Starlight, and to have led to substantial recoverable loss and damage. The insurers also relied upon material non disclosure. Those allegations were made before the issue of proceedings and, in particular, in a letter dated 18 July 2006 from Ince & Co to the insurers solicitors, who were Hill Dickinson LLP, then Hill Taylor Dickinson, whom I will together call HD. On 15 August 2006 Starlight issued the 2006 proceedings in the Commercial Court against various insurers. The first four defendants have been described as the Company Market Insurers (CMI) and the fifth to seventh defendants as the Lloyds Market Insurers (LMI). The policies issued by both the CMI and the LMI contained exclusive jurisdiction clauses. They provided for English law and each party expressly agreed to submit to the exclusive jurisdiction of the Courts of England and Wales. Overseas Marine Enterprises Inc (OME) were identified in the policies as managers. In paras 5 to 8 of his judgment Longmore LJ spelled out in some detail issues between the parties in the 2006 proceedings. It is plain that the points raised by Ince & Co to which I have referred were both pleaded and central to the issues between the parties in those proceedings. Thus, in para 7 Longmore LJ referred to a witness statement in which Mr Crampton of Lax & Co, who were now acting for Starlight, asserted that the allegations made by the insurers in defence of the claim were based on false evidence which they had obtained from the bosun. He also relied upon significant payments said to have been made to the bosun on behalf of the insurers in this connection. In addition, a witness statement was introduced in support of a proposed amendment of the claim form alleging that Starlight had sustained losses beyond the measure of indemnity in the relevant policy. It was alleged that, but for the failure of the insurers to pay under the policy, Starlight would have purchased a replacement vessel and had lost between US$ 45 million and US$ 47.7 million by way of increased capital cost and chartering losses. However, on 14 December 2007, Tomlinson J refused to allow the amendment on the basis of the decision of the Court of Appeal in Sprung v Royal Insurance [1999] Lloyds Rep IR 111, approving the decision in The Italia Express (no. 2) [1992] 2 Lloyds Rep 281. As Longmore LJ explained in para 1, as a matter of English law, an insurer commits no breach of contract or duty sounding in damages for failure promptly to pay an insurance claim.1 The law deems interest on sums due under a policy to be adequate compensation for late payment; this is so, even if an insurer deliberately 1 Toulson LJ noted at paras 74 and 75 that the present state of English law was criticised by the Law Commission and the Scottish Law Commission in para 2.87 of a joint consultation paper on Insurance Law; Post Contract Duties (LCCP201/SLCDP152) published on 20 December 2011. The Commissions have provisionally proposed that the law should be reformed. withholds sums which he knows to be due under a policy. If parties agree that English law is to apply to a policy of insurance, this principle is part of what they have agreed. English law, moreover, gives no separate contractual remedy to an insured who complains that an insurer has misconducted himself before settling a claim. In either case the remedy of the insured is to sue the insurer and, if no settlement is forthcoming, proceed to judgment. The trial was fixed for 14 January 2008. The settlements On 13 December 2007, which was the day before the hearing before Tomlinson J referred to above, the 2006 proceedings had been settled between Starlight and OME and the LMI for 100% of the claim, but without interest and costs, in full and final satisfaction of the claim. It was a term of the settlement agreement that Starlight would obtain a stay by way of a Tomlin Order, and a Tomlin Order by consent between Starlight and the LMI was accordingly made on 20 December 2007, backdated to 14 December, in these terms: Save for the purposes of carrying into effect the terms agreed between the Claimant and the Fifth to Seventh Defendants, all further proceedings between the Claimant and the Fifth to Seventh Defendants shall be stayed with effect from 14 December 2007 or such earlier date as may be agreed between the parties or otherwise ordered hereafter. A similar settlement agreement dated 3 January 2008 was made between Starlight and OME and the CMI and a similar Tomlin Order was made on 7 January 2008, but with immediate effect. In each settlement agreement the Assured were defined as being [OME] and Starlight as Managers and/or Owners and/or Associated and/or Affiliated Companies for their respective right and interest in the ship Alexandros T. The CMI settlement agreement then provided: 1. Each Underwriter agrees to pay on or before 18 January 2008 their due proportions of the sum of US$16m being 100% of their due proportions of the sum insured being 50% of the US$32m without interest or costs. 2. The Assured and Claimant agree to accept the EURO equivalent of each Underwriters due proportion of US$16m in full and final settlement of all and any claims it may have under Policy No 302/CF 000220Z against the Underwriters in relation to the loss of Alexandros T, including all claims for interest and costs (including in respect of all costs orders made to date in the proceedings) but without effect to any other insurance policy in which each Underwriter may be involved. 3. The Assured and Claimant agree to Indemnify each Underwriter against any claim that might be brought against it by any of the Assureds or the Claimant's associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under Policy No 302/CF000220Z. 4. Following the signing of this agreement, and in consideration of the promises herein, the Claimant and the Underwriters will apply to stay the Proceedings as against the Underwriters, the Proceedings to be stayed for all purposes save for the purposes [of] carrying the terms agreed herein into effect, such stay to have effect from the first obtainable date after 27 December 2007 5. Following the due and proper payment by the Underwriters of the amount specified in paragraph 1 above, the Assured and Claimant and the Underwriters agree to file a consent order dismissing the Proceedings, with no order as to costs. 6. This agreement is subject to English law and to the exclusive jurisdiction of the High Court in London. 2. The underwriters agree to pay on or before 24 December 2007 the sum of US$8M being 100% of their due proportions of the sum insured being 25% of US$32m without interest or costs 3. The Assured and claimant agree to accept the EURO equivalent of US$8M in full and final settlement of all and any claims it may have under Policy No against the Underwriters signing below in relation to the loss of Alexandros T 4. The Assured and Claimant agree to indemnify the underwriters signing below against any claim that might be brought against them by any of the Assureds or the Claimant's associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under Policy The LMI settlement agreement provided in similar but not identical terms: 5. This agreement is subject to English law and the jurisdiction of the High Court of London. The Greek proceedings After setting out the terms of the settlement agreements, Longmore LJ wryly observed at the end of para 12 of his judgment that one might have expected that to be that, but it was not to be. He described what then happened in paras 13 to 15. More than three years later, in April 2011, nine sets of Greek proceedings, in materially identical form, (Greece 1), were issued by Starlight, by OME, by their co assureds under an associated Fleet Policy and by individual officers of those companies, against the LMI and the CMI, some of their employees or underwriters, and HD and some of their partners and employees (the HD defendants). The claims are for compensation for loss of hire and loss of opportunity by Starlight totalling approximately US$ 150 million and for pecuniary compensation due to moral damage amounting to 1 million. The claims also include similarly substantial claims by the other claimants in respect of alleged acts, all done unlawfully and in breach of good faith for the alleged purpose of avoiding the performance by the defendants of their legal obligations. All the claims rely upon breaches of the Greek Civil and Criminal Code. However the factual allegations, which Longmore LJ noted had been said by the judge to be entirely familiar, include the allegation that the appellants were responsible for using false affidavits of witnesses (primarily Mr Miranda) with intention to harm the claimants, described thus by Mr Crampton in a statement summarising the Greek claims: The underwriters pursued this criminal effect by intentionally fabricating false evidence with the purpose that the underwriters (who were responsible for the payment of insurance indemnity for the vessel) avoid paying this insurance indemnity, contrary to their contractual obligations and their legal obligations and in particular contrary to the provisions of the insurance contract, providing for the timely payment of the insurance indemnity. They also include the claim that the appellants were asserting and disseminating false information to third parties, although they were aware of their falsity, damaging the claimants reputation and credibility with the purpose that the underwriters (who were responsible for the payments of the insurance indemnity for the vessel) avoid paying the insurance indemnity, contrary to their contractual obligation and their legal obligation and in particular contrary to provisions of the insurance contract providing for the timely payment of the insurance indemnity Mr Crampton then turned to what he called the [i]ntentional fabrication of false evidence for defrauding the English court and [t]he moral instigation alternatively complicity of the underwriters to perjury and on the defrauding of the court by the underwriters. He summarised the position in this way in paragraph 20 of his witness statement: The essence of the complaint against the Defendants in the Greek proceedings concerns the allegation that the Defendants obtained false evidence in Greece from the bosun of the Alexandros T, Aljess Miranda This evidence was then deployed in these proceedings in England and also in the Greek proceedings. There is a substantial section of the Greek pleadings relating to the financial consequences of the failure by the insurers to comply with their obligations under the policy and the way in which they allegedly handled the investigations. In a further set of proceedings, known as Greece 2, two additional heads of loss are claimed by Starlight and OME, arising out of substantially the same allegations. As Longmore LJ put it in para 15, in apparent recognition of the problem raised by the fact that such claims had either not been brought in England or had been ruled out as a matter of English law by Tomlinson J, Mr Crampton, in paragraph 27 of his witness statement, explained that the claims are advanced in two ways in the Greek pleadings: first, that as a result of the underwriters intention to avoid payment of the insurance indemnity, eventually resulting in late payment of the policy proceeds, the claimants missed the opportunity to use the policy proceeds to invest in three vessels (not just the one referred to in the 2006 proceedings); and, secondly, that, as a result of the defendants actions in acquiring the false evidence of Mr Miranda, his clients were not able to insure the vessels and without insurance they would not have been able to trade them and could not purchase them. He stated that his clients would amend their pleadings prior to the hearing of the disputes in Greece so as to clarify this head of claim, such that no claim is made in respect of the late payment of the policy proceeds. The expert evidence from the defendants is that it is not possible to amend the pleadings in the Greek courts, but, treating the proposed draft amendment, which he exhibited, as a clarification, it did not seem to the judge that it in any way cured the defect, if defect there was. It is further said that the insurance of the three potential new vessels was rendered impossible, since all the London insurers refused to quote for the vessels because of the refusal of the defendant underwriters to quote for them and because of the defamatory accusations spread as to the unseaworthiness of the Alexandros T. All these allegations arise out of the alleged manner in which the defendants handled Starlight's claim in respect of the Alexandros T, and, even though the consequences and the consequential losses have expanded, and the claim for moral damages has been included, and although it seems that Starlight now rely on an expanded affidavit of Mr Miranda, the allegations, even though put into the context of Greek law, were said by the judge to be materially identical to those made prior to the settlement agreement. The acts complained of are all said to have constituted delicts under Greek law akin to the torts of defamation and malicious falsehood under English law. The present position Since the issue of the Greek proceedings, as Longmore LJ explained in para 16 (and the judge at his para 14), the insurers have taken further steps and brought further proceedings in England as follows. By applications issued in the 2006 proceedings on 25 July and 3 August 2011, the CMI and the LMI respectively sought, pursuant to the Tomlin Orders (if necessary after lifting the stay imposed by them) summary relief pursuant to CPR Part 24 by way of declarations and damages against Starlight. The LMI, because permission was given to them to join OME as a third party, also sought summary relief pursuant to Part 24 against OME (which filed an acknowledgment of service and a defence) to enforce the LMI settlement agreement, to which it also was a party. In addition, fresh proceedings (2011 Folio 702) were commenced by the LMI, without prejudice to their case that sufficient relief could and would be obtained in the 2006 proceedings, against both Starlight and OME, and, after an acknowledgment of service and defence were filed, an application was made under Part 24 for similar relief to the claim in the 2006 proceedings. The LMI also brought fresh proceedings (2011 Folio 1043) against Starlight's co assured and, again after acknowledgments of service and defence had been filed, sought declaratory relief and damages for breach of the exclusive jurisdiction clause in their insurance policies, by virtue of the issue of the Greek proceedings by those co assured. Also in fresh proceedings (2011 Folio 894), the CMI brought claims against OME and the same co assured in respect of similar claims for breach of the exclusive jurisdiction clause in the policy, and in respect of OME by reference to breach of the terms of the settlement agreement. Judgment in default was entered by the CMI against all those defendants on 26 October (amended on 14 November) 2011. Those proceedings are not the subject of this appeal and no issue therefore currently arises with respect to them. Finally, and by separate application, the HD defendants were joined as defendants in the 2006 proceedings so that, in due course, they too might be able In summary, the claims made in the various proceedings are these. to claim relief by seeking declaratory relief within the original proceedings. Starlight and their associates applied to stay both the 2006 proceedings in their current form and 2011 Folios 702 and 1043. (a) The 2006 proceedings. (1) The CMI claim against Starlight and, through Part 20 proceedings, against OME (i) a declaration that the Greek claims fall within the terms of the release in the CMI settlement agreement; (ii) a declaration that the bringing of the Greek claims was a breach of the release in the settlement agreement; (iii) damages for breach of the release in the settlement agreement; (iv) a declaration that the bringing of the Greek claims was a breach of the jurisdiction clauses in the settlement agreement and the policies; (v) damages for breach of the jurisdiction clauses in the policies and CMI settlement agreement; and (vi) an indemnity under clause 3 of that agreement in respect of claims brought by Starlight and/or its associated companies in the various Greek proceedings; (2) the LMI claim against Starlight (i) declarations that the LMI settlement agreement settles any claim against them by Starlight in respect of the loss of the Alexandros T and covers Starlights claims in the Greek proceedings (para 3); (ii) a declaration that Starlight is in breach of that agreement in bringing the Greek proceedings; (iii) damages for breach of the settlement agreement; and (iv) a declaration that the agreement entitles the LMI to an indemnity against Starlight in respect of the matters covered by the indemnity, which includes all claims by Starlight and its associated companies in the Greek proceedings; and (3) the LMI claims against OME by Part 20 proceedings: (i) like relief to that which the LMI claim against Starlight, as summarised above; and possibly (ii) damages for breach of the exclusive jurisdiction clause in the policy, although this claim is not repeated among the prayers. (b) Action 2011 Folio 702. The LMI claim against Starlight and OME: (i) declarations that the LMI settlement agreement settles any claim against them by Starlight and/or OME in respect of the loss of the Alexandros T and covers Starlights and/or OMEs claims in the Greek proceedings; (ii) damages for breach of that agreement; (iii) damages for breach of the jurisdiction clause in the policy; and (iv) damages for breach of the jurisdiction clause in the settlement agreement. (c) Action 2011 Folio 1043. The LMI claim against five of Starlights co assureds for breach of their policy jurisdiction clauses. The decisions of the judge and the Court of Appeal The insurers sought to enforce the settlement agreements referred to in the Tomlin Orders and, in a judgment handed down on 19 December 2011, having refused a stay under Article 28, the judge held that they were entitled to summary judgment for (inter alia) a declaration that the matters sought to be raised in Greece were part of the settlement of the claim and that Starlight (and OME) are bound to indemnify the insurers against any costs incurred and any sums that may be adjudged against them in the Greek proceedings. As stated above, the Court of Appeal held that it was bound to stay the 2006 proceedings and 2011 Folio 702 and 1043 under Article 27, made no final determination of the position under Article 28 and declined to consider the issues of summary judgment. The Court of Appeal also held that it was not too late for the respondents to rely upon Article 27 or Article 28. The issues In this Court the appellants challenge the correctness of the Court of Appeals conclusion under Article 27 and, on the respondents cross appeal, submit that the judge was correct to refuse a stay under Article 28. If the appellants succeed under both articles, the case will have to be remitted to the Court of Appeal to consider the respondents appeal from the summary judgment granted by the judge. Article 27 The questions for decision under Article 27 are whether, in the events which happened, the Court of Appeal was wrong to hold that it was not too late for the respondents to rely upon Article 27, whether the proceedings in Greece and the proceedings in England involve the same cause of action, whether they are between the same parties and which court was the court first seised. For reasons which will appear, I will defer consideration of the too late point until after consideration of the other issues. Article 27 must be construed in its context. The immediate context of Articles 27 and 28 is that they form part of Section 9 of Chapter II of the Regulation, which must be read in the light of Recitals 2 and 15 of the preamble. It is apparent from Recital 2 that the Regulation aims, in the interests of the proper functioning of the internal market, to put in place: Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation. Recital 15 provides: In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. There must be a clear and effective mechanism for resolving cases of lis pendens and related actions and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation that time should be defined autonomously. The mechanism referred to in Recital 15 is provided by Section 9 of Chapter II of the Regulation, which includes Articles 27 and 28: Section 9 Lis pendens related actions Article 27 1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 28 1. Where related actions are pending in the courts of different member states, any court other than the court first seised may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Article 29 Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 30 For the purposes of this Section, a court shall be deemed to be seised: 1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or 2. if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court." The Regulation is the successor to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the Brussels Convention), in which the equivalent provisions to Articles 27 and 28 were Articles 21 and 22 respectively. The Court of Justice of the European Union (the CJEU) has held that the principles developed in its case law with regard to Articles 21 and 22 of the Brussels Convention apply equally to Articles 27 and 28 of the Regulation: see Folien Fischer AG v Ritrama SpA (Case C 133/11) [2013] QB 523 at paras 31 and 32. The CJEU was of course previously the European Court of Justice (ECJ). Although some of the decisions to which I refer were made by the ECJ, for simplicity I will refer to all the European decisions as those of the CJEU. The CJEU has laid down a number of general principles which are of some importance. They include the important principle that a court in a Member State must not grant an anti suit injunction to restrain the bringing or continuing of proceedings in another Member State, whether to restrain an abuse of process or to restrain proceedings brought or continued in breach of an exclusive jurisdiction clause: see eg Turner v Grovit (Case C 159/02) [2005] 1 AC 101 and West Tankers Inc v Allianz SpA (The Front Comor) (Case C 185/07) [2009] 1 AC 1138. They also include the following, with specific reference to Articles 27 and First, the purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State: Gubisch Maschinenfabrik KG v Palumbo (Case C 144/86) [1987] ECR 4861 at para 8. Second, the objective of Article 28 is to improve co ordination of the exercise of judicial functions within the European Union and to avoid conflicting and contradictory decisions, thus facilitating the proper administration of justice: see eg The Tatry (Case C 406/92) [1999] QB 515 at paras 32, 52 and 55 and Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32, per Lord Saville at 39F H. The CMI claims: same causes of action? 28. It is convenient to consider first the position of the CMI claims. The first specific question is whether the 2006 proceedings involve the same cause or causes of action as the Greek proceedings, by which I mean Greece 1 and Greece 2. The principles of EU law which are relevant to the determination of this question are in my opinion clear. They have been considered in a number of cases in the CJEU and are essentially as submitted on behalf of the CMI. They may be summarised in this way. i) ii) iii) iv) The phrase "same cause of action" in Article 27 has an independent and autonomous meaning as a matter of European law; it is therefore not to be interpreted according to the criteria of national law: see Gubisch at para 11. In order for proceedings to involve the same cause of action they must have "le mme objet et la mme cause". This expression derives from the French version of the text. It is not reflected expressly in the English or German texts but the CJEU has held that it applies generally: see Gubisch at para 14, The Tatry at para 38 and Underwriting Members of Lloyds Syndicate 980 v Sinco SA [2009] Lloyd's Rep IR 365, per Beatson J at para 24. Identity of cause means that the proceedings in each jurisdiction must have the same facts and rules of law relied upon as the basis for the action: see The Tatry at para 39. As Cooke J correctly stated in JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyd's Rep 665 at para 42, The expression 'legal rule' or 'rule of law' appears to mean the juridical basis upon which arguments as to the facts will take place so that, in investigating 'cause' the court looks to the basic facts (whether in dispute or not) and the basic claimed rights and obligations of the parties to see if there is co incidence between them in the actions in different countries, making due allowance for the specific form that proceedings may take in one national court with different classifications of rights and obligations from those in a different national court. Identity of objet means that the proceedings in each jurisdiction must have the same end in view: see The Tatry at para 41, Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV (Case C 111/01) [2003] ECR I 4207 at para 25, Primacom at para 42 and Sinco at para 24. v) The assessment of identity of cause and identity of object is to be made by reference only to the claims in each action and not to the defences to those claims: see Gantner at paras 24 32, where the CJEU said this in relation to Article 21 of the Brussels Convention: . in order to determine whether two claims brought between the same parties before the courts of different Contracting States have the same subject matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant. See also to similar effect Kolden Holdings Ltd v Rodette Commerce Ltd [2008] 1 Lloyd's Rep 434, per Lawrence Collins LJ at para 93 and Research in Motion UK Ltd v Visto Corporation [2008] 2 All ER (Comm) 560, per Mummery LJ at para 36. vi) It follows that Article 27 is not engaged merely by virtue of the fact that common issues might arise in both sets of proceedings. I would accept the submission on behalf of the CMI that this is an important point of distinction between Articles 27 and 28. Under Article 28 it is actions rather than claims that are compared in order to determine whether they are related. vii) After discussing Gubisch, The Tatry, Sarrio, The Happy Fellow [1998] 1 Lloyds Rep 13 and Haji Ioannou v Frangos [1999] 2 Lloyds Rep 337, Rix J summarised the position clearly and, in my opinion, accurately in Glencore International AG v Shell International Trading and Shipping Co Ltd [1999] 2 Lloyds Rep 692 at 697: It would appear from these five cases, of which the first two were in the European Court of Justice, and the latter three in the domestic Courts of England, that, broadly speaking, the triple requirement of same parties, same cause and same objet entails that it is only in relatively straightforward situations that art 21 bites, and, it may be said, is intended to bite. After all, art 22 is available, with its more flexible discretionary power to stay, in the case of related proceedings which need not involve the triple requirement of art 21. There is no need, therefore, as it seems to me, to strain to fit a case into art 21. The European Court, when speaking in Gubisch (at para 8) of the purpose, in the interests of the proper administration of justice within the European Community, of preventing parallel proceedings in different jurisdictions and of avoiding in so far as it is possible and from the outset the possibility of irreconcilable decisions, was addressing arts 21 and 22 together, rather than art 21 by itself. Thus a prime example of a case within art 21 is of course where party A brings the same claim against party B in two jurisdictions. Such a case raises no problem. More commonly, perhaps, the same dispute is raised in two jurisdictions when party A sues party B to assert liability in one jurisdiction, and party B sues party A in another jurisdiction to deny liability, or vice versa. In such situations, the respective claims of parties A and B naturally differ, but the issue between them is essentially the same. The two claims are essentially mirror images of one another. Gubisch and The [Tatry] are good examples of this occurrence. On the other hand, Sarrio v KIA is a case where the same claimant was suing the same defendant on different bases giving rise to different issues and different financial consequences, and where liability on one claim did not involve liability (or non liability) on the other. Haji Ioannou v Frangos illustrates the situation where even though the cause is the same, and even though there is some overlap in the claims and issues, nevertheless different claims, there the proprietary claim to trace, may raise sufficiently different issues of sufficient importance in the overall litigation for it to be concluded that the objet differs. The authority of The Happy Fellow at first instance may be somewhat shaken by the reservations expressed by Lord Justice Saville on appeal, but it too may be said to illustrate the process of analysing the claims and issues in the respective proceedings to identify whether they are the same. Where, for instance, there is no dispute over a shipowners right to limit should he be found liable (a separate question, which need not even be resolved at the time when a limitation action is commenced or a decree given), I do not for myself see why it should be held that the liability action and the limitation action involve the same cause of action for the purposes of art 21. How do these principles provide an answer to the question whether the 2006 proceedings involve the same cause or causes of action as the Greek proceedings? It is necessary to consider the claims advanced by the CMI and the LMI separately and, in the case of each cause of action relied upon, to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded. The essential question is whether the claims in England and Greece are mirror images of one another, and thus legally irreconcilable, as in Gubish and The Tatry, in which case Article 27 applies, or whether they are not incompatible, as in Gantner, in which case it does not. Thus in Gantner a claim for damages for repudiation of a contract and a claim for the price of goods delivered before the repudiation could both have succeeded and the fact that a set off of the damages would make the price less beneficial to the seller did not make them incompatible. And in Maersk Olie & Gas A/S v Firma M de Haan en W De Boer (Case C 39/02) [2004] ECR I 9657 owners of a vessel which damaged a pipeline (owned by Maersk) sought a declaration that they were entitled to limit their liability under the 1957 International Convention relating to the Limitation of Liability of Owners of Sea going Ships and the Dutch legislation that gave effect to it and that a limitation fund be established. Maersk subsequently commenced proceedings in Denmark claiming compensation for damage to the pipeline. The CJEU held that the causes of action were not the same: see paras 35 to 39. The CJEU underlined both the principle in Gantner that account should be taken only of the claims and not of the defences advanced and the principle in The Tatry that the cause of action comprised both the facts and the legal rule invoked as the basis of the application. It held on the facts, at para 38, that: the unavoidable conclusion is that, even if it be assumed that the facts underlying the two sets of proceedings are identical, the legal rule which forms the basis of each of those applications is different. The action for damages is based on the law governing non contractual liability, whereas the application for the establishment of a liability limitation fund is based on the 1957 Convention and the Netherlands legislation which gives effect to it. The CJEU thus distinguished Gantner and The Tatry on the basis that in those cases, by contrast, the claim brought in the second set of proceedings mirrored that brought in the first set. What then is the position on the facts? The CMI advance the claims referred to in para 18 above under three heads, each of which relies upon provisions either of the CMI settlement agreement or the policies. It is convenient to consider the claims under the three heads in this order: indemnity, exclusive jurisdiction and release. Indemnity claims These are based on clause 3 of the settlement agreement set out above. The claims are simple. By clause 3 the Assured as defined agreed to indemnify the CMI against any claim that might be brought against them by any of the Assureds or the Claimants associated companies or organisations or by any mortgagee in relation to the loss of Alexandros T or under the relevant policy. The CMI say that the Greek proceedings are in respect of such claims and that they are entitled to be indemnified against the consequences of those proceedings. They say that that claim under clause 3 does not give rise to the same claim or cause of action as any claim or cause of action in the Greek proceedings. They say that, on the contrary, it assumes that the Greek proceedings will proceed and that the claimants in Greece may succeed. I would accept that submission. In my opinion, none of the causes of action relied upon in the Greek proceedings has identity of cause or identity of object with the CMIs claim for an indemnity. As to cause, the subject matter of the two claims is different. The former are claims in tort (or its Greek equivalent) and the claim for an indemnity is a claim in contract. As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas, as for example in the case of a claim on an insurance policy, the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability. Further, whereas Starlight and its co assureds and the individual officer claimants in the Greek proceedings are seeking each to recover its or his own loss, the indemnity clause will, if the indemnity claim is otherwise good, entitle the CMI to recover from Starlight not just any sum awarded in Greece to Starlight, but also any sums awarded to any of Starlights co claimants. So the object of the English indemnity claim against Starlight differs from, and is in fact much wider than, the object of Starlights claim in the Greek proceedings. Moreover, the claim for an indemnity in the 2006 proceedings in England does not interfere in any way with the Greek proceedings or vice versa. There is no attempt in Greece to impugn the settlement agreements or the indemnity agreements contained in them. The respondents do not assert, for example, that the indemnities do not apply to some or all of the Greek claims. I would determine this point in favour of the CMI on this simple basis. The CMIs cause of action for an indemnity under clause 3 of the settlement agreement is not the same cause of action as any of the causes of action relied upon in Greece, which are tortious. The respective causes of action have neither the same object (le mme objet) nor the same cause (la mme cause). Exclusive jurisdiction clauses The same is in my opinion true of the CMIs claims that the respondents have brought the proceedings in Greece in breach of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies. Clause 6 of the settlement agreement expressly provides that it is subject to English law and the exclusive jurisdiction of the High Court in London. The CMI say that, in bringing the Greek proceedings, the respondents are in breach of clause 6 and that they are entitled to damages as a result. They do not seek an anti suit injunction to restrain the Greek proceedings. They simply seek a declaration that the claims brought by Starlight and OME in Greece 1 and Greece 2 fall within the scope of the settlement agreement. Moreover the respondents do not assert in the Greek proceedings that the settlement agreements do not preclude the bringing of their claims in Greece. It may be that the reason they do not advance that argument is that they would be met with the response that a dispute as to the meaning and effect of the settlement agreements is subject to the English jurisdiction clause so that the court in Greece would have to decline jurisdiction. However that may be, they do not in fact advance the argument. It follows that in this respect too the Greek proceedings are not the mirror image of the English proceedings or vice versa and that the cause or causes of action based on an alleged breach of clause 6 of the CMI settlement agreements are not the same cause or causes of action as are advanced by the respondents in Greece. They do not have le mme objet et la mme cause. As I see it, the position is the same in the case of the alleged breach of the exclusive jurisdiction clauses in the insurance policies. There is an established line of cases in England to the effect that claims based on an alleged breach of an exclusive jurisdiction clause or an arbitration clause are different causes of action from claims for substantive relief based on a breach of the underlying contract for the purposes of Article 21 of the Brussels Convention and Article 27 of the Regulation: see eg Continental Bank NA v Aeakos Compania Naviera SA [1994] 1 WLR 588 per Steyn LJ (giving the judgment of the Court of Appeal) at 595H 596C; Alfred C Toepfer International GmbH v Molino Boschi Sarl [1996] 1 Lloyds Rep 510 per Mance J at 513; Toepfer International GmbH v Socit Cargill France [1997] 2 Lloyds Rep 98, per Colman J at 106; Sinco per Beatson J at paras 50 and 54; and WMS Gaming Inc v Benedetti Plus Giocolegale Ltd [2011] EWHC 2620 (Comm) per Simon J at para 32. Those cases support the conclusion that the claims of the CMI in the 2006 proceedings for breach of the exclusive jurisdiction clauses in the insurance policies (or indeed in the settlement agreement) do not involve the same cause or causes of action within the meaning of Article 27 as the respondents claims in (or akin to) tort in the Greek proceedings. I understand that this point has been reserved for decision by the Court of Appeal but, as I see it at present, nothing in the relief sought by the CMI offends the principle of mutual trust and confidence which underlies the Regulation: see eg Erich Gasser GmbH v MISAT Srl (Case C 116/02) [2005] QB 1. The CMI do not seek to stop the Greek proceedings or to restrain Starlight and OME from pursuing them. They merely seek declarations as to the true position under the settlement agreements which are both governed by English law and subject to the exclusive jurisdiction of the English courts and under the clauses in the insurance contracts which also provide for the exclusive jurisdiction of the English courts. This has the advantage that the courts with exclusive jurisdiction decide what is the true meaning of the settlement agreements and the jurisdiction clauses. Release The same is also, in my opinion, true of the claims based on what are called the release provisions in the CMI settlement agreement. It is said that the provision that the sums agreed to be paid under the CMI settlement agreement are to be paid in full and final settlement of all and any claims it may have under the policy precludes the payment of any further sums arising out of the loss of the vessel insured. It is said that, in the light of the agreement, the CMI are entitled to a declaration that the Greek claims fall within the terms of the agreement, that they are entitled to a declaration that the bringing of those claims is a breach of the agreement and that they are entitled to damages for that breach. The question is whether these claims involve le mme objet et la mme cause as the claims in the Greek proceedings. In my opinion they do not for the same reasons as in the case of the claims for an indemnity and the claims arising out of the exclusive jurisdiction clauses. The Greek claims are claims in tort and these are contractual claims. The factual bases for the two claims are entirely different. Moreover the object of the two claims is different. This is to my mind clear in the case of the claims for damages for breach of the release provisions in the settlement agreements and for a declaration that the bringing of the Greek claims is a breach of the settlement agreement. The nature of the claims is almost identical to the nature of the claims for breach of the jurisdiction agreements. In both cases the alleged breach is the bringing of the claims in Greece. Moreover, like the claims for an indemnity, the claim for damages for breach of the settlement agreement assumes that the claims in Greece may succeed. Is the position different in respect of the claim for a declaration that the Greek claims fall within the terms of the release in the settlement agreements? In my opinion the answer is no. All these claims have the same thing in common. It is that the legal basis for the claims in Greece is different from the legal basis of the claims in England. In Greece the legal basis for the claims is tortious, whereas in England the legal basis of the claims is contractual. It is thus not a case like Gubisch, where, as the CJEU put it at para 15, the same parties were engaged in two legal proceedings in different Contracting States which were based on the same cause of action, that is to say the same contractual relationship. The cause was therefore the same. Equally the objet of the actions was the same, namely to determine the effect if any of the contract. As the CJEU put it at para 16, the action to enforce the contract was aimed at giving effect to it, while the action for its rescission or discharge was aimed precisely at depriving it of any effect. The question whether the contract was binding lay at the heart of the two actions. That is not true here because the object of the English action is to enforce the contract, whereas the object of the Greek proceedings is to establish a different liability in tort. Lord Mance takes a different view in one respect. So far as the claims for damages for breach of the releases in the settlement agreements, the claims for a declaration and damages for breach of the jurisdiction clauses and the claims for indemnities are concerned, there is no difference between us. However, so far as the claims for a declaration that the Greek claims fall within the terms of the release in the settlement agreements is concerned, Lord Mance takes a different view. He notes in para 140 the terms in which the claims are pleaded. The formulation in paragraph 18(a) above, which was adopted by the respondents, is in fact derived from the declaration made by the judge. However, to my mind nothing turns on this difference. Moreover, I do not see that it makes any difference that the respondents discharged their obligations under the settlement agreements. The critical point is that on the facts here the legal basis of the claims in tort in Greece is different from the legal basis of the contractual claims in England. It is true that, if successful, a declaration that the tortious claims have been settled or released will or may afford the appellants a defence to the Greek proceedings but the cases show that defences are irrelevant. Viewed through the perspective of the claims, the two claims are not the mirror image of one another. Even if (contrary to my view) the two sets of proceedings had in this respect le mme objet they did not have la mme cause, whereas the cases show that, in order to involve the same cause of action, they must have both le mme objet et la mme cause. The position would be different if the CMI were to advance a claim in the English proceedings claiming a declaration that they are not liable to the respondents in Greece. That claim would be the mirror image of the claims being brought by the respondents in Greece and would fall within the principles laid down in Gantner and The Tatry. In fact, after the judge had delivered his judgment, the CMI did, as I understand it, make an application for such a negative declaration in the light of the fact that Starlight and OME had commenced Greece 2. We were told that in the event the application was never determined and that the CMI do not pursue it. It has been confirmed that any such claim has now been abandoned. For these reasons, subject to a possible reference to the CJEU discussed in paras 58 59 below, I would hold that Article 27 does not apply to any of the causes of action advanced by or against the CMI. I appreciate that, in reaching these conclusions I have reached a different view from that of the Court of Appeal. Before I express my reasons, I should say that I suspect that the focus of the argument in the Court of Appeal was somewhat different from that in this Court. The reasons are I think twofold. First, in para 40 of his judgment Longmore LJ distinguished Sinco on the basis that the difference between this case and that is that in that case, in contradistinction to this, there was no settlement agreement which could, as he put it, supposedly deny the Greek claimants the right to bring proceedings at all. I do not see that as correct. As explained above, the CMI do not seek to deny the respondents the right to commence proceedings in Greece but merely say that the causes of action in the two sets of proceedings are different. The second point is perhaps more significant. In para 46 Longmore LJ correctly notes that the CMIs case is that the bringing of the Greek proceedings is a breach of the jurisdiction clauses in the policies and a breach of the terms of the settlement agreement and, again correctly, states that the primary relief claimed by the CMI in England is a declaration that Starlight will be liable to indemnify the CMI against any costs incurred in the Greek proceedings and any liability in those proceedings. I have already given my reasons for concluding that those are different causes of action from the causes of action in tort relied upon by the respondents in Greece. They are not a mirror image of one another. As I see it, the Court of Appeal treated the question as a broad one focusing on the overall result in each jurisdiction. This can be seen from paras 47 to 50 of Longmore LJs judgment. In paras 46 and 47 he summarised the claims of both the CMI and the LMI. He then said this at paras 48 and 49: 48. It is clear that the first 3 paragraphs of the LMI application are in terms an assertion that LMI are not liable in respect of the claims in Greece. CMI's allegation that the Greek claimants are in breach of the settlement agreements is in effect a similar assertion. It may be said that there are other causes of action in the English proceedings which are not exactly mirror images of the allegations in the Greek proceedings but to the extent that they are not, they are essentially the same in the sense that the key assertion in Greece is that there are non contractual claims and the key assertion in England is that those non contractual claims have been compromised by the settlement agreements. The claims for damages and indemnity are in any event parasitic on the central contention that, once a settlement had been reached, all matters in issue had been compromised. It is, of course, elementary that Article 27 has regard to causes of action rather than proceedings and that is why it is necessary to concentrate on the allegations relating to the settlement agreement. It is certainly the case that there is a considerable risk of inconsistent judgments if one of the sets of proceedings is not stayed and the rationale behind Article 27 therefore favours a stay if the Greek court was the court first seised. 49. I therefore conclude that, in so far as the English proceedings assert non liability by reason of the settlement agreements, there is an identity of issues and the respective causes of action are the same. To the extent that allegations are made in England that the Greek parties are in breach of the settlement agreements or in breach of the exclusive jurisdiction clauses in either the insurance policy or the settlement agreements themselves (and that they should therefore indemnify the insurers for the cost of the Greek proceedings) they are parasitic and dependent on the basic cause of action in England for a declaration of non liability. They cannot proceed in their own right until the underlying question of the ambit of the settlement agreements as a defence to the Greek actions in tort has been resolved. In my opinion that analysis is not consistent with the principles laid down by the CJEU set out above. As already stated, those principles require a comparison of the claims made in each jurisdiction and, in particular, consideration of whether the different claims have le mme objet et la mme cause without regard to the defences being advanced. As I see it, Article 27 involves a comparison between the causes of action in the different sets of proceedings, not (as in Article 28) the proceedings themselves. In para 48 Longmore LJ recognises that there are causes of action in the English proceedings which are not (as he puts it) exactly mirror images of the allegations in the Greek proceedings but says that, to the extent that they are not, they are essentially the same in the sense that the key assertion in Greece is that there are non contractual claims and the key assertion in England is that those non contractual claims have been compromised by the settlement agreements. And at the end of para 49 he says that the claims in England cannot proceed in their own right until the underlying question of the ambit of the settlement agreements as a defence to the Greek action in tort has been resolved. I respectfully disagree with that approach. It focuses on the nature of the settlement agreements as a defence to the Greek action in tort, which the authorities in the CJEU show is irrelevant. Given the fact that defences are irrelevant, the analysis cannot involve a broad comparison between what each party ultimately hopes to achieve. The analysis simply involves a comparison between the claims in order to see whether they have the same cause and the same object. In so far as Andrew Smith J treated the question as a broader one in Evialis SA v SIAT [2003] 2 Lloyds Rep 377 I respectfully disagree with him, although, as Beatson J observed in Sinco at para 50, Evialis was distinguishable on the facts because the insured had brought a substantive claim in the English proceedings in addition to their claim in the Italian proceedings, which rendered the former a mirror image of the latter. This case can be distinguished on the same basis, at least in the case of the CMIs claims. I also note in connection with Sinco that at para 40 Longmore LJ observed that the difference between that case and this was that in that case there was no settlement agreement which could supposedly deny the right of the Greek claimants to bring proceedings at all. For the reasons I have given I would respectfully disagree with that approach. A settlement agreement might be a defence to a claim. It could not deny the right of the Greek claimants to bring proceedings at all. For these reasons I would hold that Article 27 has no application to the case of the CMI. Moreover, subject to one point discussed at paras 58 59 below, I would not order a reference to the CJEU on this question because the relevant principles are clearly set out in its jurisprudence and are acte clair. In these circumstances, where none of the causes of action in the English proceedings is the same as the causes of action in the Greek proceedings, it is not necessary in the case of the CMI to consider the other issues which might arise, namely the position in relation to other parties and which court was the court first seised for the purposes of Article 27. The LMI claims: same causes of action? Save possibly for two points, the position of the LMI is essentially the same as in the case of the CMI. The first point is that the jurisdiction clause in clause 5 of the LMI settlement agreement differs from that in clause 6 of the CMI settlement agreement in that it does not expressly provide for the exclusive jurisdiction of the High Court in London but merely for the jurisdiction of the High Court in London. However, subject to its detailed provisions, Article 23 of the Regulation provides that, where parties have agreed that a court or the courts of a Member State shall have jurisdiction, that court or those courts shall have jurisdiction and, moreover, that such jurisdiction shall be exclusive unless the parties have agreed otherwise. The question whether the parties had agreed otherwise was discussed by the judge at paras 19 to 23 of his judgment, where he held that the parties had not agreed otherwise and that clause 5 of the LMI was an exclusive jurisdiction clause. No appeal was brought against that part of the judges ruling. The second point is this. I had understood during the argument that the LMI were seeking a negative declaration of the kind which the CMI were not. It now appears that I was mistaken. I understand that the LMI had indicated an intention of doing so if the CMI proceeded with an application for permission to do so but, since they did not, nor did the LMI, who have now expressly stated that, like the CMI, they will not do so. As I see it, in these circumstances the position of the LMI is the same as that of the CMI. The causes of action advanced in England in the 2006 action and in 2011 Folio 702, as summarised on behalf of the LMI, are claims by the LMI against Starlight and OME based on clauses 3, 4 and 5 of the LMI settlement agreement. Those advanced in 2011 Folio 1043 are claims by the LMI against the co assureds to enforce the English jurisdiction clause in the insurances. Since, on this basis, the relief sought by the LMI is not a declaration of non liability, the conclusions and reasoning set out above on the question whether the causes of action are the same apply to it. It follows that I would allow the appeals of both the CMI and the LMI on the Article 27 point. However these conclusions are subject to the question whether any of the issues discussed above should be referred to the CJEU. Left to myself, I would not refer any of them because the principles of European law are clear and the only question is how they should be applied in the instant case. However, Lord Mance has arrived at a different view from me on the question whether Article 27 applies to the claims by both the CMI and the LMI for a declaration that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled. In short he is of the view that those claims are essentially for declarations of non liability. In these circumstances, I have reached the conclusion that the position is the same as I previously considered it to be when I thought that the LMI were seeking a declaration of non liability. That is that, unless the CMI and the LMI abandon those claims within 14 days, we should refer the question whether the claims for those declarations involve the same cause of action as the claims in Greece within the meaning of Article 27. Lord Neuberger has also given reasons why, absent such abandonment, this question should be referred. On the other hand, if the CMI and the LMI do abandon those claims, I would allow both their appeals under Article 27 and refuse a mandatory stay of the proceedings under it. If they do not abandon those claims, I would allow the appeals under Article 27 in respect of the other claims but refer the question referred to above to the CJEU and defer a decision on that issue until the CJEU has determined the question. Seisin under Article 27 It is not I think in dispute (and is in any event correct) that a court is only seised of claims by or against new parties from the date that those parties are added to the proceedings. In relation to the 2006 proceedings, the English court was only seised of claims against OME once OME was joined to the proceedings on 20 September 2011 and, for example, to the extent that the LMI in action 2011 Folio 702 are seeking declarations relying on the settlement agreement as a settlement of or defence to Starlight's and OME's claims in the Greek proceedings, the English courts were only seised of that action in 2011. It follows that, in each of those cases the court first seised was the Greek court and not the English court, and that, to the extent that the LMI advance claims for a declaration that the Greek claims fall within the terms of the release in the settlement agreement or that under the agreement the tort claims have been settled, unless the English court is the court first seised, they will be entitled to a stay under Article 27. The same is essentially true of the CMI claims. The question is which court is first seised of what in circumstances where some of the claims brought in England are different from and based on different causes of action from those brought in Greece and one of them in each case, namely the claim for the declaration or declarations referred to above, is based on the same cause of action. The approach of the parties is starkly different. It is submitted on behalf of the appellants that the answer is to be found in the language of Articles 27 and 30 and is that the court first seised is that in which the proceedings were first brought and that the court remains the court first seised of the proceedings even where those proceedings are subsequently amended by the addition of new claims or otherwise. It is submitted on behalf of the respondents, by contrast, that if a new claim is added by amendment, the court is seised of the proceedings so far as that amendment is concerned when the amendment is made and not at the time of the institution of the original, unamended proceedings. It seems to me that there is considerable force in the appellants analysis of the language of the Regulation but the respondents case has support both in the English cases and in the textbooks. In the course of this judgment I will consider the issues (interesting as they are) only briefly because I have reached the conclusion that, if the appellants persist in their claims for the declarations referred to in paras 58 and 59 above and this issue is critical for the resolution of the appeal, the proper course is to refer the question to the CJEU. The case for the appellants can be summarised thus. Article 27 is concerned with proceedings involving the same cause of action. So, for the purposes of deciding whether to grant a stay of its proceedings under Article 27, the court must compare the cause or causes of action in each set of proceedings. It is Article 30 that determines when the court is deemed to be seised and, by Article 30(1), it provides that (subject to the limited exceptions at the end of Article 30(1) and in Article 30(2)), it is deemed to be seised when the document instituting the proceedings or an equivalent document is lodged with the court. Where the question is which of two courts is first seised, the two dates on which the courts are deemed to be seised are compared and the court deemed to be seised first is the court first seised. The appellants also rely upon the transitional provisions in Article 66, which they say support the proposition that proceedings have only one date upon which they are instituted and is inconsistent with the idea that they can have several such dates as and when new claims are added by amendment. The appellants say that in this case the answer is that the English court was the court first seised because the Greek court was not seised until some five years later. They say that this is a simple rule which is easy to apply and that there is no warrant in the language of the Regulation for concluding that it was intended that the court should be seised anew each time a new claim is added by amendment, which would be complicated and unnecessary and give rise to endless interlocutory disputes. The appellants criticise Longmore LJ for asking in para 52 whether it can be said that the English court was first seised of the relevant causes of action now pursued in Greece and for noting that Article 27 only has regard to "causes of action" rather than proceedings. They say that that is inconsistent with Articles 27 and 30 because Article 27(1) uses the word "proceedings" twice and it is used again in Article 30(1). They recognise that for the purpose of deciding whether there is le mme objet or la mme cause the court must look to the claims made but, for the purpose of deciding which court is deemed to be "first seised" under Article 27, the autonomous test in Article 30 is applied. Finally, they say that Article 30 does not mention "causes of action" and that the Court of Appeal overlooked the word "proceedings" used twice in Article 27, and did not refer to Article 30 at all. Moreover, although the word "proceedings" is not defined in the Regulation, it appears nearly 50 times in the Regulation used as a word of general application. The uses of the word show that issues or causes of action (or claims) may change during the course of the "proceedings". The appellants further criticise Longmore LJ in the Court of Appeal by reference to paras 53 and paras 64 66. They contrast the reference in para 53 to Article 27 having regard only to causes of action rather than proceedings, with the reference in para 64, with apparent approval, to this quote from the judgment of Saville LJ in The Happy Fellow at pages 17 18: article 21 is concerned with proceedings and article 22 with actions. The questions are whether the proceedings involve the same cause or object or whether the actions are related. It is thus a misreading of the Convention to ask which Court is first seised of issues which are or might be raised within the proceedings or actions. If such were the case, then the articles would achieve precisely the opposite of their intended purpose which is, to achieve the proper administration of justice within the Community . " Saville LJ was there considering the position under what is now Article 28. However the appellants say that the word action in Article 28 means the same as proceedings in Article 27 and that Longmore LJ was correct in paras 64 66 and wrong in para 53. Although the appellants case has to my mind the merit of simplicity and of the avoidance of time consuming and expensive satellite litigation, the respondents say that it is simplistic and contrary to both principle and authority. It is fair to say that there is considerable support in the authorities and the text books for the proposition that the new claims added to the 2006 proceedings, which were founded on the Greek proceedings and thus made second in time, were new claims, that the English court should be regarded as seised of them only when they were added to the 2006 proceedings and that the Greek court was the court first seised within the meaning of Article 27. In the important case of FKI Engineering Ltd v Stribog Ltd [2011] 1 WLR 3264, which was itself a case on Article 28, the Court of Appeal considered Article 27 and a number of cases decided under it. At para 84 Rix LJ said that the essence of the cases was that, where the same cause of action or the same parties are introduced only by way of service, or amendment, the relevant proceedings are only brought at the time of such service or amendment, not at the time of the institution of the original, unamended proceedings. Neither Mummery LJ nor Wilson LJ expressed a different view. The respondents also rely upon Sinco per Beatson J at paras 61 to 68 and, in that connection, upon this comment in Briggs on Civil Jurisdiction and Judgments, 5th edition, 2009 at para 2.235, page 327, note 1: In [Sinco] the proposition that an English court was first seised of a claim for damages for breach of a jurisdiction clause, which could only have been brought before the English court after the objected to proceedings were instituted before the foreign court, was rather challenging. And in Research in Motion UK Ltd v Visto Corporation [2007] EWHC 900 (Ch), Lewison J said at para 19: It is also common ground that the counterclaim is to be treated as an action in its own right for the purposes of the judgment regulation. It seems to me that once RIM's English non infringement action is out of the way the only relevant proceedings are Visto's counterclaim and the Italian proceedings. Of those two, the Italian court is plainly the first seised. Indeed it cannot be otherwise since the very fact of the Italian claim is part of the foundation of the counterclaim. The respondents rely upon Briggs at para 2.235, where, as I read it, their case is supported, although some doubts are expressed as to the desirability of this approach. The respondents also relied upon the 15th edition, 2012 of Dicey, Morris and Collins on The Conflict of Laws at paras 12 060 and 12 069, where they say this: 12 060. Each lis between a plaintiff and a defendant has to be considered individually to determine which court was seised of it first in time, and article 27 applied accordingly. 12 069. Where a claim form which has been issued and served is amended by the addition of an additional claim, or by the introduction of a claim or counterclaim against another party, the material question is whether the date of seisin in respect of the additional claim is the date on which the amended claim form is reissued (which may, depending on the circumstances, be only after obtaining the permission of the court), or the date of the original issue. As it is difficult to see how a court can be said to be seised of a claim which has not been made and does not appear in the claim form, it cannot be correct that as long as a claim form has been issued and served, the court already has temporal priority over any issue which may later be added by amendment. It would follow from a conclusion that the court is not seised of the new claim until the amended claim form is reissued that the defendant may be able to pre empt the amendment by commencing an action of his own in another Member State. The court seised with such pre emptive proceedings will obviously be regarded as being seised later than the court before which the original action was brought, but institution of the later action may serve to prevent the proposed, and now duplicative, amendment of the original action; and there is no basis in the Regulation for refusing to give effect to a use of the rules which might be characterised as sharp practice. Finally, the respondents rely upon Fentiman on International Commercial Litigation, 2010, at para 11.27: Principle suggests that an amended claim arising from the same facts as the original claim might be consolidated with the original claim for the purposes of Article 30 but not where the facts arose subsequently. In the latter case it does no violence to the expressions 'actions' or 'proceedings' to differentiate the claims. While these expressions of view undoubtedly provide strong support for the respondents submissions, some of them seem to me to be expressed in a somewhat tentative way and I am not sure that the textbook writers grapple with the points made by the appellants on the language of the Regulation. However that may be, as indicated earlier, I am of the opinion that this issue is by no means acte clair and, if the appellants maintain their claim or claims in England for a declaration that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled, I would refer an appropriate question to the CJEU before forming a concluded view with regard to the applicability to that claim or claims. If they abandon them, I would hold that the respondents are not entitled to a stay under Article 27, refuse them a mandatory stay in respect of all the claims and allow the appellants appeal. Article 28 The question whether those claims which are not within Article 27 should be stayed depends upon whether they should be stayed under Article 28. As stated above, in the exercise of his discretion the judge refused the respondents application for a stay under Article 28. The appellants say that he was right to do so. The respondents case is that the English court was second seised for the purpose of Article 28 and that a stay should be granted as a matter of discretion. Seisin under Article 28 It is plain from the express terms of Article 28(1) that the discretion in Article 28 is limited to any court other than the court first seised. It follows that, if the English court was first seised, it has no discretion to stay. Article 28 moreover applies to related actions pending in the courts of different member states and, by Article 28(3), actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. It is not in dispute in these appeals that the various proceedings are related proceedings for the purposes of Article 28 and I would in any event so hold. The questions remain whether the actions are pending, whether the English court is the court first seised and, if it is not, how the discretion should be exercised. In Stribog the Court of Appeal considered the correct approach to Article 28. It held that two questions arise, namely (1) whether the two sets of proceedings are related, taking account of any amendments which have been made at the time of the enquiry and (2) which set of proceedings were commenced first? Rix LJ expressed the position clearly at paras 119 and 120. He explained that it is only when there are related and pending actions in separate member states that Article 28 comes into issue. The question whether they are related is, as he put it, the Article 28(3) question. He then said: 119. The question of when seisin occurs and thus which of the courts is the court first seised is the article 30 question. FKIs submission in effect seeks to roll the two questions together and ask: which of the two courts is the first to be seised of an action which at the time of its seisin was a related action? This is the concept of the first related action, a concept found in neither article 28 nor article 30. Stribog on the other hand asks: once you have found two related and pending actions and seek to stay one of them, invoking article 28, which of the two courts was the first to achieve seisin of one or other of those actions? 120. In my judgment, the latter question is the correct one, and is to be preferred to the former . See also per Mummery LJ at paras 40 to 44, where he stressed in particular that the question is whether the court concerned is seised of an action and not of a particular issue in an action. He also stressed that the time at which the comparison between the two actions is made is the time of the hearing of the application for the stay. Wilson LJ noted at paras 132 134 that Mummery and Rix LJJ asked the relevant questions in a slightly different order: Mummery LJ asked which court was first seised in a pending action before asking whether the actions were related, whereas Rix LJ preferred to ask them in the reverse order. Wilson LJ said that he did not see why the order matters but that Rix LJ seemed to have the terminology of Article 28 on his side. I agree. The question whether the actions are pending is closely related to the question whether the English court remains first seised. The respondents say that there was no action pending in England when the Greece 1 proceedings were commenced. In the alternative they say that, if the original action is still alive, the English court is not first seised because the claims now brought are entirely new claims, which they say should be equated with new proceedings. I will consider these points in turn. On the first point, the appellants say, by contrast, that the 2006 proceedings are still on foot, and thus pending, having been stayed but not finally concluded. I would accept the appellants submissions. The settlement agreements were in this respect in identical terms. It was a term of them that Starlight would obtain a stay by way of Tomlin Orders. The orders were both in the same terms, which are standard in such cases, and (as quoted in para 7 above) provided that save for the purposes of carrying into effect the terms agreed all further proceedings shall be stayed. It appears to me that, on the true construction of those orders, the actions remained unstayed for the purposes of carrying into effect the terms agreed and were otherwise stayed. As I see it, in so far as the actions remained unstayed, it follows that the court remained seised of them, presumably at least until there was no longer any need for the terms agreed to be carried out. It is plain from the language of Article 28(1) that the court first seised means the court first seised of the action, which must mean first seised of the proceedings, not of particular claims or causes of action within the proceedings. It seems to me to follow that, in so far as the appellants are seeking to enforce the provisions of the settlement agreements, as they are, the English court remains first seised. I arrive at this conclusion by a construction of Article 28(1) and of the Tomlin Order. The appellants were able to pursue these claims without issuing further proceedings. In this regard I would accept the analysis of the judge at paras 24 to 29. I would adopt the analysis of Sir Andrew Morritt V C in Bargain Pages Ltd v Midland Independent Newspapers Ltd [2003] EWHC 1887 (Ch) and I would not follow the reasoning of the Court of Appeal in Hollingsworth v Humphrey, (1987) CAT 1244. What then of the parts of the actions which are stayed under the Tomlin Orders? These would include the claims for breach of the exclusive jurisdiction clauses in the policies of insurance, which do not depend upon the terms of the settlement agreements. The appellants rely upon principles developed by the English courts as a matter of English, not European, law. However, this is in my opinion a permissible approach. Article 30 of the Regulation provides for the circumstances in which a court is deemed to be seised. I recognise of course that the concept of seisin is an autonomous European law device but Article 30 does not make express provision for the circumstances in which it ceases to be seised. In these circumstances, it seems to me to be appropriate for national courts to have regard both to the nature of seisin in European law and to their own procedural rules in deciding whether their courts are no longer seised of a particular set of proceedings. The appellants rely upon the decision of the Court of Appeal in Rofa Sport Management AG v DHLK International (UK) Ltd [1989] 1 WLR 902, where the Court of Appeal held that a stay of proceedings is not equivalent to a dismissal or discontinuance and therefore that an action in which all further proceedings have been stayed, even if by consent of all parties after a settlement, remains in being. See in particular per Neill LJ at 909H to 910D and 911A C. He concluded that, for the sake of clarity and certainty, the word stay in an order should not be treated as a possible equivalent of a dismissal or discontinuance. Although the action cannot continue without an order of the court, nor can it, he said, be regarded as dead in the same way as an action which has been dismissed or discontinued by order. I agree. The reasoning in Rofa supports the conclusion that in circumstances in which the 2006 proceedings have been stayed and not dismissed or discontinued the court remains seised of them. It is not and could not be disputed that the court was seised of the proceedings in accordance with Article 30 when the claim form in the 2006 proceedings was issued. It is not suggested that the appellants failed to take any of the steps referred to in Article 30(1) or (2) which would have nullified that effect. The question is whether anything happened subsequently from which it can be inferred that the court was no longer seised. I would answer that question in the negative. Although Rofa was not a decision on the construction of the Regulation, the correct approach is to consider whether anything occurred which could lead to the conclusion that the approach adopted there should not be applied to the stay incorporated in the Tomlin Orders and, if not, whether there is anything which leads to the conclusion that the court is not still seised of the proceedings. I would answer both those questions in the negative. Although it is true that the CMI settlement agreements contained a provision that, on payment of the settlement sum, the parties would file a consent order dismissing the proceedings, no such consent order was made or filed. The LMI settlement agreement does not contain any such provision. In all these circumstances, I can see no sensible basis upon which it can be said that the English court is no longer seised of the proceedings. There remain significant disputes arising out of the settlement agreements and the insurances. The second point taken on behalf of the respondents under this head is that, even if the original action is still alive, the claims now brought are new claims, which should be equated with, or treated as, new proceedings. They rely upon this dictum of Rix LJ in Stribog at para 129: Seventhly, there is nothing in the ECJ or English jurisprudence to support the judges approach in this case. It is possible that the introduction of entirely new causes of action or parties is to be recognised as the bringing of entirely new proceedings, so that the timing of seisin (the article 30 question) has to be looked at from that point of view, as occurs for the purposes of article 27. Even so, it is not clear to me that in this connection article 27 and article 28 work in the same way: for article 27 is worded in terms of the bringing of actions with the same parties and the same cause of action (Where proceedings are brought in the courts) whereas article 28 is worded in terms of the pendency of related actions (Where related actions are pending in the court) (emphasis added). That emphasises that the article 28 question is asked with relation to pending actions, and not, as the article 27 question is asked, with relation to the bringing of actions. In any event, the judge is in my respectful judgment mistaken to think that any amendment is analogous to the bringing of new causes of action or the addition or substitution of new parties. For my part, I would not accept that approach as applied to Article 28. In para 68 above I referred to the statement of Rix LJ at para 84 of Stribog. In para 63 of his judgment in the instant case Longmore LJ quoted para 84, where Rix LJ said that, where proceedings are amended to add new claims, the court is only seised of the relevant proceedings so far as the new claims are concerned at the time of the amendment. Immediately after the quote, Longmore LJ correctly pointed out that those observations were made in relation to Article 27 and not Article 28. He then quoted the second sentence from the above quotation from para 129 of Rix LJs judgment. Longmore LJ then asked whether this tentative expression of view in relation to "the introduction of entirely new causes of action" being tantamount to "the bringing of entirely new proceedings" means, for the purpose of this case, that the Greek courts are to be regarded as first seised of the relevant related action? He said at para 64 that, in his opinion it did not. He gave two reasons. He said that in the first place Rix LJ had already quoted the passage from the judgment of Saville LJ in The Happy Fellow which I set out in para 66 above. At para 65 Longmore LJ said that, in the second place, Rix LJ provided his tentative response to his tentative view in the remainder of paragraph 129 which he then quoted. That response is to my mind telling. Longmore LJ then expressed his conclusion at para 66. He expressed doubt about Rix LJs distinction between entirely new causes of action as opposed to partially new causes of action. However that may be, his conclusion seems to me to be contained in the last two sentences of para 66: As Saville LJ said in The Happy Fellow it is a misreading of Article 28 to ask which court is first seised of issues; it must likewise be wrong in an Article 28 context to ask which court is first seised of causes of action. That is Article 27 territory because, for the purpose of Article 28, one has to ask which court is first seised of an action, not a cause of action and, still less, an issue. On that basis Longmore LJ concluded at para 67 that, if the original English action and the subsequent Greek actions are related, as he concluded they are, it was the English court that was the court first seised. I agree. First, the contrary view seems to me to be inconsistent with the two stage approach to Article 28 adopted in Stribog. As Longmore LJ observed at para 66, in the context of Article 28 it is wrong in principle to ask which court is first seised of a cause of action, because Article 28 is concerned with related actions as a whole. Secondly, I would accept the appellants submission that on the facts of this case the claims now brought are not (as Rix LJ put it) entirely new. On the contrary, applying the broad and common sense approach favoured by Lord Saville in Sarrio, the claims now brought by the appellants are unquestionably related to the original action within the meaning of Article 28. I would only add in conclusion that it seems to me that it would be very odd indeed if a court which is seised of proceedings and stays those proceedings by way of a Tomlin order on the express terms that it retains jurisdiction to take further steps by way of implementation or policing of the order were prevented from exercising that jurisdiction, either by lifting the stay or otherwise, on the ground that it was no longer seised of the proceedings. It seems to me to be at least arguable that those steps should properly be treated as part of the existing proceedings. They might perhaps be treated as part of the same procedural unit as discussed by the CJEU in Purrucker v Vallz Prez (No 2) (Case C 296/10) [2011] Fam 312 at para 80. The case was on very different facts but was concerned with two paragraphs in a regulation which were identical to Articles 27 and 30 of the Regulation. In any event to treat the enforcement action as something entirely new seems to me to be wrong. It is never easy to decide what is an entirely new claim, what is a new claim and what is an expansion of an old claim. These claims are not new or entirely new because they are brought by way of enforcement of the outcome of the original dispute, in the same way as execution on a money judgment. In these circumstances it makes sense to hold that these claims, which largely arise out of the settlement agreements, arise out of the attempts made by the respondents to avoid the effect of those agreements and, in particular, the exclusive jurisdiction agreements. This solution would, as I see it, be consistent with the overall policy of the Regulation to avoid a multiplicity of proceedings. However, I can see that there is scope for argument under this head and, if the issue of first seised were critical to the decision, it might be appropriate to refer an appropriate question to the CJEU. I therefore turn to the issue of discretion on the assumption that the English court is second seised for the purposes of Article 28. Discretion On that assumption, the question arises whether the action or actions should be stayed as a matter of discretion. The judge held that no such stay should be granted. Given that the shape of the case has changed considerably since the matter was before the judge, it appears to me that this Court should consider for itself whether to grant a stay. I have reached the clear conclusion that it should not. I have reached that conclusion essentially for the reasons advanced on behalf of the appellants. They may be summarised in this way. In Owens Bank Ltd v Bracco (Case C 129/92) [1994] QB 509, at paras 74 79, Advocate General Lenz identified a number of factors which he thought were relevant to the exercise of the discretion. They can I think briefly be summarised in this way. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay. Indeed, he appears to have approved the proposition that there is a strong presumption in favour of a stay. However, he identified three particular factors as being of importance: (1) the extent of the relatedness between the actions and the risk of mutually irreconcilable decisions; (2) the stage reached in each set of proceedings; and (3) the proximity of the courts to the subject matter of the case. In conclusion the Advocate General said at para 79 that it goes without saying that in the exercise of the discretion regard may be had to the question of which court is in the best position to decide a given question. On the facts here those questions can be considered together. As I see it, the issues are not dissimilar from those considered by Cooke J in Primacom at para 65, where he said this: Even if I had found that these two sets of proceedings and the German proceedings were related within the meaning of article 28, 'the strong presumption' which 'lies in favour of the applicant' on an application for a stay would be overridden here by virtue of the terms of the SSFA. Although the ECJ decision in Gasser means that a stay is mandatory where article 27 applies, there is no reason why weight should be given to that decision in the context of article 28, where a discretion is given to the court, the jurisdiction of which has been agreed by the parties as exclusive. It is nothing to the point that an English court could not have issued an anti suit injunction to prevent the German proceedings (as per C 159/02 Turner v Grovit [[2005] 1 AC 101]). The injustice of giving precedence to proceedings brought in breach of an exclusive jurisdiction clause where the parties have agreed that England is the appropriate forum is self evident. To breach the clause and to gain the benefit of priority for the German courts by such breach offends justice, where the court has a discretionary decision to make. In my opinion, similar considerations apply here. Although the true construction of the settlement agreements and the question whether Starlight and OME are in breach of them is ultimately a matter for the court which finally determines the summary judgment application or for the court at trial, there is a strong argument (to put it no higher) that the Greek proceedings have been brought by Starlight and OME in breach of the settlement agreements, which are subject to the exclusive jurisdiction of the English courts and/or in breach of the exclusive jurisdiction clauses in the insurance contracts. I would reject the submission that those considerations are impermissible in the light of the decision in Gasser. It was there held that, if the criteria for ordering a mandatory stay under Article 27 are satisfied, then the court second seised must stay its proceedings even if the court second seised has jurisdiction under an exclusive jurisdiction clause falling within Article 23. That conclusion was reached on the basis that, under Article 27, where there are two sets of proceedings which involve the same cause of action and the same parties, the court second seised is obliged to order a stay. The Regulation only permits one set of proceedings to continue. The position is quite different under Article 28, which clearly contemplates that where there are two related sets of proceedings they may proceed in parallel. That conclusion follows from the proposition that the grant of a stay is discretionary and not mandatory. In these circumstances, I can see no reason why, in exercising that discretion under Article 28, the court second seised should not take into account the fact that the parties had previously agreed (or arguably agreed) an exclusive jurisdiction clause in favour of that court. On the contrary, depending upon the circumstances of the particular case, that seems to me to be likely to be a powerful factor in support of refusal of a stay. After all, Recital 14 expressly provides: The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation. There is a close relationship between the claims in England and the subject matter of the claims in Greece. The natural court to consider the issues raised by the CMI and the LMI is the High Court in England because they raise contractual questions governed by English law and because it is at least arguable that the parties have agreed that they should be decided by the High Court, where the proceedings are more advanced than in Greece. After all, the judge granted summary judgment as long ago as December 2011. The court in Greece will then have the benefit of the decision of the court which, in the Advocate Generals language, is in the best position to decide these issues. Once there is a final judgment of the English courts, it will be recognisable in Greece, as elsewhere in the EU and will assist the Greek court. In this way, the principles of mutual trust upon which the Regulation is founded will be respected and there will be no risk of irreconcilable judgments. In these circumstances I would uphold the decision of the judge in refusing a stay under Article 28. There is no need for a reference to the CJEU because the question I would have referred does not arise given my conclusion on the exercise of discretion. It was at one time suggested that there is a referable question as to whether Article 28 gives the court second seised a choice between staying the proceedings under Article 28(1) and declining jurisdiction under Article 28(2). However, that suggestion was abandoned before the hearing. I would in any event have rejected it as unarguable. There is no support whatever for it in the language of Article 28 and none of the sources referred to supports the conclusion. The discretion is to stay or not to stay under Article 28(1) and to decline or not to decline jurisdiction under Article 28(2). The Court may thus both refuse to stay and refuse to decline jurisdiction. As the Advocate General explained in Bracco, all depends upon the circumstances. Too late? The remaining question is whether the Court of Appeal was wrong to reject submissions made on behalf of the appellants that it was too late for the respondents to rely upon Article 27. This is another part of the case where the facts seem to me to be startling. The appeal on this point is brought by the LMI and not the CMI but it is I think accepted that, if the appeal succeeds, the CMI will be able to take advantage of it. The most important point raised by this part of the appeal is whether the courts had a discretion to hold that the LMI should not be permitted to rely upon various procedural acts and omissions on the part of the respondents in response to their attempt at a late stage to rely upon Article 27 of the Regulation or whether, once the point was brought to its attention, the Court of Appeal was bound to consider Article 27 (as quoted at para 24 above) because it expressly provides that, where the conditions are satisfied any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. I have reached the conclusion that the answer is that the appellants were entitled to rely upon the acts or omissions of the respondents and that, having regard to what had happened before Judge Mackie QC and the judge, the Court of Appeal was not bound to take the point of its own motion. Moreover, subject to a possible reference, I would hold that the Court of Appeal should have considered the acts or omissions of the respondents and have held that it was too late for the respondents to rely upon Article 27. The question of the scope of the Court of Appeals duty to take the point of its own motion in circumstances of this kind is however an important point on the construction of Article 27 and, if it were necessary for the determination of the appeal, I would refer it to the CJEU. However, if the LMI abandon their claim or claims for a declaration of non liability a reference will not be necessary for the determination of the appeal. If they do not, my present view is that it will. The relevant chronology, which I take from the Statement of Facts and Issues, is briefly as follows. I will omit references to the CMI proceedings, in which the applications were heard at the same time as those in the LMI proceedings. By application notice dated 3 August 2011, the LMI applied for wide ranging relief against Starlight to enforce the LMI settlement agreement. By application notice dated 18 August 2011 the LMI sought permission to join OME and to serve OME out of the jurisdiction. As explained earlier, the LMI commenced 2011 Folio 702 against Starlight and OME in order to enforce the LMI settlement agreement. They also commenced 2011 Folio 1043 only against the co assureds, which was an action founded solely on the exclusive jurisdiction clause in the policies. On 20 September 2011 the LMI obtained permission from Judge Mackie QC to issue a Part 20 claim against OME in 2006 Folio 815 and, lest it be needed, to serve that Part 20 claim form and the claim forms in 2011 Folios 702 and 1043 out of the jurisdiction and to serve them on Lax & Co in London. The applications were supported by a witness statement by their solicitor, Mr Zavos, in which he referred both to possible stays under Article 27 and Article 28 giving reasons why stays should not be granted. The orders gave notice to each of Starlight, OME and the co assureds that: You may apply within seven days after the date of service of this Order on you to have the Order set aside or varied. This time limit does not apply to an application to dispute the jurisdiction of the Court in respect of which the procedure in CPR Part 11 as modified by CPR Part 58 applies No such application was made. Starlight did not serve evidence within the time provided in the CPR. However, on 4 November 2011 they served evidence which included an express request by Mr Crampton of Lax & Co that the relief sought by the appellants on the merits be denied, alternatively that the matter be referred to a full trial, with provision for disclosure and exchange of witness and expert evidence. On 7 November Starlight, OME and the co assureds each filed a defence on the merits in the relevant action, having first obtained an extension of time for doing so. Each of the defences included a paragraph which stated: The claims in the Greek Proceedings fall outside the jurisdiction clause in the policy and the jurisdiction clause in the Settlement Agreement. It is respectfully denied therefore that the High Court of Justice of England and Wales has jurisdiction to determine the claims in the Greek Proceedings The grounds on which Starlight, OME and the co assureds opposed the appellants claims and applications for summary relief, were in summary that the claims brought in the Greek proceedings (1) did not fall within the scope of the releases contained in the LMI settlement agreement or the CMI settlement agreement; (2) did not fall within the scope of the indemnities contained in the settlement agreements; and (3) did not fall within the scope of the jurisdiction clauses contained in the settlement agreements or in the policies. Following service of the defences, the LMI applied for summary judgment in all the actions and all the applications were fixed to be heard on 28 and 29 November at the same time as the application for summary relief against Starlight in the 2006 proceedings. In their skeleton argument prepared for those hearings, which were served on 23 November 2011, the LMI included the following: 71. There has been no application for a mandatory stay under Article 27 of the Judgments Regulation in respect of the [LMIs] claims to enforce the jurisdiction clause in the contract of insurance, and to enforce the terms of the [LMI] Settlement Agreement. This is (no doubt) because the claims are different claims from the claims advanced by the Assureds in Greece. On 25 November 2011, Starlight, OME, and the co assureds, through their former counsel, James Drake QC and Emma Hilliard, provided their skeleton argument to the court, which expressly disavowed any application under Article 27, in these terms: 69. It is well established that in order for Article 27 to operate there must, when comparing the two sets of proceedings in issue, be three identities: of parties, of cause, and of objet: see generally Briggs & Rees, Civil Jurisdiction and Judgments (5th ed 2009) at paras 2 227 to 2 231. 70. Starlight does not here contend that there is here an identity of cause and objet between the Greek proceedings and the Insurers applications. Although designed to preclude in so far as possible, and from the outset a clash of verdicts, the operation of Article 27 (as distinct from Article 28) is highly restricted in its actual operation. Comparison must be made between the claims made in the two actions, regardless of possible defences, to see whether they proceed on essentially the same facts and under the same rule of law. In the footnotes they referred to the cases I have discussed earlier, including Gubisch, Gantner and The Tatry. It is thus plain that before the matter came before the judge the respondents had made a clear and reasoned decision not to rely upon Article 27. Moreover, there is no reason to think that the judge did not consider the points they made and accept them. They relied only on Article 28. They did so pursuant to an application made by application notice dated 24 November 2011. However that application was out of time. So, by further application notices in each action dated 28 November 2011, the respondents applied for permission to make the Article 28 application out of time, and for relief from sanctions pursuant to CPR Part 3. The sanction referred to was that imposed by CPR Part 11, which provides that a defendant who files an acknowledgment of service and fails to apply to the court within the time allowed under the CPR for an order declaring that it has no jurisdiction or should not exercise any jurisdiction which it may have, is to be treated as having accepted that the court has jurisdiction to try the claim: CPR rule 11(5). As stated in para 19 above, the judge dismissed the stay application under Article 28 and held that the appellants were entitled to summary judgment. He held that (1) each of the claims made by Starlight, OME, and the co assureds against the appellants in Greece is in breach of the exclusive English jurisdiction agreement in the policies; (2) each of the claims made by Starlight and OME against the appellants in Greece is in breach of the jurisdiction agreements in the settlement agreements which provide for exclusive English jurisdiction; (3) each of the claims made by Starlight and OME against the appellants in Greece is in breach of the terms of the settlement agreements; (4) each of Starlight, OME and the co assureds is liable in damages to the insurers for breach of contract and under Section 50 of the Senior Courts Act 1981; and (5) each of Starlight and OME is bound to indemnify and hold the insurers harmless against each of the claims in the Greek proceedings pursuant to the indemnities in the settlement agreements. The judge handed down his judgment on 19 December 2011 and fixed 2 February 2012 for the hearing of consequential applications. In the meantime, on 7 December 2011 Thomas Cooper had replaced Lax & Co as the respondents solicitors. On 24 January 2012 draft grounds of appeal were served which included for the first time reliance on Article 27. They were considered in a somewhat amended form by the judge. The judge granted permission to appeal on a number of grounds including the Article 27 point. As to that he said that he would not have given permission on that point alone, as he put it, not least because the Article 27 case could become the subject of an independent application at first instance at any time hereafter. He recognised that this would have the effect of turning the Court of Appeal into a first instance court but concluded that it could be argued without the need for further evidence and without a great addition of time. In the Court of Appeal the appellants relied upon the provisions of CPR Part 11, but the Court of Appeal held that it did not apply because applications under Articles 27 and 28 are not challenges to the jurisdiction. It further held that it was bound to take the Article 27 point of its own motion. The LMI say that the Court of Appeal was wrong on both points. CPR Part 11 provides, so far as relevant as follows: (1) A defendant who wishes to (a) dispute the court's jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction, may apply to the court for an order declaring that it has no such jurisdiction or; should not exercise any jurisdiction which it may have. (2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10. (3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the courts jurisdiction. (4) An application under this rule must (a) be made within 14 days after filing an acknowledgment of service; and (b) be supported by evidence. (5) If the defendant (a) files an acknowledgment of service; and (b) does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim. (6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including (a) setting aside the claim form; (b) setting aside service of the claim form; (c) discharging any order made before the claim was commenced or before the claim form was served; and (d) staying the proceedings. In an action in the Commercial Court such as this CPR 11(4) is varied by CPR 58.7(2) so that the application under CPR 11(1) must be made within 28 days after filing an acknowledgment of service and not 14 days. As I understand it acknowledgments of service were filed in each case. The position under CPR Part 11 is different from the position under the former Rules of the Supreme Court, under which the equivalent rule, namely RSC Order 12 rule 8(1), did not include an application for a stay. By contrast CPR 11(1)(b) applies to an application for an order that the court should not exercise its jurisdiction. An application for a stay is precisely that. An application for a stay under Article 27 is thus an application within CPR 11(1)(b). The applicant must file an acknowledgment of service and must make an application within 28 days. The respondents did not do that. Nor did they seek an extension of time to so do within the CPR. It is arguable that the effect of CPR 11(5) is that their failure to do so means that they are treated as accepting that the court both has jurisdiction and that it is free to exercise it. The difficulty is that the wording of paragraph (5) may only relate to the existence of the jurisdiction rather than the exercise of it. This point was left open in Texan Management Ltd v Pacific Electric Wire & Cable Company Ltd [2009] UKPC 46 at paras 68 and 69. However that may be, the LMI rely upon the voluntary submission to the jurisdiction evidenced by the acknowledgment of service and the service of a defence. They also rely upon the clear and unequivocal statement of the respondents position in their skeleton argument before the judge. It is plain from the terms of the concession quoted at para 106 above that serious thought had been given to the question both of whether to make the concession and of the basis on which it was to be made. In these circumstances, unless there is some rule of European law to the contrary, it appears to me that the Court of Appeal should have considered whether, in the exercise of their discretion to permit argument on a new point, they should exercise that discretion in favour of the respondents or not. Moreover, it appears to me that, given the clear basis on which the concession was made and, given that the judgment had proceeded on that basis, the Court of Appeal should have held that it had a discretion under CPR rule 11(1) to permit an application under the rule to be made out of time but should have refused to exercise it. However it is said that on the true construction of Article 27, the court, including on these facts the Court of Appeal, has a duty to consider the application of Article 27 of its own motion whenever the point is taken. This strikes me as extremely improbable. I would accept the submissions of the LMI in this respect. The CJEU has recognised the importance of national rules of procedure. Thus, for example, in Shevill v Presse Alliance SA (Case C 69/93) [1995] 2 AC 18 the CJEU said: 35. the object of the [Brussels] Convention is not to unify the rules of substantive law and of procedure of the different contracting states, but to determine which court has jurisdiction in disputes relating to civil and commercial matters in relations between the contracting states and to facilitate the enforcement of judgments: see Kongress Agentur Hagen G.m.b.H vs Zeehaghe B.V. (Case C 365/88) [1990] E.C.R. 1 1845, 1865, para. 17. 36. Moreover, the court has consistently held that, as regards procedural rules, reference must be made to the national rules applicable by the national court, provided that the application of those rules does not impair the effectiveness of the Convention: paragraphs 19 and 20 of [Kongress Agentur Hagen G.m.b.H. vs Zeehaghe B.V. (Case C 365/88) [1990] E.C.R. 1 1845]." I would accept the LMIs submission that Article 27 is part of European law and overrides national law which is incompatible with it. It does not however follow from this proposition that English procedural rules were overridden. A national procedural rule must not impair the effectiveness of Article 27. It must not render the exercise of rights conferred by EU law impossible or excessively difficult: Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595, [1985] 2 CMLR 658. This is the principle of effectiveness, which involves considering whether the rule can operate consistently with Article 27, or whether it is incompatible with it. The procedural rule should not be less favourable than those governing similar domestic actions, which is the principle of equivalence: see eg Interfact Ltd v Liverpool City Council [2011] QB 744, Kapferer v Schlank and Schlick GmbH (Case C 234/04) [2006] ECR I 2585 at paras 19 to 22, Kbler v Austria (Case C 224/01) [2004] QB 848; and Eco Swiss China Time Ltd v Benetton International NV (Case C 126/97) [1999] ECR I 3055. I refer only to Interfact, where the Court of Appeal refused to exercise its discretion to allow cases to be reopened under CPR 52.17, so as to give a remedy for infringement of a provision of European law. Lord Judge CJ, delivering the judgment of the Court of Appeal, said : 41 In general, EU law does not require national courts to disapply their own procedural rules in order to secure the vindication of EU rights. In Kapferer v Schlank & Schick GmbH the Austrian Supreme Court was seised of an appeal in which the respondent had failed to lodge within the time stipulated a respondent's notice taking a point on jurisdiction under the Brussels Convention. The court referred to the Court of Justice the questions whether it was, nevertheless, bound to take the point of EU law of its own motion and whether EU law required a national court to review and set aside a final judicial decision in circumstances where it later became apparent that the decision of the court was in breach of EU law. The Court of Justice held that a national court is not so bound 44 . [Kapferer] establishes as a matter of general principle that EU law does not require a national court to reopen a final judicial decision, even if failure to do so would make it impossible to remedy an infringement of a provision of EU law: see the Kapferer case, at para 21; Amministrazione dell'Economia e delle Finanze and Agenzia delle Entrate v Fallimento Olimpiclub Srl (Case C 2/08) [2009] ECR I 7501, para 23; Asturcom Telecommunicaciones SL v Rodrguez Nogueira (Case C 40/08) [2010] 1 CMLR 865 para 37. 49. The Court of Justice has upheld national time limits and limitation periods on grounds of legal certainty and the need to ensure finality in decision making, even though the effect has been to preclude enforcement of an EU law right: see, for example, Palmisani v Istituto Nazionale della Previdenza Sociale (INPS) (Case C 261/95) [1997] ECR I 4025; Fantask A/S v Industriministeriet (Ehrvervsministeriet) (Case C 188/95) [1997] ECR 1 6783. Finally, I would accept these submissions made by the LMI. Under English law a final judgment on the merits should not be set aside without very solid grounds: Brown v Dean [1910] AC 373 at 374, per Lord Loreburn. Interest republicae ut sit finis litium. This is part of the common tradition of the legal systems of the Member States: Rewe Zentralfinanz eG and Rewe Zentral AG v Landwirtschaftskammer fr das Saarland (Case C 33/76) [1976] E.C.R. 1989. As quoted above, in Interfact the Court of Appeal rejected the argument that, where an appellate court has a discretion to exercise under national procedural law to allow a final judgment to be challenged on appeal, it must exercise that discretion so as to remedy the infringement of EU law. In my judgment, there is no sensible basis upon which it can be said that the time limit under CPR 11(4), which can in an appropriate case be extended under CPR 3.1(2)(a), is contrary to EU law. The time limit satisfies the principle of equivalence because it is the same rule that applies in all cases. It fulfils a legitimate aim, namely making sure that points going to whether the proceedings are to be tried on their substantive merits in England are taken promptly and without unnecessary costs. It satisfies the principle of legal certainty because parties need to know where they stand. The absence of a time limit would allow a litigant to take the point years afterwards. Moreover, the time limit does not render the right to apply for a stay under Article 27 (or Article 28) impossible or excessively difficult to exercise. It allows sufficient time for the point to be raised, especially given the express rule permitting an extension of time in appropriate cases. As to the expression of its own motion in Article 27, there are a number of different parts of the Regulation that have a similar provision. On the facts here the potential for a stay under Article 27 was before the courts on at least two occasions. The position was explained to Judge Mackie QC on the without notice application referred to above. There is no reason to think that he did not give consideration to the position. More importantly perhaps the position was explained to the judge in the skeleton arguments to which I have referred. He was given both reasons and authority on the question whether a stay should be granted under Article 27. It seems to me that the judge was entitled to accept those submissions, which were made on the respondents behalf by experienced counsel and solicitors. For these reasons I would hold that the Court of Appeal should have refused to allow the respondents to rely upon Article 27 in the Court of Appeal. That said, I would accept that the meaning and effect of the duty to consider Article 27 of its own motion are matters of some potential importance and I have (somewhat reluctantly) reached the conclusion that they are not acte clair. I would therefore refer an appropriate question to the CJEU if it were necessary in order to resolve the appeal. If the appellants abandon the claims to the declarations referred to in paras 58 and 59 above, such a reference will not be necessary because, for the reasons given above, I would allow the appeals under Article 27 in their entirety. It seems to me that rather different considerations apply to Article 28 and that the Court of Appeal were entitled to consider Article 28 as part of the appeal from the decision of the judge who had considered it in detail. CONCLUSIONS For these reasons I would invite the CMI and the LMI to consider whether they wish to pursue their claims for declarations (referred to in paras 58 and 59 above) that the Greek claims fall within the terms of the release in the settlement agreements or that under the agreements the tort claims have been settled. As Lord Neuberger observes, those are the claims described in para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) above. They should indicate their position within 14 days of this judgment being handed down. If they persist in their claims, some limited questions should be referred to the CJEU as described above. The decision whether to stay those claims would then await the result of the reference, although I would allow the appeal under Article 27 in respect of the other claims. If they abandon them, I would allow all the appeals of both the CMI and the LMI under Article 27. I would in any event dismiss the respondents cross appeal under Article 28 and I would hold that their application for a stay under Article 28 should be refused as a matter of discretion. The parties should make written submissions on the form of order and costs within 21 days of the handing down of this judgment. Finally, I would like to thank all counsel and solicitors for their assistance in this unusual and in some respects difficult case. LORD NEUBERGER Subject to one point, I entirely agree with Lord Clarkes reasoning and conclusions. The one point concerns the issue discussed in paras 44 46 and 58 59 of Lord Clarkes judgment and in Lord Mances judgment. That issue is whether (i) LMIs claim in England for a declaration that the Greek claims have been settled, and (ii) CMIs claim in England for a declaration that the Greek claims were compromised (the English declaration claims, described in para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) of Lord Clarkes judgment) should be stayed under Article 27. In my view, if that issue remains live, it should be referred to the CJEU, as I do not regard it as acte clair. I see the force of Lord Clarkes view that the English declaration claims do not have le mme objet et la mme cause, if one gives that expression a very narrow effect. I also accept that, particularly in the light of the existence of Article 28, there is good reason to give Article 27 a relatively narrow meaning, as Rix J pointed out in Glencore International AG v Shell International Trading and Shipping Co Ltd [1999] 2 Lloyds Rep 692, 697. I also accept that the decisions of the CJEU cited by Lord Clarke at paras 26 28 of his judgment support the contention that Article 27 has a relatively narrow ambit of application. However, it is also important to appreciate that the fundamental purpose of Article 27, as explained by the CJEU, is to ensure that judgments obtained in one member state are enforceable in other member states, and that the consequence of this is that one should avoid mutually inconsistent judgments. The purpose of Article 27 is to help achieve that end. It seems to me that, if the Greek court were to give Starlight and OME judgment for a particular sum in respect of its Greek claims, and the English court were to give judgment in favour of LMI and CMI in the form of a declaration that those very claims have been settled or compromised, the two judgments would be incompatible as a matter of principle and logic. It is not possible for a court to award a claimant damages in respect of a claim which has been compromised with the defendant. To put the point another way, to say that a defendant currently owes a claimant damages in respect of a claim which the defendant has settled or compromised with the claimant involves an illogicality. Accordingly, it seems to me that there is a real case for saying that the English declaration claims should be stayed. The difference between the English declaration claims and CMIs and LMIs claims in England for an indemnity and damages for breach of the settlement agreements (the English indemnity and damages claims, as described in paras 18(a)(1)(iii), (v) and (vi), 18(a)(2)(iii) and (iv) and 18(b)(ii), (iii) and (iv) of Lord Clarkes judgment) may appear to be relatively small, but I believe that there is a crucial distinction, as a result of which it is acte clair that the English damages and indemnity claims do not fall foul of Article 27. The crucial difference is that, if those claims were successful, they could not lead to inconsistent judgments in England and Greece. I accept that, if they were successful, the English indemnity and damages claims could be fairly said to neutralise, at any rate in commercial terms, any benefit to Starlight and OME of a judgment in the Greek claims. However, crucially in my view, success for LMI and CMI in the English indemnity and damages claims would not be logically inconsistent in any way with success for Starlight in the Greek claims. It is not inconsistent (although it is commercially pointless) to say that a defendant is liable to pay a claimant a sum by way of damages, while the claimant is bound to indemnify the defendant in respect of the whole of that sum (or is bound to pay an equivalent sum to the defendant). Indeed, the indemnity is not merely logically consistent with the liability: it is positively meaningless without the liability for damages, and the liability for damages, though rendered nugatory by the indemnity, is not logically inconsistent with the indemnity. LORD MANCE General I am in substantial but not complete agreement with the reasoning and conclusions reached in the course of the judgment prepared by Lord Clarke, although, ultimately, as will appear, we agree on the proper disposition of these appeals. The differences between Lord Clarke and myself relate to the significance and operation of article 27 of the Council Regulation (EC) No 44/2001 (the Brussels Regulation) with regard to the respondents Greek claims. I have no difficulty in agreeing with Lord Clarkes conclusions regarding the English claims made by CMI and LMI for damages for (i) breach of the exclusive jurisdiction clauses in the Settlement Agreements and insurance policies and (ii) indemnity under clauses 3 and 4 of the respective Settlement Agreements. Such claims do not assert that there is no tort liability because of the Settlement Agreements. They assert (i) that the respondents are claiming in the wrong jurisdiction and (ii) that the respondents have agreed to indemnify them in respect of any tort claims (valid or not) by the respondents themselves as well as by others arising from the loss of the vessel. However, I do not accept the reasoning by which Lord Clarke reaches his conclusions with regard to these claims for damages and the further release claims (as Lord Clarke conveniently calls them) which he addresses in paras 40 to 59 of his judgment. This difference becomes important in relation to the first head of the release claims, as I shall show. One strand of Lord Clarkes reasoning is that the English claims based on the Settlement Agreements cannot be the mirror image of the Greek tort claims, because they involve contract and tort claims and cannot constitute the same cause of action: para 34, third sentence, para 41, second and third sentences and para 43, second and last sentences. Another strand is that it is relevant or conclusive that the English and Greek claims do not interfere with each other, and, in particular, that the Greek claims do not impugn the settlement agreements: para 35, first and second sentences and para 37, in its entirety. Neither of these strands of reasoning is in my opinion sustainable, for reasons which I will explain. The release claims The release claims need a little analysis. There are three heads. The first head is summarised by the respondents themselves and by Lord Clarke (para 18(a)) as involving claims for declarations that the Greek claims fall within the terms of the release. But this head is in fact pleaded by LMI as a claim for a declaration that the Greek claims have been settled (application notice, para (1) 1 and 3), while CMI plead that the Greek claims were compromised (particulars of additional claim, para 10) and follow this with a claim for a declaration that the Greek claims fall within clause 2 of the CMI Settlement Agreement (particulars of additional claim, para 27(a)). These are clear statements (right or wrong as they may prove to be) that the Greek claims have been settled or compromised within the terms of the Settlement Agreements. The second and third heads are claims for a declaration that the bringing of the Greek claims was a breach of the release in each of the Settlement Agreements and for damages for such breach. They must stand or fall together. They raise different considerations from the first head. The first head of release claim The English claims that the Greek claims have been settled or were compromised are in my opinion mirror images of the Greek tort claims. The English pleas mean, and can only mean that the English claimants are not liable for the Greek tort claims. The legal effect of these English statements is (under English eyes and, I am confident, European law) that the Greek claims are no more. If an English court were to give a judgment to that effect, and there was no prior Greek judgment or other reason for non recognition, the Greek court ought under the Brussels Regulation to accept it. It cannot make any difference to the application of article 27 that the reason for non liability is a contractual settlement agreement. The only point of enforcing the contract is to show that there are no valid Greek tort claims. The Greek claims aim to enforce tort liabilities. The first head of the English claims aims to establish that there are no such valid tort liabilities, because they have been settled. The Greek and English claims cannot stand together. The concepts used in article 27 (such as cause of action or the concept of same object which one must read into the English text) are autonomous European concepts: Gubisch v Palumbo Case 144/86, [11] and The Tatry Case C 406/92, [47]. In the latter case, the European Court of Justice said that the cause of action comprises the facts and the rule of law relied on as the basis of the action and that the object of the action for the purposes of article [27] means the end the action has in view [39] [41]. An analysis of the cases helps to understand what was meant. Gubisch v Palumbo happened to concern a situation where the mirror image claims were in a general sense contractual. The German claim was for the price of machinery delivered. The later Italian claim by the buyer was, firstly, that there was no liability because he had revoked his offer before it had reached the seller for acceptance strictly, this was not a contractual claim, but a claim that there was no contract and, secondly, that, if there was a contract, his consent was vitiated and the contract should be set aside for mistake or on the ground of the sellers fraud, or, thirdly, that any contract had been discharged on account of the sellers late delivery. Both the question referred and the Court of Justices summary of the facts embraced all three aspects of the Italian claim: see e.g. judgment [2] and [4]. The subsequent reasoning and the answer given refer to mirror image claims, one seeking enforcement, the other seeking rescission or discharge, of a contract: see [13] and [15] and the Courts answer. The Court said [17] that it must be held that the two actions have the same subject matter, for that concept cannot be restricted so as to mean two claims which are entirely identical. The absence of express reference at these points to the first Italian claim (that no contract had ever been concluded) cannot mean that the Court was drawing any distinction between that claim and the other two. On the contrary, the inference is that it saw it as posing no different issue. It could not have made any difference to the Court of Justices conclusions if, instead of or in addition to some or all of the pleas actually made in the Italian proceedings, the Italian claimants had alleged that the contract had been rescinded or discharged under some separate subsequent agreement, whether, for example, by novation or by some compromise relating to the parties past dealings or outstanding issues. Nor, in a situation in which concurrent contract and tort claims are possible (see e.g. Henderson v Merrett Syndicates Ltd [1994] UKHL 5; [1995] 2 AC 145), could it be crucial to the application of article 27 whether the foreign claim was being pursued in contract or tort, when the later English claim asserted a settlement agreement wide enough to cover both. Lord Clarke cites at para 28(iii) a useful encapsulation by Cooke J in JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyds Rep 665, [42], of the meaning of the expression legal rule or rule of law which the Court of Justice used in The Tatry Case C 406/92, [39]. Cooke J suggested that, in investigating cause, it was necessary, after looking at the basic facts, to look at the basic claimed rights and obligations of the parties. Here, the basic claimed rights and obligations of the parties are, in Greece, that the English claimants are liable in tort, and, in England, under the first head which asserts that the Greek claims have been settled, that there is no or no further liability for the Greek claims. The way in which article 27 was applied in The Tatry is also of interest. Having said that the cause of action comprises the facts and the rule of law relied on as the basis of the action [39], the Court of Justice went on: 40 Consequently, an action for a declaration of non liability, such as that brought in the main proceedings in this case by the shipowners, and another action, such as that brought subsequently by the cargo owners on the basis of shipping contracts which are separate but in identical terms, concerning the same cargo transported in bulk and damaged in the same circumstances, have the same cause of action. Here, the English claim that the Greek claims fall within the release and have been settled or compromised concerns, and seeks to negative, the same tort claims as the Greek actions seek to enforce. It can make no difference that the Greek claimants have not sought, pre emptively, to refer to, address or impugn in their Greek claims a possible defence (the Settlement Agreements) that might be raised in the Greek proceedings. One would not expect them to do so, any more than the German claimants in Gubisch v Palumbo addressed or would be expected to address every or any of the multiple arguments that the Italian claimants later deployed. The fact that the English claims do not seek directly to interfere with the Greek claims is also irrelevant. It would anyway be impermissible to claim in England an injunction restraining the Greek proceedings, but, quite apart from that, article 27 and the principle in Gubisch v Palumbo do not depend upon one set of proceedings seeking directly to prevent another. They derive from the principle that Member States must recognise each others judgments, and the aim of avoiding inconsistent judgments. As to the same object, the end which the Greek and English proceedings have in view is the same in each case, to decide the issue of liability for the torts alleged in Greece. That this is what is meant by the same object is clear from both Gubisch v Palumbo and The Tatry. The matter is directly addressed in the latter case in paras 42 to 45: 42 The question accordingly arises whether two actions have the same object when the first seeks a declaration that the plaintiff is not liable for damage as claimed by the defendants, while the second, commenced subsequently by those defendants, seeks on the contrary to have the plaintiff in the first action held liable for causing loss and ordered to pay damages. 43 As to liability, the second action has the same object as the first, since the issue of liability is central to both actions. The fact that the plaintiff's pleadings are couched in negative terms in the first action whereas in the second action they are couched in positive terms by the defendant, who has become plaintiff, does not make the object of the dispute different. 44 As to damages, the pleas in the second action are the natural consequence of those relating to the finding of liability and thus do not alter the principal object of the action. Furthermore, the fact that a party seeks a declaration that he is not liable for loss implies that he disputes any obligation to pay damages. 45 In those circumstances, the answer to the fifth question is that, on a proper construction of Article 21 of the Convention, an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. The reference in [44] to a partys claim for a declaration of non liability implying that it disputes any obligation to pay damages is equally applicable to the present English claims that the Greek tort claims fall within the release or have been settled or compromised. The English claims imply that the Greek claims are disputed. In short, the issue of liability is central to both the Greek and the English proceedings here, as it was to the Dutch and English proceedings in The Tatry. Not merely the same cause of action but also the same object is involved in the present case, as it was in The Tatry. The two sets of proceedings would, if pursued to judgment, lead to judgments which were legally and directly incompatible. It is therefore necessary under article 27 to consider whether it is the Greek or the English courts which fall in this connection to be regarded as first seised. The second and third heads of the release claims The second and third heads are more elusive. Claims for a declaration that the bringing of the Greek claims was a breach, and for damages for the breach, of the release in the Settlement Agreements may on one view be seen as little different from the claims made under the first head. But I have come to the conclusion that this would be wrong. The second and third heads postulate, and for present purposes at least we must accept, that the releases contain some positive continuing promise which the respondents by their Greek claims are now breaching. The terms of the releases were in each case (clause 2 in the case of CMI, clause 3 in the case of LMI) that the respondents would accept underwriters due proportion of the relevant payment in full and final settlement of all and any claims it may have under Policy no. against the Underwriters in relation to the loss of Alexandros T. One must make the assumption, for present purposes, that the Greek tort claims fall within this agreement. The difficulty is that the agreement was performed, in the sense that there was not merely an accord, but an accord and satisfaction. All policy claims were thus not just agreed to be settled, but they actually were settled, and, if and to the extent that that is the nature of the second and third heads of English release claim, they would not in reality differ from the first head. The question therefore arises, what if any outstanding promise could there be left to perform which the second and third heads claim to enforce? I have come to the conclusion that the acceptance of the sums paid in full and final settlement involves, certainly very arguably, a continuing outstanding promise not further to pursue claims of the nature identified in clauses 2 and 3 respectively. Even after the settlement, the pursuit of such claims could cause CMI and LMI loss. Most obviously, such loss could consist in the costs of defending the Greek claims. If they let the Greek proceedings go undefended, it could, subject to issues arising from the potential recognition of any Greek judgment under the Brussels Regulation, include the amount of any judgment awarded against them in the Greek proceedings. Likewise potentially, though subject to additional questions arising from any potential issue estoppel or application of the rule in Henderson v Henderson (1843) 3 Hare 100, even if they unsuccessfully defended the Greek claims. The consequences Accordingly, the second and third heads of release claims, analysed as I have analysed them, are outside the scope of article 27. As regards the first head, the remaining issue is whether the Greek or the English courts fall for the relevant purpose to be regarded as first seised. In so far as the first head of release claims was added into the pre existing English proceedings by an amendment made after the Greek proceedings were begun, is it to be viewed discretely as a new claim of which the English court is second seised? Or does it fall to be viewed as part, by amendment, of a single set of English proceedings commenced well before any Greek proceedings? I agree with Lord Clarke at para 60 that a court is only seised of claims by or against new parties from the date that those parties are added to the proceedings. In relation to the 2006 proceedings, the English court was only seised of claims against OME once OME was joined to the proceedings on 20 September 2011 and, as against OME therefore, the English courts were only seised of the first head of release claims made by CMI and LMI in 2011. Since the first head of release claims is in my opinion the mirror image of the Greek tort claims, article 27 must, on that basis, apply to preclude the pursuit of the first head of release claims as against OME in England. The respondents submit that article 27 also applies to preclude the pursuit in the English proceedings of the first head of claim against Starlight, which was party to the English proceedings from their outset. The Court of Appeal accepted this submission. CMI and LMI challenge it. Lord Clarke has in his paras 61 to 71 set out and discussed the respective submissions. To my mind, the sense of the Regulation as well as the case law and the academic guidance all point in one direction. The chronological priority contemplated by the Regulation cannot be gained, or subverted, by the addition by amendment of a new claim in proceedings otherwise second brought (any more than it can be affected by the addition of new claimants or defendants, as Lord Clarke accepts: para 60). To the authorities under the current Regulation to which Lord Clarke refers, I would only add that similar thinking is to be found under the predecessor provisions of Article 21 and 22 of the Brussels Convention in the decisions at both levels in Grupo Torras SA v Shekh Fahad Al Sabah [1995] 1 Lloyds Rep 374, 418 419 (Mance J) and [1996] 1 Lloyds Rep 7, 24 (CA). Conclusion It follows that the conclusions I would reach, were all the issues to be finally decided now, would be that: The first head of English release claims would be precluded under i) article 27, having regard to what I conclude are in this respect the prior Greek claims. ii) All the remaining heads are outside the scope of article 27 and are permissible. It is however necessary to consider whether these conclusions are founded on principles of European law which are so clear that no reference to the Court of Justice is required. A reference to the Court of Justice In relation to the conclusion expressed in para 161ii, we are all in agreement in our conclusions. Any differences in reasoning regarding article 27 are irrelevant, and no reference is necessary. As to para 161i, Lord Clarke would reach the opposite conclusion to that which I have expressed and he considers in the light of my judgment that a reference is called for, if the English appellants persist in their first head of release claims. With the latter view I agree. The differences between Lord Clarkes and my reasoning are not, I believe, simple differences regarding the application to facts of clear principles of European law. I might by myself have thought that all the relevant principles of European law were clear, but I certainly do not dissent from the proposition that the differences, being material to our respective conclusions, require a reference. If the appellants wish to persist in, rather than abandon, the first head of release claims, there should accordingly be a reference as Lord Clarke suggests. Ultimately, therefore, although by different reasoning, Lord Clarke and I arrive at the same conclusions regarding the appropriate disposition of these appeals.

UK-Abs

On 3 May 2006, the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth with considerable loss of life. Her owners were Starlight Shipping Company (Starlight). Starlight made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of Starlight. In response, Starlight made a number of serious allegations against their insurers including allegations of misconduct involving tampering with and bribing of witnesses. On 15 August 2006, Starlight issued proceedings in the Commercial Court against various insurers (the 2006 proceedings). One group of insurers was described as the Company Market Insurers (CMI) and the other group was described as the Lloyds Market Insurers (LMI). Before the hearing, the 2006 proceedings were settled between Starlight and the insurers and the proceedings were stayed by way of a Tomlin Order. In April 2011, nine sets of Greek proceedings, in materially identical form, were issued by Starlight although they were expressed as torts actionable in Greece. The insurers sought to enforce the earlier settlement agreements. Starlight applied for a stay of these proceedings, firstly pursuant to Article 28 then Article 27 of Council Regulation (EC) No 44/2001 (the Regulation) The judge refused to grant a stay under Article 28 and gave summary judgment to the insurers. The Court of Appeal held that it was bound to stay the 2006 proceedings under Article 27, which provides for a mandatory stay, and it was not therefore necessary to reach a final determination of the position under Article 28. Before the Supreme Court, the insurers challenge the correctness of the Court of Appeals conclusion under Article 27 and submit that the judge was correct to refuse a stay under Article 28. Starlight cross appeal on the Article 28 point. Subject to the possibility of a reference to the CJEU on some limited questions, the Supreme Court unanimously allows the CMIs and LMIs appeal. Lord Clarke gives the lead judgment, with which Lord Sumption and Lord Hughes agree. Lord Neuberger agrees adding a short judgment of his own. Lord Mance agrees with the result. Article 27 Article 27 must be construed in its context. The purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State [23, 27]. In the case of each cause of action relied upon, it is necessary to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded [29]. The essential question is whether the claims in England and Greece are mirror images of each other and thus legally irreconcilable [30]. There are three heads of claim in England: indemnity, exclusive jurisdiction and release [32]. None of the causes of action relied upon in the Greek proceedings has identity of cause or identity of object with the CMIs claim for an indemnity. The subject matter of the claims is different. The Greek proceedings are claims in tort (or its Greek equivalent) and the claims in England are claims in contract. As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability and to claim damages for breach of the exclusive jurisdiction clauses [34]. The same is true of the CMIs claims in respect of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies [36]. The causes of action based upon an alleged breach of the settlement agreement are not the same causes of action as are advanced in Greece [37]. The same is also true of the claims based on the release provisions in the CMI settlement agreement [40]. The Greek claims are claims in tort and the English proceedings are contractual claims. The factual bases for the two claims are entirely different. Moreover, the object of the two claims is different [41]. The Supreme Court is unanimous that that is the position with regard to the claims for damages for breach of the release provisions in the settlement agreements. However, in so far as the insurers claim declarations, while the majority reaches the same conclusion, Lord Mance reaches a different conclusion on the basis that the claims for declarations in the two jurisdictions are mirror images of each other. The court unanimously decides that, unless the insurers abandon those claims for declarations, the relevant question should be referred to the CJEU for an opinion [59]. In the event, the CMI have now abandoned their claims for declarations based on the release provisions and it is not necessary to refer the question to the CJEU. It follows that the CMIs appeals under Article 27 are allowed. The position of the LMI is essentially the same as in the case of the CMI [55]. If the LMI do the same within the time permitted, their appeals will also be allowed under Article 27. A similar position has been reached in respect of LMIs submission that the appeals under Article 27 should have been rejected by the Court of Appeal as being too late [123]. Article 28 The discretion to stay claims under Article 28 is limited to any court other than the court first seised [74]. On the assumption that the English court is second seised for the purposes of Article 28, the question arises whether the actions should be stayed as a matter of discretion [91]. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay [92]. However, the natural court to consider the issues raised by CMI and LMI is the High Court in England because they raise contractual questions governed by English law and because it is at least arguable that the parties have agreed that they should be decided by the High Court, where the proceedings are more advanced than in Greece [96]. The decision of the judge in refusing a stay under Article 28 is upheld and the cross appeal is dismissed [97, 125].

Mr Swift owns a removal business. On 27 July 2011 he received a telephone call from Dr Toby Robertson, the appellant in this appeal. Dr Robertson asked for a quotation for moving his furniture and effects from Weybridge to his new home in Exmouth. The following day Mr Swift visited Dr Robertsons home and inspected the items to be moved. He proposed a price of 6,000. This did not compare well with other quotations that Dr Robertson had received. These had ranged between 3,000 and 4,000 but the firms that had quoted these figures had been unable to move Dr Robertsons furniture etc at a time that suited his plans. Dr Robertson explained the position to Mr Swift. The latter responded that the quotes Dr Robertson had been given were not typical and that his was a standard price. So, after some discussion, the two men agreed a price of 5,750 plus extended liability insurance cover and VAT, making a total of 7,595.40. Mr Swift prepared a removal acceptance document which he sent by email to Dr Robertson. He also sent a copy of his standard conditions. These included the following: 7.1 If you postpone or cancel this agreement, we will charge you according to how much notice is given. Working days refer to the normal working days of Monday to Friday and excludes weekends and public holidays. 7.1.1: More than 10 working days before the removal was due to start no charge; 7.1.2: Between 5 and 10 working days inclusive before the move was due to start not more than 50 percent of the removal charge; 7.1.3: Less than 5 working days before the removal was due to start not more than 80 percent of the removal charge On the evening of 28 July Mr Swift made a second visit to Dr Robertson's home. On this occasion he delivered some boxes to be used for packing. At the same time Dr Robertson signed the acceptance document and gave it to Mr Swift. It was agreed that the removal operation would begin on Tuesday 2 August and Dr Robertson paid a deposit of 1,000. Over the following days, Dr Robertson reflected on what had been agreed and made further inquiries of other removal firms. These led him to believe that the price which Mr Swift had quoted was well above the average cost of removal. After further research, he found a firm that was prepared to undertake the work for 3,490. On 30 July 2011 he telephoned Mr Swift and told him that he wished to cancel the contract. Mr Swift reminded Dr Robertson that there were cancellation charges; he said that the normal charge was 60% of the contract price but that he would accept 50% and, at this stage, Dr Robertson agreed to pay that. On 1 August he wrote to Mr Swift confirming his decision to cancel the contract, posting the letter on the day that it was written. It appears that Mr Swift did not receive the letter but, for reasons that will become clear, this is of no importance. In due course Mr Swift demanded payment of the cancellation charges. Dr Robertson, having conducted some research in the meantime, decided that he had no liability for the charges and he refused to pay. Mr Swift duly issued proceedings and Dr Robertson counterclaimed for the return of his deposit. The proceedings The case was heard as a small claim by Deputy District Judge Batstone at Exeter County Court on 5 January 2012. Dr Robertson argued that he was entitled to cancel the contract by virtue of The Cancellation of Contracts made in a Consumers Home, or Place of Work etc Regulations 2008. The deputy district judge held that these regulations did not apply because the contract had not been concluded during a single visit to Dr Robertsons home. That decision was upheld by His Honour Judge Tyzack QC in the Torquay and Newton Abbot County Court on 27 April 2012. Dr Robertson appealed. The Court of Appeal (Mummery, Jackson and Lewison LJJ) allowed his appeal in part. Jackson LJ, delivering the principal judgment, held that the 2008 Regulations applied if the consumers home was where the contract was concluded, irrespective of whether there had been earlier negotiations between the parties. He also held, however, that although, by virtue of regulation 7(6), the contract was unenforceable as against Dr Robertson, it remained alive and the deposit could not be recovered. This was because Mr Swift had not given Dr Robertson notice of his right to cancel the contract as required by regulation 7(2) of the 2008 Regulations and Dr Robertson was therefore not entitled to cancel under regulation 7(1). Dr Robertson appeals that decision to this court. The Consumer Protection Directive Council Directive (85/577/EEC) was the genesis for the 2008 Regulations (and their predecessor, The Consumer Protection (The Cancellation of Contracts concluded away from Business Premises) Regulations 1987). The preamble to the Directive contains the following recitals: Whereas the special feature of contracts concluded away from the business premises of the trader is that as a rule it is the trader who initiates the contract negotiations, for which the consumer is unprepared or which he does not [expect]; Whereas the consumer is often unable to compare the quality and price of the offer with other offers; Whereas this surprise element generally exists not only in contracts made at the doorstep but also in other forms of contract concluded by the trader away from his business premises; Whereas the consumer should be given a right of cancellation over a period of at least seven days in order to enable him to assess the obligations arising under the contract; Whereas appropriate measures should be taken to ensure that the consumer is informed in writing of this period for reflection In Case C 227/08 MARTN MARTN v EDP Editores SL [2010] 2 CMLR 27 CJEU in para 22 explained the importance of the first two of the recitals cited above: In that regard, it should be noted that the Directive, as is apparent from recitals 4 and 5, is designed to protect consumers against the risks inherent in the conclusion of contracts away from business premises (Hamilton v Volksbank Filder eG (C 412/06) [2008] E.C.R. I 2383; [2008] 2 C.M.L.R. 46 at [32]), as the special feature of those contracts is that as a rule it is the trader who initiates the contract negotiations, and the consumer has not prepared for such door to door selling by, inter alia, comparing the price and quality of the different offers available. Article 1(1)(i) of the Directive provides that it is to apply to contracts under which a trader supplies goods or services to a consumer and which are concluded during a visit to the consumers home. Article 4 requires traders to give consumers written notice of their right to cancel the contract within a period stipulated in article 5. In the case of article 1(1) transactions (such as involved in this case) the notice is to be given at the time the contract was concluded. Significantly, article 4 also requires member states to ensure that their national legislation prescribes appropriate consumer protection measures in cases where the information about cancelling the contract has not been supplied by the trader. Article 5 gives the consumer the right to renounce the effects of his undertaking by sending notice within 7 days of receiving the notice provided for in article 4. It is sufficient if the notice is dispatched before the end of the period and the giving of notice has the effect of releasing the consumer from any obligations under the cancelled contract. Article 7 provides that if the consumer exercises his right of renunciation, the legal effects of that are to be governed by national laws, particularly regarding the reimbursement of payment for goods or services. The 2008 Regulations Regulation 2 defines cancellation notice as a notice in writing given by the consumer that he wishes to cancel the contract. Cancellation period is defined as the period of 7 days starting with the date of receipt by the consumer of a notice of the right to cancel. Regulation 5 deals with the scope of application of the regulations. By regulation 5(a) they are said to apply to a contract for the supply of services by a trader to a consumer which is made during a visit by the trader to the consumers home or place of work, or to the home of another individual. Regulation 7(1) gives the consumer the right to cancel a relevant contract within the cancellation period and regulation 7(2) requires the trader to give the consumer written notice of his right to cancel. In the case of a contract such as was made between Mr Swift and Dr Robertson that notice is required to be given at the time the offer was made. Regulation 7(3) requires the notice to be dated and to indicate the consumers right to cancel the contract within the cancellation period. Regulation 7(6) provides: A contract to which these Regulations apply shall not be enforceable against the consumer unless the trader has given the consumer a notice of the right to cancel and the information is in accordance with this regulation. Regulation 8(1) provides that if the consumer serves a cancellation notice within the cancellation period, the contract is cancelled and regulation 8(5) provides that a cancellation notice sent by post is taken to have been served at the time of posting, whether or not it is actually received. The deputy district judge in this case accepted that Dr Robertson had, as he claimed, sent the letter in which he purported to cancel the contract on 1 August 2011. He also accepted Mr Swifts evidence that he had not received it. If the cancellation notice contained in the letter was effective, by virtue of regulation 8(5), it is irrelevant that Mr Swift did not receive it. Regulation 10 deals with recovery of money paid by the consumer. Paragraph (1) provides that on the cancellation of a contract under regulation 8, any sum paid by the consumer in respect of the contract shall become repayable except where the regulations provide otherwise. The latter provision does not arise in the present case. The decision of the Court of Appeal In para 40 of his judgment Jackson LJ adumbrated two possible interpretations of regulation 5(a). The first was that the regulation only applied where the contract was negotiated and concluded during a single visit to the consumers home. The second was that it applied if the consumers home was where the contract was concluded, whether or not earlier negotiations had taken place there. For a number of reasons, which need not be repeated, he concluded that the second of these was to be preferred. This was plainly right. To have the important protection of these regulations depend on the adventitious circumstance that negotiations were confined to a single occasion would be distinctly out of keeping with their intended breadth of application. Jackson LJ acknowledged that a consequence of the finding that the contract was governed by the 2008 Regulations was that Mr Swift was obliged to give Dr Robertson written notice of his right to cancel whereupon the latter would have the right to do just that during the cancellation period. He found force in Mr Swifts submission that this was absurd because, among other things, Dr Robertson had invited Mr Swift to his home; Mr Swift had had to turn away other work in order to carry out this commission; and Dr Robertson was able to cancel the contract at one days notice. In making these observations, Jackson LJ noted that the Directive did not apply if the trader visits the consumers home at his express request and this prompted him to consider whether the 2008 Regulations were ultra vires their enabling provisions, section 59 of the Consumers, Estate Agents and Redress Act 2007 and s.2(2) off the European Communities Act 1972. He concluded that they were not, particularly having regard to article 8 of the Directive which makes it clear that member states should feel free to adopt provisions which are more favourable to consumers than those required by the Directive. Again, this conclusion was plainly correct. Since the contract was unenforceable against Dr Robertson, by virtue of regulation 7(6), Jackson LJ held that Mr Swift was unable to make any charge for cancellation under clause 7 of his standard conditions. He found, however, that because no written notice had been given as required by regulation 7(2), there was no cancellation period as defined in regulation 2(1). On that account he decided that Dr Robertson was not entitled to cancel the contract. He therefore dismissed the counterclaim. The correct approach to interpretation of the regulations A national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement. This is now well settled. Thus in Case C 350/03 Schulte v Deutsche Bausparkasse Badenia AG [2006] 1 CMLR 11, the Court of Justice of the European Union said at para 71: when hearing a case between individuals, the national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive (see Pfeiffer and others, [2005] 1 CMLR 44] paragraph 120) The breadth and importance of this principle was authoritatively set out in Vodafone 2 v Commissioners for Her Majestys Revenue and Customs [2010] Ch 77, where, at paras 37 and 38, after listing the authorities to which the court had been referred, Sir Andrew Morritt, C said: 37 The principles which those cases established or illustrated were helpfully summarised by counsel for HMRC in terms from which counsel for V2 did not dissent. Such principles are that: In summary, the obligation on the English courts to legislation consistently with construe domestic Community law obligations is both broad and far reaching. In particular: (a) it is not constrained by conventional rules of construction ( per Lord Oliver of Aylmerton in the Pickstone case, at p 126B); (b) it does not require ambiguity in the legislative language (per Lord Oliver in the Pickstone case, at p 126B and per Lord Nicholls of Birkenhead in Ghaidans case, at para 32); (c) it is not an exercise in semantics or linguistics (per Lord Nicholls in Ghaidans case, at paras 31 and 35; per Lord Steyn, at paras 4849; per Lord Rodger of Earlsferry, at paras 110115); (d) it permits departure from the strict and literal application of the words which the legislature has elected to use (per Lord Oliver in the Litster case, at p 577A; per Lord Nicholls in Ghaidans case, at para 31); (e) it permits the implication of words necessary to comply with Community law obligations ( per Lord Templeman in the Pickstone case, at pp 120H121A; per Lord Oliver in the Litster case, at p 577A); and (f) the precise form of the words to be implied does not matter (per Lord Keith of Kinkel in the Pickstone case, at p 112D; per Lord Rodger in Ghaidans case, at para 122; per Arden LJ in the IDT Card Services case, at para 114). 38. Counsel for HMRC went on to point out, again without dissent from counsel for V2, that: The only constraints on the broad and far reaching nature of the interpretative obligation are that: (a) the meaning should go with the grain of the legislation and be compatible with the underlying thrust of the legislation being construed: see per Lord Nicholls in Ghaidan v Godin Mendoza [2004] 2 AC 557, para 33; Dyson LJ in Revenue and Customs Comrs v EB Central Services Ltd [2008] STC 2209, para 81 It is important to note that, in order to observe the imperative that this guidance contains, the court must not only keep faith with the wording of the Directive but must have closely in mind its purpose. Since the overall purpose of the Directive is to enhance consumer protection, that overarching principle must guide interpretation of the relevant national legislation. The wording and purpose of the Directive The centrality of the right to cancel a contract as a feature of the protection which the Directive is designed to afford to the consumer was emphasised by CJEU in the MARTN case cited above. At paras 23 et seq CJEU dealt with that issue in this way: 23. the directive ensures consumer protection by granting, first of all, a right of cancellation to the consumer. Such a right seeks specifically to offset the disadvantage, for the consumer, of sales which take place away from business premises, to enable him over a period of at least seven days to assess the obligations arising under the contract (see, to that effect, Hamilton [2008] 2 C.M.L.R. 46 at [33]). 24 In order to strengthen consumer protection in situations where consumers find themselves caught unawares, art 4 of the Directive also requires traders to give consumers written notice of their right to cancel the contract and the conditions for and means of exercising such a right. 25 Lastly, it is apparent from art 5(1) of the Directive that the minimum period of seven days must be calculated from the date of receipt of that notice from the trader. That provision is explained, as the Court has previously indicated, by the fact that if the consumer is not aware of the existence of the right of cancellation, he will not be able to exercise that right (Heininger v Bayerische Hypo und Vereinsbank AG (C 481/99) [2001] E.C.R. I 9945; [2003] 2 C.M.L.R. 42 at [45]). 26 In other words, the system of protection established by the Directive assumes not only that the consumer, as the weaker party, has the right to cancel the contract, but also that he is made aware of his rights by being specifically informed of them in writing. 27 It must therefore be held that the obligation to give notice of the right of cancellation laid down in art.4 of the Directive plays a central role in the overall scheme of that directive, as an essential guarantee, as the Advocate General stated in [AG55] and [AG56] of her Opinion, for the effective exercise of that right and, therefore, for the effectiveness of consumer protection sought by the Community legislature. The requirement to give notice of the right to cancel should not therefore be seen as a technical prerequisite to the arousal of the right but as a means of ensuring that the consumer is made aware that he is entitled to cancel the contract after a period of reflection. That this is its essential purpose is underscored by the provision in article 4 of the Directive that national legislation should lay down appropriate consumer protection measures where a trader fails to give written notice of the right to cancel. Although this gives national authorities a discretion as to the consequences that should follow a failure to give notice, the discretion must be exercised in a way that will promote the overall purpose of the Directive. This is clear from para 32 of CJEUs judgment in MARTN: it must be pointed out, first, that the concept of appropriate consumer protection measures in the third paragraph of art.4 of the Directive, affords to the national authorities a discretion in determining the consequences which should follow a failure to give notice, provided that that discretion is exercised in conformity with the Directives aim of safeguarding the protection granted to consumers under appropriate conditions with regard to the particular circumstances of the case. To hold that the consumer did not have the right to cancel because the trader had not served written notice of the right to cancel would run directly counter to the overall purpose of the Directive in ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences. The circumstances in which the particular contract in this appeal was made and in which Dr Robertson sought to cancel it may be out of the ordinary. There may even be reason to suppose that Mr Swift, the owner of a small business, fared rather badly out of this transaction. But if the right to cancel could be effectively nullified by a failure (or refusal) of a trader to give written notice of the right to the consumer, this would create a considerable gap in the level of protection that the Directive sought to provide. Although Dr Robertson invited Mr Swift to his home and was clearly a man of intelligence, well able, as the Court of Appeal found, to conduct negotiations, it is clearly the intention of both the Directive and the regulations that those less well equipped than Dr Robertson should have what is considered to be the necessary protection. Moreover, although the Directive did not cover solicited visits, it is clear that Parliament intended that a consistent approach to solicited and unsolicited visits was appropriate. At para 7.7 of the Explanatory Memorandum to the regulations states: The government believes that these regulations will make the law simpler and clearer for consumers, businesses and enforcement agencies. Consumers will be less at risk from disreputable traders exploiting the different treatment of solicited and unsolicited visits; businesses will, in general, be able to work with one contract for both unsolicited and solicited visits, reducing ongoing costs in training sales staff; and enforcers will not have to use valuable resources determining whether a visit was solicited or not as the same rules will apply. The question of entitlement to cancel in the absence of a written notice has been authoritatively settled by CJEU in Case 481/99 Heininger [2003] 2 CMLR 42 at para 45 and Case C 215/08 E Friz GmbH v Carsten von der Heyden [2010] 3 CMLR 23 paras 37 39 as follows: 37 art.5 (2) of the Directive provides that notification by the consumer of the renunciation of the effects of his undertaking has the effect of releasing him from any obligations under the cancelled contract. 38 It follows that, if the consumer has been properly informed of his right of renunciation, he may be released from his contractual obligations by exercising his right of renunciation within the period provided for in art.5(1) of the Directive, in accordance with the procedure laid down by national law. 39 On the other hand, as the Court has already held, where he did not receive that information, that period of not less than seven days does not start to run, so that the consumer can exercise his right of renunciation under art.5 (1) of the Directive at any time (see, to that effect, Heininger [2003] 2 C.M.L.R. 42 at [45]). In fairness, it should be said that these authorities were not drawn to the attention of the Court of Appeal. But it is clear from the decisions in these cases that the objective of the Directive where a contract is cancelled is that the consumer should not suffer adverse consequences; that, in effect, he should be placed in the position that he would have been in if he had not entered the agreement in the first place. That the achievement of this objective should be dependent on whether the trader has given written notice to the consumer of his right to cancel would be incongruous, to say the least. Again, there is authoritative guidance from CJEU on the point. In Schulte (cited above at para 20) the consumers had not been informed of their right to cancel a contract made with a bank for the purchase of an apartment. The court dealt with the consequence of that in paras 97 101 as follows: 97 If the Bank had informed Mr and Mrs Schulte of their right of cancellation under the HWiG at the correct time, they would have had seven days to change their minds about concluding the loan agreement. If they had chosen then to cancel it, it is common ground that, given the link between the loan agreement and the purchase contract, the latter would not have been concluded. 98 In a situation where the Bank has not complied with the obligation to inform the consumer incumbent on it under Art.4 of the Directive, if the consumer must repay the loan under German law as construed in the case law of the Bundesgerichtshof, he bears the risks entailed by financial investments such as those at issue in the main proceedings 99 However, in a situation such as that in the main proceedings, the consumer could have avoided exposure to those risks if he had been informed in time of his right of cancellation. 100 In those circumstances, the Directive requires Member States to adopt appropriate measures so that the consumer does not have to bear the consequences of the materialisation of those risks. The Member States must therefore ensure that, in those circumstances, a bank which has not complied with its obligation to inform the consumer bears the consequences of the materialisation of those risks so that the obligation to protect consumers is safeguarded. 101 Accordingly, in a situation where, if the Bank had informed the consumer of his right of cancellation, the consumer would have been able to avoid exposure to the risks inherent in investments such as those at issue in the main proceedings, Art.4 requires Member States to ensure that their legislation protects consumers who have been unable to avoid exposure to such risks, by adopting suitable measures to allow them to avoid bearing the consequences of the materialisation of those risks. (emphasis added) By analogy, where Mr Swift had failed to inform Dr Robertson of his right to cancel the contract, national law, in the form of the 2008 Regulations should have ensured that he (Mr Swift) bore the consequences of that failure and that Dr Robertson was allowed to avoid the forfeit of his deposit. The question therefore arises whether the 2008 Regulations can be interpreted in a way to achieve this result. Purposive construction of the regulations The 2008 Regulations can, and should, be given a purposive construction under both EU and domestic law. A purposive construction is one which eschews a narrow literal interpretation in favour of one which is consonant with the purpose of the relevant legislation, in this case, the comprehensive protection of the consumer in the event of the cancellation of the contract. As Lord Bingham observed in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at para 8, The courts task, within the permissible bounds of interpretation, is to give effect to Parliaments purpose. Parliaments purpose was plain. As the Explanatory Memorandum makes clear, it was to ensure that all consumers should have the safety net of a cooling off period. The efficiency of that safety net would be significantly compromised if a deposit paid was not recoverable because the trader had not given written notice of a right to cancel. On behalf of the intervener, the Office of Fair Trading, Ms Ford suggested that there were two possible means of achieving a conforming/purposive construction of the regulations which would fulfil the Directives objective. The first would be to read the word within where it appears in regulation 7(1) and regulation 8(1) as meaning at any time prior to the expiration of. This, she submitted, would have the effect that a consumer would have the right to cancel at any time before the end of the cancellation period which would either expire 7 days after the consumer received notice of the right to cancel or, in the event that no such notice was served, would not expire at all so that the consumer could cancel at any time. The second possibility advanced by Ms Ford was to interpret cancellation period in regulation 2(1) so as to permit the words, the period of 7 days starting with the date of receipt by the consumer of a notice of the right to cancel as meaning, the period commencing from when the trader is required to give the consumer a written notice of his right to cancel pursuant to regulation 7(2) and expiring 7 days after the date of receipt by the consumer of a notice of the right to cancel. Either of these interpretations is feasible and both would achieve the object of advancing and being in conformity with the obvious purpose of the Directive. But the first interpretation has much to commend it, not least because it is a simple and tenable reading of the actual wording of the 2008 Regulations. I would therefore hold that this is the interpretation to be preferred. Conclusion deprive a consumer of the statutory right to cancel under regulation 7(1) of the 2008 Regulations. Dr Robertson was therefore entitled to cancel the contract as he did by his letter of 1 August 2011. He is therefore entitled to recover his deposit of 1000. I would allow the appeal. A failure by a trader to give written notice of the right to cancel does not

UK-Abs

This appeal concerns the application of the Cancellation of Contracts made in a Consumers Home Regulations 2008 (the 2008 Regulations). The respondent, Mr Swift, owns a removal business. The appellant, Dr Robertson, telephoned him on 27 July 2011 to ask for a quotation for moving his furniture from Weybridge to Exmouth on 2 August 2011. Mr Swift visited his home the following day to inspect the items to be moved and while he was there the two men agreed a price of 7,595.40. Mr Swift then sent a removal acceptance document by email, which Dr Robertson signed and handed to Mr Swift on his second visit to the house that day to deliver packing materials. This document provided for charges in the event of cancellation of the contract less than 10 days before the removal was due to start. Dr Robertson paid a deposit of 1,000. Over the following days Dr Robertson made enquiries of other removal firms and found one which could undertake the work for 3,490. He telephoned Mr Swift to tell him he wished to cancel the contract, and sent him a letter giving notice of cancellation on 1 August 2011. He refused to pay the cancellation charges on the ground that he had been entitled to cancel the contract by virtue of the 2008 Regulations, and when Mr Swift issued proceedings, he denied liability and counterclaimed for the return of his deposit. Dr Robertsons submissions failed at trial, and on appeal in the Exeter County Court, but the Court of Appeal found that the 2008 Regulations did apply in the circumstances of his case. It held that they prevented Mr Swift from enforcing the contract against Dr Robertson. However, Dr Robertson had not been entitled to cancel the contract because Mr Swift had failed to give him the required notice of his right to cancel. The contract had remained alive and Dr Robertson could not therefore recover his deposit. Dr Robertson appealed against the dismissal of his counterclaim to the Supreme Court. The Supreme Court unanimously allows Dr Robertsons appeal. It holds that the 2008 Regulations give consumers the right to cancel contracts made in their homes before and for 7 days after notice of the right to cancel is served, and Dr Robertson was therefore entitled to exercise this right and to recover the deposit he had paid. Lord Kerr, with whom the other judges all agree, gives the only judgment. The 2008 Regulations gave effect to Council Directive (85/577/EEC) (the Directive). The Directive was designed to protect consumers against the risks inherent in the conclusion of contracts away from business premises. It requires traders to give consumers written notice of their right to cancel the contract at the time the contract is concluded and asks member states to ensure through national legislation that appropriate consumer protection measures are put in place for cases where this notice is not given [8 12]. The Court of Appeal was correct to conclude that the 2008 Regulations applied in the circumstances of this case, and that the contract was therefore unenforceable by Mr Swift, even though there had been two visits to Dr Robertsons home at his express invitation. It had been open to member states to adopt provisions that were more favourable to consumers than those required by the Directive [17 19]. The Court of Appeal had, however, erred when it found that Dr Robertson was not entitled to cancel the contract unless and until he had been served with notice of his right to cancel. The 2008 Regulations should be interpreted in the light of the wording and purpose of the Directive [20 22, 28]. The right to cancel contracts made at home was central to the protection afforded to consumers under the Directive and the requirement to give notice of the right to cancel was not a technical prerequisite to the exercise of the right [23 24]. To hold that it could be nullified by a failure or refusal of a trader to give written notice of the right to cancel to a consumer would run directly counter to the overall purpose of the Directive and create a considerable gap in the level of protection provided [25]. Accordingly the cancellation period referred to in Regulation 2 (1) should be interpreted to mean the period commencing from when the trader is required to give the consumer a written notice of his right to cancel pursuant to regulation 7(2) and expiring 7 days after receipt by the consumer of a notice of the right to cancel [32]. On this basis Dr Robertson was within the cancellation period provided by the 2008 Regulations when he sent his letter of 1 August 2011 and he was entitled to recover his deposit [34].

Helredale playing field (the Field) is situated in Whitby, North Yorkshire, and it is owned by Scarborough Borough Council. The specific issue raised on this appeal is whether it should be registered as a town or village green under section 15 of the Commons Act 2006. The point of principle which this issue raises concerns the meaning of the expression as of right in section 15(2), and, more precisely, whether use is as of right when it is contemplated by the statutory provision under which a public body acquired and holds the land in question. This point, in turn, requires this Court to consider the reasoning of the House of Lords in R (Beresford) v Sunderland City Council [2004] 1 AC 889. The factual and legal background The factual background to the appeal is set out very fully in an excellent report prepared by Vivian Chapman QC, dated 28 July 2010, whose findings are accepted as accurate by the parties to these proceedings. For the purpose of this appeal, it is only necessary to set out his conclusions in very summary terms. The Field is some two hectares in extent, and it was acquired as part of a larger parcel of land, amounting to some fourteen hectares, under a conveyance dated 20 June 1951, by the statutory predecessor of Scarborough Borough Council, Whitby Urban District Council (and I shall refer to the two Councils simply as the Council), acting pursuant to their powers under section 73(a) of the Housing Act 1936, which permitted a local authority to acquire any land as a site for the erection of houses. The Council then developed most of the fourteen hectares for housing, and laid out and maintained the Field as recreation grounds pursuant to section 80(1) of the 1936 Act, with the consent of the Minister as required by that section. Sections 73 and 80 of the 1936 Act were repealed and substantially re enacted in the Housing Act 1957, whose provisions were in turn repealed and substantially re enacted (albeit with more amendments) in the Housing Act 1985. Section 12(1) of the 1985 Act (which is in Part II, concerned with provision of housing accommodation) is in virtually identical terms to section 80(1) of the 1936 Act (save that the Minister has been replaced by the Secretary of State), and it provides as follows: A local housing authority may, with the consent of the Secretary of State, provide and maintain in connection with housing accommodation provided by them under this Part (a) buildings adapted for use as shops, (b) recreation grounds, and (c) other buildings or land which, in the opinion of the Secretary of State, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided. (Denning J explained in a case on the effectively identically worded section 80(1) of the 1936 Act, HE Green and Sons v Minister of Health (No 2) [1948] 1 KB 34, 41, that the section did not require the use of buildings, recreation grounds or other buildings or land to be restricted to the persons for whom the housing accommodation is provided, and that the use could also validly extend to other members of the public.) Subsequent to the acquisition of the fourteen hectares, the Council acquired other land adjoining or close to the Field, which it then developed for housing. For at least the last fifty years, the relevant facts relating to the Field are as follows. It is surrounded by land consisting of three residential estates which were developed as local authority housing. It has four entrances, which are open at all times, and which have notices requiring dogs to be kept on leads and dog owners to clear up after their dogs. It has the appearance of a municipal recreation ground, mostly laid to grass, including a football pitch, and it is crossed by a hard surface path. The Council maintains the Field, in the sense of arranging for the regular mowing of the grass in summer and the marking out of the football pitch (currently once a year, but previously more frequently). The Field is used extensively and openly by local inhabitants for informal recreation, largely, but not exclusively, for children playing and walking dogs. Until 2005, the football pitch was used for local league football matches with the Councils licence. The procedural history On 12 October 2007, Vivienne Wright, acting on behalf of the Helredale Neighbourhood Council, of which she was secretary, applied to the North Yorkshire County Council (NYCC) to register the Field as a town or village green under section 15 of the 2006 Act. follows: Section 15 of the 2006 Act provides, so far as relevant to this appeal, as (1) Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2). applies. (2) This subsection applies where (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and (b) they continue to do so at the time of the application. In order to determine the application, NYCC decided to appoint Mr Chapman to conduct an inquiry, which he duly held over two days in April 2010. Following that, he produced a report in July 2010, as mentioned above. (It was followed by a supplementary report in September 2010, but nothing hangs on that for present purposes). Apart from making detailed findings, including those summarised above, Mr Chapman concluded in his report that, although a significant number of the inhabitants of [the] locality [had] indulged in lawful sports and pastimes on the land for a period of at least 20 years their use had not been as of right. In other words, as Sullivan LJ put it in the Court of Appeal, the inspector concluded that although the use of the Field met all of the other requirements of section 15(2), the local inhabitants use of the Field for recreational purposes had been by right and not as of right [2013] 1 WLR 1521, para 3. Accordingly, Mr Chapman recommended that the application to register the Field as a town or village green be rejected. This recommendation was considered and accepted by NYCC on 8 October 2010. Christine Barkas, a member of the Neighbourhood Council applied for judicial review of this decision. Her application failed before Langstaff J [2011] EWHC 3653 (Admin), and her appeal to the Court of Appeal was dismissed for reasons given by Sullivan LJ in a judgment with which Richards and McFarlane LJJ agreed. She now appeals to this Court. The issue raised by this appeal The basic issue which the appeal raises is a short one: where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes as of right within the meaning of section 15(2)(a) of the Commons Act 2006? NYCC, with the support of the Council, contend that the answer is no, whereas Ms Barkas, on behalf of the Neighbourhood Council, argues that the answer is yes. In the course of her argument, Ms Lieven QC, who appears for NYCC, and is supported by Mr Laurence QC, who appears for the Council, made it clear that she challenged part of the reasoning, and the ultimate decision, of the House of Lords in Beresford, although her primary contention is that it is distinguishable. As explained below the decision is on any view not without its difficulties. Accordingly, I propose first to consider the issue by reference to principle and one or two earlier decisions of the House of Lords, and only then to turn to Beresford. The meaning of as of right The origin of the expression as of right in the definition of town or village green in section 22(1) of the Commons Registration Act 1965, which is effectively for present purposes the statutory predecessor of section 15(2) of the 2006 Act, was authoritatively discussed by Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 349D 351H. As he said, it originates from the law relating to the acquisition of easements by prescription. Before examining what Lord Hoffmann said, it is, I think, helpful to explain that the legal meaning of the expression as of right is, somewhat counterintuitively, almost the converse of of right or by right. Thus, if a person uses privately owned land of right or by right, the use will have been permitted by the landowner hence the use is rightful. However, if the use of such land is as of right, it is without the permission of the landowner, and therefore is not of right or by right, but is actually carried on as if it were by right hence as of right. The significance of the little word as is therefore crucial, and renders the expression as of right effectively the antithesis of of right or by right. In his discussion on the point in Sunningwell, Lord Hoffmann began by explaining that [a]ny legal system must have rules of prescription which prevent the disturbance of long established de facto enjoyment, and went on to explain that a combination of statutory and common law had resulted in such enjoyment having to be twenty years nec vi, nec clam, nec precario; not by force, nor stealth, nor the licence of the owner. He went on to explain that each of these three vitiating circumstances would amount to a reason why it would not have been reasonable to expect the owner to resist the exercise of the right, namely, in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period. For the avoidance of doubt, I should interpose that the reference to a limited period clearly includes an indefinite period (as would arise under an unlimited but revocable permission), and that the word limited was meant to be contrasted with permanent. Lord Hoffmann ended his discussion by citing with approval Lord Lindleys statement in Gardner v Hodgsons Kingston Brewery Co Ltd [1903] AC 229, 239 that the words as of right were intended to have the same meaning as the older expression nec vi, nec clam, nec precario, a view also expressed by Lord Davey at [1903] AC 229, 238. In the subsequent case of R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, which was concerned with the 2006 Act, Lord Walker confirmed at para 20 that as of right is sufficiently described by the tripartite test nec vi, nec clam, nec precario [as] established by high authority. (I would be prepared to accept that it is possible that, as Lord Carnwath suggests, there may be exceptional cases involving claims to village greens where this does not apply, but I am doubtful about that). And at para 30, Lord Walker accepted as a general proposition that, if a right is to be obtained by prescription, the persons claiming that right must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him. stated in Gale on Easements (19th edition, 2012), para 4 115: In relation to the acquisition of easements by prescription, the law is correctly The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is as of right; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not as of right. Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence. The concept of acquiescence in this context was explained in the opinion delivered by Fry J (with which Lord Penzance expressed himself as being in entire accord at p 803), in Dalton v Henry Angus & Co (1881) 6 App Cas 740, 774, where he said: I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain Further in the recent case of Lawrence v Fen Tigers Ltd [2014] 2 WLR 433, para 43, I expressed the view that, as the Court of Appeal held in Sturges v Bridgman (1879) 11 Ch D 852, it appeared to accord with principle that: [T]ime does not run for the purposes of prescription unless the activities of the owner (or occupier) of the putative dominant land can be objected to by the owner of the putative servient land. The notion that an easement can only be acquired by prescription if the activity concerned is carried on as of right for 20 years, ie nec vi, nec clam, nec precario, would seem to carry with it the assumption that it would not assist the putative dominant owner if the activity was carried on of right for 20 years, as no question of force, stealth or permission could apply. Was the public use in this case as of right? In the present case, the Councils argument is that it acquired and has always held the Field pursuant to section 12(1) of the 1985 Act and its statutory predecessors, so the Field has been held for public recreational purposes; consequently, members of the public have always had the statutory right to use the Field for recreational purposes, and, accordingly, there can be no question of any inhabitants of the locality having indulged in lawful sports and pastimes as of right, as they have done so of right or by right. In other words, the argument is that members of the public have been using the Field for recreational purposes lawfully or precario, and the 20 year period referred to in section 15(2) of the 2006 Act has not even started to run and indeed it could not do so unless and until the Council lawfully ceased to hold the Field under section 12(1) of the 1985 Act. In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land by right and not as trespassers, so that no question of user as of right can arise. In Sunningwell at pp 352H 353A, Lord Hoffmann indicated that whether user was as of right should be judged by how the matter would have appeared to the owner of the land, a question which must, I should add, be assessed objectively. In the present case, it is, I think, plain that a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors. It is true that this case does not involve the grant of a right in private law, which is the normal issue where the question whether a use is precario arises. Indeed, the fact that the right alleged in this case is not a conventional private law right, but a public law right, was rightly acknowledged by Ms Lieven. Thus, it is a right principally enforceable by public rather than by private law proceedings. It is also a right which is clearly conditional on the Council continuing to devote the Field to the purpose identified in section 12(1) of the 1985 Act (and it is unnecessary for present purposes to go into the question of what steps the Council would have to take to remove the Field from the ambit of the section). Accordingly, the right alleged by the Council to be enjoyed by members of the public over the Field is not precisely analogous to a public or private right of way. However, I do not see any reason in terms of legal principle or public policy why that should make a difference. The basic point is that members of the public are entitled to go onto and use the land provided they use it for the stipulated purpose in section 12(1), namely for recreation, and that they do so in a lawful manner. It is worth expanding on this. Section 12(1) of the 1985 Act and its statutory predecessors bestow a power on a local (housing) authority to devote land such as the Field for public recreational use (albeit subject to the consent of the Minister or Secretary of State), at any rate until the land is removed from the ambit of that section. Where land is held for that purpose, and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct. Of course, a local authority would be entitled to place conditions on such use such as on the times of day the land could be accessed or used, the type of sports which could be played and when and where, and the terms on which children or dogs could come onto the land. Similarly, the local authority would clearly be entitled to withdraw the licence permanently or temporarily. Thus, if and when it lawfully is able, and decides, to devote the land to some other statutorily permitted use, the local authority may permanently withdraw the licence; and if, for instance, when the land is still held under section 12(1), the local authority wants to hold a midsummer fair to which the public will be charged an entrance fee, it could temporarily withdraw the licence. I agree with Lord Carnwath that, where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land as of right, simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their allocation decision if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights. I draw support from observations in Hall v Beckenham Corporation [1949] 1 KB 716, a case which concerned the liability for nuisance of a local authority in respect of activities by members of the public on land held by the local authority under section 164 of the Public Health Act 1875. That section permits a local authority to acquire and maintain lands for the purpose of being used as public walks or pleasure grounds and to make bye laws as to their use, which can include the power to remove those who disobey the bye laws. Finnemore J said at p 727 that the local authority had no general right to turn people out because they do not like them, and could only act against people in the park who offend against their bye laws, or who commit some offence. At p 728, he observed that So long as a member of the public behaves himself in the ordinary way, committing no criminal offence and observing the bye laws, the [local authority] cannot stop his doing what he likes in this recreation ground. This conclusion followed from a pithy opinion given by Lord Halsbury LC in Lambeth Overseers v London County Council [1897] AC 625, which concerned the question whether the county council, which owned and maintained a park under a power accorded by a local Act of Parliament, were in rateable occupation of it. At pp 630 631, Lord Halsbury said that: there is no possibility of beneficial occupation to the county council; they are incapable by law of using it for any profitable purpose; they must allow the public the free and unrestricted use of it. In other words, members of the public had the statutory right to use the land for recreational purposes. It was suggested by Mr Edwards QC in his argument for Ms Barkas that, even if members of the public were not trespassers, they were nonetheless not licensees or otherwise lawfully present when they were on the Field. I have considerable difficulty with that submission. As against the owner (or more accurately, the person entitled to possession) of land, third parties on the land either have the right to be there and to do what they are doing, or they do not. If they have a right in some shape or form (whether in private or public law), then they are permitted to be there, and if they have no right to be there, then they are trespassers. I cannot see how someone could have the right to be on the land and yet be a trespasser (save, I suppose, where a person comes on the land for a lawful purpose and then carries out some unlawful use). In other words a tolerated trespasser is still a trespasser. Furthermore, the fact that the landowner knows that a trespasser is on the land and does nothing about it does not alter the legal status of the trespasser. As Fry J explained, acquiescence in the trespass, which in this area of law simply means passive toleration as is explained in Gale (or, in the language of land covenants, suffering), does not stop it being trespass. This point was well made by Dillon LJ in Mills v Silver [1991] Ch 271, 279 280, where he pointed out that there cannot be [a] principle of law that no prescriptive right can be acquired if the user has been tolerated without objection by the servient owner as it would be fundamentally inconsistent with the whole notion of acquisition of rights by prescription. Accordingly, as he added at p 281, mere acquiescence in or tolerance of the user cannot prevent the user being user as of right for purposes of prescription. Thus, if a trespass has continued for a number of years, then the fact that it has been acquiesced in (or passively tolerated or suffered) by the landowner will not prevent the landowner claiming that it has been and is unlawful, and seeking damages in respect of it (subject to the constraints of the Limitation Act 1980). For the same reason, if such a trespass has continued for 20 years and was otherwise as of right, it will be capable of giving rise to a prescriptive right. On the other hand, if the landowner has in some way actually communicated agreement to what would otherwise be a trespass, whether or not gratuitously, then he cannot claim it has been or is unlawful at least until he lawfully withdraws his agreement to it. For the same reason, even if such an agreed arrangement had continued for 20 years, there can be no question of it giving rise to a prescriptive right because it would clearly have been precario, and therefore by right. For these reasons, I would hold that this appeal should fail, but before reaching a final decision, it is necessary to address the decision in Beresford, which forms the lynch pin of the case advanced for Ms Barkas. The proceedings in Beresford The relevant factual basis on which Beresford was decided (as opposed to the fuller facts as explained by Lord Carnwath in his judgment below) are contained in paras 17 19 and 24 of Lord Scotts judgment and paras 89 90 of Lord Walkers judgment. The land in question had been acquired under what Lord Walker called very wide powers contained in the New Towns Act 1965 by Washington Development Corporation, for no specific purpose, although they gave active consideration to the possibility of developing the land as a sports centre, for which an entry fee would be charged. In 1973, the land was identified as parkland/open space/playing field for planning purposes in the local New Town Plan. In 1974, it was grassed over, following which it was continuously used by the public for recreational use. In 1977, the development corporation had placed some benches on the land, and arranged for the mowing of the grass in the summer (which was continued by their successors). The possibility of a sports centre had not been abandoned in 1989, when the land was transferred to the Commission for the New Towns, who considered that it also had commercial development potential. Seven years later the land was acquired by the city council under a transfer which restricted its use to that of courts, health facilities, leisure or recreation, or other similar community related uses. Section 3 of the 1965 Act empowered a development corporation to acquire, hold, manage and dispose of land and other property, to carry on any business or undertaking, and generally to do anything necessary or expedient for the purposes or incidental purposes of the new town. Section 21(1) of the 1965 Act provided that [a]ny land being, or forming part of, a common, open space or fuel or field garden allotment, which has been acquired for the purposes of this Act by a development corporation may be used by them, or by any other person, in any manner in accordance with planning permission. Open space is defined in section 54 of the 1965 Act as any land laid out as a public garden, or used for purposes of public recreation, or land being a disused burial ground. The 1965 Act was repealed and replaced by the New Towns Act 1981, and sections 4 and 21(1) of the later Act are effectively in identical terms to their statutory predecessors, and section 80 of the 1981 Act has a similar definition of open space to section 54 of the 1965 Act. At first instance and in the Court of Appeal, although the city council raised no argument based on the 1981 Act, they successfully argued that the land had been used by the public with the licence of the city council and their predecessors, on the basis that such a licence should be implied from their providing seating and mowing the grass. That was the only issue when the appeal was first argued before the House in May 2003. After argument had concluded, the House asked to be addressed on the point that members of the public had a statutory right to use the land for recreation. Having heard further argument, the House of Lords allowed the appeal, rejecting the city councils case both on the implied licence found below and in so far as it was based on statute. In other words, the House of Lords rejected the city councils case on the first and original point, namely that mowing the grass or erecting benches could justify the judges finding that there was an implied licence, and they also rejected the city councils case on the second point, raised by the House itself, and based on statute. The first point in Beresford: the meaning of as of right The observations of three of the four Law Lords who gave reasoned opinions on the first of those two issues are supportive of the reasoning set out in paras 14 28 above. Lord Bingham accepted at para 5 that a licence could be implied if the facts warranted it, but said in the following paragraph that such an implication could not be justified from mere inaction of a landowner and quoted with approval the observation of Dillon LJ in Mills. Lord Rodger at para 58 explained that English law distinguishes between an owner who grants a temporary licence and an owner who merely acquiesces, citing the passage quoted in para 17 above from an earlier edition of Gale. Lord Walker said at para 79 that [a]cquiescence denotes passive inactivity and added that it would be quite wrong to treat a landowners silent passive acquiescence as having the same effect as permission communicated. At para 80, he quoted what, as he put it, Dillon LJ very clearly, and to my mind very compellingly said in Mills. Mr Edwards contends, however, that Lord Scotts analysis in paras 43 50 justifies the argument which I have described and rejected in paras 27 and 28 above, namely that there can be cases where a person uses land with the permission of the landowner, but is nonetheless using the land as of right rather than by right. In para 43, Lord Scott rightly accepted that merely standing by, with knowledge of the use, and doing nothing about it, which he described as toleration or acquiescence, is consistent with the use being as of right. But he then said that he was unable to accept that an implied permission is necessarily in the same state as mere acquiescence or toleration: the word necessarily is rather odd, because, as was explained in the other three opinions, implied permission and mere acquiescence or toleration are clearly and fundamentally different in this area of law. Lord Scott then said that he was unable to accept that an implied permission [or even an express permission] is necessarily inconsistent with the use being as of right. I must confess that I find it hard to understand the basis upon which this was said, but, if it was intended to have the effect argued for by Mr Edwards, it is wrong in principle and unsupported by, indeed I think inconsistent with, the other opinions. I find paras 44 50 of Lord Scotts opinion problematical. To subject them to a detailed exegesis in this judgment would result in an unnecessarily lengthy judgment, as, while they contain statements which are correct, they also contain some statements which are in my opinion wrong and a number of others which are questionable. For present purposes, it suffices to identify two points of disagreement. First, I do not agree with Lord Scotts view in para 47 that public use of a site, on which the owner has erected a sign permitting use as a village green, would be as of right. It would amount to a temporary permissive use so long as the permission subsists, as the public use would be by right. Secondly, Lord Scotts conclusion in para 48 that, when using the land for recreation, members of the public were certainly not trespassers should ineluctably have led him to decide that the publics use of the land had been by right and not, as he did decide, as of right. It is true that Lord Hutton (who gave no reasons of his own) agreed with the reasons of Lord Bingham, Lord Rodger and Lord Walker; Lord Rodger agreed with the reasons of Lord Bingham and Lord Walker; Lord Walker agreed with the reasons of Lord Rodger and Lord Bingham; and Lord Bingham agreed with the reasons of Lord Scott, Lord Rodger and Lord Walker. Accordingly, I suppose it could be argued that Lord Scotts opinion represented the view of all five Law Lords. However, while Lord Binghams agreement with Lord Scotts reasoning is admittedly somewhat mystifying, that argument cannot stand in the light of the reasoning in the other three reasoned opinions. Even if the argument has any substance, I would still hold that paras 43 50 in Beresford cannot be relied on, as they include passages which are simply wrong in principle and contrary to well established authority, as well as being inconsistent with the other reasoned opinions. The second point in Beresford: the effect of statute I turn, then, to the more difficult aspect of the decision in Beresford, namely the rejection of the city councils case based on the 1981 Act. Lord Bingham dealt with the point very shortly in para 9, simply saying that none of the statutory provisions to which the House had been referred conferred a right on members of the public to use the land for recreation, adding that counsel for the city council who had not himself sought to raise this contention earlier, found it hard to argue otherwise. Lord Hutton, as mentioned, simply agreed with Lord Bingham, Lord Rodger and Lord Walker. At para 62, Lord Rodger agreed with Lord Walkers reasons for holding that neither the designation of the land as open space in the New Town Plan nor any of the statutes conferred [a] right [to use the land] in this case. The only two Law Lords who considered the issue in any detail were Lord Scott and Lord Walker. At paras 24 30, Lord Scott considered various arguments, based on section 21(1) of the 1981 Act and section 10 of the Open Spaces Act 1906. He plainly thought that there was force in the argument that either statutory provision may have justified the conclusion that the public use of the land was by right. However, he did not consider that it was open to the House to consider either argument as it had been expressly disclaimed by counsel for the city council (see paras 26 and 30). As for Lord Walker, at para 86, after referring to Hall, and observing that A local resident who takes a walk in a park owned by a local authority might indignantly reject any suggestion that he was a trespasser, he said that the notion of an implied statutory licence has its attractions. At para 87, he mentioned cases where land is vested in local authorities under section 10 of the 1906 Act, which, he explained, expressly provides that inhabitants of the locality are beneficiaries of a statutory trust of a public nature; in such cases, he thought, it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers) (a view shared by Lord Scott para 30). In para 88, he said that such a case would raise difficult issues, but as the facts of the Beresford case did not give rise to a trust, those issues did not arise. After setting out the facts in para 89, Lord Walker said at para 90 that [i]n short, there is no evidence of any formal appropriation of the land as recreational open space, and that there was no material from which to infer an appropriation, adding that appropriation as [an] open space would have been inconsistent with the sites perceived development potential. (And I agree with Sullivan LJ at para 34 in the Court of Appeal that Lord Walker was plainly not limiting the word appropriate to a case covered by section 122 of the Local Government Act 1972). He then went on to say in paras 90 91 that the fact that the recreational use by the public of the land was not inimical to the city councils interests did not prevent that use from being as of right. He concluded at para 92 that he would allow the appeal for the reasons which he had given as well as those of Lord Bingham and Lord Rodger, although he added that the decision may be thought to stretch the concept of a town or village green close to, or even beyond, the limits which Parliament is likely to have intended. As I see it, detailed consideration was given in none of the opinions in Beresford to any argument which could have been raised by the city council on specific statutory provisions. Lord Bingham and Lord Rodger dismissed the relevance of any statutory provision out of hand, not least, no doubt, because the city council did not rely on any of them. Lord Scott mentioned two provisions, section 21 of the 1981 Act and section 10 of the 1906 Act, but decided that neither could be considered because the city council disclaimed reliance on them. And Lord Walker ultimately simply relied on the fact that the city council (and their predecessors) had acquired the land under very wide powers for no specific purpose, had never subsequently appropriated the land for any specific purpose, and had envisaged an ultimate use of the land which was not for free public recreation. Should Beresford be followed, distinguished or disapproved on the second point? In the light of the decision on this second point in Beresford, there are, in principle, three possible courses open to us. The first, urged by Mr Edwards, is to hold that the facts of this case are, in principle, indistinguishable from those in Beresford, and to follow the reasoning in Beresford, and allow this appeal. The second, which was the approach adopted by the Court of Appeal and is the primary case advanced by Ms Lieven, is that we should distinguish Beresford, and dismiss this appeal. The third possible course, which is the alternative case of Ms Lieven, and which was not open to the Court of Appeal, is that we should overrule this aspect of the decision in Beresford. Even assuming Beresford was rightly decided on this point, I am wholly unpersuaded that it would undermine the conclusion I have provisionally reached at para 29 above. It is said that the views of Lord Walker at para 87 and Lord Scott at para 30, when they opined that land held as open space under section 10 of the 1906 Act is used by the public by right, do not support NYCCs case because they were obiter and because such land is expressly stated by section 10 to be held in trust to allow, and with a view to, the enjoyment thereof by the public as an open space. No doubt, those observations were obiter, but they are still worthy of respect, and once land is statutorily held by a council for the purposes of public recreation, it is hard to see why members of the public only have the right to use the land for that purpose if there is a super added trust to that effect. Be that as it may, I consider that the significant point for present purposes is that Lord Walker plainly thought that it was an important, indeed, it would appear, a crucial, factor in his reasoning that the land in Beresford had been acquired for no particular purpose and had never been appropriated for public recreational use. Not only was there no evidence of any such appropriation, but, he said at para 90, such an appropriation would have been inconsistent with the desire to develop the land. The facts of the present case are very different. The Field was, as I see it, appropriated, in the sense of allocated or designated, as public recreational space, in that it had been acquired, and was subsequently maintained, as recreation grounds with the consent of the relevant Minister, in accordance with section 80(1) of the 1936 Act: public recreation was the intended use of the Field from the inception. I am clearly of the view, therefore, that Beresford can, and ought to, be distinguished. In the present case, the land concerned was acquired and maintained by the local authority as public recreation grounds under a specific statutory power namely section 80(1) of the 1936 Act, now section 12(1) of the 1985 Act, and accordingly members of the public have used the land for recreation by right. By contrast, in Beresford, at least as the House of Lords concluded, the land concerned was neither acquired nor appropriated for any specific use, and, in so far as there was an intended use it was not for free public access; therefore there was no basis for justifying the view that the use of the land by the public was by right. The more difficult question, to my mind, is whether we should go further and hold that Beresford was wrongly decided on this point. I was considerably attracted by the notion that, as it was unnecessary to do so in order to dispose of this appeal, we should not positively say that the reasoning in Beresford should no longer be relied on, but should merely express considerable concerns about the decision, and emphasise its very limited scope in the light of the unsatisfactory nature of the arguments which were and were not taken. However, having considered the matter further, and in particular having considered the points made in argument by Lady Hale and the points made by Lord Carnwath in paras 70 86 of his judgment, I am satisfied that this would be unnecessarily cautious. I am quite satisfied that we should grasp the nettle and say that the decision and reasoning in Beresford should no longer be relied on, rather than leaving the law in a state of uncertainty, and requiring money and time to be expended on yet further proceedings. I consider that Beresford was wrongly decided for the reasons given by Lord Carnwath, and, while it would be wrong to repeat those reasons, it is right to express my reasoning in summary form, especially in view of my hesitation in giving the decision its quietus. It seems to me clear on the facts, which are helpfully summarised by Lord Carnwath in para 73, that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was as of right: it was by right. The point made in para 24 above applies. I should add that, quite apart from this, I also share the mystification expressed about the reasoning in Beresford by Sullivan LJ in the Court of Appeal in this case in the passage quoted by Lord Carnwath in para 85 below. Conclusion For these reasons, which are very similar to those of Sullivan LJ in the Court of Appeal, I would dismiss this appeal. LORD CARNWATH (with whom Lady Hale, Lord Reed and Lord Hughes agree) I agree that, on the arguments presented to us, the appeal should be dismissed for the reasons given by Lord Neuberger. Those arguments have proceeded on the footing that in effect the sole issue is whether the use of the recreation ground by local inhabitants has been as of right or by right, the latter expression being treated as equivalent to by licence (or precario) in the classic tripartite formulation (nec vi, nec clam, nec precario) as endorsed by Lord Hoffmann in the Sunningwell case. On that basis, I have no doubt that the use by the local inhabitants in this case was by right as Lord Neuberger has explained (para 20 29). That would be sufficient to dispose of this appeal. However, since the underlying issue is of some general importance and as we are being asked to review the decision of the House in Beresford, I think it desirable also to look at the matter in a wider context. Before turning to the speeches in that case in more detail I shall make two more general points about the context in which the rights are here asserted. Local rights I start with an important, if obvious, point. The Commons Registration Act 1965 was concerned with town or village greens, not with public open space in general. Three categories were defined in section 22: land [a] which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years. The common feature was the link in each case with the inhabitants of a particular locality. The mischief towards which the Act was principally directed was the uncertainty over the extent and nature of land subject to such rights. Category (c), as the only one which had continuing effect, is reproduced in amended form in the 2006 Act. There was no suggestion in the Act itself, or any of the preceding reports or debates, of any intention to include within its ambit other forms of public open space, owned and managed by public authorities under statutes such as the Open Spaces Act 1906. (As explained by Lord Neuberger, para 5, even the apparently restrictive wording of the statute in the present case did not prevent its use by the public generally.) The link with a locality was material not only to proof of qualifying user, but also to the rights resulting from registration. The 1965 Act itself gave no indication on that issue. However in Oxfordshire County Council v Oxford City Council [2006] 2 AC 674 it was established that the rights so created were available to the relevant inhabitants (para 69 per Lord Hoffmann). I take that to mean that in principle they were available to the inhabitants of the relevant locality (the local inhabitants: per Lord Scott para 104 106), rather than to the public at large. That case was decided by reference to events before the amendments made by the Countryside and Rights of Way Act 2000. It was unnecessary for the House to decide whether it would make any difference if the registration was attributable to use by inhabitants of a neighbourhood under the amended definition, rather than of a locality. It may be that in practice, once land is registered under the Act, no attempt is (or can realistically be) made by owners or others to distinguish between different groups of users. However, it seems clear in principle that a local link of some kind remains an essential feature both of the use and of the resulting rights. For present purposes, it is enough to emphasise that local recreational land, ancient or modern, within the scope of the 1965 Act was conceptually different from land held by public authorities for general recreational use. There was no indication then or since of any intention to include the latter within its ambit. That fact cannot itself govern the issue of statutory interpretation, but it justifies some caution before accepting an interpretation which significantly widens the scope of the legislation beyond what was intended. The as of right test in context The as of right/by right dichotomy is attractively simple. In many cases no doubt it will be right to equate it with the Sunningwell tripartite test, as indicated by judicial statements cited by Lord Neuberger (paras 15 16). However, in my view it is not always the whole story. Nor is the story necessarily the same story for all forms of prescriptive right. This was a point made by Lord Scott in Beresford: It is a natural inclination to assume that these expressions, claiming right thereto (the 1832 Act), as of right (the 1932 Act and the 1980 Act) and as of right in the 1965 Act, all of which import the three characteristics, nec vi, nec clam, nec precario, ought to be given the same meaning and effect. The inclination should not, however, be taken too far. There are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous. (para 34) On the same theme he commented on the differences between public rights of way on the one hand and town or village greens on the other: Public rights of way are created by dedication, express or implied or deemed. Town or village greens on the other hand must owe their existence to one or other of the three origins specified in section 22(1) of the 1965 Act Dedication by the landowner is not a means by which a town or village green, as defined, can be created. So acts of an apparently dedicatory character are likely to have a quite different effect in relation to an alleged public right of way than in relation to an alleged town or village green. (para 40) While I share Lord Neubergers reservations on other parts of Lord Scotts speech, his observations on this point appear to me both valid and important. Lord Scotts analysis shows that the tripartite test cannot be applied in the abstract. It needs to be seen in the statutory and factual context of the particular case. It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole. This includes consideration of what Lord Hope has called the quality of the user, that is whether the user for at least 20 years was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right (R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, para 67). Where there is room for ambiguity, the user by the inhabitants must in my view be such as to make clear, not only that a public right is being asserted, but the nature of that right. This is not a live issue in most contexts in which the tripartite test has to be applied, whether under this legislation or otherwise, because there is no room for ambiguity. It was not an issue in Sunningwell itself, where the land was in private ownership, and there was no question of an alternative public use. Twenty years use for recreation by residents, the majority of whom came from a single locality, was treated as an effective assertion of village green rights. Similar considerations apply in highway cases. Thus, for example, in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SC 357 (Inner House); 1993 SC 44 (HL): it was common ground that there was here a clearly delineated route, that it had been used for at least 20 years since at least May 1967, that it connected two public places and that the public use was sufficient in quantity throughout that period to constitute a public right of way. (Inner House p 362) This was sufficient to meet the requirements of the relevant section 3(3) of the Prescription and Limitation (Scotland) Act 1973, by which a public right of way was established if it has been possessed by the public for a continuous period of twenty years openly, peaceably and without judicial interruption Where members of the public have travelled regularly between two points along a defined route for twenty years, the natural and only reasonable inference was the assertion of a highway right. The same cannot necessarily be said of recreational use of land in public ownership. Where land is owned by a public authority with power to dedicate it for public recreation, and is laid out as such, there may be no reason to attribute subsequent public use to the assertion of a distinct village green right. The point can also be tested by reference to the general proposition (cited by Lord Neuberger, para 16) that, if a right is to be obtained by prescription, the persons claiming that right must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him. It follows that, in cases of possible ambiguity, the conduct must bring home to the owner, not merely that a right is being asserted, but that it is a village green right. Where the owner is a public authority, no adverse inference can sensibly be drawn from its failure to warn off the users as trespassers, if it has validly and visibly committed the land for public recreation, under powers that have nothing to do with the acquisition of village green rights. This does not mean of course that land in public ownership can never be subject to acquisition of village green rights under the 2006 Act. That is demonstrated by the Trap Grounds case (Oxfordshire County Council v Oxford City Council [2006] 2 AC 674). Although the land was in public ownership, it had not been laid out or identified in any way for public recreational use, and indeed was largely inaccessible ( 25% of the surface area of the scrubland is reasonably accessible to the hardy walker: para 1, quoting the inspectors report). It was held that the facts justified the inference that the rights asserted were rights under the 1965 Act. The differences between different forms of prescriptive right may also be relevant to the evaluation of the owners conduct. As Lord Scott pointed out, most forms of prescription are based on the fiction of a notional grant, or (in the case of highways) dedication, at or before the commencement of the relevant period of use. (The implications of this powerful and troubling idea in the law of easements, are discussed in the Law Commission report: Making Land Work: Easements, Covenants, and Profits Prendre Law Com No 327 para 3.87.) That fiction starts from the assumption that the equivalent rights could have been created by voluntary act of the owner. In the present context, by contrast, there is, as Lord Scott pointed out, no equivalent means at common law of creating a village green, whether by dedication or by other voluntary act of the owner. Nor was such a power created by the Commons Registration Act 1965. As noted above, village greens arising from statute or custom, the only two means of creation of such rights before the Act, were dealt with separately. The modern village green resulting from 20 years user was an entirely new statutory creation. The rights came into being only upon registration following the qualifying period of use. There was no notional grant at the beginning of the period. On the contrary the underlying assumption is that before registration there was no such right, real or notional. In this context the concept as of right is more than usually artificial: the asserted right not only did not exist but could not have existed. I will return to this point below when commenting on the approach of Lord Bingham and Lord Rodger in Beresford to the issue of encouragement. Beresford Against that background I turn to consider the judgments of the House in Beresford itself. For the most part I am content to adopt the comments of Lord Neuberger on the speeches in that case. However, I would go further. It is important to bear in mind that the proceedings were by way of judicial review of the decision of the county council, as registration authority, not to register the land as a village green. Subject to issues of law or of rationality, the factual issues were for the authority to resolve on the material before it. In my view, when the factual and legal background of the case is properly understood, it is apparent that there was no error of law in the authoritys approach to the case, nor that of Smith J at first instance. In that respect it is necessary to look beyond the speeches in the House, which do not give the full picture. Partial, but not wholly consistent, accounts appear in the speeches of Lord Scott (paras 17 19), Lord Rodger (para 53), and Lord Walker (para 89). Lord Scott and Lord Rodger focussed principally on the identification of the land in the 1973 New Town Plan as parkland/open space/playfield, following which in about 1974 it was laid out and grassed over (using excavated soil from the development of the shopping centre), and public recreational use began. Lord Walker by contrast did not mention the New Town Plan as such, noting only that the land was not acquired for any particular purpose, and that the corporation was not under an obligation to appropriate it for any specific purpose (para 89(a)). He attached more importance to the ambitious but unrealised plans for a sports complex, pending which, as he put it, recreational use of the area by local inhabitants was tolerated (but not enjoyed by any overt licence (para 89(b)). The fullest account of the factors leading to the authoritys decision is in the judgment of Smith J at first instance ([2001] 1 WLR 1327). Having summarised in general terms the history of what became known as the Sports Arena site, she referred in more detail to the material before the authority. This took the form principally of a report from its Director of Administration having taken legal advice. (The authority do not seem to have thought it necessary to organise any form of public local inquiry, such as has been seen in other cases, including the present.) The main points in the Directors report and the authoritys reasoning based on it (paras 11 15) can be summarised as follows: i) Over a number of years there had been discussion of a sports and recreation centre development, dating back to a planning brief of 1967. ii) The Arena site was identified as parkland/open space/major playing field in the 1973 New Town Plan. iii) The most informative document in the archive had been a handwritten draft report to the Corporation's Chief Officer's Committee, dated 1982, which showed that at that time, the upgrading of the Arena was under consideration. It had referred to a 1977 board paper indicating that until a sports complex could be provided, the arena was to be used for `recreational sporting use and other activities on a town scale such as jazz band parades, displays and sporting events'. In 1980 the Board had requested that the level of publicity for the Arena should be increased, and some minor works of improvement were carried out in anticipation of increased usage. v) iv) The 1982 draft report advised that complete reconstruction of the Arena would be required if it were to be developed as an athletic field and football pitch, and that the alternative would be to leave the arena in its current little used condition until such time as a sports hall facility is built. In 1989 the site was transferred to the Commission for New Towns (CNT). It was retained by them, as having potential for commercial use, when Princess Anne Park was transferred to the Sunderland City Council in 1991. Documents compiled by that council in 1992 and 1994 described the land respectively as an amenity open space, and as an unused track which belonged to the CNT and whose future use was uncertain. In 1996, the land was transferred to the council subject to a covenant restricting any future development to a community related purpose. In 1998, the council granted planning permission for the erection of a College of Further Education on a site including the Arena, with a view to sale to the City of Sunderland College. The application to register the land as a village green, at the instance of a group of local residents including Mrs Beresford, followed shortly afterwards. vii) The Director advised the committee (in terms no doubt reflecting legal advice) that the determining issue, in accordance with Sunningwell was whether the user had been as of right, and that it was not enough to defeat the claim that the use had been tolerated by the landowner. He added: vi) In `traditional' parks which are fenced and have opening hours, enjoyment by the public (inhabitants of the locality) will be by virtue of a licence during the hours of daylight. However, not all parks conform to this `traditional model' the Princess Anne Park for example and it would be bizarre if these were all town and village greens. This would suggest that if it is apparent from the circumstances that the land in question has been made available to the public, and that their use has not simply been tolerated but in effect encouraged, a licence should be implied (sic) from the circumstances viii) The committee agreed: [In this case] everyone using the site would have been aware of the perimeter seating and that the grass was kept cut. It is difficult to conceive that anyone could have imagined that this was other than a recreational area provided for use by the public for recreation. Against this background, the `implied licence' argument is strong and it is considered that on this basis the enjoyment has not been `as of right'. Members considered that there was evidence of an implied licence since the site is publicly owned land, specifically laid out as an arena with seating, which is adjacent to Princess Anne Park and which has been maintained by the Council and the Washington Development Corporation before it. Members agreed with the comment in the report that `it is difficult to conceive that anyone could have imagined that this was other than a recreational area, provided for use by the public for recreation'. The other information contained in section 2 of the report, whilst not in itself conclusive, supported the view that the Sports Arena was intended for public use. Smith J at first instance confirmed that decision. Like the authority she attached importance to the fact of public ownership: In my judgment, the fact that land is in public ownership is plainly a relevant matter when one is considering what conclusion a reasonable person would draw from the circumstances of user. It is well known that local authorities do, as part of their normal functions, provide facilities for the use of the public and maintain them also at public expense. It is not part of the normal function of a private landowner to provide facilities for the public on the land. Public ownership of the land is plainly a relevant consideration. ([2001] 1 WLR 1327, para 45) I have set out this reasoning in some detail, because in my view the approach of the authority, and that of Smith J, were unimpeachable in common sense and in law. Unfortunately, by the time the case had reached the House of Lords this simple approach had become obscured. As appears from Lord Scotts account (paras 20 23), the presentation of the arguments before the House, seems to have led to an artificial separation of the implied licence issue, from the issues raised by the public ownership of the land. He notes that in the Court of Appeal ([2002] QB 874) Dyson LJ, while upholding Smith Js reasoning in general, had expressed the view that public ownership on its own . was a factor of little weight (para 30). Possibly in response to that indication, the parties in the House of Lords concentrated their arguments on the implied licence issue, and Neither counsel dealt with the implications of the public ownership of the sports arena. It was left to the House itself, after the conclusion of the hearing, to call for further argument on that aspect. Even at that stage counsel for the authority preferred to maintain the original implied licence argument as a distinct issue, without reference to public ownership. This seems to have been based on a concern that reliance on public ownership would have the improbable implication that such public land could never not be subject to modern village green rights (see the arguments as reported at [2004] 1 AC 889, 892D E). As I have shown (by reference to the Trap Grounds case) that concern was misplaced. Further the public ownership issue seems to have been seen as one going, not so much to the quality of the user and the inferences to be drawn from it (as Smith J had held), but to the distinct question whether any of the relevant statutes had conferred on the local residents and others a right to use the sports arena (per Lord Rodger para 62). Furthermore, none of the speeches looked in detail at the powers of the New Towns Act 1965 (or the replacement 1981 Act), under which the new towns authority was acting. I share Sullivan LJs surprise (para 36) at the limited attention given to this aspect in the speeches in the House. I can only assume that this was because the very full material apparently provided to the House on this aspect concentrated on powers specifically dealing with open space (see paras 9, 24ff, 87), rather than other matters relevant to the authoritys use of its land. Lord Scott (para 24) referred to the provisions of the 1981 Act (sections 21, 80) relating to open space as defined, noting the breadth of the freedom given to new town corporations in dealing with such land. However, in my view, there was no reason for resort to those specific provisions to justify or explain the use which the corporation made of the land. The statutory powers of new town corporations under the 1965 Act, as compared with many other forms of public authority at the time, were indeed set very wide. Their purposes under section 3 were to secure the laying out and development of the new town in accordance with proposals approved in that behalf under the following provisions of this Act, and their powers included power . generally to do anything necessary or expedient for the purposes of the new town or for purposes incidental thereto. Section 6 provided for the submission and approval by the Minister of their proposals for the development of land within the area of the new town. By subsection 6(2) it was envisaged that planning permission for the development proposals so approved would be granted by special development order under the Town and Country Planning Act 1962. This statutory framework in my view provides a complete answer to Lord Walkers concern as to the lack of any formal appropriation of the land as recreational open space (para 90). As Lord Neuberger has observed, he does not seem to have been using the word appropriation in any specific statutory sense. In any event, the general powers conferred by section 3 were amply sufficient to include making land such as this available for public recreation, pending any further development proposals. Assuming (in the absence of any indication to the contrary) that the 1973 plan was duly submitted to and approved by the Minister under section 6, the proposal for recreational use of the arena area would have become a formal and approved part of its proposals for the use of the land in its area. Planning permission would have been required for the change of use for that purpose, but would normally have been granted as a matter of course by special development order pursuant to section 6(2). It was immaterial that this use might have been seen as temporary pending implementation of the more ambitious proposals described in the 1982 draft report. It was a valid exercise of the corporations powers to permit such temporary use, and the publics enjoyment was no less real and authorised. I can see no basis, with respect, for Lord Walkers observation that, as he put it, recreational use of the area by local inhabitants was merely tolerated. It was contradicted by the Directors conclusion, accepted by the authority, that the use by the public had not simply been tolerated but in effect encouraged (para 24(vii) above). Finally I come back to the relevance of the acts of encouragement by the authority, in the light of comments by Lord Bingham and Lord Rodger. In his concurring judgment, Lord Bingham rejected arguments that the encouragement of public use by mowing the land and laying out benches was inconsistent with the use as of right. He noted that the 1965 Act had drawn heavily on principles relating to the acquisition of public or private rights of way, observing: in neither of these instances could acts of encouragement by the servient owner be relied on to contend that the user by the dominant owner had not been as of right. Such conduct would indeed strengthen the hand of the dominant owner (para 7) Similarly, Lord Rodger noted that the authority may . have encouraged these activities, but commented: The mere fact that a landowner encourages an activity on his land does not indicate, however, that it takes place only by virtue of his revocable permission. (para 60) However, the parallel is not direct. If the inference is to be of a notional public right during the period of user, it is easy to see why acts of encouragement may be seen as lending weight to that inference. But the same thinking cannot readily be applied in the context of the creation of a modern village green. There is no basis for inferring a prior public right, real or notional, and therefore no reason for the owners acts of encouragement to be treated as lending force to such an inference. On the contrary, where they are acts of a public authority, they lend force to the alternative inference that they are done under other statutory powers. For the same reason I cannot accept Lord Binghams following comment. He continued: Here the conduct is in any event equivocal: if the land were registered as a town or village green, so enabling the public to resort to it in exercise of a legal right and without the need for any licence, one would expect the council to mow the grass and provide some facilities for those so resorting, thus encouraging public use of this valuable local amenity. It is hard to see how the self same conduct can be treated as indicating that the public had no legal right to use the land and did so only by virtue of the council's licence. (para 7) I find this hard to follow. If land in the ownership of a public authority had been validly registered as a village green, it might well be a reasonable inference that acts of maintenance were attributable to that status. But that has no relevance to the position during a period of public use before registration, when there were no village green rights, actual or notional. The explanation for acts of maintenance by the authority during that period has to be found elsewhere. The reasonable inference was not that the public had no rights, but that the land had been committed to their use under other powers. the present case: In conclusion I note what Sullivan LJ said about the decision in Beresford in I confess that I find it difficult to understand why the statutory approval of the corporation's new town plan 1973 by the minister, which had the effect of granting planning permission for the development of the land as parkland/open space/playing field', when coupled with the subsequent laying out and grassing over of the land, was not sufficient to amount to an appropriation of the land as recreational open space in the sense in which Lord Walker used that word. (para 36) I agree. If appropriation in that sense was required, then the new town plan provided it. However such legal analysis is not necessary to support the registration authoritys decision. As I have said, on the material before them they were clearly entitled to reach the conclusion that the use by the public was implicitly approved by the corporation; indeed there was no reason to infer anything else. For these reasons, I would not only dismiss the present appeal, but I would hold that the decision and reasoning of the House of Lords in Beresford should no longer be relied on.

UK-Abs

Helredale playing field (the Field) is situated in Whitby, North Yorkshire, and is owned by Scarborough Borough Council (the Council). The issue raised in this appeal is whether the Field should be registered as a town or village green under section 15 of the Commons Act 2006. The Field is approximately two hectares and was acquired in 1951 by the predecessor local authority of the Council, who maintained the Field as recreation grounds pursuant to section 80(1) of the Housing Act 1936, now section 12(1) of the Housing Act 1985. For at least the last fifty years, the Field has been used extensively and openly by local inhabitants for informal recreation. The Council arranges for the regular mowing of the grass and the marking out of the football pitch. In October 2007 the Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the Field as a town or village green under section 15 of the 2006 Act. Section 15 allows an application to register land as a town or village green where a significant number of inhabitants of the locality have indulged as of right in lawful sports and pastimes on the land for at least 20 years. An inquiry commissioned by North Yorkshire County Council concluded that, although a significant number of the inhabitants had indulged in lawful sports and pastimes on the land for at least 20 years, their use had not been as of right. North Yorkshire County Council accordingly rejected the application to register the Field as a town or village green in October 2010. Christine Barkas, a member of the Neighbourhood Council, applied for judicial review of this decision. Her application was unsuccessful and the Court of Appeal unanimously dismissed her subsequent appeal. Ms Barkas now appeals to this court. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the main judgment, and Lord Carnwath gives a full supporting judgment. The other members of the Court agree with both judgments. The court rules that so long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and therefore use the land by right rather than as of right. The issue Where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes as of right within the meaning of section 15(2)(a) of the Commons Act 2006 [12]? The meaning of as of right If a person uses privately owned land of right or by right, the use is rightful because it has been permitted by the landowner. However, if the use of such land is as of right, a number of cases relating to the acquisition of rights of way and other easements by prescription establish that it means that the use is without the permission of the landowner. Accordingly such use is not of right or by right, but is carried on as if it were by right, hence as of right. The significance of the word as is therefore crucial, making the expression as of right effectively the antithesis of of right or by right [14]. Rules of prescription have been created by a combination of statutory and common law under which the de facto enjoyment of land has to have been for twenty years not by force, nor stealth, nor licence of the owner before prescriptive rights are acquired. These three vitiating factors set out the circumstances in which it would have been reasonable to expect the owner to resist the exercise of the right [15]. Was the public use in this case as of right? So long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land by right and not as trespassers, so that no question of use as of right can arise. A reasonable local authority in the Councils position would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities [21]. Where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use, it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land as of right simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights [24]. The proceedings in Beresford The decision in Beresford v Sunderland City Council, in which the House of Lords held that the publics use for more than 20 years of land maintained by the local authority with that authoritys knowledge was as of right, should no longer be relied on. It is clear on the facts in that case that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was as of right rather than by right [48 49]. Lord Carnwaths concurring judgment analyses the as of right test in context and explores Beresford in greater detail [51 87].

From time to time cases come before the courts that try the patience of even the most phlegmatic of judges. This, I fear, is one of them. On the one side there is an articulate and determined litigant who suffers from an implacable belief that his case has not been dealt with justly and, because he has run out of money, cannot afford to be represented. On the other is an opposing party for whom these proceedings have been dragging on for far too long and which has little or no prospect of recovering any of its expenses. One may regret the situation in which that party finds itself. But our basic common law rule that a party is entitled to a fair hearing applies not only to those whom the court finds it easy to deal with, but to everyone. That is the standard the judges who have dealt with this case in the Court of Session set for themselves at each stage in the proceedings, as their carefully reasoned opinions amply demonstrate. So, had it not been for an order that they made because they regarded the proceedings as incapable of achieving anything of value, the case would not have been open to consideration by the Supreme Court at all. As it is, the course they took has raised the possibility which this court cannot ignore that the interlocutor which they pronounced may, after all, be appealable. Mr and Mrs Politakis are the directors and the only shareholders of Apollo Engineering Ltd (Apollo). They wish to appeal to this court against two interlocutors that were pronounced in a case that was stated for the opinion of the Court of Session under section 3 of the Administration of Justice (Scotland) Act 1972 (the 1972 Act) on 28 September 2007. The case had been stated on the application of Apollo before section 3 of the 1972 Act was repealed by paragraph 1 of Schedule 2 to the Arbitration (Scotland) Act 2010. The arbitration proceedings to which the stated case related arose out of a contractual dispute between Apollo and James Scott Ltd about pipe construction work which Apollo had been carrying out for James Scott Ltd in 1990 at Coulport. James Scott Ltd are the respondents to these proceedings. On 18 January 2012 an Extra Division of the Inner House (Lady Paton and Lords Reed and Bracadale) refused a motion enrolled by Mr Politakis in his own name, as Apollo had run out of funds and could no longer afford legal representation: [2012] CSIH 4. He had asked the court to make an order under article 6 of the European Convention on Human Rights which would allow him to represent the company. He was invited to make submissions on his own behalf, and he did so both orally and in writing. The court held that it was well established by the authorities that Scots law does not permit a company to be represented by a director or an employee of the company. It can be represented only by an advocate or a solicitor with a right of audience: Equity and Law Life Assurance Society v Tritonia Ltd 1943 SC (HL) 88; Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd 2011 SC 115. The Extra Division also held by a majority (Lord Reed and Lord Bracadale differing in this respect from Lady Paton) that, as the issues in the case were complex and it was unlikely that the appeal could be presented effectively by anyone without legal qualifications, article 6 did not require that Mr Politakiss motion should be granted. As he was not suitably qualified, this would not provide the company with an effective right of access to the court: Airey v Ireland (1979) 2 EHRR 305. On 27 November 2012 the Extra Division (Lady Paton and Lords Menzies and Bracadale) pronounced a further interlocutor which dealt, among other things, with an opposed motion which had been enrolled by James Scott Ltd for the stated case to be dismissed: [2012] CSIH 88. It was in these terms: The Lords, having resumed consideration of the cause, refuse Mr Politakis leave to appeal to the Supreme Court; refuse the motion enrolled by Mr Politakis in June 2011 and amended on 18 April 2012 to sist himself in room and place of Apollo Engineering Limited; refuse the alternative motion to sist himself as a party to the court and arbitration proceedings; find Apollo Engineering Limited liable to the respondents James Scott Limited in the expenses of the two day hearing held on 7 and 8 July 2011, said expenses to be paid out of the sum held as caution for Apollo Engineering Limited by the Accountant of Court; remit an account thereof, when lodged, to the Auditor of Court to tax; dismiss the Stated Case and decern; reserve meantime any question of expenses in that process insofar as not already dealt with. That interlocutor, leaving aside the orders about expenses, fell into three parts. First, Mr Politakis was refused leave to appeal to this court against the interlocutor of 18 January 2012 refusing his application to represent his company. Second, his attempts to sist himself as a party to the proceedings were rejected. That would have enabled him to represent himself, as a natural person is entitled to present his own case. But he was not a party to the arbitration or to the contract with James Scott Ltd, so there were no grounds for regarding him as entitled to be sisted in these proceedings in his own name. Mr Politakis has not sought leave from the Inner House to appeal against this part of the interlocutor. Third, the stated case was dismissed, so the proceedings in the stated case were brought to an end. The Extra Division did not give its opinion on the questions in the case, on which it had not heard any argument. It was of the opinion that, since at any future hearing Apollo would be unrepresented, it would be fruitless for it to permit the stated case proceedings to continue: [2012] SCIH 88, para 40. There has been no application for leave to appeal against that part of the interlocutor either. The circumstances in which it is competent to appeal to the Supreme Court against a judgment of the Court of Session are set out in section 40 of the Court of Session Act 1988 (the 1988 Act) which, so far as relevant to this case, provides: (1) Subject to the provisions of any other Act restricting or excluding an appeal to the Supreme Court and of sections 27(5) and 32(5) of this Act, it shall be competent to appeal from the Inner House to the Supreme Court (a) without the leave of the Inner House, against a judgment on the whole merits of the cause, or against an interlocutory judgment where there is a difference of opinion among the judges or where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action; (b) with the leave of the Inner House, against any interlocutory judgment other than one falling within paragraph (a) above. (4) On an appeal under this section all the prior interlocutors in the cause shall be submitted to the review of the Supreme Court. The answer to the question whether it is competent to appeal to this court against the interlocutors of 18 January 2012 and 27 November 2012 is not as straightforward as it might have been if the Court of Session had proceeded to answer the questions in the stated case. In John G McGregor (Contractors) Ltd v Grampian Regional Council 1991 SC (HL) 1 it was held that an opinion of the court upon questions of law given on consideration of a case stated under provisions such as those in section 3 of the 1972 Act did not constitute a judgment within the meaning of section 40(1) of the 1988 Act. The House dismissed Grampian Regional Councils petition of appeal as incompetent. But the facts here are different, as the Extra Division did not give its opinion on the questions of law that were before it in the stated case. In this situation two questions arise. The first is whether, having regard to the terms of section 3 of the 1972 Act, the decision in McGregor applies to this case at all. Apollo is not seeking to appeal against any opinion. Its appeal is directed to the fact that the stated case has been dismissed. The second is whether, if the appeal is not incompetent for the reasons given in McGregor, that part of the interlocutor of 27 November 2012 which dismissed the stated case was a judgment against which an appeal to this court is competent under section 40(1) of the 1988 Act without the leave of the Inner House of the Court of Session. The Supreme Court directed that these two questions should be the subject of an oral hearing as to the competency of an appeal against that interlocutor. Mr Politakis was given permission, in the exceptional circumstances of this case, to represent Apollo at the hearing. The court was also assisted by submissions made by Mr Andrew Young QC, who had been appointed at the courts request as an advocate to the court by the Dean of Faculty. Mr Politakis made it clear that he also wished to appeal against the interlocutor of 18 January 2012. But it is plain that this was an interlocutory judgment within the meaning of section 40(1) of the 1988 Act for which the leave of the Inner House was required to appeal against it, and the Inner House has refused his application for leave to appeal. It could be submitted to the review of this court under section 40(4) as one of the prior interlocutors in the cause. But that can only happen if an appeal is competently before this court under section 40(1) in the first place, and if it is necessary to subject the interlocutor to review as part of that appeal. Leave to appeal having been refused by the Inner House, there is no self standing right of appeal against it. Section 3 of the 1972 Act The report of the Appeal Committee in McGregor was given by Lord Jauncey. He said at p 4 that its decision to find that the petition to appeal in that case was incompetent was based on clear authority for the view that an opinion of the court upon questions of law in a case stated under section 3 of the 1972 Act did not constitute a judgment within the meaning of section 40(1) of the 1988 Act. He added that this view was in any event consonant with the ordinary use of language, and that it was supported by various other statutory provisions such as those now to be found in section 27 of the 1988 Act, which enables a special case to be presented to the court for its opinion by parties who are agreed on the facts and are in dispute on a question of law only, and in section 13(2) of the Tribunals and Inquiries Act 1971 which, by making express provision to the contrary, appears to recognise that in general an opinion of the court on a stated case does not constitute a judgment for the purposes of the jurisdiction of the Court of Appeal to entertain appeals. But none of the decisions in the cases to which he referred were concerned with the situation that has arisen in this case, and it is not so obvious that the decision of the Inner House to dismiss the stated case did not constitute a judgment within the meaning of section 40(1) of the 1988 Act. The leading case on this subject, prior to that of McGregor, was In re Knight and the Tabernacle Permanent Building Society [1892] 2 QB 613. The question in that case was whether there was an appeal to the Court of Appeal from a decision of the High Court upon a special case stated by an arbitrator under section 19 of the Arbitration Act 1889. The ratio of the decision is to be found in the judgment of Lord Esher at p 617, where he said: It appears to me that what the statute in terms provides for is an opinion of the court to be given to the arbitrator or umpire: and there is not to be any determination or decision that amounts to a judgment or order. Under these circumstances I think there is no appeal. I base my decision on the words of the statute: but when I consider the result of holding otherwise, I am fortified in the conclusion at which I have arrived. It seems to me that it would be most inexpedient that, where an opinion is given by the court under this statute in the course of a reference for the guidance of arbitrators, there should be an appeal which might be carried up to the House of Lords. Bowen LJ said at p 619 that it appeared to him that the consultative jurisdiction of the court did not result in a decision which was equivalent to a judgment or order. The proposition that the giving by the court of its opinion to the arbitrator is not a determination or decision that amounts to a judgment is easy to understand, but it does not apply to this case as no such opinion was given. Lord Eshers point on expediency also assumes that the court has given its opinion on the questions of law that were before it. It is less easy to see why, if the court has declined to give its opinion, its reasons for reaching that decision should not be open to review by means of an appeal to a higher court. Lord Jauncey also referred to two cases from Scotland. In Johnstons Trustees v Glasgow Corporation 1912 SC 300 the question was whether the sheriff could be required to state a case under the Housing, Town Planning etc Act 1909 after he had given judgment. It was held that it was incompetent for him to do so after he had disposed of the appeal. The court would not then be giving its opinion for the sheriffs guidance, as the sheriff could not recall his judgment and there was no provision in the statute that would allow it to be recalled by the court. Lord President Dunedin observed at p 303 that the issue was absolutely decided by authority both in Scotland and in England. The Scottish case was Steele v McIntosh Brothers (1879) 7 R 192 in which, after reviewing various examples in the statutes, Lord President Inglis said at p 195 that there were some proceedings, as in that case, where all that those stating the case were empowered to do was to obtain the opinion and guidance of the court in the administration of the jurisdiction conferred on them. The English case was In re Knight and the Tabernacle Permanent Building Society. Lord President Dunedin said that the decision in that case was entirely on the same lines as Steeles case. In Mitchell Gill v Buchan 1921 SC 390 it was held that an arbiter who had stated a case for the opinion of the court would be guilty of misconduct if he disregarded the law as stated in its opinion. Agreeing with the other judges that the arbiter was not entitled to disregard it, Lord Skerrington observed at p 398 that this was so even though the opinion could not be enforced or appealed against in the same way as a judgment or decree. None of these cases touch on the question that has to be resolved in this case. The special nature of the proceedings is recognised, but it is assumed in all of them that the court will do what is provided for by the statute and will give its opinion for the guidance of the tribunal by which the case has been stated. Neither Mr Ellis QC for James Scott Ltd nor Mr Young were able to refer us to any authorities that offered assistance as to the situation which we have here where the court has declined to do what the statute provides for. Mr Ellis submitted that it made no sense for an interlocutory decision to be appealed where there was no appeal against a decision answering the questions of law, and Mr Young said to allow a right of appeal in such a case would run counter to the general thrust of section 40 of the 1988 Act which sought to limit appeals to the Supreme Court on procedural matters. But it seems to me that those submissions beg the question whether the part of the interlocutor of 27 November 2012 by which the stated case was dismissed was truly of a procedural or interlocutory character. Our attention was drawn by Mr Young to Lady Cathcart v The Board of Agriculture for Scotland 1915 SC 166, where a reclaiming motion against an opinion of the Lord Ordinary on a stated case was held to be incompetent as the Lord Ordinarys opinion was final, and to Johnston Ferguson v Board of Agriculture 1921 SC 103, where it was held that it was beyond the intention of the legislature for a procedure to be introduced which would allow the opinion of the sheriff to be a matter of appeal to the court. Neither of these cases offers direct assistance on the point at issue. But Lord Skerringtons observation in Lady Cathcarts case at p 168 that in legal language an opinion is one thing and a judgment is another is of some interest. It suggests that an interlocutor which dismisses a case without giving an opinion could be regarded as a judgment for the purposes of section 40(1) of the 1988 Act simply because, if it is not one thing, it must be the other. Mr Ellis suggested that section 3 of the 1972 Act was a provision of a kind referred to in the preamble to section 40(1) of the 1988 Act because, as properly construed, it excluded an appeal to the Supreme Court. As he put it, nothing done within it will give rise to such an appeal. I do not think, however, that this provides an answer to the problem posed by this case. Section 3(1) provides that the arbiter may, on the application of a party to the arbitration, and shall, if the Court of Session on such an application so directs at any stage in the arbitration state a case for the opinion of that Court on any question of law arising in the arbitration. As Lord Jauncey said in McGregor at p 5, the ordinary use of language indicates that an appeal to this court against an opinion of the Court of Session under that section is excluded by necessary implication because it is for the opinion of that court only that the case has been stated. But there is nothing in the language of section 3(1) which addresses the situation where the Court of Session has dismissed the stated case without giving its opinion on the questions that were before it at all. Its role is, of course, simply to answer the questions. And the parties to the arbitration were entitled to make use of the procedure provided for by the statute and, a case having been competently stated under it, to obtain the courts opinion for the guidance of the arbiter. The statute makes no provision for the course of action that the Extra Division felt obliged to take in this case. It seems to me in these circumstances that the question of competency depends on whether that part of the interlocutor of 27 November 2012 which dismissed the stated case was a judgment within the meaning of section 40(1)(a) of the 1988 Act against which there is a right of appeal to this court without the leave of the Inner House. If it is, there being no provision in any other statute of the kind referred to in the preamble to section 40(1), we must conclude that Apollo has a right of appeal under that subsection to which effect must be given so long, of course, as the appeal raises a question which can responsibly be certified by counsel as reasonable. Section 40 of the 1988 Act Section 40(1)(a) of the 1998 Act provides that an appeal from the Inner House to the Supreme Court is competent without the leave of the Inner House in one or other of three kinds of case: (1) where it is an appeal against a judgment on the whole merits of the cause; (2) where it is an appeal against an interlocutory judgment where there is a difference of opinion among the judges; and (3) where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action. An appeal is also competent, but only with the leave of the Inner House, under section 40(1)(b) where it is an appeal against an interlocutory judgment other than one falling within cases (2) and (3) above. The language that section 40(1) uses is not easy to translate into modern legal terminology. As the Lord Justice Clerk, Lord Carloway, explains in his chapter on Decrees and Interlocutors in Macfadyen, Court of Session Practice, Division K, Chapter 1, para [1], it is best to read the words in the context in which they appear and in their historical context. One can take as the starting point the fact that an appeal lies to the Supreme Court from any order or judgment of the Court of Session if an appeal lay from that court to the House of Lords at or immediately before 1 October 2009: Constitutional Reform Act 2005, section 40(3), read together with the Constitutional Reform Act (Commencement No 11) Order 2009 (SI 2009/1604). Section 3(2) of the Appellate Jurisdiction Act 1876 provided that an appeal lay to the House of Lords from any order or judgment of any court in Scotland from which error or an appeal at or immediately before the commencement of that Act lay to the House of Lords by common law or statute. Lord Keith of Kinkel understood this to mean that, as a general rule, every final judgment of the Inner House was appealable to the House of Lords, but that the right might be restricted or excluded by statute: Stair Memorial Encyclopaedia, vol 6, Courts and Competency, para 829. I would take the right of appeal to the Supreme Court to be subject to the same general rule and to the same qualification. The common law right of appeal which had existed since the Treaty of Union of 1707 was not at first under any restriction, and it was too easily open to abuse: see Lord Brodies chapter in The Judicial House of Lords 1876 2009 (2009), Part D, Regional Perspectives, From Scotland and Ireland, pp 282 283. So it was restated and modified by section 15 of the Court of Session Act 1808, which provided that thereafter no appeal to the House of Lords was to be allowed from interlocutory judgments but that such appeals were to be allowed only from judgments or decrees on the whole merits of the cause, except with the leave of the Division of the Judges pronouncing such interlocutory judgments or except in cases where there was a difference of opinion among the Judges of that Division. In Beattie v Glasgow Corporation 1917 SC (HL) 22 the House of Lords held that an interlocutor allowing an issue so that an action of damages could proceed to trial before a jury was an interlocutory judgment which was not appealable without leave. Lord Loreburn observed at p 24 that interlocutory judgments meant judgments which are in substance interlocutory, not those which although in form interlocutory are final in substance. Then, by section 5 of the Court of Session Act 1825, which dealt with the disposal of dilatory defences by the Court of Session, it was provided that it was not to be competent to appeal to the House of Lords against an interlocutory judgment which sustained a dilatory defence where the action was not dismissed, unless express leave be given by the Court. In Ross v Ross 1927 SC (HL) 4, at p 6, Lord Dunedin said that the disability imposed on the House which forbade the hearing of appeals against interlocutory judgments where there had been no difference of opinion in the court below and no leave to appeal had been granted was statutory and could not be got over. But the generality of the right of appeal in cases where it was not restricted or excluded by statute has never been called in question. Interlocutors which are final in substance are, as a general rule, appealable. The wording of section 40(1) of the 1988 Act must be understood against that background. Mr Ellis submitted that the interlocutor of 27 November 2012 was not a judgment on the whole merits of the cause for three reasons. The first was that it was not proper to regard the stated case as the cause. The cause from which the stated case arose was the arbitration. All the Court of Session was asked to do was to offer advice to the arbiter. The second was that the interlocutor was not a judgment of the Inner House because it was an interlocutory decision in a process from which there was no appeal to the Supreme Court. The third was that it was a procedural decision taken in unusual circumstances of the stated case process which did not address the substance of the questions in the stated case at all. I do not think that there is any substance in the second and third of these propositions. The decision to dismiss the stated case cannot be regarded as an interlocutory judgment of the kind referred to in section 40(1)(b) which is appealable only with leave: see Buchanan v Alba Diagnostics 2004 SC (HL) 9, 17. All the issues that were in controversy before the Court of Session were disposed of when the stated case was dismissed. The interlocutor was in substance a final interlocutor because the proceedings were brought to an end by it. They could not continue and the Court of Session was not in a position to retrieve them. For the same reason the decision which the Extra Division took cannot be treated as a procedural decision only. There were, no doubt, procedural reasons for it, as Mr Politakis had been refused permission to represent Apollo and the company was unable to pay for counsel to represent it. One can understand why, in these circumstances, the Extra Division was of the opinion that it would be fruitless for the proceedings to continue. But the effect of the interlocutor was not merely to resolve that issue of procedure. It was to end the proceedings completely as, having dismissed the stated case, the court had exhausted its functions under the statute, save as to resolving any outstanding issues about expenses. As for the first point, the word cause is a word of wide ambit. It is defined in rule 1(3) of the Rules of the Court of Session 1994 as meaning any proceedings. And it does not make sense of section 40(1) of the 1998 Act to regard the cause in question as the arbitration proceedings out of which the application for the stated case arose. The cause in question must be taken to be the cause or matter that was before the Inner House. Section 40 is concerned only with the proceedings in the Inner House in which the interlocutor was pronounced. There is no indication anywhere in the section that it is concerned in any way with proceedings in any lower court or tribunal. The proceedings in the Inner House must be regarded for this purpose, both in form and in substance, as a separate process from the proceedings before the arbiter. The dismissal of the stated case was final, in just the same way as if the interlocutor had encompassed the courts opinion on the questions that were before it: see Davidson v Scottish Ministers (No 3) 2005 SC (HL) 1, paras 12 14. In either case the court had, or would have had, no further functions to perform under the procedure that brought the matter before it. The question then is, which of the three kinds of interlocutor referred to in section 40(1)(a) are we dealing with in this case? For the reasons already given, the interlocutor of 27 November 2012 was not an interlocutory judgment of the second kind. It did not answer the questions in the stated case. But it was final in substance, in the words of Lord Loreburn in Beattie, as it brought the stated case proceedings to an end. This suggests that it was an interlocutor which did actually dispose of the whole merits of the cause. Mr Young suggested that, if we were to conclude that it was not a judgment of that kind, it could be considered to be an interlocutory judgment of the third kind because it sustained a dilatory defence by dismissing the stated case. Mention of this kind of interlocutor made its first appearance in section 5 of the Court of Session Act 1825. It provided that it was not to be competent to appeal to the House of Lords against such a judgment where the action was not dismissed unless express leave was given by the court. But that qualification did not apply where the action was dismissed. The use of the adjective dilatory appears still to have been in common use in 1893: see Mackays Manual of Practice in the Court of Session (1893), where at p 221 the author said: Defences are dilatory or preliminary, and peremptory or on the merits. A dilatory or preliminary defence is one which, if sustained, puts an end to the particular suit, or at least suspends it till some other action is brought and terminated, or some proceeding taken which is necessary before the suit can proceed. Twenty three years later it seems that the use of the adjective preliminary was beginning to predominate: see Maclaren, Court of Session Practice (1916), p 379 where the following description is given: A preliminary or dilatory defence is a defence which does not touch the merits of the case, but is based upon the failure of the pursuer to observe the rules of practice or procedure of the Court before which the cause is brought. The word dilatory does not appear again in the following discussion, and it is not mentioned in the index. It has long since dropped out of the vocabulary of the Court of Session practitioner. It was preserved in section 40(1) as part of the process of consolidation of the previous Court of Session Acts. But it now looks rather odd, and thought might perhaps be given to rewording this part of the subsection at the next opportunity. It is not easy to fit the interlocutor dismissing the stated case into this description. It did not touch the merits of the issues on which its opinion was being sought. The respondents motion for its dismissal, to which the Extra Division gave effect, was based on Apollos inability to fulfil the courts rules of practice about representation. But it would be stretching the language of the statute to say that this objection was a defence, especially as the procedure under section 3 was not one that could, in the ordinary sense of the word, be defended. It may not matter much whether the interlocutor is to be regarded as a judgment on the whole merits of the cause or as one sustaining a dilatory defence, as both are appealable without the leave of the Inner House. On balance, however, I think that would be more correct to regard it as a judgment on the whole merits of the cause within the meaning of section 40(1)(a) of the 1988 Act, even though the Inner House did not address itself to the issues raised in the stated case. Conclusion For these reasons I would hold that Apollo can competently appeal to this court against that part of the interlocutor of 27 November 2012 which dismissed the stated case without the leave of the Inner House. As is the case with all other interlocutors that are appealable without leave however, its petition of appeal must be certified by two counsel as reasonable the test for which is whether the appeal raises arguable points of law which are of general public importance: Uprichard v Scottish Ministers [2013] UKSC 21, per Lord Reed at paras 58 63. It must be emphasised that the question for counsel is not whether the arguments which Apollo would have wished to advance in the stated case were reasonable. That is not an issue which is open for consideration by this court. It was for the Court of Session to give its opinion on the questions that were before it, not this court. The only question which this court can consider is whether the Extra Divisions decision to dismiss the stated case was one which was open to it to take under the jurisdiction given to it by the statute. Unless something has gone seriously wrong, however, this was an exercise of judgment on a matter of procedure with which this court would not normally wish to interfere: McIntosh v British Railways Board (No 2) 1990 SC 339; Girvan v Inverness Farmers Dairy 1998 SC (HL) 1, at 21C G. have been represented so as to avoid the situation that the Extra Division described as fruitless is not before us. But it is a troublesome aspect of this case, and there may be grounds for thinking that the rule which disables a company from being represented other than by counsel or a solicitor with a right of audience needs to be re examined. The rule about representation does not apply to proceedings before an arbiter, as has now been made clear by rule 33 in Schedule 1 to the Arbitration (Scotland) Act 2010 which provides that a party may be represented by a lawyer or any other person: see also rule 41 which enables a party to apply for issues of Scots law arising in an arbitration to be determined in the Outer House. Rules 33 and 41 are, it must be emphasised, default rules. They apply only in so far as the parties have not agreed to modify or disapply them: see section 9 of the 2010 Act. But the fact that they are there suggests that the rule about representation ought not to be applied in cases where they do apply in a way that disables a company which is unable to pay for a lawyer from obtaining the view of the court on such issues. The question whether there was any way in which Apollos interests could

UK-Abs

This case concerns an aspect of the Supreme Court's jurisdiction to hear appeals in Scottish civil cases. Mr and Mrs Politakis are the directors and the only shareholders of Apollo Engineering Ltd (Apollo). They wish to appeal against two orders that were made in a case stated for the opinion of the Inner House of the Court of Session under section 3 of the Administration of Justice (Scotland) Act 1972. The stated case arose from an arbitration between Apollo and James Scott Ltd in relation to a contractual dispute [2]. Apollo ran out of funds and could no longer afford legal representation. On 18 January 2012 the Inner House made an order refusing Mr Politakis request that he represent Apollo, on the basis that as a matter of Scots law, a company requires to be legally represented. On 27 November 2012 the Inner House made a further order in which, among other things, it (1) refused Mr Politakis leave to appeal to the Supreme Court against the order of 18 January 2012; (2) refused to allow Mr Politakis to be joined as a party either to replace or in addition to Apollo; and (3) dismissed the stated case [3, 4]. Section 40 of the Court of Session Act 1988 (the 1988 Act) regulates appeals to the Supreme Court in Scottish civil cases. It provides that it is competent to appeal from the Inner House to the Supreme Court without the leave of the Inner House, against: (1) a judgment on the whole merits of the cause; (2) an interlocutory judgment where there is a difference of opinion among the judges; or (3) where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action. It is also competent to appeal to the Supreme Court with the leave of the Inner House against any other type of interlocutory judgment of the Inner House [6]. The House of Lords had decided in the case of John G McGregor (Contractors) Ltd v Grampian Regional Council 1991 SC (HL) 1 that an opinion of the court in a stated case did not constitute a judgment within the meaning of section 40 of the 1988 Act. In the present case, an opinion on the legal issues in the stated case had not been given [7]. Two issues are before the Supreme Court: (1) whether the McGregor principle applies in the present case so that an appeal against the order of 27 November 2012 is incompetent; and (2) if not, whether the part of the order of 27 November 2012 which dismissed the stated case can competently be appealed to the Supreme Court under section 40 of the 1988 Act without the leave of the Inner House. The Supreme Court directed that these two issues should be the subject of an oral hearing [8]. There is no self standing right of appeal to the Supreme Court against the order of 18 January 2012, because it was an interlocutory judgment under section 40 of the 1988 Act and the Inner House has refused leave to appeal against it [9]. Apollo can competently appeal to the Supreme Court without the leave of the Inner House against the part of the order of 27 November 2012 which dismissed the stated case, as long as the appeal raises a question which can be responsibly be certified by counsel as reasonable [16, 28, 29]. Lord Hope gives the judgment of the Court. On issue (1), the Court holds that none of the cases in this area, including the McGregor case, offer direct assistance on the question that is to be resolved, and none deals with the situation where the court has declined to do what the statute provides for, which is to give an opinion [10 14]. The ordinary use of language indicates that an appeal to the Supreme Court against an opinion of the Inner House under section 3 of the 1972 Act is excluded by necessary implication because it is for the opinion of that court only that the case has been stated. But the 1972 Act makes no provision for the course of action that the Inner House felt obliged to take in this case: dismissing the stated case without giving its opinion on the questions that were before it at all [15]. On issue (2), the Court holds that the order dismissing the stated case cannot be regarded as an interlocutory judgment of the kind which is appealable only with leave under section 40 of the 1988 Act. All the issues that were in controversy before the Inner House were disposed of when the stated case was dismissed. In dismissing the stated case, the court exhausted its functions under the statute, save as to resolving any outstanding issues about expenses. The effect of the order was to end the proceedings completely, in just the same way as if it had encompassed the courts opinion on the questions that were before it [22, 23]. It is not easy to characterise the order dismissing the stated case as one sustaining a dilatory defence and dismissing the action. The order gave effect to a motion by James Scott Ltd based on Apollos inability to fulfil the courts rules of practice about representation. It would be stretching the language of the statute to say that this objection was a defence, especially as the procedure under section 3 was not one that could, in the ordinary sense of the word, be defended [27]. It may not matter much whether the order is to be regarded as a judgment on the whole merits of the cause or as one sustaining a dilatory defence, as both are appealable without the leave of the Inner House. On balance, however, it would be more correct to regard it as a judgment on the whole merits of the cause within the meaning of section 40 of the 1988 Act, even though the Inner House did not address itself to the issues raised in the stated case [27]. As is the case with all other orders that are appealable without leave however, Apollos petition of appeal must be certified by two counsel as reasonable the test for which is whether the appeal raises arguable points of law which are of general public importance. The only question which the Supreme Court can consider is whether the order of the Inner House to dismiss the stated case was one which was open to it to make under the jurisdiction given to it by the statute. Unless something has gone seriously wrong, however, this was an exercise of judgment on a matter of procedure with which this court would not normally wish to interfere [29]. The question whether there was any way in which Apollos interests could have been represented which might have avoided the situation in which the Inner House felt obliged to dismiss the stated case is not before the Court. But it is a troublesome aspect of this case, and there may be grounds for thinking that the rule which disables a company from being represented other than by counsel or a solicitor with a right of audience needs to be re examined [30].

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

UK-Abs

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

This appeal arises from the tragic murder of Joanna Michael by a former partner, which might have been prevented if the police had responded promptly to a 999 call made by Ms Michael. As I explain below, two police forces were involved, Gwent Police and South Wales Police, and there was a lack of effective liaison between them. The claimants in the action are Ms Michaels parents and her two young children. The defendants are the Chief Constables of Gwent Police and the South Wales Police. The claim is brought for damages for negligence at common law and under the provisions of the Fatal Accidents Act 1976 and Law Reform Miscellaneous Provisions Act 1934 (which I will refer to as the common law or negligence claim), and for damages under the Human Rights Act 1998 for breach of the defendants duties as public authorities to protect Ms Michaels right to life under article 2 of the European Convention on Human Rights (which I will refer to as the human rights or article 2 claim). Originally there was also a claim for misfeasance in public office. The police applied for the claims to be struck out or for summary judgment to be entered in their favour. At first instance His Honour Judge Jarman QC struck out by consent the claim for misfeasance in public office but in a carefully reasoned judgment he refused to strike out or give summary judgment on the negligence and article 2 claims. The Court of Appeal reversed Judge Jarmans decision in part. They held unanimously that there should be summary judgment in favour of the defendants on the negligence claim for reasons given by Longmore LJ, with which Richards and Davis LJJ agreed. The majority upheld Judge Jarmans decision that the article 2 claim should proceed to trial. Davis LJ dissented on that issue. He would have held that on the facts alleged by the claimants there was no possibility that the claim under article 2 could succeed. The claimants appeal against the decision of the Court of Appeal on the negligence claim. The police cross appeal against the decision of the majority of the Court of Appeal on the article 2 claim. Since the court is considering as a matter of law whether the claims have a real possibility of success, it must be assumed for present purposes that all factual allegations made by the claimants are capable of being established. In relation to the negligence claim, the sole question is whether the police owed any duty of care to Ms Michael on the facts as they are alleged. If so, questions about whether there was a breach of duty and its consequences would be matters for the trial. Ms Michael lived in Cardiff with her two children who were aged seven years and ten months at the date of her death. On 5 August 2009 at 2.29 am Ms Michael dialled 999 from her mobile phone. She lived in the area of the South Wales Police, but the call was picked up by a telephone mast in Gwent and was routed to the Gwent Police call centre. It was received by a civilian call handler. The conversation was recorded and it has been transcribed. Ms Michael said that her ex boyfriend was aggressive, had just turned up at her house in the middle of the night and had hit her. He had found her with another man. He had taken her car to drive the other man home and had said that when he came back he was going to hit her. She said that he was going to be back any minute literally. She was asked by the call handler if she could lock the doors to keep him out. She replied that she could lock the doors, but she did not know what he would do. She did not know if he had a key or how he got into her house. The next part of the transcript reads: he come back and he told the guy to get out of the room, and then he bit my ear really hard and its like all swollen and all bruised at the moment, and he just said Im going to drop him home and (inaudible) [fucking kill you]. There is no explanation on the face of the transcript why the last three words are preceded by (inaudible) and appear in square brackets; but according to the call handler, who later made a written statement after listening to the recording of the call, at several points there was interference and noise in the background. As to the words in question, she said: On listening to the recording I can hear the words fucking kill you being said by Joanna. My understanding is assisted by reading these words in the typed transcript. I had certainly heard and understood her previously when she had said he was going to return and hit her. For periods of time throughout the call I was very distracted. As I explained . all the details were going to have to be retaken by South Wales Police, the call graded and resources deployed from their end not ours At the time I was distracted and under pressure to redirect the call and my memory is that I did not hear kill you. I dont remember her saying this. I was more concerned at the time with the safety of the other man in the company of the assailant. The call ended with the call handler telling Ms Michael that her call had come through to Gwent Police and that she would pass the call on to the police in Cardiff. She added they will want to call you back so please keep your phone free. The call was graded by Gwent Police as a G1 call. This meant that it required an immediate response by police officers. Ms Michaels home was no more than five or six minutes drive from the nearest police station. The Gwent call handler immediately called South Wales Police and gave an abbreviated version of what Ms Michael had said. No mention was made of a threat to kill. South Wales Police graded the priority of the call as G2. This meant that officers assigned to the case should respond to the call within 60 minutes. At 2.43 am Ms Michael again called 999. The call was again received by Gwent Police. Ms Michael was heard to scream and the line went dead. South Wales Police were immediately informed. Police officers arrived at Ms Michaels address at 2.51 am. They found that she had been brutally attacked. She had been stabbed many times and was dead. Her attacker was soon found and arrested. He subsequently pleaded guilty to murder and was sentenced to life imprisonment. Data held by South Wales Police recorded a history of abuse or suspected domestic abuse towards Ms Michael by the same man. On four occasions between September 2007 and April 2009 incidents had been reported to the police and entries had been made on a public protection referral for domestic abuse form, but in two instances the risk indications section of the form was not completed. The consequences are stark and tragic. Ms Michael has lost her life in the most violent fashion. Her children have lost their mother and breadwinner. Her parents have lost their daughter and have taken on the responsibility and work of bringing up their grandchildren. An investigation by the Independent Police Complaints Commission led to a lengthy report. It contained serious criticisms of both police forces for individual and organisational failures. Issues The court received full written submissions from the appellants, the respondents and three interveners. Liberty and Refuge made joint written submissions. Separate but broadly similar written submissions were made by Cymorth i Ferched Cymru (Welsh Womens Aid). The Court heard oral submissions on behalf of the appellants from Nicholas Bowen QC, on behalf of Liberty and Refuge from Karon Monaghan QC and on behalf of the respondents from Lord Pannick QC. The arguments raised the following issues: (1) If the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group, do the police owe to that person a duty under the law of negligence to take reasonable care for their safety? I will refer to this as the interveners liability principle, because it was advanced by Ms Monaghan. (2) Alternatively, if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, does B owe to A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed? I will refer to this for convenience as Lord Binghams liability principle, because that is how Lord Bingham of Cornhill described it in his dissenting judgment in Smith v Chief Constable of Sussex Police, heard jointly with Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225, at para 44. Mr Bowen argued in support of this proposition as an alternative to his principal proposition. (3) On the basis of what was said in the first 999 call, and the circumstances in which it was made, should the police be held to have assumed responsibility to take reasonable care for Ms Michaels safety and therefore owed her a duty of care in negligence? This was Mr Bowens main argument. (4) On the material before the Court, was there arguably a breach of article 2? Domestic violence In order to set their legal arguments in context, the interveners and the appellants referred to a substantial body of material about the deep rooted problem of domestic violence in our society, its prevalence and weaknesses which have been identified in the police response to it. According to official homicide statistics, since 2001 in the United Kingdom around 100 women have been killed every year by a current or former partner. A report published last year by Her Majestys Inspectorate of Constabulary made strong criticisms of the overall police response to victims of domestic abuse (Everyones Business: Improving the Police Response to Domestic Violence). It was not suggested by anyone in this case that the law of negligence should be developed in a way which is gender specific, but it was submitted that the need to combat the evil of domestic violence should influence the development of the common law in relation to potential victims of violence generally. Ms Monaghan also relied on the United Kingdoms international legal responsibilities. The United Kingdom signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 22 July 1981 and ratified it on 7 April 1986. Article 2 of CEDAW imposes an obligation on states, among other things, to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination. Discrimination is defined in article 1 as including any distinction, exclusion or restriction made on the basis of sex which has the effect of impairing the enjoyment by women of their human rights on a basis of equality of men and women. The Committee on the Elimination of Discrimination has issued a general recommendation on the subject of violence against women: General Recommendation No 19 (11th session, 1992). It states that gender based violence is a form of discrimination that seriously inhibits womens ability to enjoy rights and freedoms on a basis of equality with men. It recommends, among other things, that state parties should ensure that laws against family violence and abuse give adequate protection to all women; that effective complaints procedures and remedies, including compensation, should be provided; and that measures that are necessary to overcome family violence should include civil remedies and criminal penalties where necessary in cases of domestic violence. Civil remedies may of course take many forms. There is no specific recommendation that a victim of domestic violence should have a right to sue the police for damages in the case of domestic violence which could have been prevented by the police. Nor is the United Kingdom under an international legal obligation to provide a remedy in that form. The United Kingdom has signed, but not yet ratified, the Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention), which came into force on 1 August 2014. It requires, by article 4(1), state parties to take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere and by article 5(2) to take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this Convention that are perpetrated by non state actors. Aside from the fact that this Convention has not yet been adopted by the United Kingdom, it leaves it to states to decide what measures are necessary to promote these objectives. Ms Monaghan submitted that it is also highly arguable that gender equality has achieved the status of a peremptory norm (jus cogens) in international law within the meaning of article 53 of the Vienna Convention on the Law of Treaties (which defines a peremptory norm of general international law as a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character). There was no detailed argument on this point because on the assumption for present purposes that there is now a rule of customary international law which obliges states to prevent and respond to acts of violence against women with due diligence (as the Special Rapporteur on Violence Against Women concluded in a report dated 20 January 2006 to the Commission on Human Rights of the United Nations Economic and Social Council), it is a matter for individual states how they do so. Ms Monaghans submission was more general. She submitted that the international documents added weight to the arguments in favour of adopting the interveners liability principle. Acceptance of that principle, it was submitted, would be an appropriate measure directed at preventing violence and remedying damage caused by the states failure adequately to address the problem. Case Law It has been long established that the police owe a duty for the preservation of the Queens peace. The phrase has an old fashioned sound but the principle remains true. Halsburys Laws of England, fifth ed (2013), Vol 84, para 40, states that the primary function of the constable remains, as in the 17th century, the preservation of the Queens peace. In Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270 a colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he refused to billet police officers at the colliery unless the manager agreed to pay for the additional service at a specified rate. The manager promised to do so, but when the police submitted their bill the company refused to pay it on the ground that it was the duty of the police to prove necessary police protection without payment. The police sued the colliery and won. The House of Lords held that the police were bound to provide such protection as was necessary to prevent violence and to protect the mines from criminal injury without payment, but that it was lawful for the police to charge the colliery for extra protection, and that the judge had been entitled to find on the facts that the case fell into that category. Viscount Cave LC stated the nature of the duty of the police at pp 277 278: No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; and the public, who pay for this protection through the rates and taxes, cannot lawfully be called upon to make a further payment for that which is their right. This was laid down by Pickford LJ in the case of Glamorganshire Coal Co v Glamorganshire Standing Joint Committee [1916] 2 KB 206, 229 in the following terms: If one party to a dispute is threatened with violence by the other party he is entitled to protection from such violence whether his contention in the dispute be right or wrong, and to allow the police authority to deny him protection from that violence unless he pays all the expense in addition to the contribution which with other ratepayers he makes to the support of the police is only one degree less dangerous than to allow that authority to decide which party is right in the dispute and grant or withhold protection accordingly. There is a moral duty on each party to the dispute to do nothing to aggravate it and to take reasonable means of self protection, but the discharge of this duty by them is not a condition precedent to the discharge by the police authority of their own duty. With this statement of the law I entirely agree To similar effect Lord Parker CJ said in Rice v Connolly [1996] 2 QB 414, p 419, that it is the duty of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. The duty is one which any member of the public affected by a threat of breach of the peace, whether by violence to the person or violence to property, is entitled to call on the police to perform. In short, it is a duty owed to the public at large for the prevention of violence and disorder. Under section 83 of the Police Reform Act 2002 (substituting Schedule 4 of the Police Act 1996) every constable is required to make the following attestation: I do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property 36. This reflects the common law duty of the police. In recent years the courts have considered on a number of occasions whether, and in what circumstances, the police may owe a private law duty to a member of the public at risk of violent crime in addition to their public law duty. In Hill v Chief Constable of West Yorkshire [1989] AC 53 the claimant was the mother of the last victim of a notorious murderer. Between 1975 and 1980 he murdered 13 young women in West Yorkshire. The statement of claim alleged that the police made a number of mistakes in their investigation which should not have been made by a competent police force exercising reasonable care and skill. For the purpose of deciding whether Mrs Hill had a valid claim against the police in negligence, the House of Lords assumed that the factual allegations were true, and that if the police had exercised reasonable care the murderer would have been arrested before he had an opportunity to murder her daughter. It was held that the police were under no liability in negligence. 37. The leading speech was given by Lord Keith of Kinkel. He recognised that the general law of tort applies as much to the police as to anyone else. Examples of police liability for negligence were Knightley v Johns [1982] 1 WLR 349 (where a police officer who attended the scene of a road accident carelessly created an unnecessary danger to the claimant) and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 (where a police officer attending a break in to a gunsmiths shop carelessly caused severe damage to the premises by the firing of a canister into the building in the absence of fire fighting equipment). But he held that the general duty of the police to enforce the law did not carry with it a private law duty towards individual members of the public. 38. Counsel for Mrs Hill relied on Anns v Merton London Borough Council [1978] AC 728 as authority for the proposition that the police, having decided to investigate the Yorkshire murderers crimes, owed to his potential future victims a duty to do so with reasonable care. The foundation of the duty was said to be the foreseeability of harm to potential future victims if the murderer were not apprehended. This, it was submitted, was sufficient to give rise to a duty of care applying Lord Atkins statement of principle in Donoghue v Stevenson [1932] AC 562 and Lord Wilberforces two stage liability test in Anns. Lord Keith rejected the argument. He emphasised that foreseeability of harm was not itself a sufficient basis for a duty of care in negligence. Some further ingredient was needed to establish the requisite proximity of relationship between the claimant and the defendant, and all the circumstances of the case had to be considered and analysed in order to ascertain whether such an ingredient was present. 39. Lord Keith referred to the decision of the House of Lords in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, where Lord Diplock said (at p 1058) that the development of the law of negligence proceeds by first identifying the relevant characteristics of the conduct and relationship between the parties involved in the particular case and the kinds of conduct and relationships which have been held in previous decisions to give rise to a duty of care. In that case it was held that an action in negligence could lie against prison officers who negligently allowed young offenders camping on an island under the prison officers supervision to escape from the island by stealing the plaintiffs yacht. The reason for imposing liability was that the prison officers were responsible for exercising proper control over the wrong doers, who were in their charge, and there was sufficient proximity between the prison officers and the owners of yachts in the close vicinity of the camp, because the use of their property as a means of escape was the very thing which the prison officers ought to have foreseen. By bringing the young offenders onto the island and leaving them unsupervised, the prison officers created a danger for the owners of the yachts which would not otherwise have existed. In contrast, Lord Diplock said (at p 1070) that the courts would be exceeding their function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from custody owed to a wider category of members of the public than those whose property was exposed to an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken. 40. 41. Lord Keith said that if no general duty of care was owed to individual members of the public to prevent the escape of a known criminal, there could not reasonably be imposed on the police a duty of care to identify and apprehend an unknown one. Ms Hill could not be regarded as a person at special risk because she was young and female. She was one of a vast number of the female general public at risk from the murderers activities. He concluded that there was no ingredient or characteristic giving rise to the necessary proximity between the police and Ms Hill, and that the circumstances of the case were not capable of establishing a duty of care owed towards her by the police. If Lord Keith had stopped at that point, it is unlikely that the decision would have caused controversy. It is not suggested in the present case that the decision itself was wrong. If the interveners liability principle is correct, it would not have assisted Mrs Hill, because her daughter was not an identifiable victim or a member of an identifiable small group. 42. 43. However, having observed that what he had said was sufficient for the disposal of the appeal, Lord Keith went on to discuss the application of the second stage of Lord Wilberforces two stage test in Anns, if there had been potential liability under the first stage (at p 63). He concluded that it would be contrary to the public interest to impose liability on the police for mistakes made in relation to their operations in the investigation and suppression of crime. He said that the manner and conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, such as which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy available resources. Many such decisions would not be appropriate to be called in question, but elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time and expense might have to be put into the preparation of a defence to the action. The result would be a significant diversion of police manpower and attention from their most important function. He also said that the imposition of liability might lead to the exercise of the investigative function being carried out in a defensive frame of mind. He concluded that the Court of Appeal had been right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 AC 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court. 44. An immunity is generally understood to be an exemption based on a defendants status from a liability imposed by the law on others, as in the case of sovereign immunity. Lord Keiths use of the phrase was, with hindsight, not only unnecessary but unfortunate. It gave rise to misunderstanding, not least at Strasbourg. In Osman v United Kingdom (1998) 29 EHRR 245 the Strasbourg court held that the exclusion of liability in negligence in a case concerning acts or omissions of the police in the investigation and prevention of crime amounted to a restriction on access to the court in violation of article 45. 6. This perception caused consternation to English lawyers. In Z v United Kingdom (2001) 34 EHRR 97 the Grand Chamber accepted that its reasoning on this issue in Osman was based on a misunderstanding of the law of negligence; and it acknowledged that it is not incompatible with article 6 for a court to determine on a summary application that a duty of care under the substantive law of negligence does not arise on an assumed state of facts. In Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495, the claimant and his friend Stephen Lawrence were set upon by a gang of white youths in a racist attack. Stephen Lawrence was murdered. The claimant was traumatised. He claimed that the police owed him a duty of care in negligence: (a) to take reasonable steps to assess whether he was a victim of crime and, if so, to accord him reasonably appropriate protection and support; (b) to take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye witness to a serious crime of violence; and (c) to afford reasonable weight to the account given by him and to act on the account accordingly. 46. The House of Lords held that the police owed him no such legal duty of care. All the judges endorsed the correctness of the decision in Hill but they expressed reservations about the width of some of the observations in Hill (per Lord Bingham at para 3, Lord Nicholls of Birkenhead at para 6 and Lord Steyn at para 28). It is clear that the part of Lord Keiths speech to which they were referring was the final part in which he addressed the second stage of Lord Wilberforces test in Anns. 47. Lord Steyn (with whom Lords Rodger of Earlsferry and Brown of Eaton under Heywood agreed) said that the principle in Hill should be reformulated in terms of the absence of a duty of care rather than a blanket immunity (para 27). He noted that it was conceded by the police that cases of assumption of responsibility under what he described as the extended Hedley Byrne doctrine (Hedley Byrne & Co Ltd v Heller & Partner Ltd [1964] AC 465) fall outside the principle in Hill (para 29). 48. However, he said that the core principle of Hill had remained unchallenged in domestic jurisprudence and European jurisprudence for many years, and that if a case such as Hill were to arise for fresh decision it would undoubtedly be decided in the same way. He reiterated that the prime function of the police is the preservation of the Queens peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence. He said that a retreat from the principle in Hill would have detrimental effects for law enforcement: By placing general duties of care on the police to victims and witnesses the polices ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded. (para 30) 49. By endorsing the principle in Hill in the terms that he did, Lord Steyn confirmed that the functions of the police which he identified were public law duties and did not give rise to private law duties of care (whether to victims, witnesses or suspects), although this did not exclude liability under Hedley Byrne. 51. 50. Lord Bingham and Lord Nicholls were also of the view that the public duties of the police would potentially be impeded by the imposition of the duties asserted by Mr Brooks. Lord Bingham said that the duties pleaded could not be imposed on police officers charged in the public interest with the investigation of a very serious crime without potentially undermining the officers performance of their functions, effective performance of which serves an important public interest (para 4). Lord Nicholls was of the same view that the three legal duties asserted by the claimant would cut across the freedom of action the police ought to have when investigating serious crime (para 5). In Brooks Lord Steyn referred to an argument that Hill should be distinguished on the basis that in that case the police negligence was the indirect cause of Ms Hills murder whereas in Brooks the behaviour of the police was a direct cause of harm to him. Lord Steyn observed that this did not do justice to the essential reasoning in Hill and he described the distinction as unmeritorious (para 32). In Van Colle v Chief Constable of the Hertfordshire Police and Smith v Chief Constable of Sussex Police [2009] AC 225 the House of Lords heard together two appeals involving in different ways the question formulated by Lord Bingham as follows: if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances? In Van Colle threats were made against a prosecution witness in the weeks leading to a trial. They included two telephone calls from the accused to the witness. The second call was aggressive and threatening but contained no explicit death threat. The witness reported the threats to the police. The matter was not treated with urgency. An arrangement was made for the police to 53. 52. take a witness statement, after which the police intended to arrest the accused, but in the interval the witness was shot dead by the accused. His parents brought a claim against the police under the Human Rights Act 1998 relying on articles 2 and 8 of the Convention. There was no claim under common law. The police were held liable at first instance and failed in an appeal to the Court of Appeal, but succeeded in an appeal to the House of Lords. 54. The House of Lords applied the test laid down by the Strasbourg court in Osman (para 116) for determining when national authorities have a positive obligation under article 2 to take preventative measures to protect an individual whose life is at risk from the criminal acts of another: it must be established to [the Courts] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 55. The critical question of fact was whether the police, making a reasonable and informed judgment at the time, should have appreciated that there was a real and immediate risk to the life of the victim. The House of Lords held that the test was not met. 56. Smith reached the House of Lords on an application to strike out. The question was whether the police owed a duty of care to the claimant on the assumed facts. The claimant was a victim of violence by a former partner. He had suffered violence at the hands of the other man during their relationship. After it ended, he received a stream of violent, abusive and threatening messages, including death threats. He reported these matters to the police and told a police inspector that he thought that his life was in danger. A week later the man attacked the victim at his home address with a claw hammer, causing him fractures of the skull and brain damage. The assailant was subsequently convicted of making threats to kill and causing grievous bodily harm with intent. The House of Lords held by a majority that the police owed the victim no duty of care in negligence. 57. Lord Bingham, dissenting, formulated his liability principle which I have set out. 58. Lord Binghams starting point was that the circumstances in which A will be held liable in negligence for unintended harm suffered by B depend on the relationship between them. He recognised that it is not usual for A to be liable to B where harm is caused to B by a third party C, but said that in some circumstances A might be liable for such harm if A should have prevented C. In some cases As liability had been found to depend on an assumption of responsibility by A towards B; and in other cases, notably Dorset Yacht, on the finding of a special relationship between A and C by virtue of which A was responsible for controlling C. Currently, he said, the most favoured test of liability was the three fold test laid down by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605. 59. Lord Bingham did not consider that his liability principle conflicted with the ratio of either Hill or Brooks, or that it would distract the police from their primary function of suppressing crime and apprehending criminals. He observed that statements in Glasbrook Bros Ltd v Glamorgan County Council and Glamorgan Coal Co Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206 (referring to protection of property) would support a broader liability principle, but he said that the law attached particular importance to the protection of life and physical safety, and he did not consider it necessary to analyse in detail the cases on property damage. 60. Lord Bingham did not consider that the policy reasons given by Lord Keith in Hill justified the width of what he said about police immunity. 61. Lord Hope of Craighead (with whom Lord Carswell and Lord Brown agreed) shared Lord Binghams view that the reasons given by Lord Keith in Hill for saying that an action for damages for negligence should not lie against the police on grounds of public policy did not all stand up to critical examination. He regarded Brooks as a more important authority. In disagreement with Lord Bingham, he considered that the risks identified in Brooks of imposing principles which would tend to inhibit a robust approach in addressing a person as a possible suspect or victim were relevant to cases of which Smith was an example. 62. Lord Hope recognised that Lord Binghams liability principle was confined to cases where a member of the public furnished apparently credible evidence to the police that a third party represented a specific and imminent threat to his life or physical safety, but he considered that this formulation would lead to uncertainty in its application and to the detrimental effects about which Lord Steyn had warned in Brooks. 63. Lord Phillips of Worth Matravers CJ identified the core principle in Hill as being that in the absence of special circumstances the police owe no common law duty of care to protect individuals against harm caused by criminals (para 97). The question was whether that core principle could stand with, or accommodate by way of exception, the liability principle formulated by Lord Bingham. As to that, he did not find it easy to identify the essential parameters of the principle. He asked rhetorically whether the principle would apply when the evidence emanates from a third person; or if the whereabouts but not the identity of the potential wrongdoer was known; or if the threat was specific, but not imminent; or if the threat was imminent but not specific. He also questioned why the principle should be restricted to a threat to life or physical safety, and not apply to a threat to property. He concluded (para 100) that the elements in Lord Binghams liability principle were facts which would make particularly egregious a breach of duty of care that could be more simply stated: where the police have reason to believe that an individual is threatened with criminal violence they owe a duty to that person to take such action as is in all circumstances reasonable to protect that person. But such a duty of care would be in direct conflict with Hill. He therefore found himself reluctantly unable to accept Lord Binghams liability principle. 64. Hill, Brooks and Van Colle and Smith are the most important decisions but some others deserve mention. In Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 the House of Lords upheld a decision striking out claims in negligence for damages for lost overtime by police officers who had been suspended pending disciplinary proceedings which ended in their reinstatement. They alleged that they were owed a duty by the investigating officers to exercise proper care and expedition in the conduct of the investigation which had not been met. It was argued that a police officer investigating a suspected crime owes a duty of care to the suspect and that the same principle applied to the investigation of a disciplinary offence. The House of Lords rejected the argument, which Lord Bridge of Harwich described as startling (p 1238). He said that other considerations apart, it would be contrary to public policy to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. 65. 66. Similarly in Elguzouli Daf v Commissioner of Police of the Metropolis [1995] QB 335 the Court of Appeal upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were discontinued. Steyn LJ, in the leading judgment, added the qualification that there might be a case in which the Crown Prosecution Service assumed by its conduct a responsibility towards a particular defendant under the Hedley Byrne principle, as expounded by Lord Goff of Chieveley in Spring v Guardian Assurance Plc [1995] 2 AC 296. In that case Lord Goff said that Hedley Byrne was widely regarded as a case on liability in damages for negligent misstatement and liability in negligence for economic loss, which it was, but that it was important not to lose sight of the underlying wider principle. The underlying principle rested on an assumption of responsibility by the defendant towards the plaintiff, coupled with reliance by the plaintiff on the exercise by the defendant of due skill and care. The principle that a duty of care could arise in that way was not limited to a case concerned with the giving of information and advice (Hedley Byrne) but could include the performance of other services. 67. 68. Elguzuli Daf was cited with approval in Brooks and in Van Colle and Smith. 69. An Informer v A Chief Constable [2013] QB 579 provides an example of a duty of care arising from an assumption of responsibility coupled with reliance by the claimant. The claimant contacted the police regarding the activities of a business associate. He was introduced to two police contact handlers. He agreed to act as an informant under the police instructions and he later signed a set of instructions prepared by the police. At the outset they explained the steps which they would take to protect his identity and gave him assurances that they would treat his safety and that of his family as a priority. As the investigation developed the claimant himself became a suspect. A restraint order was obtained against him under the Proceeds of Crime Act 2002, prohibiting him from disposing of his assets, but the Crown Prosecution Service eventually decided not to prosecute him and the restraint order was discharged. He sued the police, alleging that they owed him a duty of care to protect his economic interests. The police conceded that they owed a duty of care to protect his physical well being, and that of his family. They had assured him that they would do so and he had acted on the faith of their assurances. But they had given him no assurances that they would protect his economic interests and the Court of Appeal upheld the judges decision that they owed him no such duty, which would potentially conflict with their responsibility to the public for the investigation of crime and the proceeds of crime. 70. There have been cases of a police force being held liable in negligence for failing to take proper care for the protection of a police officer against a criminal attack, but they were based on the duty of care owed to the claimants as employees whose employment exposed them to the risk of such an attack in the performance of their duty: Costello v Chief Constable of Northumbria [1999] ICR 752, Mullaney v Chief Constable of the West Midlands [2001] EWCA Civ 700. 72. 73. 71. Claims against other emergency services have been treated in a similar way to claims against the police (except in the case of the ambulance service, to which I refer below). In Capital & Counties Plc v Hampshire County Council [1997] QB 1004 the Court of Appeal considered claims in negligence against fire authorities arising out of three incidents in which the fire brigade responded to a 999 call. In the first case the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat activated sprinkler system, but on arrival a fire brigade officer gave instructions for the sprinkler system to be shut down. This led to the fire rapidly spreading out of control and the premises were destroyed. If the sprinkler system had been left on and the fire brigade had otherwise acted as it did to combat the fire, the premises would not have been destroyed. In the second case the fire brigade was called to the scene of some fires on waste land near to the claimants industrial premises in London. When the fire brigade arrived the fires had already been extinguished. After checking that there was no evidence of any continuing danger the fire brigade left. Later a fire broke out at the claimants premises. They sued the fire authority alleging negligence in failing properly to inspect the wasteland and failing to ensure that all fires and risk of further fires in the area had been eliminated before leaving. In the third case the fire brigade was called to a fire at a chapel in Yorkshire. The water hydrants near the premises either failed to work or the officers were unable for a long time to locate them, and so water had to be fetched from a dam half a mile away. It should have been possible to contain the fire, but as a result of the water shortage the whole building was destroyed. Under the Fire Services Act 1947 fire authorities were under a statutory duty, among other things, to secure the services for their area of a fire brigade and equipment, such as necessary to meet efficiently all normal requirements, and to take all reasonable measures to ensure that an adequate supply of water was available for use in case of fire. The owners of the chapel sued the fire authority for negligence and breach of statutory duty. They alleged that there 74. ought to have been a proper system of inspection to ensure that hydrants were in working order and that the fire crew were at fault in failing to locate some of the hydrants sooner. 75. The Court of Appeal upheld decisions to allow the claim in the Hampshire case but to dismiss the claims in the London and Yorkshire cases. The difference was that in the Hampshire case the fire brigade aggravated the situation by causing the sprinkler system to be turned off, whereas in the other cases the failures of the fire brigade made things no worse than they were. In drawing that distinction the court applied the reasoning of the House of Lords in Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, 455 (per Lord Blackburn) and East Suffolk Rivers Catchment Board v Kent [1941] AC 74. In the Hampshire case the court also drew an analogy with Rigby v Chief Constable of Northamptonshire and Knightley v Johns, where the rescue service created additional danger. 76. There are two Scottish decisions at first instance in fire brigade cases in which the Lord Ordinary took a different direction: Duff v Highlands and Islands Fire Board 1995 SLT 1362 and Burnett v Grampian Fire and Rescue Services 2007 SLT 61. In Duff the fire service attended a house fire and apparently extinguished it. After they left, fire broke out again destroying the property and the house next door. Lord Macfadyen dismissed the claim for want of proof of negligence, but he said that he would have rejected the defenders argument that they could not be held liable for damage which would have occurred if they had done nothing. 77. Duff was followed by Lord Macphail in Burnett. That was a similar case in which a fire re ignited after the fire brigade had left. On a preliminary plea by the defenders to the relevancy of the pursuers averments, Lord Macphail declined to follow the reasoning of the Court of Appeal in Capital & Counties Plc v Hampshire County Council and ruled that the case should go to trial. He said that the law of Scotland does not draw a distinction between acts and omissions comparable to that which appeared to exist in the English law of tort, and that the decision in Capital & Counties Plc v Hampshire County Council did not represent the law of Scotland (paras 34 and 48). 78. Burnett was cited in Mitchell v Glasgow City Council [2009] AC 874, to which I refer below. Burnett was not mentioned in the judgments, but the distinction between acts or omissions was central to Lord Hopes reasoning, and he observed that the law of liability for negligence has developed on common lines both north and south of the Border (para 25). 79. 80. In OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 May J struck out claims against the Coastguard for negligence in responding to a 999 call. The Coastguard is a non statutory public authority with responsibility for organising and coordinating search and rescue missions on the coast and at sea. The claims arose from a tragic incident in which a party of children and teachers, under the supervision of instructors from an adventure centre, got into difficulties on a canoeing trip. The Coastguard was alerted but several hours passed before all the members of the party were rescued. Some of the children died and others suffered severe hypothermia. It was alleged that the Coastguard was negligent in that it was slow to launch a search and rescue operation and misdirected a lifeboat and a helicopter about where they should search. In striking out the claims the judge applied the reasoning in Capital & Counties Plc v Hampshire County Council. He rejected the argument that the misdirection of searchers was analogous to the fire brigade turning off the sprinkler system in the Hampshire case, because it did not positively increase the danger to the canoeists. It was similar to a fire brigade sending one of its fire engines to the wrong address. In Van Colle and Smith Lord Bingham reserved his opinion about the correctness of Capital & Counties Plc v Hampshire County Council and disapproved OLL Ltd v Secretary of State for Transport. But he was alone in criticising them, and he did so in the context of formulating his liability principle which the other members of the House of Lords rejected. 81. The position of the ambulance service was considered by the Court of Appeal in Kent v Griffiths [2001] QB 36. A doctor attended the home of a patient suffering from an asthma attack and called for an ambulance to take her immediately to hospital. The control replied Okay doctor. After 13 minutes the ambulance had not arrived and the patients husband made a further call. He was told that an ambulance was well on the way and should arrive in seven or eight minutes. For unexplained reasons it did not arrive until 40 minutes after the first call. The patient suffered a respiratory arrest which would have been prevented if the ambulance had arrived in a reasonable time. The patients doctor gave evidence that if she had been told that it would take the ambulance service 40 minutes to come, she would have advised the patients husband to drive her to hospital and would have gone with them. The Court of Appeal upheld the trial judges finding of liability against the ambulance service. It would have been sufficient to hold that the acceptance of the doctors request for an ambulance to come immediately gave rise to a duty of care but Lord Woolf MR (with whom the other members of the court agreed) went further. He held that the ambulance service, as part of the health service, should be regarded as providing services equivalent to those provided by hospitals, and not as providing services equivalent to those rendered by the police and fire services. Accordingly, the staff of the ambulance service owed a similar duty of care to that owed by doctors and nurses operating in the health service (para 45). 84. 82. Courts in other common law jurisdictions have taken various approaches. 83. In the USA the matter is governed by the tort law of individual states. In New York the Court of Appeal has held, by a majority, that the police do not owe a duty of care in negligence for the protection of members of the public, unless they undertake a duty to protect particular members of the public and expose them without adequate protection to risks which materialise: Riss v City of New York 22 NY 2d 579, 240 NE 2d 860 (1968), distinguishing Schuster v City of New York 5 NY 2d 75, 180 NYS 2d 265, 154 NE 2d 534 (1958). Similarly, in the case of emergency calls, the position generally appears to be that the police will owe a duty of care only if the call handler gives an explicit assurance on which the caller relies: Cuffy v City of New York 69 NY 2d 255 (1987), Noakes v City of Seattle 77 Wash App 694, 895 P2d 842, 845 (1995), Perkins v City of Rochester 641 F Supp 2d 168 (2009). In South Africa, the leading case is the decision of the Constitutional Court in Carmichele v Minister of Safety and Security (2001) 12 BHRC 60. The applicant was brutally attacked by a man awaiting trial for attempted rape. The police and prosecutor had recommended his release on bail despite a history of sexual violence. The applicant sued the ministers responsible for the police and prosecution service, alleging that they had negligently failed to see that the magistrate was properly informed about the risk he posed to women in the vicinity of his home, including the applicant. Her claim was dismissed by the High Court and its decision was upheld by the Supreme Court of Appeal, but she succeeded on appeal to the Constitutional Court, relying on a provision in section 39(2) of the constitution which required the courts when developing the common law to promote the spirit, purport and objects of the Bill of Rights. The Constitutional Court decided that it would not be appropriate for itself to determine whether the law of delict required to be developed so as to afford a right to the applicant to claim damages if the police or prosecutor were negligent. It said that it was by no means clear how the constitutional obligations on the state should translate into private law duties towards individuals, and that the court would be at a grave disadvantage in deciding the issue without a fully reasoned judgment of the High Court or Court of Appeal. It set aside the decisions of the lower courts and remitted the matter to the High Court. The discussion in the judgment is interesting, but the decision itself is of little help, not only because it left the matter undetermined but because it was based on the provisions of the South African constitution and Bill of Rights. 85. 86. 87. 88. In Hamilton v Minister of Safety and Security [2003] 4 All SA 117 the Supreme Court of Appeal held the police liable to the victim of a shooting for negligently issuing a firearm licence to the attacker, who had a history of psychosis, personality disorder and alcohol abuse. The agreed statement of facts did not suggest that the victim was at higher risk than any other member of the public. In Canada, the Divisional Court of the Ontario High Court refused an application to strike out a claim in negligence by the victim of a serial rapist against the police for their failure to warn potential victims living in the area about the risk which they faced: Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police 74 OR (2d) 225 (1990), 72 DLR (4th) 580. In a short judgment the court applied Lord Wilberforces two stage test in Anns and concluded that the facts pleaded were sufficient to establish a special relationship of proximity. The claimant later succeeded at the trial: (1998) 160 DLR (4th) 697. In Hill v Hamilton Wentworth Regional Services Board [2007] 3 SCR 129 a wrongly convicted defendant sued the police for negligent investigation of the case against him, alleging that he should never have been a suspect. The Supreme Court held, by a majority, that a duty of care existed between the police and a suspect in a criminal investigation. McLachlin CJ, giving the judgment of the majority, expressly limited the judgment to that relationship. She said that it might well be the case that the considerations informing the analysis of proximity and policy would be different in the case of the relationship between the police and a victim; and that if a new relationship was alleged to attract liability of the police in negligence in a future case, it would be necessary to engage in a fresh Anns analysis. She disclaimed reliance on Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police, describing it as of little help. She noted that it was a lower court decision and that debate continued over the content and scope of its ratio (para 27). In New Zealand the highest authority is the decision of the Supreme Court in Couch v Attorney General [2008] 3 NZLR 725. Victims and relatives of victims injured or killed in a robbery claimed damages in negligence for the alleged failure of the probation service to exercise reasonable care in the supervision of the offender, who was on licence after release from a prison sentence for aggravated robbery. The victims were employed at a club where the attacker had been allowed by the probation service to obtain work experience without the knowledge of the employer and his fellow employees about his background. The Supreme Court allowed an appeal by the claimant from the decision of the Court of Appeal that the claim should be struck out. Its decision was unanimous but there were differences as to the criteria for establishing a duty of care. 89. The reasoning of the majority (Blanchard, Tipping and McGrath JJ) was given by Tipping J. He took as his starting point the well known observation of Dixon J in Smith v Leurs (1945) 70 CLR 256, 262 that it is exceptional to find a duty in law to control anothers actions to prevent harm to strangers, but that special relations may be the source of a duty of this nature. Tipping J noted that the special relations to which Dixon J referred were between the defendant and the wrongdoer, but there had additionally to be a special relationship between the defendant and the claimant special in the sense that there was sufficient proximity between the parties to make it fair, just and reasonable, subject to matters of policy, to impose the duty of care in issue (para 85). 90. Tipping J concluded that the power of the probation board over the wrongdoers employment was arguably sufficient to establish the necessary relationship between the defendant and the wrongdoer, by analogy with the Dorset Yacht case. As to the relationship between the defendant and the claimant, the necessary proximity criterion would be satisfied if she could show (as was arguable on the facts) that she, as an individual or a member of an identifiable and sufficiently delineated class, was the subject of a distinct and special risk of suffering harm. The necessary risk must be distinct in the sense of being clearly apparent, and it must be special in the sense that the plaintiffs individual circumstances, or membership of the necessary class, rendered her particularly vulnerable (para 112). If the requisite proximity was established, Tipping J said that it would be necessary to address finally the question of policy, but that should be done when all the facts had been examined (para 130). 91. Elias CJ and Anderson J preferred a more expansive formulation based on 92. the application of Anns. In Australia, the High Court held in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 that the proprietors of a shopping centre owed no duty of care towards visitors to protect them against the risk of attack in the car park by taking steps to see that it was properly lit. The proprietors were not responsible for controlling the behaviour of the attackers, unlike the prison officers in the Dorset Yacht case who were responsible for controlling the activities of the young offenders in their charge. 93. In Sullivan v Moody (2001) 207 CLR 562 the High Court held that medical professionals and social workers involved in the investigation of child sex abuse owed no duty of care towards the suspects. The court cited the decision of the House of Lords in Hill in support of the proposition that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities, and that it is inappropriate to subject those decisions to a common law duty of care. 95. 94. The Irish courts have consistently followed Hill in holding that the police owe no private law duty of care in respect of their investigatory or prosecutorial functions: Lockwood v Ireland [2010] IEHC 403, LM v Commissioner of An Garda Siochana [2011] IEHC 14 and AG v JK, Minister for Justice Equality & Law Reform [2011] IEHC 65. In relation to the Convention, Ms Monaghan relied particularly on the decision of the Strasbourg court in Opuz v Turkey (2009) 50 EHRR 695. The applicant and her mother suffered repeated violence from the applicants partner, which they reported to the police. He was charged with offences including attempted murder and threatening to kill, but he was released on bail. While awaiting trial he murdered the applicants mother. He was released from prison pending an appeal, and the applicant complained that she was given inadequate protection. The court held that there were violations of articles 2 and 3 and gender based discrimination in violation of article 14 read in conjunction with articles 2 and 3. The court concluded that domestic violence towards women was in practice tolerated by the authorities, and that the remedies relied on by the government in its argument did not function effectively. 96. The claimants and the interveners also relied on the judgment of Green J in DSD v Commissioner of Police of the Metropolis [2014] EWHC 436 (QB). The claimants were victims of a serial rapist. They succeeded in claims brought against the police under the Human Rights Act and articles 3 and 8 of the Convention. There was no claim at common law. In his judgment Green J carried out a detailed analysis of the Strasbourg jurisprudence regarding the nature and scope of the investigative duty of the police under article 3. The claimants and interveners submitted that his analysis strengthens the case for a common law duty of the scope for which they respectively contend. Green Js judgment is under appeal. Issues 1 and 2: did the police owe a duty of care to Ms Michael on receiving her 999 call? 97. English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] AC 241, 270 (a Scottish appeal in which a large number of English and Scottish cases were reviewed). The fundamental reason, as Lord Goff explained, is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else. 98. The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of situation in which the common law may impose liability for a careless omission. 99. The first is where D was in a position of control over T and should have foreseen the likelihood of T causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that control. Dorset Yacht is the classic example, and in that case Lord Diplock set close limits to the scope of the liability. As Tipping J explained in Couch v Attorney General, this type of case requires careful analysis of two special relationships, the relationship between D and T and the relationship between D and C. I would not wish to comment on Tipping Js formulation of the criteria for establishing the necessary special relationship between D and C without further argument. It is unnecessary to do so in this case, since Ms Michaels murderer was not under the control of the police, and therefore there is no question of liability under this exception. 100. The second general exception applies where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance Plc. It is not a new principle. It embraces the relationships in which a duty to take positive action typically arises: contract, fiduciary relationships, employer and employee, school and pupil, health professional and patient. The list is not exhaustive. This principle is the basis for the claimants main submission, to which I will come (issue 3). There has sometimes been a tendency for courts to use the expression assumption of responsibility when in truth the responsibility has been imposed by the court rather than assumed by D. It should not be expanded artificially. 101. These general principles have been worked out for the most part in cases involving private litigants, but they are equally applicable where D is a public body. Mitchell v Glasgow City Council is a good example. The victim and T were secure tenants of D and were next door neighbours. On a number of occasions T directed abuse and threats to kill at the victim, which he reported to D. D summoned T to a meeting and threatened him with eviction, without informing the victim. Soon afterwards T attacked the victim, causing fatal injuries. The victims widow and daughter sued D, alleging negligence in failing to warn him of the meeting with T. The House of Lords held that D was not under a duty to do so, applying the principle in Smith v Littlewoods Organisation Ltd. It rejected the pursuers arguments that Ds relationship with its tenant T was analogous to the relationship of D and T in Dorset Yacht or that D assumed a responsibility to protect the victim from T. Mere foreseeability was not enough. 102. It is true that the categories of negligence are never closed (Heaven v Pender (1883) 11 QBD 503), and it would be open to the court to create a new exception to the general rule about omissions. The development of the law of negligence has been by an incremental process rather than giant steps. The established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture of policy considerations to take into account. 103. From time to time the courts have looked for some universal formula or yardstick, but the quest has been elusive. And from time to time a court has used an expression in explaining its reasons for reaching a particular decision which has then been squashed and squeezed in other cases where it does not fit so aptly. 104. Lord Wilberforces two stage formula in Anns appeared at first to usher in a new era of development in the law of negligence, in which prima facie liability at the first stage was drawn very widely but could be negated or cut down by policy considerations at the second stage. 105. The two stage formula was stated in terms of general application, but it had particular implications for public authorities, because they have a wide range of duties and responsibilities which would be likely to bring them within the first stage of Lord Wilberforces formula. 106. Doubts about the Anns formula were expressed by the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1 and echoed in subsequent English decisions. In Caparo Plc v Dickman [1990] 2 AC 605 Lord Bridge (with whom Lords Roskill, Ackner and Oliver of Aylmerton agreed) emphasised the inability of any single general principle to provide a practical test which could be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope. He said, at pp 617 618, that there must be not only foreseeability of damage, but there must also exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity or neighbourhood, and the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty of a given scope on one party for the benefit of the other. He added that the concepts both of proximity and fairness were not susceptible of any definition which would make them useful as practical tests, but were little more than labels to attach to features of situations which the law recognised as giving rise to a duty of care. Paradoxically, this passage in Lord Bridges speech has sometimes come to be treated as a blueprint for deciding cases, despite the pains which the author took to make clear that it was not intended to be any such thing. 107. The Anns formula was finally disapproved in Murphy v Brentwood District Council [1991] AC 398. The particular question in that case was whether the owner of a house built with defective foundations was owed a duty of care by the local authority which passed the plans. The House of Lords held that he was not. The property was the plaintiffs home and it would have cost more than half of its value in good condition to repair the damage caused by the defective foundations. Lord Bridge observed that there might be cogent reasons of social policy for imposing liability on the authority, but that the shoulders of a public authority were only broad enough to bear the loss because they were financed by the public at large, and that it was pre eminently a matter for the legislature whether these policy reasons should be accepted as sufficient for imposing on the public the burden of providing compensation for the plaintiffs private loss. Similarly Lord Oliver said that it would not be right for the courts to create new principles in order to fulfil a social need in an area of consumer protection where there was legislation. 108. Similar considerations underlie decisions in cases not about economic loss: see Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. Both were personal injury cases arising from road accidents. 109. In Stovin v Wise a highway authority knew that a road junction was dangerous and that the cause of the danger could be removed simply and at little expense. A bank of earth on the corner of the junction obstructed the view of motorists turning right from one road into the other. The highway authority did not own the land but had a statutory power to remove the bank. After there had been a number of accidents it decided to take action. It wrote to the landowner with a proposal to realign the junction but did nothing more and the matter went to sleep until another accident happened. A motorist collided with a motorcyclist whom she had not been able to see until it was too late. The motorist accepted liability to the motorcyclist but claimed a contribution from the highway authority for its negligence. At the trial the judge found the highway authority liable and ordered it to pay a contribution of 30%. On appeal the sole issue was whether the highway authority owed to the injured person a duty of care. The House of Lords by a majority held that it did not. 110. Lord Hoffmann (with whom Lords Goff and Jauncey of Tullichettle agreed) observed that it is one thing for a public authority to provide a service at the public expense, and quite another to require the public to pay compensation when a failure to provide the service has resulted in a loss. Apart from possible cases involving reliance on a representation by the authority, the same loss would have been suffered if the service had not been provided in the first place, and to require payment of compensation would impose an additional burden on public funds. There would, he said, have to be exceptional grounds for a court to hold that the policy of a statute required compensation to be paid because a power was not exercised. 111. In Gorringe v Calderdale Metropolitan Borough Council the House of Lords held that the general public law duty of a highway authority under the Road Traffic Act 1988 for the prevention of road accidents did not give rise to a private law duty of care to provide road warnings to alert motorists of hazards. Lord Hoffmann (with whom Lords Scott of Foscote, Rodger and Brown agreed) referred to the fact that in Stovin v Wise the majority left open the possibility that there might somewhere be a statutory power or public duty which generated a common law duty, but he went on to say that he found it difficult to imagine a case in which a common law duty could be founded simply upon the failure (however irrational) to provide some benefit which a public authority has a public law duty to provide (paras 31 to 32). He distinguished that situation from cases where a public authority did acts or entered into relationships or undertook responsibilities giving rise to a duty of care on an orthodox common law foundation (para 38). 112. In some areas, such as health care and education, public authorities provide services which involve relationships with individual members of the public giving rise to a recognised duty of care no different from that which would be owed by any other entity providing the same service. A hospital and its medical staff owe the same duty to a patient whether they are operating within the national health service or the private sector (Roe v Minister of Health [1954] 2 QB 66). A school and its teaching staff owe the same duty to a pupil whether it is a state maintained school or a private school (Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537). Educational psychology is a professional service linked to education. An organisation which provides an educational psychology service, and its educational staff, owe the same duty to a pupil whether they are operating in the public or the private sector (X (Minors) v Bedfordshire County Council [1995] AC 633). 113. Besides the provision of such services, which are not peculiarly governmental in their nature, it is a feature of our system of government that many areas of life are subject to forms of state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society (or sometimes from natural disasters). Licensing of firearms, regulation of financial services, inspections of restaurants, factories and childrens nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list would be virtually impossible, because the systems designed to protect the public from harm of one kind or another are so extensive. 114. It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law. 115. The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. Examples at the highest level include Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175 and Davis v Radcliffe [1990] 1 WLR 821 (no duty of care owed by financial regulators towards investors), Murphy v Brentwood District Council (no duty of care owed to the owner of a house with defective foundations by the local authority which passed the plans), Stovin v Wise and Gorringe v Calderdale Metropolitan Borough Council (no duty of care owed by a highway authority to take action to prevent accidents from known hazards). 116. The question is therefore not whether the police should have a special immunity, but whether an exception should be made to the ordinary application of common law principles which would cover the facts of the present case. 117. Ms Monaghan has advanced essentially two arguments in support of the interveners liability principle. The first is that the nature and scale of the problem of domestic violence is such that the courts ought to introduce such a principle to provide protection for victims and a spur to the police to respond to the problem more effectively. The second is that the common law should be extended in harmony with the obligations of the police under articles 2 and 3 of the Convention. 118. I recognise fully that the statistics about the incidence of domestic violence and the facts of individual cases such as the present are shocking. I recognise also that the court has been presented with fresh material on the subject. However, I am not persuaded that they should cause the court to create a new category of duty of care for several reasons. 119. If the foundation of a duty of care is the public law duty of the police for the preservation of the Queens peace, it is hard to see why the duty should be confined to potential victims of a particular kind of breach of the peace. Would a duty of care be owed to a person who reported a credible threat to burn down his house? Would it be owed to a company which reported a credible threat by animal rights extremists to its premises? If not, why not? 120. It is also hard to see why it should be limited to particular potential victims. If the police fail through lack of care to catch a criminal before he shoots and injures his intended victim and also a bystander (or if he misses his intended target and hits someone else), is it right that one should be entitled to compensation but not the other, when the duty of the police is a general duty for the preservation of the Queens peace? Similarly if the intelligence service fails to respond appropriately to intelligence that a terrorist group is intending to bring down an airliner, is it right that the service should be liable to the dependants of the victims on the plane but not the victims on the ground? Such a distinction would be understandable if the duty is founded on a representation to, and reliance by, a particular individual but that is not the basis of the interveners liability principle. These questions underline the fact that the duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of close or special relationship (proximity or neighbourhood) necessary for the imposition of a private law duty of care. 121. As to the argument that imposition of the interveners liability principle should improve the performance of the police in dealing with cases of actual or threatened domestic violence, the court has no way of judging the likely operational consequences of changing the law of negligence in the way that is proposed. Mr Bowen and Ms Monaghan were critical of statements in Hill and other cases that the imposition of a duty of care would inevitably lead to an unduly defensive attitude by the police. Those criticisms have force. But the court would risk falling into equal error if it were to accept the proposition, on the basis of intuition, that a change in the civil law would lead to a reduction of domestic violence or an improvement in its investigation. Failures in the proper investigation of reports of violence or threatened violence can have disciplinary consequences (as there were in the present case), and it is speculative whether the addition of potential liability at common law would make a practical difference at an individual level to the conduct of police officers and support staff. At an institutional level, it is possible to imagine that it might lead to police forces changing their priorities by applying more resources to reports of violence or threatened violence, but if so, it is hard to see that it would be in the public interest for the determination of police priorities to be affected by the risk of being sued. 122. The only consequence of which one can be sure is that the imposition of liability on the police to compensate victims of violence on the basis that the police should have prevented it would have potentially significant financial implications. The payment of compensation and the costs of dealing with claims, whether successful or unsuccessful, would have to come either from the police budget, with a corresponding reduction of spending on other services, or from an increased burden on the public or from a combination of the two. 123. In support of the argument that the court should develop the common law to encompass the duties of the police under the Convention, Mr Bowen and Ms Monaghan submitted that consistency between the common law and the Convention should be encouraged and relied in particular on observations of the Court of Appeal in D v East Berkshire NHS Trust [2003] EWCA Civ 1151, [2004] QB 558, paras 79 85. 124. There are certainly areas where the Convention has had an influence on the common law. Possibly the most striking example is in the law of confidentiality, which the courts have developed to include a partial law of privacy in response to the requirements of article 8 (Campbell v MGN Ltd [2004] 2 AC 457). But two points should be noted about that. First, the common law had long been regarded as defective. It was heavily criticised by Bingham LJ in Kaye v Robertson [1991] FSR 62, but the Court of Appeal held with regret that only Parliament could cure it. The Human Rights Act 1998 provided the means for reform. In debates on the bill Lord Irvine of Lairg, LC made it clear that in his view the Act would open the way to the courts developing rights of privacy through article 8, and so it did. Secondly, development of the law was necessary to comply with article 8, as interpreted by the Strasbourg court. 125. The circumstances of the present case are different. The suggested development of the law of negligence is not necessary to comply with articles 2 and 3. On orthodox common law principles I cannot see a legal basis for fashioning a duty of care limited in scope to that of articles 2 and 3, or for gold plating the claimants Convention rights by providing compensation on a different basis from the claim under the Human Rights Act 1998. Nor do I see a principled legal basis for introducing a wider duty in negligence than would arise either under orthodox common law principles or under the Convention. 126. The same argument, that the common law should be developed in harmony with the obligations of public bodies including the police under the Human Rights Act 1998 and articles 2 and 3 of the Convention, was advanced in Smith as a ground for holding that the police owed a duty of care to the deceased after he reported receiving threats. Reliance was similarly placed on the approach of the Court of Appeal in D v East Berkshire NHS Trust (as noted by Lord Phillips MR, who had delivered the judgment of the Court of Appeal in that case). Counsel for Mr Smith relied particularly on the analysis of the effect of the Human Rights Act in D v East Bedfordshire NHS Trust at paras 55 to 87: see the reported argument at [2009] 1 AC 225, 240. The argument by analogy with that case which presently commends itself to Lady Hale is therefore not a new argument, but one which failed to persuade the majority in Smith. 127. The argument was rejected by the House of Lords for reasons given by Lord Hope (paras 81 82), Lord Phillips (paras 98 99) and most fully by Lord Brown (paras 136 139). Lord Brown did not consider that the possibility of a Human Rights Act claim was a good reason for creating a parallel common law claim, still less for creating a wider duty of care. He observed that Convention claims had different objectives from civil actions, as Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. Whereas civil actions are designed essentially to compensate claimants for losses, Convention claims are intended to uphold minimum human rights standards and to vindicate those rights. The difference in purpose has led to different time limits and different approaches to damages and causation. Lord Brown recognised that the violation of a fundamental right is a very serious thing, but he saw no sound reason for matching the Convention claim with a common law claim. To do so would in his view neither add to the vindication of the right, nor be likely to deter the police from the action or inaction which risked violating it in the first place. 128. It is unnecessary for the purposes of this appeal to decide questions about the scope of article 3 and I would not wish to influence the Court of Appeals consideration of the judgment in DSD v Commissioner of Police of the Metropolis. It does not alter the essence of the argument which was considered and rejected by the House of Lords in Smith. I am not persuaded that it would be right for the court to depart from that decision, which itself was consistent with a line of previous authorities. 129. In support of the narrower liability principle proposed by Lord Bingham in Smith, Mr Bowen submitted that limitation of a duty of care to A to cases where A has provided the police with apparently credible evidence that she or he is under a specific and imminent threat to their life or personal safety from a person whose identity and whereabouts are known would satisfy the requirement of closeness or proximity. But the majority in Smith rejected Lord Binghams formula for reasons which remain cogent. It would be unsatisfactory to draw dividing lines according to whether the threat is reported by A or by someone else (for example, in the present case by the man driven home by Ms Michaels murderer before he returned and killed her); or whether the threat is credible and imminent or credible but not imminent; or whether the whereabouts of the person making the threat are known or unknown; or whether the threatened violence was to As person or property or both. As to the first of those distinctions (whether the threat was reported by A or someone else), Lord Binghams own position was ambiguous because his formula confined the duty to a case where the threat was reported by A, but he also disapproved the decision in OLL Ltd v Secretary of State for Transport, in which the concerns about the safety of the children and adults at sea were raised by other people. 130. More generally, I would reject the narrower liability principle advocated by the claimants for the same reasons as the broader liability principle advocated by the interveners. If it is thought that there should be public compensation for victims of certain types of crime, above that which is provided under the criminal injuries compensation scheme, in cases of pure omission by the police to perform their duty for the prevention of violence, it should be for Parliament to determine whether there should be such a scheme and, if so, what should be its scope as to the types of crime, types of loss and any financial limits. By introducing the Human Rights Act 1998 a cause of action has been created in the limited circumstances where the police have acted in breach of articles 2 and 3 (or article 8). There are good reasons why the positive obligations of the state under those articles are limited. The creation of such a statutory cause of action does not itself provide a sufficient reason for the common law to duplicate or extend it. 131. So far I have been addressing the appellants and the interveners arguments. Lord Kerr advances an alternative liability principle which he puts in a broader and a narrower form. He acknowledges (at para 144) that for a duty of care to arise it is necessary to identify a feature (or combination of features) which creates (or create) a sufficient proximity of relationship between the claimant and the defendant. The question Is there a sufficient proximity of relationship? is a shorthand way of putting the question posed by Lord Devlin in Hedley Byrne [1964] AC 465 at p 525 Is the relationship between the parties in this case such that it can be brought within a category giving rise to a special duty? As Lord Devlin observed, the first step in such an inquiry is to see how far the authorities have gone, for new categories in the law do not spring into existence overnight. In the earlier part of this judgment I have examined how far the authorities presently go and have considered whether there should be a new exception to the general principle about omissions to prevent harm being caused by a third party who is not under the defendants control. 132. Lord Kerrs broader proposal (at para 144) is that proximity of relationship in the present context should comprise these elements: (i) a closeness of association between the claimant and the defendant, which can but need not necessarily arise from information communicated to the defendant; (ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken; (iii) the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances; and (iv) he should be able to provide for the intended victims protection without unnecessary danger to himself. 133. Lord Kerr notes that this suggested principle might at first sight appear similar to Lord Binghams liability principle, but he observes that his principle, unlike Lord Binghams, has the ingredient of proximity built into it as part of what has to be established. This is in my respectful opinion a serious flaw. Whereas Lord Bingham identified the factors which he considered should give rise to duty of care in law, Lord Kerrs proposition requires it to be established that the relationship has sufficient closeness (proximity) to amount to proximity. In this respect it is circular. It leaves the question of closeness or proximity open ended. It amounts to saying that there is a relationship of proximity if the relationship is sufficiently close for there to be proximity. 134. Lord Kerr says (at para 163) that the nature of the interaction between the parties is critical to the question whether the necessary proximity exists. He goes on to say (at para 166) that this depends on the facts of the particular case and that for this reason his proposition at para 144 is loosely drawn (or, as I would say, circular). It provides no yardstick for answering the question which it poses. 135. Lord Kerr says that any narrower test would run the risk of producing anomalous results such as the example which he gives at para 165. In that paragraph he posits the case of a person who through the negligence of the police is given a false impression that an assurance of timeous assistance has been given, on which the person relies. If a person is negligently misled by the police into believing that help is at hand, and acts on what she has negligently been led falsely to believe, she would have a potential claim under the Hedley Byrne principle. Whether that was so in this case is the subject of issue 3. There is, however, nothing anomalous in the Hedley Byrne principle itself or in its limitation. The principle established by Hedley Byrne is that a careless misrepresentation may give rise to a relationship akin to contract under which there is a positive duty to act. Lord Devlin spoke of an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract and he said that wherever there is a relationship equivalent to contract, there is a duty of care (pp 529 530). To extend the principle to a case in which the core ingredients were absent would be to cut its moorings. 136. However, Lord Kerr goes on to advance a narrower liability principle (at para 168). His narrower proposition is that whether a relationship of proximity exists should depend on whether sufficient information has been conveyed or is available to the police to alert them to the urgent need to take action which it is within their power to take; the information must be specific; and the threat must be imminent. It is critical, he says, that the police know of an imminent threat to a particular individual, and the duty is personalised to the intended victim. 137. Lord Kerrs narrower liability principle closely resembles Lord Binghams liability principle, which was rejected by a majority of the House of Lords. It presents most of the problems to which I have referred, such as why a duty should be owed to the intended victim of a drive by shooting but not to an injured bystander; why the threat should have to be imminent; and why the victim of a threatened arson attack should be owed a duty of protection against consequential personal injury, but not the burning down of his home. Lord Kerr rightly says (at para 181) that the police have been empowered to protect the public from harm. They have indeed a duty to keep the peace and to protect property, which applies to all potential victims of crime. Lord Kerr does not subscribe to the interveners liability principle, and I cannot see a proper basis for holding there is a private law duty of care within the terms of Lord Kerrs narrower alternative. Issue 3: should the police be held to have assumed responsibility to take reasonable care for Ms Michaels safety? 138. Mr Bowen submitted that what was said by the Gwent call handler who received Ms Michaels 999 call was arguably sufficient to give rise to an assumption of responsibility on the Hedley Byrne principle as amplified in Spring v Guardian Assurance Plc. I agree with the Court of Appeal that the argument is not tenable. The only assurance which the call handler gave to Ms Michael was that she would pass on the call to the South Wales Police. She gave no promise how quickly they would respond. She told Ms Michael that they would want to call her back and asked her to keep her phone free, but this did not amount to advising or instructing her to remain in her house, as was suggested. Ms Michaels call was made on her mobile phone. Nor did the call handlers inquiry whether Ms Michael could lock the house amount to advising or instructing her to remain there. The case is very different from Kent v Griffiths where the call handler gave misleading assurances that an ambulance would be arriving shortly. Issue 4: was there arguably a breach of article 2? 139. Lord Pannick submitted that the majority of the Court of Appeal were wrong to uphold Judge Jarman QCs decision that the article 2 claim should be allowed to proceed to trial. It is a question of fact whether the Gwent call handler ought to have heard Ms Michael say that her former partner was threatening to return and kill her, and, if she could not hear clearly what Ms Michael was saying because of distractions, whether she should have asked Ms Michael to repeat what she was saying. Lord Pannick argued that even if she should have heard those words, it would not have been enough for a reasonable person to conclude that there was a real and immediate threat to her life. That is again a question of fact. It would be rare for this court to reverse concurrent findings of two lower courts on a question of fact and I do not consider that we should do so in this case. On the contrary, I agree with the majority of the Court of Appeal that the question what the call handler ought to have made of the 999 call in all the circumstances is properly a matter for investigation at a trial. It is not necessary to consider separately the position of the South Wales Police, because Lord Pannick helpfully said that if the cross appeal by Gwent Police failed he would not wish to argue for a different disposal at this stage in the case of the South Wales Police. Conclusion 140. I would dismiss the appeal and cross appeal. LORD KERR: Introduction 141. Three principal reasons have been given for the conclusion that liability should not attach to the police in this case. The first is that a well established line of authority dating back to (at least) Hill v Chief Constable of West Yorkshire [1989] AC 53 precluded such liability. The second is grounded on what are said to be general principles of common law. And the third depends on considerations of public policy. Authorities 142. In Hill Lord Keith held that at common law police officers owed the general public a duty to enforce the criminal law but there were no specific requirements as to the manner in which the obligation is to be discharged (p 59). On that account an intention to create a duty towards individual members of the public could not be readily inferred. But such a duty could, in appropriate circumstances, arise. It was not enough that police could or should have foreseen that harm to an individual would occur. A further ingredient was required. The nature of that necessary ingredient varied from case to case. In Dorset Yacht Co Ltd v Home Office [1970] AC 1004 the ingredient was the special relationship that existed between, on the one hand, prison officers and the borstal boys who carried out the damage to the boats and, on the other hand, between the prison officers and the owners of the yachts. The prison officers had brought the borstal boys into the locality where the yachts were moored. In that way they had created a potential situation of danger for the owners of the yacht. These circumstances supplied the necessary extra ingredient which allowed a finding of liability to be made. No such features were present in Hill per Lord Keith at 62C. As he pointed out, the perpetrator in Hill was not in police custody at any material time and the victim was one of a vast number of the female general public who was at no special distinctive risk unlike the owners of [the] yachts in the Dorset Yacht case. 143. Lord Keith went on to suggest that there was another reason, grounded in public policy, that an action for damages in negligence should not lie against the police. As Lord Toulson has pointed out, Lord Keith expressed that as a matter of immunity. I will consider the public policy arguments in a later section of this judgment and will mention in passing the dichotomy that has arisen as to whether police should not be held liable for the manner in which they discharge their duties because of an immunity or because an extra ingredient is required beyond foreseeability in order to establish negligence against them. In the meantime, it can be clearly stated that Lord Keiths formulation of the primary basis on which the plaintiff failed was that an extra ingredient such as was present in Dorset Yacht was missing in Hill. 144. This extra ingredient has been described as a feature which creates a sufficient proximity of relationship between the claimant and the defendant. What proximity of relationship connotes has, perhaps understandably, not been precisely defined. It appears to me that it should consist of these elements: (i) a closeness of association between the claimant and the defendant, which can be created by information communicated to the defendant but need not necessarily come into existence in that way; (ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken; (iii) the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances; and (iv) he should be able to provide for the intended victims protection without unnecessary danger to himself. This might, at first sight, appear to approximate to the liability principle articulated by Lord Bingham in Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2009] AC 225. For reasons that I will give later, I consider that there is a distinct difference between the two. 145. This test is criticised on the basis that it is circular. But this is true of any test of proximity and of many other bases of liability, as in, for instance, the test of proportionality something is disproportionate if it fails to strike a proportionate balance. The notion that any proximity standard inevitably involves an element of circularity is not new. In an article entitled, The vulnerable subject of negligence law Int JLC (2012) 8(3), 337 353, at 338 339, Carl Stychin commented: The second stage requirement of proximity continues to cause judicial and academic debate over whether proximity possesses some independent, discernible meaning against which facts in a novel category can be tested, or whether it represents simply a conclusion that the necessary relationship of neighbourhood exists between two parties. For critics, proximity has evolved, possibly unavoidably, into an ad hoc device, judicially micro refined by the particular facts of cases and the particular idiosyncrasies of the judges hearing them (Brown, 2005, p 146. There is therefore an inevitably pragmatic dimension (or circularity) involved in the proximity principle but this does not destroy its utility as a standard by which liability is to be judged. In a much cited passage, Deane J in Sutherland Shire Council v Heyman (1985) 60 ALR 1, at 55/6 said this about proximity: 162) and gives no practical or even theoretical guidance (p 164). For others, it provides a useful device by which legal reasoning can be structured. It is not a formulaic test, but a meaningful definitional element (Kramer, 2003, p 72), a conduit for the application of community standards about responsibility (p 72), and unequivocal as indicators of the presence or absence of a substantial ability on the part of the defendant to cause injury to the claimant (Witting, 2005, p 39). Furthermore, as a wrapper for a range of diverse factors, some argue that proximity has wrongly allowed policy concerns centring on distributive justice to infiltrate what should be an inquiry focused on the relationship between two parties (Beever, 2007). As a consequence, it is claimed that proximity has opened the door to the balancing of two incommensurable types of argument. But even for those sceptical of a clear cut distinction between issues of principle and policy, proximity can be dangerously misleading because it masks the inevitable exercise in judicial balancing (Stapleton, 1998, p 61). Criticism of proximity thus comes from all sides of the theoretical spectrum. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained. It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance. Both the identity and the relative importance of the factors which are determinative of an issue of proximity are likely to vary in different categories of case. 147. Proximity may in many cases add little to the concept of foreseeability but at root it reflects what Richardson J described in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282, 306, as a balancing of the plaintiffs moral claim to compensation for avoidable harm and the defendants moral claim to be protected from an undue burden of legal responsibility which is exactly what has been the aim of the test for liability which I have proposed. For all, therefore, that the test of proximity may be described as circular, it still has a useful role to play. It is clear, for instance, that it was not present in the Hill case. There was, obviously, no proximity between the police and a member of the public killed by a criminal whose whereabouts were unknown and who, apparently, randomly picked out his victim from the female population. 148. In Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495 Lord Steyn suggested that the principle in Hills case should be reformulated in terms of the absence of a duty of care rather than a blanket immunity (para 27) but he observed that what he described as the core principle in Hill had remained unchallenged for many years (para 30). The core principle is that there is, in general, no duty of care owed by police to individual members of the public. Significantly, Lord Steyn had recorded (at para 17) the agreement of counsel that the issues in Brooks should be resolved in the framework of the principles stated in Caparo Industries Plc v Dickman [1990] 2 AC 605 and quoted, apparently with approval, what Lord Bridge had said in that case, at pp 617 618: What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity or neighbourhood and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. 149. Nothing that was said in Brooks, therefore, detracts from the proposition that, provided it is fair, just and reasonable that a duty should arise, police will be liable where they have failed to prevent foreseeable injury to an individual which they could have prevented, and there is a sufficient proximity of relationship between them and the injured person. 150. Lord Steyn set out a number of policy considerations which, he said, militated against converting the ethical value of police dealing respectfully with members of the public into general legal duties of care on the police towards victims and witnesses para 30. But I do not construe this passage as casting doubt on the suggestion that where there was a further ingredient, additional to foreseeability, and sufficient to create a relationship of proximity, liability could arise, provided that it is fair, just and reasonable that it should. By general legal duties I understand Lord Steyn to mean a wide ranging basis for liability. That is not the primary issue on this appeal, in my opinion. I consider that the question whether there is liability for negligence in this case should rest principally on the claim that its particular circumstances provided the extra ingredient required to create the necessary relationship of proximity between the police and the victim and that it is fair, just and reasonable to find that they are liable to the appellants. I shall discuss those circumstances later in this judgment. 151. The policy considerations which operated in Hill and Brooks were deployed for theoretically different purposes. In Hill Lord Keith set those out as a justification for an immunity for police against a suit for negligence by an individual member of the public. In Brooks Lord Steyns array of public policy arguments was designed to sustain the conclusion that there was no general duty of care owed by police to members of the public. But the policy considerations that have been rehearsed in both cases are relevant in deciding whether, in this particular case, a sufficiently proximate relationship existed between the victim and the police and whether it is fair, just and reasonable that they should be held liable. In the context of the present appeal, therefore, I do not consider it particularly relevant whether the police should not be held liable because actions in negligence against them require to go further than conventional negligence claims or because they are immune from liability by dint of their status. 152. In Van Colle and Smith Lord Bingham at para 42 said that the most favoured test of a defendants liability to a claimant for damage caused by a third party was still that which had been articulated in Caparo. This was described by Lord Bingham in this way: it must be shown that harm to [the claimant] was a reasonably foreseeable consequence of what [the defendant] did or failed to do, that the relationship of [the claimant and the defendant] was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care on [the defendant] towards [the claimant]. 153. Lord Bingham went on, of course, to articulate what he described as the liability principle. None of the other members of the Appellate Committee agreed with this as a basis for deciding whether there had been negligence on the part of the police. It is important to note the terms of this principle, however, in order to discuss the current state of the law in relation to liability of a defendant for the acts of a third party. This is how Lord Bingham described the liability principle, at para 44: if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed. 154. Expressed in this way, the liability principle either omits the proximity of relationship and the fair, just and reasonable components of the Caparo test or treats the relay of the information to the defendant as supplying those ingredients. If it is the first of these, one can see how it does not accord with the core principle of Hill, although, interestingly, Lord Bingham believed that his liability principle was not in any way inconsistent with the ratio in Hill and Brooks (para 45). If Lord Bingham considered that the provision of information of the nature described supplied the necessary dimension of proximity and the prerequisite that it be fair, just and reasonable to found liability, this raises interesting questions as to how those requirements might be satisfied. Before turning to those questions I must say something about the views of the other members of the House of Lords who disagreed with Lord Bingham. 155. Lords Hope, Phillips, Carswell and Brown gave various reasons for disagreeing with Lord Binghams liability principle. Lord Hope at para 77 suggested that its adoption would lead to uncertainty in its application. He asked who was to judge whether the evidence given to the police was credible and whether the threat was imminent. These were, he said, questions which the police have to deal with on the spot. If a judge was to review them it would be on an objective basis and this would lead to defensive policing focused on preventing or, at least, minimising the risk of civil claims. Lord Phillips raised what he considered to be practical difficulties in deciding when the principle would apply. Would it apply, for instance, if the evidence emanated, not from the member of the public under threat, but from some other source; and what if the threat was specific, but not imminent, or imminent but not specific? And why should the principle be restricted to a threat to life or physical safety, but not to a threat to property? Lord Carswell agreed with Lord Hope, whilst observing that he would not disagree with Lord Nicholls who, in Brooks, had said that there might be exceptional cases in which liability might be imposed. Lord Brown considered that it would be difficult to limit the liability principle in the way that Lord Bingham had sought to do; he also thought that defensive policing was inevitable; and that the police should be protected from proceedings that would involve a great deal of time, trouble and expense. 156. It will be seen that the reasons given by the majority in Van Colle and Smith partook, for the most part at least, of policy concerns. None of their speeches addressed directly the question why the relationship between Mr Smith and the police was not one of sufficient proximity. Of course, following Hill, it was still necessary, if proximity was established, to consider whether it was fair, just and reasonable to impose liability on the police. And it appears that it was this latter factor which underlay the dismissal of the appeal by the majority. But it seems to me that the question of whether it is fair, just and reasonable is better considered against the background of whether a sufficiently proximate relationship exists. Put simply, if there is proximity, this is likely to have a bearing on whether it is fair to impose liability. Conversely, if there is not proximity, the issue of fairness etc. is likely to be insignificant. Indeed, it has been suggested that it cannot ever be fair, just and reasonable to impose a duty on a defendant with respect to a given claimant if the other stages of the Caparo test are unsatisfied Peel and Goudkamp, Winfield and Jolowicz on Tort (2014) 19th ed para 5 036. 157. I believe that it is necessary to return to the true ratio of Hill and Caparo in order to answer the question whether liability for negligence should be imposed on the police in this case. The core principle of both cases is that liability should not attach to the police unless there is a relationship of proximity and it is fair, just and reasonable to impose it. What is meant by proximity; how can a sufficiently proximate relationship be created; and what circumstances make it fair, just and reasonable for liability to be imposed are all central to the resolution of the issue. Proximity and fairness 158. Not only does the answer to the question, is there a proximate relationship bear on the matter of what is fair etc., what is fair, just and reasonable tends to blend with the concept of proximity. In the New Zealand case of South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Collins [1992] 2 NZLR 282, 306 Richardson J held that the proximity assessment will, at root, reflect a balancing of the claimants moral claim to compensation for avoidable harm and the defendants moral claim to be protected from an undue burden of legal responsibility. This sounds remarkably like a weighing of what is fair and just as between the parties. And the authors of Clerk and Lindsell on Torts 21st ed (2014), comment at 8 16 that an assessment of proximity will inevitably overlap with considerations of justice between the parties. 159. As to what is fair, just and reasonable, Lord Browne Wilkinson in Barrett v Enfield London Borough Council [2001] 2 AC 550, 559 explained: In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. 160. This passage clearly contemplates that, in deciding what is fair, just and reasonable, courts are called on to make judgments that are informed by what they consider to be preponderant policy considerations. Some assessment has to be made of what a judge considers the public interest to be; what detriment would be caused to that interest if liability were held to exist; and what harm would be done to claimants if they are denied a remedy for the loss that they have suffered. These calculations are not conducted according to fixed principle. They will frequently, if not indeed usually, be made without empirical evidence. For the most part, they will be instinctual reactions to any given set of circumstances. 161. Similar value judgments are required for decisions on proximity. In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 411 Lord Oliver stated that the concept of proximity is an artificial one which depends more upon the courts perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction. Again these are value judgments, based essentially on what the court considers to be right for the particular circumstances of the case at the time that the appraisal is being made. It is, I believe, important to be alive to the true nature of these decisions, especially when one comes to consider the precedent value of earlier cases in which such judgments have been made. A decision based on what is considered to be correct legal principle cannot be lightly set aside in subsequent cases where the same legal principle is in play. By contrast, a decision which is not the product of, in the words of Lord Oliver, any logical process of analogical deduction holds less sway, particularly if it does not accord with what the subsequent decision maker considers to be the correct instinctive reaction to contemporaneous standards and conditions. Put bluntly, what one group of judges felt was the correct policy answer in 2009, should not bind another group of judges, even as little as five years later. How is a relationship of proximity created? 162. In light of the dearth of judicial pronouncement on how to approach, at a level of hypothesis, the question of how a relationship of proximity may be said to exist and in view of Lord Olivers statement that it is not susceptible of analogical deduction, one might be tempted to say that it all depends on the circumstances. But the law tends to prefer some theoretical rules for the incurring of liability and is wary about accepting that liability can arise unless the particular circumstances can be seen to conform to a preconceived set of principles. Having said that, the respondents have accepted, correctly in my view, that, although the rule that the police will not be liable to individual members of the public is a general one, it is not universal. And they have cited a number of examples where liability has been imposed, all of which, apart from the voluntary assumption of responsibility category, depend very much on their own facts. 163. Whether or not it is necessary to propound a set of principles which can be prayed in aid in order to determine if a particular case constitutes an exception to the general rule, it appears to me incontestable that a proximity of relationship can be created by interaction between parties such as potential victim and police. The nature of that interaction, when it has taken place, is critical to the question whether the necessary degree of proximity exists. 164. It has been recognised that proximity of relationship can exist where there is a voluntary assumption of responsibility by the police but in cases where this issue has arisen, rules have been applied to strictly restrict its ambit. Relying on those cases (Alexandrou v Oxford [1993] 4 All ER 328; Capital & Counties Plc v Hampshire County Council [1997] QB 1004; and Lord Browns observations in Van Colle and Smith at para 135) the respondents argue that unless there was an explicit promise by the police that they would attend immediately and that Ms Michael had expressly relied on this, the conditions for voluntary assumption of responsibility would not be in place. Reference is also made to decisions of the American courts (Noakes v City of Seattle 77 Wash App 694, 700; 895 P 2d 842, 845 (1995) and Perkins v City of Rochester 641 F Supp 2d 168 (2009) which, it is said, confirm the approach that there must be an explicit assurance by the police and express reliance on this by the victim. 165. One must, I believe, question the logic of this position. Should someone in a vulnerable state, fearing imminent attack, who believes that an assurance of timeous assistance has been made when, through negligence on the part of the police, that impression has been wrongly created, be treated differently from another who has in fact received an explicit assurance of immediate help, if both have relied on what they believed to be a clear promise that police would attend and avert the apprehended danger? The fact that an easily imagined example such as this can demonstrate the anomaly of the current state of the law in relation to voluntary assumption of responsibility indicates that a more expansive (or, at least, a more nuanced) approach is warranted. But it does more than that. It also illustrates the undesirability of creating a set of rules that may at first sight appear reasonable but which bring about incongruous results when applied to cases even slightly different from those in contemplation at the time of their conception. 166. One is driven therefore to the conclusion that the question whether there is a sufficient relationship of proximity must be primarily dependent on the particular facts of an individual case. It is for this reason that the test which I have suggested at para 144 above is loosely drawn. Any more closely defined test runs the risk of producing anomalous outcomes such as that instanced in the preceding paragraph. Unlike Lord Binghams liability principle, however, the ingredient of proximity is not omitted or assumed. It must still be established. And, of course, the question must also be addressed whether there are particular policy reasons militating against the imposition of liability in a specific case. 167. Proximity in this context means, as I have already said, a closeness of association. In the case of the police it must transcend the ordinary contact that a member of the public has with the police force in general. But the notion that it can only arise where there has been an express assumption of responsibility by unambiguous undertakings on the part of the police and explicit reliance on those by the claimant or victim is not only arbitrary, it fails to reflect the practical realities of life. When someone such as Ms Michael telephones the police she is in a highly vulnerable, agitated and frightened state. Is it to be supposed that there must pass between her and the police representative to whom she speaks a form of words which can be said to amount to an express assumption of responsibility before liability can arise? That the incidence of liability should depend on the happenstance of the telephonist uttering words that can be construed as conveying an unmistakable undertaking that the police will prevent the feared attack is surely unacceptable. 168. Whether a relationship of proximity can be said to exist should be determined by a close examination of all the circumstances with a view to discovering whether sufficient information has been conveyed to or is otherwise available to the police to alert them to the urgent need to take action which it is within their power to take. That the information be specific and the threat imminent are prerequisites of the proximity relationship. This answers at least some of Lord Phillips concerns in Van Colle and Smith. Imprecise information or indefinite timing as to the materialising of any threat cannot be enough to stimulate the police to urgent action and, as I see it, this is an essential dimension of the proximity relationship. In essence that relationship entails the engagement of the police to a response which is out of the ordinary and which is a direct reaction to the plight of the individual under threat. It does not matter if the information is received from a source other than the intended victim. What is critical is that the police know of an imminent threat to a particular individual and that they have the means of preventing that threat and protecting the individual concerned. This is personalised to the intended victim and arises because of the quality of the information which the police have and because they have the capacity to stop the attack. 169. It is suggested that this formulation is narrower than the test set out in para 144 above. I do not believe that it is. The test in para 144 involves the relay of information to the police sufficient to alert them to the need to take urgent action. The information must convey to the police the essential message that serious harm is likely to befall a particular victim. The duty is therefore personalised to that individual. Of necessity, to fulfil this requirement the information must be specific. The imminence of the threat is implicit in the requirement that there is a need for urgent action. But all of this is of minor importance. Of greater moment is the suggestion that this formulation gives rise to problems in the practical application of the test. 170. I will deal with these supposed difficulties in turn. The first is that the duty as formulated unwarrantably distinguishes between the intended victim of a drive by shooting [and] an injured bystander. I confess to some difficulty in understanding why these categories of person should be assimilated. In the case of an injured bystander the police have no notice of impending harm to that individual on which to act. No circumstances exist in which it might be said that proximity between the bystander and the police has been created. Such an individual is, of course, entitled to the protection that the police owe to members of the public generally but, without more, there could be no duty to protect him from stray bullets any more than there could be a duty on the part of firemen to protect passers by from dangers caused by a fire which they were tackling. 171. Any principle for liability of the police in their dealings with individual members of the public should seek to strike a measured and careful balance between the interests of the effective administration of policing and the need to protect vulnerable individuals from serious harm. This will inevitably involve drawing lines which can be portrayed as arbitrary. But the supposed arbitrariness of the operation of the principle in practice should not prevent the law from recognising that liability should attach to glaring omissions where grievous but avoidable consequences ensue. Limiting liability of the police to preventing imminent attack which they are able to thwart may be open to the charge of being arbitrary but it provides a workable basis on which they may properly be held responsible without imposing on them an impossible burden. 172. Likewise, the restriction of liability to personal injury is defensible on this basis. If it is right that persons such as Ms Michael should be owed a duty of care because of the particular circumstances of her plight, the law should not shirk from recognising that basis of liability simply because it can be posited that there is no logical distinction to be drawn between the need to protect property from the need to protect life. In fact, of course, there is ample reason to distinguish between the two situations. It is entirely right and principled that the law should accord a greater level of importance to the protection of the lives and physical well being of individuals than it does to their property. Was there a relationship of proximity in this case? 173. It is true that, unlike the Borstal boys in the Dorset Yacht case, the murderer of Ms Michael was not in police custody nor was he under police control at the time that the telephone call from Ms Michael was received. The murderer was clearly identified, however. Ms Michael was his only intended victim. She had sought the protection of the police from the man whom she feared would attack her again and who proved, in the dreadful event, to be her killer. He, as she told the police, had expressed a specific intention to attack her. The police had been also told that he had already bitten and injured her. It is not in dispute that he had made a specific threat to return to her home to attack her again. And she informed the police that his return was imminent. At this stage in the proceedings it must be assumed that if that information had been acted on promptly, police would have arrived at her home in time to prevent the murderous attack on her. If a proximity of relationship can be created where a victim tells police of a specific, imminent attack on her, it is difficult to imagine what more would be required to create such a relationship than these circumstances. In fact, however, on the appellants case, there is more. It is now clear that Ms Michael said to the police operator that her ex boyfriend had threatened to kill her. The operator claims that her memory is that she did not hear the word, kill. At this preliminary stage of the proceedings, the claimants are entitled to assert that the case should be dealt with on the basis that the operator either did hear or should have heard Ms Michael say that the threat had been to kill her. In my opinion, there was clearly a sufficient proximity of relationship. Liability for the acts of third parties and for omissions 174. As Lord Toulson states, English law has not generally imposed liability for the acts of a third party because of the traditional rule that the common law did not normally impose liability for pure omissions. A number of significant exceptions to that traditional rule have been recognised, however, as Lord Toulson has said. In particular, the assumption of a duty to take positive action is one such exception. As he has also pointed out, assumption of responsibility is in many instances a misnomer because this is in fact a duty imposed by the court. 175. In my view, the time has come to recognise the legal duty of the police force to take action to protect a particular individual whose life or safety is, to the knowledge of the police, threatened by someone whose actions the police are able to restrain. I am not convinced that this requires a development of the common law but, if it does, I am sanguine about that prospect. Certainly, I do not believe that rules relating to liability for omissions should inhibit the laws development to this point. 176. Tofaris and Steel in their article, Police Liability in negligence for failure to prevent crime: Time to Re think, (Legal Studies Research Paper Series 39/2014, July 2014) define what they describe as the omissions principle in the following way: A is not under a duty to take care to prevent harm occurring to B through a source of danger not created by A unless either (i) A has assumed a responsibility to protect B from that danger, (ii) A has a special level of control over that source of the danger, or (iii) As status creates an obligation to protect B from that danger. 177. In support of this principle, Lord Hoffmann in Stovin v Wise [1996] AC 923, 943 said that it is less of an invasion of an individuals freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. As Tofaris and Steel point out, it is at least questionable that it is particularly valuable to the freedom of a public authority that it should be permitted to negligently fail to assist an identified individual who is at serious risk of physical injury. Whereas it is arguable that a private individuals freedom has an intrinsic value in its contribution to an autonomous life, the value of the states freedom is instrumental and lies in the contribution that it makes to the fulfilment of its proper functions. 178. The common law has historically required professional persons carrying out a skill to do so with reasonable care and skill. As Tindal CJ put it in Lanphier v Phipos (1838) 8 C & P 475, 479: Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure, nor does he undertake to use the highest possible degree of care and skill. 179. In all manner of fields if the professional fails to act with due care and skill, he or she will be liable for any damage caused by their negligence. This is justified on a number of bases; it attributes loss to the person who caused it, it locates compensation in the private rather than the public sector and, arguably, the risk of litigation improves professional standards. The principle holds true even where professionals are acting in response to the acts of third parties. Other emergency services can be liable for their negligence, provided there is sufficient foreseeability and proximity (Kent v Griffiths [2001] QB 180. It is suggested that the police do not constitute an exception but rather that their exemption from liability is soundly based on the general rule that omissions to act (particularly in relation to actions of a third party) do not give rise to liability. I propose, however, that the cases on which this claim rests can be readily distinguished. In none of those cases was there a proximity of relationship such as exists in the present appeal. In Stovin v Wise, for instance, the failure to improve safety at a road junction affected all who used the particular stretch of road. Likewise in Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. Long standing or pre existing dangers stemming from actions of third parties such as in Murphy v Brentwood District Council [1991] AC 398 or the geography of the local area which lay within the public authoritys power to mitigate are of a completely different character from cases where a specific, urgently communicated threat has been imparted to the public agency with the resources and capacity (as well as the public duty) to protect the individual against whom it has been made. 181. To find that no duty arises on the facts of the present case requires us to squarely confront the consequence of such a finding. If the police force had not negligently downgraded the urgency of Ms Michaels call, on the facts as they are known at present, it is probable that she would still be alive. While the police are not responsible for the actions of her murderer, if the allegations made against them are established, police played a direct, causative role in her death as a result of their negligence. If they were to be found liable for such negligence, would this be so different from the liability of the doctor of a patient who fails to provide life saving drugs to prevent an aggressive condition in the necessary time? The police have been empowered to protect the public from harm. They should not be exempted from liability on the general common law ground that members of the public are not required to protect others from third party harm; such protection of autonomy for individuals is not appropriate for members of a force whose duty it is to provide precisely the type of protection from the harm that befell Ms Michael. This is the essential and critical obligation of the police force. Any other professional would be liable for inaction with such grievous consequences. So also should be the police. Public policy 182. the courts in general ought to think very carefully before resorting to public policy considerations which will defeat a claim that ex hypothesi is a perfectly good cause of action. It has been said that public policy should be invoked only in clear cases in which the potential harm to the public is incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that the court should not enforce a liability which prima facie exists. These words of Lord Lowry in Spring v Guardian Assurance Plc [1995] 2 AC 296, 326 are entirely pertinent today. 183. Where police have been informed that a member of the public is about to be attacked and they have the capacity to prevent that, the proposition that they should not be held liable because of public policy considerations should be subject to the test which Lord Lowry articulated. Is the anticipated harm to the public incontestable? Is it based on tangible grounds rather than mere generalities? Has the burden of establishing the proposition been discharged? 184. I agree with Lord Toulson that it is difficult to predict with confidence what the operational consequences would be if liability for police negligence was recognised. But the difficulty in predicting whether problems may be encountered should not prompt a refusal to recognise a liability which, by all conventional norms, should be found to exist. A large part of that difficulty stems from the lack of empirical evidence to support any of the feared outcomes such as have been adumbrated in Hill, Brooks and Smith and Van Colle. The lack of empirical evidence led to the Canadian Supreme Courts distinguishing of Hill in Hill v Hamilton Wentworth Regional Police Services Board [2007] 3 SCR 129, 2007 SCC 41. And the absence of such evidence was also a key factor in the decision to remove the immunity of advocates in Arthur JS Hall & Co v Simons [2002] AC 615, Lord Steyn at 682D describing the claim that fear of unfounded claims might have a negative effect on the conduct of advocates as a most flimsy foundation, unsupported by empirical evidence. 185. The Law Commissions Scoping Report on Remedies against Public Bodies (2006) also commented on the lack of empirical evidence to support or contradict the claim that recognition of liability for police negligence would result in a diversion of manpower paras 3.52 53. At the very least, predictions of a worsening in standards as a result of the availability of judicial review were not borne out. In para 4.25 of its full report Administrative Redress: Public Bodies and The Citizen (2010) (Law Com No 322), the Law Commission referred to the study published by Professor Sunkin and others which suggested that judicial review litigation may act as a modest driver to improvements in the quality of local government services. 186. Set against the poverty or complete absence of evidence to support the claims of dire consequences should liability for police negligence be recognised is the fundamental principle that legal wrongs should be remedied. Sir Thomas Bingham MR in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 said that the rule of public policy which has first claim on the loyalty of the law was that wrongs should be remedied. And as Lord Dyson said in Jones v Kaney [2011] 2 AC 398, at para 113: The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional Conclusion 187. I do not consider that policy reasons sufficient to displace this general rule have been established. I would therefore allow the appeal. 188. I would dismiss the cross appeal for the reasons given by Lord Toulson. LADY HALE: 189. In what circumstances can the police owe a duty of care to protect an individual member of the public from harm caused by a third party? There are said to be two objections to imposing such a duty. The first is the core principle, recognised in Hill v Chief Constable of West Yorkshire [1989] AC 53 and refined in Brooks v Metropolitan Police Commissioner [2005] UKHL 24 [2005] 1 WLR 1495, that the police are not liable for negligence in the course of investigating or preventing crime. That principle is no longer regarded as an immunity, but as a situation in which, for policy reasons, no duty of care is imposed by the law. The second is the general principle in the law of negligence, referred to by S Tofaris and Steel, in their paper on Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink (University of Cambridge Legal Studies Research Paper Series, Paper No 39/2014), as the omissions principle, which they describe (I believe accurately) thus, at p 5: A is not under a duty to take care to prevent harm occurring to B through a source of danger not created by A unless either (i) A has assumed a responsibility to protect B from that danger, (ii) A has a special level of control over that source of the danger, or (iii) As status creates an obligation to protect B from that danger. 190. The second objection is the more serious, for there would be little point in considering the strength and validity of the policy reasons which led the House of Lords to formulate the core principle in Hill, and to apply it, not only in Brooks, but also (by a majority) in Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] AC 225, if the claim were in any event bound to fail under the ordinary principles of the law of negligence. Those principles, as we see, do not deny any liability for omissions, but impose it only in limited circumstances. Thus, for example, a parent may be liable for failing to feed, clothe, house or otherwise protect her child from harm: see Barrett v Enfield London Borough Council [2001] AC 550. This is because the status of parent imposes a positive duty, probably at common law but certainly under section 1 of the Children and Young Persons Act 1933, to care for ones children. 191. But what of public authorities? They certainly owe positive duties towards the public as a whole, or towards certain sections of the public, but do they ever owe a duty of care in negligence towards individuals who suffer harm if they fail to perform those duties? The answer given in cases such as Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057, is that generally speaking they do not. However, there are exceptions, and one which I find particularly instructive in this case is that established by the Court of Appeal in D v East Berkshire NHS Trust [2003] EWCA Civ 1151, [2004] QB 558. 192. The House of Lords had held, in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, that a local social services authority owed no duty of care towards an individual child whom it had failed to protect from abuse or neglect in her own home. This was despite the existence of a clear statutory duty to protect such children. However, following the enactment of the Human Rights Act 1998, a child who suffered serious harm as a result of such a failure might well have a claim for breach of her Convention rights: just as the state has a positive duty under article 2 to protect individuals from a real and immediate risk to life of which it knows or ought to know, it also has a positive duty under article 3 to protect individual children from a real and immediate risk of serious ill treatment or neglect of which it knows or ought to know: Z v United Kingdom 34 EHRR 97, E v United Kingdom (2002) 36 EHRR 519. Thus a court hearing such a claim would have to examine the same factual issues which it would have to examine in a negligence claim: In these circumstances, the reasons of policy that led the House of Lords to hold that no duty of care towards a child arises will largely cease to apply. Substantial damages will be available on proof of individual shortcomings ([2004] QB 558, para 81). 193. The court had earlier ([2004] QB 558, para 31) adopted the summary of those policy reasons given by May LJ in S v Gloucestershire County Council [2001] Fam 313, 329 330. These bear a remarkable resemblance to the reasons put forward for the core principle in Hill and the later cases. The first, that it would cut across the statutory scheme for child protection, which depended upon multi disciplinary co operation, does not apply to policing (and in any event was a dubious reason in child care cases, as the statutory responsibility lay clearly with the local authority). The next four, that the task of child protection is extraordinarily delicate, that there was a risk of a more cautious, defensive approach, that it would divert resources away from providing the social services themselves, and that there were other remedies for maladministration, all have their parallels in the police cases. The last, that the development of novel categories of negligence should proceed incrementally by analogy with existing categories, begs the very question at issue. 194. In the result, therefore, the Court of Appeal held that there was no longer any good reason to deny the existence of a duty of care in negligence towards a child harmed by the failure of a local authority to take appropriate protective action. There was no appeal to the House of Lords against that aspect of the decision (the appeal against the holding that no duty was owed to the parents of a child who was mistakenly taken into care was unsuccessful). 195. The parallels with this case are striking. There is no doubt that the police owe a positive duty in public law to protect members of the public from harm caused by third parties. In Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270, the House of Lords held that the police have a duty to take all steps which appear necessary for keeping the peace, for preventing crime and for protecting from criminal injury. The House also approved a statement by Pickford LJ in Glamorgan Coal Co Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206, 229, that a party threatened with violence from another is entitled to protection, whatever the rights and wrong of their dispute. That this is a duty recognised by the common law rather than imposed by statute should if anything strengthen rather than weaken the possibility that it may also give rise to duties towards individuals in negligence. 196. Equally, there is no doubt that the police may be liable under the Human Rights Act if they fail in their duties under articles 2 or 3 of the European Convention on Human Rights. This part of the claim is to be sent to trial. The issues under the Human Rights Act 1998 are not identical to the issues under the law of negligence, but the existence of a human rights claim means that the policy reasons advanced against the imposition of a duty in negligence claim have also largely ceased to apply in a case such as this, where it is alleged that a tragic death would have been averted had the police reacted appropriately to Ms Michaels emergency call. 197. It is for those reasons that I would support the analysis put forward by Lord Kerr: the necessary proximity is supplied if the police know or ought to know of an imminent threat of death or personal injury to a particular individual which they have the means to prevent. Once that proximity is established, it is fair, just and reasonable to expect them to take reasonable care to prevent the harm. This is very close to, though somewhat narrower than, the test proposed by Tofaris and Steel (para 189, above). But it is right to acknowledge the strength of the arguments which they so carefully develop, in particular the inter relationship between the special status and powers of the police to prevent crime and protect people from harm and the limits placed by the law on the ability of people to protect themselves: A person faced with the threat of violence is permitted by law to take reasonable measures of self protection, but beyond that her only option is to inform the police. In essence, other than reasonably protecting herself, the law obliges her to entrust her physical safety in the police. (Tofaris and Steel, p 18) 198. However, in developing the law it is wise to proceed on a case by case basis, and the formulation offered by Lord Kerr would be sufficient to enable this claim to go to trial at common law as well as under the Human Rights Act 1998. It is difficult indeed to see how recognising the possibility of such claims could make the task of policing any more difficult than it already is. It might conceivably, however, lead to some much needed improvements in their response to threats of serious domestic abuse. This continues to be a source of concern to Her Majestys Inspectorate of Constabulary: see Everyones Business: Improving the Police Response to Domestic Abuse (2014). I very much regret to say that some of the attitudes which have led to the inadequacies revealed in that report may also have crept into the policy considerations discussed in Smith (by Lord Carswell at para 107 and Lord Hope at para 76). If the imposition of liability in negligence can help to counter such attitudes, so much the better. But the principles suggested here should apply to all specific threats of imminent injury to individuals which the police are in a position to prevent, whatever their source. 199. I would therefore have allowed the appeal as well as dismissing the cross appeal. 36, Capital & Counties Plc v Hampshire County Council [1997] QB 1004). Why should the police be an exception?

UK-Abs

On 5 August 2009, at 2.29am, Ms Michael dialled 999 from her mobile phone. She told the call handler at the Gwent Police call centre that: her ex boyfriend was aggressive; he had just turned up at her house; he had found her with another man; he had bitten her ear really hard; he then drove the other man home with Ms Michaels car but, before doing so, told her that he would return to hit her; that he was going to be back any minute literally; and, according to the recorded transcript of this conversation, that her ex boyfriend had told her Im going to drop him home and (inaudible) [fucking kill you]. The call handler later gave evidence that she had heard hit you rather than kill you. Gwent Police graded the call G1; it required an immediate response. The call handler immediately called South Wales Police, in whose area Ms Michael lived, and summarised their conversation. No mention was made of a threat to kill. South Wales Police graded the call G2; officers should respond within 60 minutes. Ms Michaels home was five or six minutes from the nearest police station. Ms Michael called 999 again at 2.43am. Following a scream from Ms Michael, the line went dead. South Wales Police were informed immediately and officers arrived at Ms Michaels address at 2.51am. They found that she had been brutally attacked, stabbed many times and was dead. Her attacker subsequently pleaded guilty to murder and was sentenced to life imprisonment. The Independent Police Complaints Commission later seriously criticised both police forces for individual and organisational failures. Ms Michaels parents and children (the Appellants) claimed against the Chief Constables of the Gwent Police and the South Wales Police (the Respondents) for damages in, amongst others, negligence and under the Human Rights Act 1998 pursuant to Article 2 (right to life) of the European Convention on Human Rights (ECHR). The Respondents sought a strike out of these claims or summary judgment. At first instance, HHJ Jarman QC refused to strike out or give summary judgment on these claims. On appeal, the Court of Appeal unanimously held that there should be summary judgment for the Respondents on the negligence claim but, with Davis LJ dissenting, the Article 2 ECHR claim should proceed to trial. The Appellants appealed against the Court of Appeal decision on the negligence claim and the Respondents appealed against the Court of Appeal decision on the Article 2 ECHR claim. The Supreme Court dismisses the Appellants appeal by a majority of 5 2 (Lady Hale and Lord Kerr dissenting) and unanimously dismisses the Respondents cross appeal. Lord Toulson (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hodge agree) gives the lead judgment. Lady Hale and Lord Kerr give separate judgments both allowing the Appellants appeal (in dissent) and dismissing the Respondents cross appeal. Lord Toulson asks whether, in the context of police protecting victims from potential future crimes, an exception should be made to the ordinary application of common law principles that a defendant will not generally be liable for harm to a claimant caused by the conduct of a third party [116]. Having surveyed the case law [29] [96], including from abroad, Lord Toulson rejects the arguments that the police owe a duty of care in negligence where: (i) they are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group (Interveners Liability Principle); or alternatively, (ii) a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his life or physical safety (Lord Binghams Liability Principle). On the first issue, the Interveners Liability Principle is rejected because: (i) it is hard to see why the duty should be confined to physical injury or death or to particular victims and not others [119] [120]; (ii) it is speculative whether a duty would improve the performance of individual officers in domestic violence cases and it is not in the public interest for police priorities to be affected by the risk of being sued [121]; (iii) it would have potentially significant financial implications for the police and/or public [122]; (iv) it is not necessary to develop the law of negligence to mirror or go beyond what is required by Articles 2 and 3 (right to be free from torture or inhuman or degrading treatment or punishment) ECHR [125] ECHR claims have different objectives from civil actions such as negligence [127]. On the second issue, and in addition to those reasons, Lord Binghams Liability Principle is rejected as it would be unsatisfactory to draw dividing lines according to: (i) who reports the threat; (ii) whether the threat is credible and imminent or credible but not imminent; (iii) whether the whereabouts of the threat maker are known or not; and, (iv) whether the threat was aimed at physical injury or not [129]. It should be for Parliament to determine the existence and scope of such a compensatory scheme [130]. On the third issue, it is untenable that what the call handler said to Ms Michael gave rise to an assumption of responsibility. The call handler gave no promise as to how quickly the police would respond and did not advise or instruct her to remain in her house [138]. On the fourth issue (Article 2 ECHR), whether the call handler should have heard Ms Michael say that her ex boyfriend was threatening to kill her is a question of fact to be investigated at trial [139]. Lord Kerr (dissenting) would have allowed the appeal. There should be recognised a sufficient proximity of relationship, such as to create a duty on the police in negligence, where: (i) there is a closeness of association between the claimant and the defendant, such as where information is communicated to the defendant; (ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken; (iii) the defendant might reasonably be expected to provide protection in those circumstances; and, (iv) the defendant should be able to provide for the intended victims protection without unnecessary danger to himself [144]. On these facts, there was clearly a sufficient proximity of relationship between the police and Ms Michael [173]. The general rule that there is no duty to protect others from third party harm is not appropriate for members of a force whose duty it is to provide protection [181]. The fundamental principle that legal wrongs should be remedied outweighs the complete absence of evidence to support the claims of dire consequences if liability was found [186]. Lady Hale (dissenting), supporting the analysis of Lord Kerr, would also have allowed the Appellants appeal. The policy reasons said to preclude a duty in a case such as this are diminished by the fact that the police already owe a common law, positive duty in public law to protect members of the public from harm caused by third parties [195], as well as by the existence of the ECHR claims [196].

This appeal is concerned with the operation of the disciplinary procedures for doctors and dentists in the National Health Service, which the Secretary of State for Health introduced over eight years ago. It raises an important question about the roles of the case investigator and the case manager when handling concerns about a doctors performance. The relevant procedures In December 2003 the Secretary of State for Health exercised his powers under section 17 of the National Health Service Act 1977 to give directions called the Restriction of Practice and Exclusion from Work Directions 2003. These required all NHS bodies to comply with a document which set out new procedures for the initial handling of concerns about doctors and dentists in the NHS (Health Service Circular 2003/12). Those procedures became parts I and II of the framework for disciplinary procedures for doctors and dentists in the NHS which was agreed by the Department of Health, the British Medical Association and the British Dental Association and was issued in February 2005. By the Directions on Disciplinary Procedures 2005 the Secretary of State directed all NHS bodies in England and Wales to implement the full version of the framework contained in a document called Maintaining High Professional Standards in the Modern NHS (MHPS). The principal relevant innovations in MHPS were: (1) An employing trust took on responsibility for disciplining doctors and dentists whom it employed; (2) Doctors and dentists were made subject to the same locally based misconduct procedures as other staff members; (3) The same disciplinary procedures applied to all doctors and dentists employed in the NHS; (4) The new disciplinary procedure replaced the disciplinary procedures contained in circular HC(90)9, which I discuss in paras 16 and 17 below; and (5) There was a single process for dealing with concerns about the professional capability of a doctor or dentist, which tied in with the work of the National Clinical Assessment Authority (NCAA). This involved the preparation of an action plan to address the concerns about capability. But if that plan had no realistic chance of success, there would be a capability hearing before a panel. MHPS recognised the importance of doctors and dentists keeping their skills and knowledge up to date. It expressed a preference for tackling concerns about the performance of a doctor or dentist by training and other remedial action rather than solely through disciplinary action. But it did not seek to weaken accountability or avoid disciplinary action where there was genuinely serious misconduct. It recognised that, where serious concerns were raised, the paramount duty was to protect patients. MHPS provided that where concerns arose about a practitioners performance, the medical director was to liaise with the head of human resources to decide the appropriate course of action. This involved the identification of the nature of the problem or concern and consideration whether it could be resolved without resort to formal disciplinary procedures. Where the concerns related to clinical directors or consultants, the medical director was to be the case manager and was responsible for appointing a case investigator. It was the task of the case investigator to investigate the allegations or concerns and report within four weeks. Paragraph 12 of Part I of MHPS stated: The case investigator is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings. It was the responsibility of the case investigator to decide what information needed to be gathered and how it should be gathered. It was envisaged that this could involve both written statements and oral evidence. The practitioners who were the subject of investigations were entitled to see a list of the people whom the case investigator would interview. The practitioners were to be given an opportunity to put their view of events to the case investigator and were to have the opportunity to be accompanied when they did so. The case investigators report was to give the case manager sufficient information to enable him or her to decide whether, among other things: (i) there was a case of misconduct which should be considered by a disciplinary panel; (ii) there were concerns about performance that should be explored by the NCAA; (iii) there was a need to consider restrictions on the practice of the practitioner or his or her exclusion from work; and (iv) there were intractable problems about performance which should be put before a capability panel. Part III of MHPS provided guidance on conduct hearings and disciplinary procedures. Every NHS employer was to have a code of conduct or staff rules which set out acceptable standards of behaviour. Breaches of those rules were to be treated as misconduct. Issues of misconduct were to be dealt with by the employing NHS body under its own conduct procedures. Employers were advised to seek the advice of the NCAA particularly in cases of professional misconduct. In 2005 the NCAA changed its name to the National Clinical Assessment Service (NCAS) when it became part of the National Patient Safety Agency. It is now an operating division of the NHS Litigation Authority. The Trusts implementation of MHPS In March 2007 the West London Mental Health NHS Trust (the Trust) implemented the Secretary of States directions by introducing a policy for handling concerns about a doctors performance (policy D4A) and by amending the disciplinary policy (D4) which it introduced in July 2001. The latter policy set out guidance on the conduct of staff in its staff charter (appendix 3 of policy D4). That guidance included as a value Preserve Confidentiality and stated as example behaviour the following: Uphold the Trusts policies on freedom of and disclosure of information. Do not abuse knowledge. Use appropriate private locations for discussions of a personal nature and use e mail correspondence cautiously. The disciplinary policy (D4), as amended, applied to all of the Trusts employees. It stated, at para 3.1: It is a fundamental principle of all disciplinary action that employers and managers must act in a way which an objective observer would consider reasonable It provided that the member of staff had to be told in writing of the complaint in advance of any disciplinary hearing (para 3.6) and stated that no formal hearing should be convened until there was sufficient evidence to suggest that there was potentially a case to answer (para 3.8). In para 13 it identified misconduct which might result in disciplinary action under three categories: minor, serious and gross. Serious misconduct was defined as misconduct which is not so severe as to warrant dismissal but is too serious to be considered as minor. In para 13.4.1 it described gross misconduct in the following terms: Some instances of misconduct/poor performance will be so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. It listed typical examples of such conduct. In January 2011, after the events which gave rise to disciplinary proceedings in this case, the Trust amended that list with effect from 28 March 2011 to include: serious breaches of information governance with regard to data protection, confidentiality and information security. The policy also set out in section 15 and appendix 5 a fair blame procedure which could apply when the potential conduct or performance issues do not constitute serious or gross misconduct. Appendix 6 set out guidance for managers for investigations under the disciplinary policy. In para 1.1 it stated Before disciplinary action is taken, it is essential to establish the facts through an investigation. In para 2, it answered the question Why is the investigation important? thus: 2.1 to establish as far as practicable what has happened and why. 2.2 to ensure future decisions are rational and made on the basis of evidence. 2.3 to meet the requirement to demonstrate that natural justice has been observed. 2.4 to form the basis of any case presented to a Disciplinary Panel. 2.5 to ensure decisions made by the trust are capable of scrutiny either through an internal appeal or by an Employment Tribunal or court of law. The appendix advised the manager carrying out the investigation on how to conduct and record interviews and on the preparation and content of the investigatory report. Para 5 stated that the investigatory officer would be required to present findings to a formal hearing if there is a prima facie case of misconduct and their report would form the basis of their verbal presentation. In para 9 the guidance stated that the report should contain conclusions, including whether there was a disciplinary case to answer at a formal hearing. It stated that the conclusion might suggest whether the misconduct (if proven) could constitute serious or gross misconduct, or whether the Fair Blame procedure should apply. The report was to have appendices including records of witness interviews and statements (para 10). Para 11 instructed the investigatory officer to ensure that key witnesses were available for the hearing before the disciplinary panel to enable their evidence to be scrutinised by the employee and the panel. Policy D4A, which related to doctors and dentists, replaced the disciplinary procedures in circular HC(90)9. It provided in section 1 that where a serious concern arose about the conduct or capability of a doctor or dentist, the chief executive would appoint a case manager, whose first task was to identify the nature of the problem and assess the seriousness of the issue on the information available. In deciding how to proceed, the chief executive was to consult the director of human resources, the medical director and the NCAS (para 1.8). Where it was decided to follow a formal route, the medical director was to appoint an appropriately experienced person as case investigator. Para 1.13 provided that the case investigator was responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting the findings. The case investigator was charged with collecting sufficient written statements and oral evidence to establish a case before it was decided whether to convene a disciplinary panel. He or she had to keep a written record of the investigation, the conclusions reached and the course of action agreed by the director of human resources and the medical director. The case investigator did not decide on what action should be taken and would not be a member of a disciplinary panel in the case (para 1.14). The purpose of the investigation was to ascertain the facts in an unbiased manner (para 1.17). The case investigator was to complete an investigation within four weeks and thereafter to submit a report to the case manager, giving sufficient information to enable the latter to decide, among other things, whether there was a case of misconduct that should be put to a conduct panel (para 1.19). Part 3 of policy D4A provided that Misconduct matters for doctors and dentists, as for all other staff groups, are dealt with under the trusts disciplinary policy and procedure, D4, but that the Trust was to contact the NCAS for advice before proceeding when the concerns related to a medical practitioner. Para 3.2 spoke about alleged misconduct being investigated under the Trusts disciplinary policy. In my view, the succinct provisions in policy D4A relating to the investigation need to be read alongside the provisions relating to investigations in policy D4, and in particular in appendix 6, which I have summarised in para 11 above and which cover the same ground in more detail. If there are any inconsistencies between the two policies, D4A will govern as the policy specific to doctors and dentists. Part 4 of policy D4A set out procedures for dealing with concerns about capability, such as incompetent clinical practice, inability to communicate effectively with colleagues and ineffective clinical team working skills. In short, the policy provided for consultation with the NCAS and, where possible, the remediation of any lack of capability identified in an assessment through an agreed action plan to provide education and support. Where problems of capability were so serious that no such action plan had a realistic prospect of success, the case manager, informed by the investigation report and the advice of the NCAS, would have to decide whether there should be a capability hearing before a panel (para 4.12). Such a hearing could result in the termination of the practitioners employment (para 4.23). Para 4.5 gave guidance on how to proceed where issues of conduct and capability were involved. It provided: It is inevitable that some cases will cover both conduct and capability issues. It is recognised that these cases can be complex and difficult to manage. If a case covers more than one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. Although it is for the Trust to decide upon the most appropriate way forward having consulted the NCAS[,] [i]n the event of a dispute the practitioner may make representations to the designated board member. The individual is also entitled to use the Trusts grievance procedure if they consider that the case has been incorrectly classified. The new investigative procedures were materially different from those in the previous disciplinary procedure set out in circular HC(90)9. The earlier procedure involved first a decision by the chairman of a public health authority whether there was a prima facie case against the practitioner. If the chairman decided that there was a prima facie case but the facts were disputed, the authority responsible for appointing the practitioner could set up an investigating panel, normally of three persons and with a legally qualified chairman who was not an officer of the Department of Health or the authority. The task of the investigating panel was to establish all the relevant facts of the case (para 11). The practitioner had a right to appear and be legally represented at the hearing. A lawyer would adduce the evidence on behalf of the authority; the practitioners lawyer would cross examine the authoritys witnesses; and the practitioner could call his own witnesses, who would be subjected to cross examination. The investigating panel produced a report, making findings of fact, and determining whether the practitioner was at fault. The panel was entitled to recommend disciplinary action. Although policy D4A used similar language to circular HC(90)9 when it spoke of the case investigator establishing the facts, the case investigators role is more limited than that of the investigating panel under circular HC(90)9, which could be described as quasi judicial in nature. The latter made findings of fact after hearing evidence which would often have been tested by cross examination. The authority then acted on the facts which the investigating panel had determined. By contrast, under policies D4A and D4 the case investigator enquires into the facts by interviewing people, and the practitioner is not able to test their accounts of events during the investigation. The outcome of the investigation is a report on whether there is a prima facie case of misconduct. Thereafter, if the case manager decides that it is appropriate, the facts are determined at a hearing before a conduct panel, where the practitioner may be represented, test the evidence of the management witnesses, and call his or her own witnesses (policy D4 appendix 8). The events in this case Dr Chhabra was first employed by the Trust as a consultant forensic psychiatrist at Broadmoor Hospital, which is a high security unit, on 3 September 2009. There was a written contract of employment dated 26 October 2009. Clause 3 of that written contract provided: Whilst it is necessary to set out formal employment arrangements in this contract, we also recognise that you are a senior and professional employee who will usually work unsupervised and frequently have the responsibility for making important judgements and decisions. It is essential therefore that you and we work in a spirit of mutual trust and confidence. The clause then listed several mutual obligations, including cooperation and maintaining goodwill. It was common ground that policies D4 and D4A were incorporated into the contract of employment so far as they were apt for incorporation. Shortly after her appointment, problems emerged in her relationship with her clinical team. In October 2009, negative feedback from members of her team caused her line manager to have concerns about her clinical team working skills. As a result of the continued expression of concerns it was arranged in October 2010 that Dr Chhabra should undergo a 360 appraisal process. Dr Chhabra contended that her case load had been increased contrary to her agreed job plan and that she had been deprived of the support of a senior house officer and a secretary for a number of months. Her line manager, Dr Bhattacherjee, warned her that there might be a formal process if people continued to express concerns about her. In dealing with those issues her line manager took advice from Mr Alan Wishart, the Trusts associate human resources director. On 1 October 2010 a solicitor of one of Dr Chhabras patients submitted a complaint against her. On 1 December 2010, Ms Jo Leech, who was the Head of Secure Services Policy at the Department of Health and had previously worked at Broadmoor Hospital, complained that Dr Chhabra had breached patient confidentiality when travelling by train in the company of another doctor on 24 November 2010. The allegation was that Dr Chhabra, whilst seated opposite Ms Leech in a busy carriage, discussed an incident involving a patient in the secure unit and was reading a medical report on a patient whose name and personal details could be clearly identified. As a result, the Trust suspended her from work. After Dr Chhabra brought proceedings seeking an injunction against her suspension, the Trust allowed her to resume her work at another location in March 2011. Meanwhile, on 15 December 2010 Dr Nicholas Broughton, the Trusts medical director, who was the case manager in relation to the concerns raised about Dr Chhabra, decided to commission an investigation into those concerns. He appointed Dr Amanda Taylor, a consultant forensic psychiatrist from another trust as case investigator. He instructed Dr Taylor to investigate the following four matters: (1) The allegation of breach of patient confidentiality during the train journey on 24 November 2010; (2) An allegation that Dr Chhabra had dictated patient reports when travelling on a train; (3) The concerns about Dr Chhabras working relationship with her clinical team; and (4) The solicitors complaint dated 1 October 2010. After Dr Chhabra expressed concerns that Mr Wishart should not be involved in the investigation, solicitors acting on behalf of the Trust wrote a letter to her solicitors dated 24 February 2011 in which they undertook that Mr Wishart would take no part in the investigation. Dr Taylor carried out her investigation, which included an interview with Dr Chhabra. Unknown to Dr Chhabra, Dr Taylor communicated with Mr Wishart during the investigation. In an email to him dated 29 March 2011, Dr Taylor recorded that Dr Chhabra had admitted the breach of patient confidentiality on the train journey on 24 November 2010 (allegation (1) in para 21 above) and expressed the view that she was unlikely to make the same mistake again. More significantly, Dr Taylor sent Mr Wishart a draft of her report and Mr Wishart prepared suggested amendments to the draft. The amendments, which were extensive, had the effect of stiffening the criticism of Dr Chhabra. Dr Taylor accepted some of the suggested amendments but not others. Among those she accepted was the characterisation as serious of breaches of confidentiality she had described in her report. In June 2011 Dr Taylor completed and signed her report. She found that Dr Chhabra had breached patient confidentiality by having patient documents clearly visible in a public environment during the train journey on 24 November 2010 and by dictating reports, which included patient sensitive information, on a train on other occasions. She recorded Dr Chhabras admission of those breaches. Her report also recorded Dr Chhabras unchallenged account that she had not appreciated at the time that her practice compromised patient confidentiality and that she believed that she had ensured that no other passengers were close by when she dictated the reports. Dr Taylor also reported on an allegation by Dr Chhabras former secretary, which had not been expressly included in her terms of reference, that she had made telephone calls when travelling by train to work in which she had discussed patient information. Dr Taylor did not make any finding on the accuracy of this allegation but recorded that there was a difference of opinion between Dr Chhabra and her secretary. In relation to the third concern (in para 21 above), Dr Taylor stated that there were difficulties within Dr Chhabras clinical team which were issues of capability that needed to be addressed. She concluded that the fourth issue, the solicitors complaint, did not have merit. On 12 August 2011 Dr Broughton wrote two letters to Dr Chhabras solicitors. In one, he informed her that he regarded the concerns about her team working to be matters of capability. He said that he intended to seek the guidance of the NCAS on whether an assessment was needed or whether the Trust would be justified in proceeding to a capability hearing. In the other letter, Dr Broughton stated that the breaches of confidentiality set out in the investigation report were potentially very serious allegations of misconduct which fell within para 8.4 (sic) of policy D4, and he quoted an extract from para 13.4.1 of the January 2011 revision of policy D4 (para 10 above). The charges which he proposed to put to a disciplinary panel included not only the admitted breaches of confidentiality but also (i) the allegation, on which Dr Taylor had noted there had been a conflict of opinion, that Dr Chhabra, while travelling by train, had telephoned her secretary to discuss patient related information, and (ii) an allegation, which was not within Dr Taylors remit and on which she had not reported, that Dr Chhabra had breached patient confidentiality by disclosing information via email to her medical protection society and legal advisers. Dr Broughton expressed the view that the charges were considered to be potential gross misconduct and that dismissal was a possible outcome of the hearing before the disciplinary panel. He also stated his view that the issues of conduct and capability were unrelated and that the conduct allegations were straightforward and discrete. Dr Chhabras solicitors objected to the charge of breach of patient confidentiality by disclosing information to her protection society and her legal advisers, which had not been the subject of Dr Taylors investigation. At their request, the Trust agreed to instruct Dr Taylor to investigate that allegation. Dr Taylor carried out this further investigation and reported that there was no complaint to answer. As a result, on 17 January 2012 Dr Broughton informed Dr Chhabra by letter that that charge would not be pursued at the disciplinary hearing. On 22 December 2011 the Trust referred the teamwork issues (the third matter in para 21 above) to the NCAS. Dr Chhabra invoked the Trusts grievance procedure to complain about the decision to deal with the breaches of confidentiality in advance of the NCAS assessment. Mr Wishart prepared the management case for the grievance hearing. Dr Chhabras grievance was not upheld on first consideration. The panel accepted that there was a possible relationship between the conduct and capability matters but concluded that issues of capability could be presented in mitigation at a conduct hearing. It concluded that the decision to separate the conduct matters from the capability matters was appropriate and necessary. She appealed that decision but her grievance appeal was rejected by letter dated 29 February 2012. The appeal panel concluded that it was necessary to deal with the conduct matters separately because they were discrete and needed to be determined, whatever was the outcome of the capability process. On 6 February 2012 a case conference was held to consider the Trusts capability concerns. The Trust, Dr Chhabra and the NCAS entered into a tripartite agreement under which the Trust referred its concerns to the NCAS for an assessment. Meanwhile, the disciplinary process continued on a separate track. A conduct hearing was fixed for 9 March 2012, but that hearing was discharged after Dr Chhabra sought declaratory and injunctive relief from the High Court on 2 March 2012. That started the legal process which has led to this appeal. The legal proceedings On 1 June 2012 Judge McMullen QC, sitting as a judge of the High Court, granted Dr Chhabra a declaration and injunctive relief, preventing the disciplinary panel from investigating the confidentiality concerns as matters of gross misconduct under the Trusts disciplinary policy. The judge held that Dr Broughton had failed to re assess the gravity of the charges after he received Dr Taylors second report. The Trust had erred and had breached its contract with Dr Chhabra in treating the matters as gross misconduct for which she could be dismissed. He also held that Dr Broughton had broken the contract by referring to the conduct panel charges which were not grounded in Dr Taylors report. The judge also held that the Trust was bound to deal with the matters through the capability procedures under para 4.5 of policy D4A. He expressed the view that, as Dr Chhabra had admitted her mistakes, the case cried out to be dealt with under the fair blame procedure. On 25 January 2013 the Court of Appeal (Pill, Jackson and Treacy LJJ) upheld the Trusts appeal and set aside the order of the judge at first instance. The court held that policies D4 and D4A should be read together and that the applicable rules and procedures had contractual force. The Trust had a discretion whether to combine capability and conduct issues under para 4.5 of policy D4A. Use of the fair blame procedure was encouraged but the Trust had a power to refer disciplinary matters to a conduct panel. The case investigators role was to establish and report the available evidence. The case manager in deciding what action to take was not confined to the findings of fact of the case investigator but could consider complaints supported by evidence reported by the case investigator, even if denied by the practitioner. The conduct panel would resolve issues of disputed fact. It was the task of the case manager to exercise judgement as to the seriousness of the misconduct, having regard to the evidence reported and findings made by the case investigator. The central question was whether the case manager was justified in the circumstances in convening a disciplinary hearing. The court concluded that Dr Broughton was entitled to regard the breach of confidentiality as a potentially serious offence and as a result was justified in deciding to convene the conduct panel. Dr Chhabra appeals to this court. Discussion of the legal challenges The first and most significant issue is the roles of the case investigator and the case manager. The procedures, which MHPS envisaged and which the Trust has set out in policy D4A and the amended policy D4, do not give the case investigator a power to determine the facts. This is, as I have said (paras 16 and 17 above), radically different from the role of the investigating committee under circular HC(90)9. The aim of the new procedure is to have someone, who can act in an objective and impartial way, investigate the complaints identified by the case manager to discover if there is a prima facie case of a capability issue and/or misconduct. The case investigator gathers relevant information by interviewing people and reading documents. The testimony of the interviewees is not tested by the practitioner or his or her representative. In many cases the case investigator will not be able to resolve disputed issues of fact. He or she can only record the conflicting accounts of the interviewees and, where appropriate, express views on the issue. Where, as here, the practitioner admits that she has behaved in a certain way or where there is otherwise undisputed evidence, the case investigator can more readily make findings of fact. If the case investigator were to conclude that there was no prima facie case of misconduct, there would normally be no basis for the case manager to decide to convene a conduct panel. But if the report recorded evidence which made such a finding by the case investigator perverse, the case manager would not be bound by that conclusion. Where the case investigators report makes findings of fact or records evidence capable of amounting to misconduct, the case manager may decide to convene a conduct panel. The case manager can make his or her own assessment of the evidence which the case investigator records in the report. The procedure before the panel enables the practitioner to test the evidence in support of the complaint and any findings of fact by the case investigator. It would introduce an unhelpful inflexibility into the procedures if (i) the case investigator were not able to report evidence of misconduct which was closely related to but not precisely within the terms of reference (as in the former secretarys allegations) or (ii) the case manager were to be limited to considering only the case investigators findings of fact when deciding on further procedure. Similarly, it would be unduly restrictive to require the case manager to formulate the complaint for consideration by a conduct panel precisely in the terms of the case investigators report. I do not interpret MHPS or the Trusts policies in D4 and D4A as being so inflexible or restrictive. The case manager has discretion in the formulation of the matters which are to go before a conduct panel, provided that they are based on the case investigators report and the accompanying materials in appendices of the report, such as the records of witness interviews and statements. But the procedure does not envisage that the case manager can send to a conduct panel complaints which have not been considered by the case investigator or for which the case investigator has gathered no evidence. Thus I consider that the Trust was correct in acceding to Dr Chhabras request for a second report from Dr Taylor in relation to the new allegation of breach of confidentiality in her communications with the protection society and her solicitors. In reaching this view, I am in general agreement with the judgment of the Court of Appeal. I also agree with the Court of Appeal that Dr Broughton would have been entitled to take the view that there was evidence in Dr Taylors report which could amount to serious misconduct and that he could properly have convened a conduct panel on that basis. There is no doubt that patient confidentiality is an overriding principle and is central to trust between patients and doctors (General Medical Council, Good Medical Practice (2006) page 5 and paras 21 and 37, Guidance on Confidentiality (2009), para 6). In my view the evidence in Dr Taylors report on the matters (1) and (2), which I set out in para 21 above, was capable of supporting a complaint of serious misconduct. Where I respectfully differ from the Court of Appeal is that I consider that there have been a number of irregularities in the proceedings against Dr Chhabra which cumulatively render the convening of the conduct panel unlawful as a material breach of her contract of employment. I have four concerns about the procedure which the Trust followed. First, I do not think that the findings of fact and evidence, which Dr Taylor recorded, were capable when taken at their highest of supporting a charge of gross misconduct. Paragraph 13.4.1 of policy D4 speaks of conduct so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. This language describes conduct which could involve a repudiatory breach of contract: Dunn v AAH Ltd [2010] IRLR 709, para 6; Wilson v Racher [1974] ICR 428. There is no material in Dr Taylors report to support the view that the breaches of confidentiality which she recorded, including the former secretarys allegations, were wilful in the sense that they were deliberate breaches of that duty. In my view they were qualitatively different from a deliberate breach of confidentiality such as speaking to the media about a patient. Secondly, in reaching the view that Dr Chhabras behaviour could amount to gross misconduct, Dr Broughton founded on the words added to para 13.4.1 with effect from 28 March 2011, after the incidents in this case. The list of misconduct in para 13.4.1 comprised only typical examples of what the Trust saw as amounting to gross misconduct and was not a comprehensive statement of the concept. But Dr Broughton relied on the amended provision in support of his view that the complaints might amount to gross misconduct and quoted it in his letter of 12 August 2011 relating to the disciplinary procedure (para 24 above). Thirdly, I consider that the Trust breached its contract with Dr Chhabra when Mr Wishart continued to take part in the investigatory process in breach of the undertaking which the Trusts solicitors gave in their letter of 24 February 2011 (para 21 above). In particular, when Mr Wishart proposed extensive amendments to Dr Taylors draft report and Dr Taylor accepted some of them, which strengthened her criticism of Dr Chhabra, the Trust went outside the agreed procedures which had contractual effect. Policies D4 and D4A established a procedure by which the report was to be the work of the case investigator. There would generally be no impropriety in a case investigator seeking advice from an employers human resources department, for example on questions of procedure. I do not think that it is illegitimate for an employer, through its human resources department or a similar function, to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and achieve clarity. But, in this case, Dr Taylors report was altered in ways which went beyond clarifying its conclusions. The amendment of the draft report by a member of the employers management which occurred in this case is not within the agreed procedure. The report had to be the product of the case investigator. It was not. Further, the disregard for the undertaking amounted to a breach of the obligation of good faith in the contract of employment. It was also contrary to para 3.1 of policy D4 as it was behaviour which the objective observer would not consider reasonable: Dr Chhabra had an implied contractual right to a fair process and Mr Wisharts involvement undermined the fairness of the disciplinary process. Fourthly, Dr Broughton did not re assess the decision in his letter of 12 August 2011 that the matters were considered as potential gross misconduct after he departed from the additional complaint once he had received Dr Taylors second report. In my view he was obliged to do so under para 3.1 of policy D4: an objective observer would not consider it reasonable to fail to do so. I am persuaded that the cumulative effect of those irregularities is that it would be unlawful for the Trust to proceed with the disciplinary procedure and that the court should grant relief. As a general rule it is not appropriate for the courts to intervene to remedy minor irregularities in the course of disciplinary proceedings between employer and employee its role is not the micro management of such proceedings: Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2010] ICR 101, para 22. Such intervention would produce unnecessary delay and expense. But in this case the irregularities, particularly the first and third, are of a more serious nature. I also bear in mind that any common law damages which Dr Chhabra might obtain if she were to succeed in a claim based on those irregularities after her employment were terminated might be very limited: Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 and Geys v Socit Gnrale [2013] 1 AC 523, para 73, Lord Wilson. I do not think that the second irregularity on its own could have justified this courts intervention. I have some doubt whether the fourth irregularity, if it were the only complaint, would in the circumstances have justified injunctive relief. I acknowledge that Dr Chhabra did not plead Mr Wisharts involvement as a ground of her challenge to the decision either at first instance or in the Court of Appeal. Had this been the only successful ground of challenge, I would have viewed it as coming too late as the Trust might have led different evidence in answer before Judge McMullen. But the categorisation of Dr Chhabras conduct as gross misconduct is itself a sufficient ground for injunction. Further, the facts relating to Mr Wisharts involvement were before Judge McMullen, and in the Court of Appeal Pill LJ discussed them in para 62 of his judgment. Where I differ from the judge at first instance is that, like the Court of Appeal, I do not consider Mr Wisharts involvement to be a minor irregularity. Where I differ from the Court of Appeal, is that I do not think that Dr Taylors acceptance of some of his suggested amendments and her good faith materially reduce the seriousness of the procedural irregularity. I deal briefly with three further submissions which Mr Sutton advanced on behalf of Dr Chhabra. First, I consider that the Trust was not obliged to consider the operation of the fair blame procedure in appendix 5 of policy D4 (para 10 above) because the Trust was entitled to view the allegations against Dr Chhabra, if established, as constituting serious misconduct. Secondly, the Trust had a discretion under para 4.5 of policy D4A (para 15 above) whether to combine issues of capability and conduct in a capability hearing. The Trusts decision that it was appropriate to convene a conduct panel for the discrete complaints about Dr Chhabras conduct was within its discretion. I construe the guidance in that paragraph, when it speaks of there being occasions when it is necessary to pursue a conduct issue separately, as referring to what is appropriate in the circumstances rather than a test of strict necessity. Such a test would not be consistent with the subsequent reference to the Trust deciding upon the most appropriate way forward. It is not necessary for me to decide whether these clauses are apt for incorporation into the contract of employment or are mere guidance. Thirdly, I consider the irregularity of the proposed inclusion of the additional complaint in the reference to the conduct panel (para 24 above) was cured by the Trusts decision on 17 January 2012 not to pursue that complaint. I would allow the appeal and substitute for Judge McMullens orders an order restraining the Trust from (a) pursuing any of the confidentiality concerns contained in the Trusts letter of 12 August 2011 as matters of gross misconduct and (b) pursuing any confidentiality concerns without first re starting and completing an investigation under its policy D4A.

UK-Abs

This appeal is concerned with the roles of the case investigator and the case manager when handling concerns about a doctors performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as Maintaining High Professional Standards in the Modern NHS (MHPS), which the Trust has implemented through its own policies D4 and D4A. Dr Chhabra was employed by the Trust as a consultant forensic psychiatrist at Broadmoor Hospital, which is a high security unit, on 3 September 2009. Following concerns about Dr Chhabras performance, Dr Nicholas Broughton, the Trusts medical director and case manager for these concerns, appointed Dr Amanda Taylor, a consultant forensic psychiatrist from another trust, as case investigator on 15 December 2010. He instructed Dr Taylor to investigate the following: (1) an allegation that Dr Chhabra, travelling on a busy train, discussed an incident involving a patient and read a medical report on a patient whose name and personal details could be clearly seen; (2) an allegation that Dr Chhabra had dictated patient reports when travelling on a train; (3) concerns about Dr Chhabras working relationship with her clinical team; and (4) a complaint from one of Dr Chhabras patients, made through a solicitor. Dr Taylor found, in her report of June 2011, that Dr Chhabra had breached, and admitted breaching, patient confidentiality (1) by having patient documents clearly visible and (2) by dictating sensitive reports on the train. She also found that there were difficulties within Dr Chhabras clinical team which were issues of capability that needed to be addressed; and that the solicitors complaint did not have merit. Her report also recorded Dr Chhabras unchallenged account that she had not appreciated at the time that her practice compromised patient confidentiality and that she believed that she had ensured that no other passengers were close by when she dictated the reports. Dr Taylor also reported on an allegation by Dr Chhabras former secretary, which had not been expressly included in her terms of reference, that she had made telephone calls when travelling by train to work in which she had discussed patient information. Dr Taylor did not make any finding on the veracity of this allegation. In response to a concern raised by Dr Chhabra, the Trust had undertaken that Mr Wishart, its associate human resources director, could take no part in the investigation. But, unknown to Dr Chhabra, Dr Taylor had communicated with Mr Wishart during the investigation. Most significantly, Dr Taylor had sent Mr Wishart a draft of her report and Mr Wishart prepared suggested amendments to the draft. The extensive amendments had stiffened the criticism of Dr Chhabra. Dr Taylor had accepted some of the suggested amendments but not others. Among those she had accepted was the characterisation as serious of breaches of confidentiality she had described in her report. On 12 August 2011 Dr Broughton wrote two letters to Dr Chhabras solicitors. One informed her that he regarded the concerns about her team working to be matters of capability. The other stated that he proposed to put to a disciplinary panel not only the admitted breaches of confidentiality but also (i) the allegation, on which Dr Taylor had noted there had been a conflict of opinion, that Dr Chhabra, while travelling by train, had telephoned her secretary to discuss patient related information, and (ii) an allegation, which was not within Dr Taylors remit and on which she had not reported, that Dr Chhabra had breached patient confidentiality by disclosing information via email to her medical protection society and legal advisers. Dr Broughton expressed the view that the charges were potential gross misconduct and that dismissal was a possible outcome of the hearing before the disciplinary panel. Dr Chhabras solicitors objected to the charge of breach of patient confidentiality by disclosing information to her protection society and her legal advisers, which had not been the subject of Dr Taylors investigation. At their request the Trust agreed to instruct Dr Taylor to investigate that allegation. Dr Taylor carried out this further investigation and reported that there was no complaint to answer. As a result, on 17 January 2012 Dr Broughton informed Dr Chhabra by letter that that charge would not be pursued at the disciplinary hearing. On 1 June 2012 Judge McMullen QC granted Dr Chhabra a declaration and injunctive relief preventing the disciplinary panel from investigating the confidentiality concerns, including those not grounded in Dr Taylors report, as matters of gross misconduct. On 25 January 2013 the Court of Appeal upheld the Trusts appeal. The case manager was not confined to the findings of fact of the case investigator but could consider complaints supported by evidence reported by the case investigator, even if denied by the practitioner. The conduct panel would resolve issues of disputed fact. Dr Broughton was entitled to regard the breach of confidentiality as a potentially serious offence and as a result was justified in deciding to convene the conduct panel. Dr Chhabra appeals to this court. The Supreme Court unanimously allows Dr Chhabras appeal and orders the Trust not to pursue any of the confidentiality concerns contained in the Trusts letter of 12 August 2011 as matters of gross misconduct; and not to pursue any confidentiality concerns without first re starting and completing an investigation under its policy D4A. The first and most significant issue is the roles of the case investigator and the case manager. The procedures do not allow the case investigator to determine the facts. Their aim is to have someone, who can act in an objective and impartial way, investigate the complaints identified by the case manager to discover if there is a prima facie case of a capability issue or misconduct. It would introduce an unhelpful inflexibility into the procedures if (i) the case investigator were not able to report evidence of misconduct which was closely related to but not precisely within the terms of reference (as in the former secretarys allegations) or (ii) the case manager were to be limited to considering only the case investigators findings of fact when deciding on further procedure. Similarly, it would be unduly restrictive to require the case manager to formulate the complaint for consideration by a conduct panel precisely in the terms of the case investigators report. Neither MHPS or the Trusts policies in D4 and D4A are so inflexible or restrictive. But the procedure does not envisage that the case manager can send to a conduct panel complaints not considered by the case investigator or for which the case investigator has gathered no evidence. The Trust was therefore correct in acceding to Dr Chhabras request for a second report from Dr Taylor in relation to the new allegation of breach of confidentiality in her communications with the protection society and her solicitors. There were number of irregularities in the proceedings against Dr Chhabra that cumulatively render the convening of the conduct panel unlawful as a material breach of her contract of employment. First, Dr Taylors findings were not capable, taken at their highest, of supporting a charge of gross misconduct, defined in the policy as so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. The breaches of confidentiality she recorded, including the former secretarys allegations, were qualitatively different from a deliberate breach of confidentiality such as speaking to the media about a patient. Secondly, in reaching the view that Dr Chhabras behaviour could amount to gross misconduct, Dr Broughton founded on the words added to para 13.4.1 with effect from 28 March 2011, after the incidents in this case. The list of misconduct in para 13.4.1 comprised only typical examples of what the Trust saw as amounting to gross misconduct and was not a comprehensive statement of the concept. But Dr Broughton relied on the amended provision in support of his view that the complaints might amount to gross misconduct and quoted it in his letter of 12 August 2011 relating to the disciplinary procedure. Thirdly, the Trust breached its contract with Dr Chhabra when Mr Wishart continued to take part in the investigatory process in breach of the undertaking the Trust had given. In particular, when Mr Wishart proposed extensive amendments to Dr Taylors draft report and Dr Taylor accepted some of them, which strengthened her criticism of Dr Chhabra, the Trust went outside the agreed procedures which had contractual effect in ways going beyond clarifying its conclusions. The report had to be the product of the case investigator. It was not. Further, the disregard for the undertaking amounted to a breach of the obligation of good faith in the contract of employment. It was also contrary to policy D4s principle that managers act in a way that an objective observer would consider reasonable: Dr Chhabra had an implied contractual right to a fair process, which Mr Wisharts involvement undermined. Fourthly, Dr Broughton did not re assess the decision in his letter of 12 August 2011 that the matters were considered as potential gross misconduct after he departed from the additional complaint once he had received Dr Taylors second report. He was obliged to do so under para 3.1 of policy D4: an objective observer would not consider it reasonable to fail to do so. The cumulative effect of those irregularities is that it would be unlawful for the Trust to proceed with the disciplinary procedure and that the Court should grant relief. The categorisation of Dr Chhabras conduct as gross misconduct is itself a sufficient ground for injunction.

The Rehabilitation of Offenders Act 1974 (the 1974 Act) provides that, after a period of time, the criminal convictions of a person, say of a man, are in many cases spent. This means, among other things, that he is not obliged to disclose them in response to a question by, for example, a prospective employer and that the prospective employer is not entitled to make a decision prejudicial to him by reference to them or to any failure on his part to disclose them. The same goes for cautions (which include warnings given to a child: section 65(9) Crime and Disorder Act 1998). Subject to an immaterial exception, cautions are spent as soon as they have been given: para 1(1)(b) of Schedule 2 to the 1974 Act, added by paragraph 6 of Schedule 10 to the Criminal Justice and Immigration Act 2008. But the law identifies exceptions to a persons protection from reference to spent convictions and to cautions. In these proceedings the two respondents, T and JB, claim that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). T further claims that the obligation cast upon him to disclose the warnings given to him violated the same right. To the extent that the claims of T and JB are valid, another important question arises in relation to the width of the appropriate remedy. The Secretary of State for the Home Department has responsibility for the Disclosure and Barring Service (the DBS), an executive agency charged with the issue of certificates relating to a persons criminal record pursuant to the Police Act 1997 (the 1997 Act). The Secretary of State for Justice has responsibility for the working of the 1974 Act. The two Secretaries of State appeal against orders made by the Court of Appeal (Lord Dyson MR, Richards and Davis LJJ) on 29 January 2013: [2013] 1 WLR 2515. It upheld Ts appeal against the dismissal of his claim for judicial review and, in his case, declared first, pursuant to section 4 of the Human Rights Act 1998 (the 1998 Act), that the provisions of Part V of the 1997 Act were incompatible with article 8 insofar as they require the disclosure of all convictions and cautions that are recorded on central records on certificates; and second that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975 /1023) (the 1975 Order) was incompatible with article 8 and ultra vires the 1974 Act. A judge had refused to grant JB permission to apply for judicial review and, in her case, the Court of Appeal allowed her appeal, granted permission, upheld her claim and declared, pursuant to section 4 of the 1998 Act, that the provisions of Part V of the 1997 Act were incompatible with article 8 for the reasons set out in [its] judgment. In both cases the Court of Appeal provided that its declarations should not take effect pending application by the Secretaries of State to this court for permission to appeal. On granting permission, this court extended the stay until its determination of the appeals. In particular, therefore, the result is that there is no presently effective declaration that the 1975 Order is ultra vires. In these circumstances one would expect the Secretaries of State to have awaited the determination of the current appeals before exercising powers under the 1974 Act to amend the 1975 Order and powers under the 1997 Act to amend that Act itself, with a view to eliminating the incompatibilities and indeed invalidities identified by the Court of Appeal. On 22 May 2013, however, no doubt for reasons which they considered to be good, the Secretaries of State made the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200) with a view to eliminating the identified incompatibilities and invalidities. In paras 13 to 15 below I will, in effect in parenthesis, summarise the effect of the recent orders, which took effect on 29 May 2013. These appeals, however, concern the provisions of the 1975 Order and of the 1997 Act as they stood prior to the amendments wrought by the recent orders and, unless the context otherwise requires, references to the 1975 Order and to the 1997 Act should be understood accordingly. The appeals therefore lose some, but only some, of their practical significance. There would be a piquancy about any conclusion by this court that the 1975 Order and the 1997 Act were not, after all, incompatible with the respondents rights. But the court must beware of allowing its knowledge of the recent orders to lead it to avoid such a conclusion otherwise than on a principled basis. In 2002 the police issued two warnings to T, who was then aged 11, in respect of the theft of two bicycles. Like a caution issued to an adult, a warning to a child can be given only following his admission of guilt. T has no other criminal record. In 2008 a football club, to whom he had applied for part time employment, required him to obtain an enhanced criminal record certificate (an ECRC) under section 113B of the 1997 Act (as inserted by section 163 of the Serious Organised Crime and Police Act 2005 and amended by section 97(2) of the Policing and Crime Act 2009 and section 82(1) of the Protection of Freedoms Act 2012). The certificate disclosed the warnings but, following the intervention of Ts M.P., the police agreed to apply to the warnings their policy of stepping down in some cases. The effect was that, while the warnings remained on police files, they were not automatically to be disclosed on certificates. This seems to have resolved any problem between T and the football club. In 2010, however, T applied for enrolment on a sports studies course, which was to entail his contact with children. The college required him to obtain an ECRC. No doubt T was unaware that in the interim the police had acknowledged that their policy of stepping down contravened the 1997 Act: Chief Constable of Humberside Police v Information Comr (Secretary of State for the Home Department intervening) [2009] EWCA Civ 1079, [2010] 1 WLR 1136, at para 3. In the event, therefore, the ECRC issued in relation to T again disclosed the warnings. The college responded that Ts place on the course was at risk. It was only as a result of representations by his solicitor that it accepted T for enrolment on the course notwithstanding the warnings. In 2001 the police issued a caution to JB, then aged 41, in respect of the theft from a shop of a packet of false fingernails. She has no other criminal record. In 2009 she completed a training course arranged by the Job Centre for employment in the care sector. The provider of the course asked her to obtain an ECRC, which disclosed the caution. It thereupon told her that it felt unable to put her forward for employment in the care sector. THE 1974 ACT AND THE 1975 ORDER Section 4(2) and (3)(b) of the 1974 Act applies to such convictions as are treated as spent under the Act; and para 3(3) and (5) of Schedule 2 to it applies analogously to cautions. Broadly summarised, section 4(2) and para 3(3) provide that, where a question is asked of a person about his criminal record, it shall be treated as not extending to them and he is entitled not to disclose them and cannot be liable for failure to do so. Also thus summarised, section 4(3)(b) and para 3(5) provide that a persons spent conviction or his caution, or a failure to disclose it, cannot justify his exclusion or dismissal from a profession or employment or any action prejudicial to him in the course of his employment. But the 1975 Order makes exceptions to these provisions: article 3 of it specifies the exception to section 4(2) and to para 3(3) of the Schedule and article 4 specifies the exception to section 4(3)(b) and to para 3(5). In the light of the Court of Appeals declaration that the whole order was ultra vires, it is important to note the width of the two articles. Article 3 of the 1975 Order (as amended by article 3 of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001 (SI 2001/1192) and article 4 of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008 (SI 2008/3259) (the 2008 Order)) provides that a persons entitlement not to disclose either spent convictions or cautions in answer to questions does not extend to situations in which the questions are asked in order to assess his suitability in any one of 13 specified respects. Six examples are his suitability, at (a) of the article, for admission to certain professions and for entry into certain types of employment, all specified in Schedule I to the Order; at (aa), for his assignment to work with children in specified circumstances; at (b), for his assignment to work which impacts on national security; at (e), for his proposed adoption of a child; at (f), for his assignment to the provision of day care; and, at (g), for the grant to him by the Financial Conduct Authority of specified permissions and approvals. Analogously article 4 of the 1975 Order (as amended by article 5 of the 2008 Order) provides that the inability to exclude or dismiss a person from a profession or employment or to take action prejudicial to him in the course of his employment, by reference to a spent conviction or to a caution or to a failure to disclose it, does not apply: at (a) and (b) of the article, to the professions and types of employment specified in Schedule 1 to the Order; at (c), to any action taken for the purpose of safeguarding national security; at (d), to any one of 16 specified decisions of the Financial Conduct Authority; and at (e) to (n), to ten specified decisions of other authorities. The shape of the 1975 Order is therefore clear. It is the circumstances in which the question is asked which dictate whether an exception from protection under the 1974 Act arises; and when it arises, the duty to disclose in response to the question and the entitlement of the questioner to act in reliance upon the disclosure or upon a failure to do so are both absolute, being unrelated to the circumstances in which the spent conviction or the caution arose. THE 1997 ACT Sections 113A and 113B of the 1997 Act identify the circumstances in which the DBS must issue a criminal record certificate (a CRC) and an ECRC respectively. The only substantive difference between the two certificates is that an ECRC must include not only, as must a CRC, relevant matters recorded on the Police National Computer but also, by way of enhancement, information about the person on local police records which they reasonably believe to be relevant and ought to be included (conveniently described as soft intelligence): contrast section 113A(3)(a) with section 113B(3)(a) and (4). It is only where the certificate is required for the purposes of an exempted question asked for a prescribed purpose that an ECRC, rather than a CRC, is available. The present appeals concern ECRCs and, since in any event the greater includes the lesser, it will be convenient to address the circumstances in which the DBS must issue an ECRC. following circumstances: (a) The application for it is made by the person who is to be the subject of it (subsection (1)(a)). In summary, section 113B provides that an ECRC must be issued in the (b) The application is countersigned by a person listed in a register, maintained by the DBS, of persons likely to ask exempted questions (subsection (2)(a), read with section 120). (c) The application is accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a prescribed purpose (subsection (2)(b)). (d) An exempted question is a question to which exemption from protection arises under the 1975 Order (subsection (9) and section 113A(6)). (e) A prescribed purpose is a purpose prescribed in regulation 5A of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233) which sets out a list overlapping with, but not co extensive with, the list in article 3 of the 1975 Order, of situations in which the registered person proposes to consider the applicants suitability for a specified position of trust or sensitivity. In what follows it will be convenient to regard both the exceptional obligation of a person to disclose a spent conviction or a caution under the 1975 Order and the obligation of the DBS to make disclosure of it by an ECRC under the 1997 Act as running in parallel. But the parallel is not exact. For the obligation of the DBS to make disclosure under an ECRC is, at the same time, both wider than the obligation of the person in terms of its inclusion of soft intelligence and yet narrower in that it arises only in circumstances in which the application is countersigned by a registered person who states that the certificate is required for a prescribed purpose. There will therefore be cases in which, although the questioned person is not exempt from a duty of disclosure, the questioner is not entitled to call for an ECRC. Nevertheless the shape of the 1975 Order is certainly reflected in the 1997 Act: for, if the prescribed circumstances surrounding the application for the ECRC are present, the duty of the DBS is to disclose even spent convictions and cautions irrespective of the circumstances in which they arose. THE 2013 AMENDMENTS In that the 1975 Order removes the protection from disclosure and reliance afforded by the 1974 Act when questions are asked in the circumstances which I have described, the first order dated 22 May 2013, made by way of amendment of the 1975 Order, (SI 2013/1198), in effect reinstates protection in the case of what it calls a protected caution and a protected conviction. A caution is protected if it was given otherwise than for any of 14 listed categories of offence and if at least six years have passed since the date of the caution (or two years if the person was then a minor): article 4. A conviction is protected if it was imposed otherwise than for any of the listed categories; if it did not result in a custodial sentence; if the person has not been convicted of any other offence; and if at least 11 years have passed since the date of the conviction (or five and a half years if he was then a minor): article 4. But this new, more nuanced, regime does not apply when questions are asked in order to assess a persons suitability for a few specified types of employment: article 6. The entitlement of the questioner to act in reliance upon the disclosure of a spent conviction or a caution, or upon a failure to disclose it, is re cast along the same lines: articles 8 and 9. The second order dated 22 May 2013, made by way of amendment of the 1997 Act, (SI 2013/1200), narrows the content of a CRC and of an ECRC analogously. The obligation of the DBS is to include in the certificate details of every relevant matter (sections 113B(3)(a) and 113A(3)(a)); and, whereas the definition of relevant matter in section 113A(6) originally included all convictions including all spent convictions, the new order amends the definition so as to render the obligation of the DBS to make disclosure of spent convictions and of cautions under the 1997 Act broadly co extensive with the new, narrower, obligation of the person to make disclosure under the amended 1975 Order: articles 3 and 4. It may be that information about the circumstances behind a spent conviction or a caution which is now no longer required to be disclosed on a certificate will nevertheless, in the case of an ECRC, be disclosed as soft intelligence; but that will occur only if the police reasonably believe it to be relevant (section 113B(4)(a)). The recent orders, each approved by resolution of Parliament, therefore represent a departure from the former regime under which disclosure of all spent (as well, of course, as unspent) convictions and of all cautions was required if the question was put, or the application for a certificate made, in the specified circumstances. Even in those circumstances certain spent convictions and cautions, identified by their subject matter and in the case of a conviction also by the sentence, and also by the number and age of them, are no longer required to be disclosed. WITHIN SCOPE OF ARTICLE 8 Did the cautions issued to T and to JB represent an aspect of their private life, respect for which, subject to qualification, is guaranteed to them under article 8 of the Convention? An authoritative affirmative answer is provided within the judgments of this court in R(L) v Commissioner of Police of the Metropolis (Secretary of State for the Home Department intervening) [2009] UKSC 3, [2010] 1 AC 410. The decision itself related to soft intelligence included in an ECRC under the precursor of section 113B of the 1997 Act. Mrs L was employed by an agency which provided staff for schools and the ECRC which it required her to obtain disclosed police intelligence to the effect that, two years previously, her teenage son had been placed on the child protection register under the category of neglect, on the basis that Mrs L, with whom the son had not then been living, had little control over his behaviour and was not prepared to cooperate with social services. The agency then terminated her employment. Her claim against the police for infringement of her rights under article 8 failed but only on the basis that the interference with her rights had been justified. By reference to various decisions of the European Court of Human Rights (the ECtHR), Lord Hope of Craighead said: 24it has been recognised that respect for private life comprises, to a certain degree, the right to establish and develop relationships with other human beingsExcluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life: see Sidabras v Lithuania (2004) 42 EHRR 104, para 48. She is entitled also to have her good name and reputation protected As Baroness Hale said in R (Wright) v Secretary of State for Health [2009] AC 739, para 36, the fact that a person has been excluded from employment is likely to get about and, if it does, the stigma will be considerable. 27. This line of authority from Strasbourg shows that information about an applicants convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicants private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the persons private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happen behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. See also the judgment of Lord Neuberger of Abbotsbury at paras 68 to 72. Building on the comments in those two main judgments in the L case, the Court of Appeal in the present cases held that, in that a caution takes place in private, the receipt of a caution was part of a persons private life from the outset. The proposition calls for careful thought but in the end I find myself in agreement with it. My receipt of a caution, whenever received, is a sensitive, certainly embarrassing and probably shameful, part of my history, which may have profound detrimental effects on my aspirations for a career; and the unchallengeable fact that I did commit the offence for which I was cautioned makes it no less sensitive but, on the contrary, more sensitive. These appeals do not relate to the disclosure of a spent conviction which will have been imposed in public. But it might be helpful to refer to Lord Hopes comment in the L case at para 27, quoted at para 16 above, that as it recedes into the past it becomes a part of the persons private life. Liberty, an intervener in these appeals, suggests that the point at which a conviction recedes into the past and becomes part of a persons private life will usually be the point at which it becomes spent under the 1974 Act. It is a neat and logical suggestion which this court should adopt. INTERFERENCE: THE 1997 ACT In the Sidabras case, cited by Lord Hope in para 24 of his judgment in the L case quoted at para 16 above, the ECtHR addressed a law, passed following Lithuanias declaration of independence, that former KGB officers could not pursue certain types of employment in the private sector for ten years. It held that the law violated the rights of the two applicants under Article 8, taken in conjunction with article 14. The court said: 48. Admittedly, the ban has not affected the possibility for the applicants to pursue certain types of professional activities. The ban has, however, affected the applicants ability to develop relationships with the outside world to a very significant degree, and has created serious difficulties for them as regards the possibility to earn their living, with obvious repercussions on their enjoyment of their private life. It was the Sidabras case, together with other authorities, which led Lord Hope to conclude in the L case at para 27, also quoted at para 16 above, that it was the disclosure of the information about L in the ECRC which represented the interference with her rights. Referring to the precursor of section 113B(3)(a), Lord Neuberger added, at para 75 of the L case, that it is likely that an adverse ECRC, ie one falling within section 115(6)(a), will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section. In the present appeals it is true that, in the end, T was allowed to enrol on the sports studies course and it is possible, albeit unlikely, that, notwithstanding the refusal of the provider of the training course to put her forward for work in the care sector, JB could have secured it by direct application. But the point is that, in both cases, the disclosure in the ECRCs of the cautions issued to them significantly jeopardised entry into their chosen field of endeavour. This court need therefore proceed no further before concluding not just that (as the Secretaries of State concede) the ECRCs, once issued, were capable of interfering with the rights under Article 8 of the two applicants but that they did interfere with them. It is, however, at least arguable that the states retention of data about cautions (and spent convictions), even prior to their disclosure in a CRC or an ECRC, amounts to interference with Article 8 rights which thus requires justification. In S v United Kingdom (2009) 48 EHRR 1169 the Grand Chamber of the ECtHR held that the retention by the police, save in exceptional circumstances, of DNA samples and fingerprints taken from persons suspected, but never convicted, of a criminal offence represented an interference with their rights under Article 8: paras 77 and 86. It rejected the UKs argument that there was no interference until use was made of the retained material (para 70) and it held persuasively that the applicants reasonable concern about its possible future use was relevant to whether an interference had already arisen (para 71). It is true that the Grand Chamber stressed the highly personal and sensitive nature of the material (para 72) and one could argue that a record of cautions and of spent convictions is not in that league. On the other hand, in Bouchacourt v France, Application No.5335/06, (unreported) 17 December 2009, which concerned material on a sex offenders register, the ECtHR seemed to declare categorically that retention of data relating to private life by itself represented interference irrespective of its sensitivity (para 57). This court can leave open whether it should go as far as that. POSITIVE OBLIGATIONS: THE 1975 ORDER The Secretaries of State put forward a distinct and undeniably seductive argument in response to the challenge of T to the lawfulness of the 1975 Order. It relates to the difference between the imposition by the Convention upon a public authority of an obligation not to act in such a way as to violate a persons human rights (ie a negative obligation) and its imposition upon it of an obligation to act in such a way as not to do so (ie a positive obligation). In the case of the 1997 Act (they argue) the state has done something: for it has issued a certificate. If the court concludes that it has thereby interfered with the Article 8 rights of T and JB and proceeds also to conclude that the state has thereby violated them, it will hold that the state must not continue to do it. In other words the positive character of the states violation attracts the imposition of a negative obligation. The argument is that, in the case of the 1975 Order, the nature of the alleged violation of the Article 8 rights of T is opposite: it is that the state has not done something, specifically that it has not legislated so as to permit him to deny (let us not forget, falsely to deny) that, when aged 11, he received two warnings for stealing two bicycles and, equally, that it has not legislated so as to disable specified third parties from making decisions by reference to his receipt of them. Unlike, for example, Article 6(3), Article 8 of the Convention does not routinely oblige a member state to take positive action, whether it be to legislate or otherwise; and on any view (see para 24 below) it will pay special respect to the judgment made by the state before obliging it to do so. An initial question is how the imposition of a positive obligation can arise at all under Article 8. Paragraph 2 prohibits interference with the exercise of the right except in the circumstances there specified. When it has omitted to do something, how can the state be said to have interfered? Happily the ECtHR does not seek to pretend that non interference can amount to interference. In Rees v United Kingdom (1986) 9 EHRR 56, at paras 35 and 37, the court accepted that, by failing to confer on a transsexual a right to an amended birth certificate, the state was not guilty of interference with his rights under article 8. It noted that the article could nevertheless give rise to positive obligations but proceeded, in a decision later superseded, not to discern one in that situation. How, then, can the article yield a positive obligation? The answer is to be found in para 1 of the article, which is not cast in prohibitory terms. It provides that everyone has the right to respect for certain things and in some circumstances a state can respect them only by taking positive action: Marckx v Belgium (1979) 2 EHRR 330 at paras 31 and 43. It is necessary therefore to address the argument of the Secretaries of State on its merits. They rely on the decision of the ECtHR in Mosley v UK (2011) 53 EHRR 1011. A domestic court had held that, in publishing an article about his participation in sexual activities, a newspaper had breached the applicants privacy. Before the ECHtR he contended that, by failing to legislate so as to require a newspaper to give prior notice to a person of publication of material about his personal life, the UK had infringed his rights under article 8. The claim failed. The court said: 106. the words the right to respect forprivatelife which appear in article 8 require not only that the state refrain from interfering with private life but also entail certain positive obligations on the state to ensure effective enjoyment of this right by those within its jurisdiction. Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves. 107. The court emphasises the importance of a prudent approach to the states positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect. The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the contracting states margin of appreciation. However, this discretion goes hand in hand with European supervision. 108 First, the court reiterates that the notion of respect in article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the contracting states, the notions requirements will vary considerably from case to case. Thus contracting parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. In this regard, the court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the state authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order. 109. Secondly, the nature of the activities involved affects the scope of the margin of appreciation. [A] serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity. Thus, in cases concerning article 8, where a particularly important facet of an individuals existence or identity is at stake, the margin allowed to the state is correspondingly narrowed. The same is true where the activities at stake involve a most intimate aspect of private life. 110. Thirdly, the existence or absence of a consensus across the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation: where no consensus exists, the margin of appreciation afforded to states is generally a wide one. From the foot of these observations the Secretaries of State argue that even a domestic court should afford considerable latitude to the state before interpreting article 8 as imposing upon it a positive obligation to legislate in the manner proposed; that T cannot claim that the issue surrounds the most intimate aspect of his private life; and that there is no consensus among member states about the extent to which minor or ancient entries in a persons criminal record should be deleted. The trouble is, however, that the classification of an obligation as positive rather than negative is not always as easy as in relation to the obligation proposed in the Mosley case. The boundaries between them are not susceptible of precise definition: Garnaga v Ukraine, ECtHR, (Application No.20390/07) (unreported) 16 May 2013, para 37. T argues, with only a limited degree of contrivance, that the state has already taken a positive step namely to attach legal sanctions, civil and sometimes even criminal, to untruthful representations made in specified circumstances and that the only question is whether its delineation of those circumstances has been so broad as to have violated his rights and whether it should therefore be the subject of a negative obligation, namely not to maintain rules of that breadth. He argues, analogously, that the state has already taken another positive step namely by the 1974 Act to relieve a person from an obligation to refer to certain entries in his criminal record save where excepted by the 1975 Order and that the only question is whether its delineation of the exceptions has been so broad as to have violated his rights and whether it should therefore be the subject of a negative obligation, namely not to maintain exceptions of that breadth. In this respect there is an analogy with the decisions of the ECtHR that, although the Convention does not require a state to establish, by article 6, a system for appeals (Delcourt v Belgium (1970) 1 EHRR 355) nor, by article 1 of Protocol 1, a welfare system (Carson v United Kingdom (2010) 51 EHRR 369), the system, if established, must not violate Convention rights. If, which is therefore debateable, Ts challenge to the 1975 Order is properly classified as a demand for the imposition of a positive obligation, I conclude that, of itself, the classification should not inhibit the court from further proceeding to determine the challenge and, if valid, from granting such remedy in respect of it as would otherwise be appropriate. In Dickson v United Kingdom (2008) 46 EHRR 927, the ECtHR said, at para 71, that, irrespective of whether the suggested obligation was positive or negative, the core issue was whether a fair balance had been struck between the competing interests. In so concluding I have an eye also to the paradox which would arise if treatment of the 1997 Act differed from treatment of the 1975 Order: it would make no sense to conclude that the state had violated Ts rights by issue of the ECRC for the attention of the college but that it had not violated them by requiring him truthfully to answer its questions about his criminal record nor by permitting the college to act in reliance upon his answers in deciding whether to enrol him on the course. For an ECRC is in effect no more than the method of verification of a persons answers. LEGALITY In that, by the issue of the ECRCs under the 1997 Act and, in Ts case, by the imposition upon him of the obligations of the 1975 Order, they interfered with the right of T and JB to respect for their private life, para 2 of article 8 casts upon the Secretaries of State the onus of establishing that the interference was in accordance with law (the requirement of legality) and necessary in a democratic society (the requirement of necessity). But for the decision of the ECtHR on 13 November 2012 in MM v UK, No 24029/07 The Times 16 January 2013, to which I will turn at para 35 below, there is in my view little reason to doubt that the issue of the certificates and the imposition of the obligations upon T were, at any rate, in accordance with law. R (Gillan and another) v Comr of Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307, concerned a power given by statute to senior police officers, in the event that they considered it expedient for the prevention of acts of terrorism, to confer authority, limited by time and place, upon constables to stop and search pedestrians at random. In the domestic courts two innocent pedestrians, who had been stopped and searched, unsuccessfully argued that the stop and search regime had violated their Convention rights, including under article 8. They argued unsuccessfully that it was not in accordance with law. Lord Bingham of Cornhill said: 34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided. Lord Hopes analysis, at para 52, was only subtly different. He too stressed the need for the domestic law to be not only accessible but clear (sufficiently precise to enable the individual to foresee the consequences) but he suggested that the need for the regime not to be arbitrary was a further factor as opposed to being the opposite side of the coin of clarity and precision. At all events, when the pedestrians took their case to the ECtHR, they secured a contrary determination, namely that the stop and search regime had not been in accordance with law and that their rights under article 8 had been violated: Gillan v United Kingdom (2010) 50 EHRR 1105. The courts analysis was in conflict not with the enunciation of legal principle by Lord Bingham but only with the committees application of it. 76 the words, in accordance with the law require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct. 77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. It could not seriously be argued that the way in which the regimes for the issue of certificates under the 1997 Act and for the obligation to answer questions (and for the questioner to act in reliance on them) under the 1975 Order worked were insufficiently accessible or foreseeable for them not to be in accordance with law as interpreted in the Gillan case both in the House of Lords and in the ECtHR. There is no doubt that, in the light of the way in which the requirements of legality and necessity in article 8(2) have been developed, there is some overlap between them. To take the obvious example, rules which are insufficiently precise for the purposes of the former are likely to go wider than is necessary to accomplish their legitimate objective for the purposes of the latter. It is however important that we domestic judges, and particularly (if I may say so) our respected colleagues in the ECtHR, should not erode the distinction between the two requirements more than logic compels. It is particularly important that our colleagues should not do so because a cardinal feature of their courts jurisprudence in relation to necessity is to afford a margin of appreciation, of greater or lesser width, to the contours within which the member state has seen fit to draw the impugned rules. The ECtHR does not extend the margin of appreciation and it is right that it should not do so to its consideration of legality. In S v United Kingdom (2009) 48 EHRR 1169, cited in para 21 above, concerning the retention of fingerprints and DNA samples taken from those suspected of a crime, the ECtHR observed, at para 99, that the statutory authority for the use of such material for purposes related to the prevention or detection of crime was in rather general terms. It went on to conclude that complaints about the absence of detailed safeguards in respect of the use (and storage) of the material were more conveniently considered in terms of the necessity for the interference. In that it was to proceed to conclude that the nature of the statutory powers overstepped the margin of appreciation and failed to satisfy the requirements of necessity, it saw no need to decide whether it also failed to satisfy the requirement of legality. When the issues had been before the House of Lords, the committee had given short shrift to the argument that retention of the material had not been in accordance with law: R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196, para 36. It would have been surprising if, whatever its other shortcomings, the statutory power had been held in the ECtHR to fail even the requirement of legality. In Kennedy v United Kingdom (2010) 52 EHRR 207 the applicant failed to persuade the ECtHR that the states possible past, and at any rate its potential future, interception of his telephone and email communications had violated his rights under article 8. The court held that there were sufficient safeguards in the interception regime, including in particular a right of complaint to a tribunal (which had rejected a complaint by the applicant), to justify interference with his rights. But the court took a significant step towards blurring the difference between legality and necessity: for it decided, at para 155, to address them jointly. So we arrive at the MM case, cited above. The applicant, who lived in Northern Ireland, was a babys paternal grandmother and was distressed at the prospect of the mothers removal of him to her native Australia. In order, apparently, to induce the mother and her son to reconcile their differences, the grandmother disappeared with the baby for more than a day. She accepted a caution for the offence of child abduction on the basis that, as the Northern Ireland police assured her in accordance with what was then their practice, the caution would be deleted from her record after five years, namely in 2005. At around that time, however, the Northern Ireland police changed their practice so as to retain adult cautions on file indefinitely and, in that year, they disclosed it to a potential employer of MM, who, in consequence, did not offer her employment. The disclosure was pursuant to the powers of the Northern Ireland police at common law for sections 113A and 113B of the 1997 Act did not come into force in Northern Ireland until 2008. The ECtHR nevertheless also considered the new, statutory regime for the issue of certificates on the basis that the grandmother was at risk of its future application to her. police had violated the grandmothers rights under article 8 as follows: 206. In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further In the MM case the ECtHR explained its conclusion that the Northern Ireland refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the Court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. 207. The cumulative effect of these shortcomings is that the court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicants private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicants caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of article 8 of the Convention in the present case. This conclusion obviates the need for the court to determine whether the interference was necessary in a democratic society for one of the aims enumerated therein. In the present appeals the Secretaries of State argue that it is surprising that the ECtHR should have determined the grandmothers application by reference to the requirement of legality. The first of that courts three points in para 206 is criticism of lack of clarity about the extent of the common law powers of the Northern Ireland police, albeit circumscribed by the Data Protection Act 1998, to retain and disclose information about cautions. That criticism, well founded or otherwise, is indeed one of inadequate precision. The court made its second point, namely the absence of mechanism for independent review, after, in particular, having noted at para 197 the stress laid by this court on that factor in its analysis of the regime for notifications by sex offenders in R (F) (A Child) v Secretary of State for the Home Department (Lord Advocate intervening) [2010] UKSC 17, [2011] 1 AC 331. But this courts analysis was specifically conducted in terms of necessity rather than legality (see para 41, Lord Phillips of Worth Matravers). It is hard to see how absence of review can affect either the accessibility or the precision of the legislation although, if safeguards against arbitrariness are a free standing aspect of the principle, it might arguably qualify in that regard. But in my view the courts third and final point, namely its powerful criticism of the failure of the regime under the 1997 Act to regulate disclosure by reference to the circumstances of the caution, clearly addresses its proportionality and thus the necessity, as opposed to the legality, of the interference. Then in para 207 the court concluded that the consequence of these three points was an absence of safeguards which precipitated a violation of the grandmothers rights and that accordingly the retention and disclosure of the information about her caution were not in accordance with law. So, although significantly the grandmother had not even disputed that the interference was in accordance with law (para 192), the court reached its determination on that basis and therefore without any reference to the margin of appreciation. In my view the Secretaries of State raise a legitimate concern that issues which, when properly analysed, fall to be resolved in the ECtHR by reference to the principle of necessity, and therefore to attract extension to the member state of the margin of appreciation, should not instead be resolved by reference to the principle of legality. Although the first and perhaps also the second of the three points addressed above probably justified the resolution of the MM case by reference to it, I take the view, in respectful disagreement with the other members of this court, that the 1997 Act does not fall foul of the principle of legality. The Court of Appeal was in my view right to decline to conclude, even in the light of the MM case, that either the 1997 Act or the 1975 Order did so; and counsel for T and JB have been wise not to seek to uphold any part of its decision by reference to the principle of legality. The complaint in the MM case of an absence of a clear legislative framework in Northern Ireland and of lack of clarity in the contours of the common law powers of its police has no analogue in the present cases; and the instant proceedings demonstrate independent review of a most exacting character. Lord Reed suggests in para 114 that the question whether there are safeguards which enable the proportionality of the interference adequately to be examined affects legality, whereas the question whether the interference was proportionate affects necessity. But in my view the ECtHRs third point logically falls within the latter; and I deprecate its seepage into the former. There is also, if I may say so, a paradox about Lord Reeds conclusion on the one hand, at para 119, that the 1997 Act falls foul of the principle of legality but yet his disinclination to conclude on the other hand, at para 140, that the 1975 Order does so: for both the arrangement of the two provisions and the charge against them run in broad parallel and the different degree of their intrusiveness, to which Lord Reed refers at para 140, is pre eminently a factor which relates to necessity. NECESSITY In this respect one asks first whether the objective behind the interference was sufficiently important to justify limiting the rights of T and JB under article 8; second whether the measures were rationally connected to the objective; third whether they went no further than was necessary to accomplish it; and fourth, standing back, whether they struck a fair balance between the rights of T and JB and the interests of the community (R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, para 45). The objective behind the regime created by the 1975 Order and by Part V of the 1997 Act was supremely important. It was to protect various members of society, particularly vulnerable groups such as the elderly and children but also, for example, consumers of financial advice, from exposure to persons able and likely to mistreat, neglect or defraud them. On any view the contents of the Order and of the Act were rationally connected to the objective. The issue surrounds the third and fourth questions, in relation to both of which the Secretaries of State make a valid preliminary point. It is that whether the measures were necessary to accomplish the objective and whether the balance was fairly struck are issues of fine judgement which, by affirmatively approving the 1975 Order and by enacting the 1997 Act, Parliament itself determined and that the courts should therefore hesitate long before concluding that its judgement in these respects was wrong. Nevertheless the nature of Ts and JBs attack on the regime is obvious. It is that it operated indiscriminately. The exception (so the argument goes) from the eradication for practical purposes of certain entries from a persons record in accordance with the 1974 Act should be bounded by two sets of rules: rules which specify the type of request which should justify some disclosure and rules which identify the entries which should then be disclosed. The regime certainly contained rules of the former character. But there were none of the latter character. If the type of request was as specified, there had to be disclosure of everything in the kitchen sink. There was no attempt to separate the spent convictions and the cautions which should, and should not, then be disclosed by reference to any or all of the following: (a) the species of the offence; (b) the circumstances in which the person committed it; (c) his age when he committed it; (d) in the case of a conviction, the sentence imposed upon him; (e) his perpetration or otherwise of further offences; (f) the time that elapsed since he committed the offence; and (g) its relevance to the judgement to be made by the person making the request. The case of T is held up as an egregious example of the flaws in the regime. His theft of two bicycles before he even became a teenager was disclosed in connection with his proposed participation in sporting activities with children, to which (it is said) it had no conceivable relevance; indeed entries reflective of childish error should be a particular candidate for total elimination in the interests (in the words of article 40 of the UN Convention on the Rights of the Child 1989) of promoting the childs reintegration and the childs assuming a constructive role in society. T and JB fortify their attack by demonstrating that, long before they introduced the 2013 amendments, the Secretaries of State were actively contemplating the making of changes to the regime which would make its operation less indiscriminate. In 2010 the Secretary of State for the Home Department established the Criminal Records Review and set its terms of reference in arresting language as follows: To review whether the criminal records regime strikes the right balance between respecting civil liberties and protecting the public and make proposals to scale back the use of systems involving criminal records to common sense levels. Mrs Mason, the governments Independent Advisor for Criminality Information Management, was appointed to conduct the review in two phases, of which the first was to encompass disclosure under Part V of the 1997 Act. Mrs Mason published her Report on Phase One in February 2011 and aptly headed it A Common Sense Approach. Her fifth recommendation was that the government should introduce a filter to remove old and minor conviction information from criminal record checks and that an advisory panel, which the government had already set up, should make recommendations about the optimum mechanism for filtering them. In December 2011 the government responded that it was considering the proposal and was in particular attempting to identify an appropriate and workable filtering mechanism: Independent Review of the Criminal Records Regime Government Response, p 3. At about the same time the panel made its report; but, although all members of it were agreed on eight basic principles, they were not unanimous about how they should be applied. Evidence filed in these proceedings on behalf of the Secretary of State for the Home Office convincingly demonstrates the complexities of developing a satisfactory filter, with which the government was apparently continuing to wrestle until (so it seems to have considered) its hand was forced into making the 2013 amendments. Against the attack on the regime the Secretaries of State raise three points by way of defence. They say, first, that a filter mechanism was always in place in that it was only convictions and cautions for recordable offences that were entered on the Police National Computer and were therefore available for disclosure. About one half of all offences are not recordable and so are, in that sense, filtered out. An offence is recordable if it is punishable with imprisonment or is one of a number of disparate offences identified in the Schedule to the National Police Records (Recordable Offences) Regulations 2000 (SI 2000/1139). The trouble is however that the identification of an offence as recordable under the Regulations is not effected with a view to limiting disclosure under the 1997 Act to what might be relevant. An offence which is imprisonable but which in the event is visited with a minor penalty is recorded; but an offence which is not imprisonable but which is visited with a substantial fine is not recorded. A few offences relevant to suitability for certain occupations, such as causing unnecessary suffering to animals contrary to section 4(1) of the Animal Welfare Act 2006, are not imprisonable and are not identified as recordable. By contrast, a multitude of offences irrelevant to suitability are imprisonable and so are recordable. The Secretaries of State say, second, that the regime reflected a conclusion by Parliament that it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure to his decision. Rely on him (they say) to sift the wheat from the chaff. But will he do so? In these days of keen competition and defensive decision making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched? More fundamentally, the regime reflects an exception to the eradication of the offence under the 1974 Act and it is the fact, or even the potentiality, of disclosure, whatever its ultimate consequences, which causes the interference and for the person creates, as a minimum, embarrassment, uncertainty and anxiety. The Secretaries of State say, third, that the Convention can discern justification for an interference in a regime set within bright lines, which is simple and inexpensive to operate. In this regard they rely, in particular, on three authorities. The first is Evans v United Kingdom (2008) 46 EHRR 728, where the ECtHR held that a womans rights under article 8 had not been violated by application of a bright line rule that a frozen embryo which a woman and a man had created could no longer be implanted in the woman once the man had withdrawn his consent. The applicant had complained in particular of the lack of any mechanism for the rule to be disapplied but the court held at para 89 that the absolute nature of the rule promoted legal certainty and avoided the problems of individual assessment of the incommensurable interests of the man and the woman. The second is R (RJM) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2008] UKHL 63, [2009] AC 311, in which the House of Lords held that the application of a rule which disentitled a person from receiving a state disability premium when he became homeless had not violated his rights under Article 1 of the First Protocol to the Convention even though it was a blunt instrument and hard cases would fall on the wrong side of its line (Lord Neuberger, para 54). The third is Animal Defenders International v United Kingdom (2013) 57 EHRR 607, in which the Grand Chamber held that the rights under article 10 of an animal rights group had not been violated by the prohibition of their proposed television advertisement pursuant to a statutory prohibition on political advertising, defined in wide terms. The difficulty of framing the legislation and the depth of prior consideration given to it had afforded the state a wide margin of appreciation, which the prohibition did not exceed. Three other authorities, by contrast, reject bright line rules. In Hirst v United Kingdom (No 2) (2006) 42 EHRR 849 the disenfranchisement of convicted prisoners, irrespective of the length of their sentence or of the gravity of their offence, was held to violate their rights under Article 3 of the First Protocol. Such a general, automatic and indiscriminate restriction on a vitally important Convention right, said the ECtHR at para 82, must be seen as falling outside any acceptable margin of appreciation. In the S case (2009) 48 EHRR 1169, cited at para 21 above, it was the blanket and indiscriminate nature of the powers of retention of the fingerprints and DNA samples which rendered the interference disproportionate and precipitated the violation (para 125). And in the F case [2011] 1 AC 331, cited at para 37 above, the obligation upon sex offenders sentenced to imprisonment for at least 30 months to notify the police of their changing circumstances for the rest of their lives following release violated their rights under article 8 because it failed to provide for review of whether they continued to pose a risk of re offending (para 58). It is easy to conclude that, of the above authorities referable to bright line rules, the F case is closest to the present. The three situations in which interference was justified by bright line rules related to complex areas of judgement in which it was far from obvious that a more calibrated system could operate more satisfactorily. The F case, like the present cases, addressed a regime which condemned people to suffer, like an albatross which they could never shake off, permanent adverse consequences of ancient wrong doing notwithstanding completion of the ostensible punishment (if any) and irrespective of its continuing significance. Nor, to take the present cases, can the Secretaries of State contend that it is impossible to devise a more calibrated system for identifying material which should be the subject of disclosure under the 1997 Act and the 1975 Order. For, in introducing the 2013 amendments, they duly devised it! Indeed back in 2010 the Secretary of State for the Home Department commissioned Mrs Masons review. The Secretaries of State convincingly protest that Mrs Masons commission was not born of any acceptance that the regime which then existed violated rights under article 8. They point out, more broadly, that the fact that another, more specific, regime might be able to be devised does not, of itself, render the contested regime disproportionate: Wilson v First County Trust Ltd (No.2) [2003] UKHL 40, [2004] 1 AC 816, para 70. But it was the Secretary of State for the Home Department who chose to describe Mrs Masons remit as being to scale back the criminal records system (obviously including disclosure under the 1997 Act) to common sense levels. In the L case [2010] 1 AC 410, cited at para 16 above, the subject matter was, as there explained, soft intelligence included in an ECRC. Lord Hope, at para 41, endorsed remarks made in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068, [2005] 1 WLR 65, para 20, in which, although that case also related to soft intelligence, Lord Woolf CJ seems to have accepted that the regime for disclosure under the 1997 Act, taken as a whole, did not violate rights under article 8. Lord Hope added that the question was whether the particular exercise of judgement required by the Act of the police in its disclosure of soft intelligence had been proportionate. Lord Neuberger, at para 76, was more specific. As a preface to his treatment of soft intelligence, he said that he was prepared to proceed on the basis that there was nothing objectionable about the inclusion in an ECRC of spent convictions and cautions, which reflected the actual commission of crimes. There was no focus in the L case on the indiscriminate disclosure of spent convictions and cautions and, notwithstanding the eminence of their authors, the above remarks cannot represent a significant contribution to the decision for which the current appeals call. In its application to the cases of T and JB the regime set up by the 1997 Act and by the 1975 Order failed the requirement of necessity. The disclosure of their cautions, obviously that of T but also in my view, in the light of the triviality of her one and only offence, that of JB, went further than was necessary to accomplish the statutory objective and failed to strike a fair balance between their rights and the interests of the community; and so it violated their rights under article 8. THE 1997 ACT: DECLARATION OF INCOMPATIBILITY Under article 34 of the ECHR the jurisdiction of the ECtHR is to determine an application from a person claiming to be the victim of a violation by a member state of his Convention rights. So its inquiry is into violation in the individual case before the court. When it concludes that the legislation of a state is incompatible with the Convention, the ECtHR is understood to mean not that the legislation will always operate incompatibly but that it operated incompatibly in its application to the individual case. In the Hirst case (2006) 42 EHRR 849, cited in para 47 above, the ECtHR appeared to depart from this understanding: it appeared to consider whether the disenfranchisement of prisoners was compatible with the Convention irrespective of the fact that the applicant was a life prisoner to whom denial of the vote could in any event scarcely amount to a violation. The courts approach was criticised first in a minority judgment of the court in that case and then by this court in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271. Lady Hale observed, at para 100, that it would have been in accordance with the consistent practice of the court for the majority to indicate in precisely what way Mr Hirsts rights had been violated by the law in question. Then, relevantly to the present appeals, she added it seems to me that the courts of this country should adopt that sensible practice when considering the application of the various remedies provided by the Human Rights Act 1998. Finally, in addressing the apparent width of the power to make a declaration of incompatibility under section 4 of the 1998 Act, she stated at para 102 that the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. As Lady Hales last statement makes clear, a declaration of incompatibility is not a declaration that the legislation always operates incompatibly with convention rights. It is a declaration only that it is capable of operating incompatibly and, almost always, that it has operated incompatibly in the case before the court. Thus, in Bellinger v Bellinger [2003] 2 AC 467, a statutory provision that a marriage was void if the parties to it were not respectively male and female was declared incompatible even though it infringed the rights under Article 8 only of those who had undergone gender reassignment and wished to marry persons of their own genetic sex. In making a declaration of incompatibility of the 1997 Act with article 8, the Court of Appeal was therefore not suggesting that disclosure of spent convictions and cautions in certificates would always violate rights under article 8. Its order in Ts case was appropriately qualified, namely that the provisions of the Act were incompatible only insofar as they require the disclosure of all convictions and cautions . recorded on central records (emphasis supplied). In relation to the 1997 Act the Court of Appeal was fully entitled, in the exercise of its discretion under section 4 of the 1998 Act, to make a declaration of incompatibility. It was impossible for it to read and give effect to its provisions in a way which was compatible with the rights of T and JB pursuant to section 3 of the 1998 Act. The beauty of its declaration was that, while it alerted Parliament to the fact that, for the reasons given in the courts judgment, the 1997 Act was capable of operating incompatibly with Convention rights and so required amendment (which the Secretary of State could then achieve by a remedial order under section 10 of the 1998 Act), it did not affect the validity, continuing operation or enforcement of the Act (section 4(6)(a) of the 1998 Act). Although the Secretary of State for the Home Department contends that, by her amendment of the Act in 2013, she has remedied the incompatibility identified by the Court of Appeal, its declaration, when made, was rightly made and it seems logical, in the context of an appeal, not now to set it aside. This court is informed that in future proceedings it may be argued that operation even of the amended regime under the Act will have precipitated a violation of rights under article 8. Today this court can say nothing about that. THE 1975 ORDER: ULTRA VIRES? No doubt the Court of Appeal considered that, had it been open to it to do so, the convenient course would have been to make an analogous declaration of incompatibility in relation to the 1975 Order. But it was not open to it to do so: for the order is subordinate legislation and it cannot be said, for the purposes of section 4(4)(b) of the 1998 Act, that the 1974 Act prevents removal of the incompatibility with article 8 rights to which its operation is capable of giving rise. The Secretaries of State contended before the Court of Appeal, as, albeit faintly, they contend before this court, that in the case of the 1975 Order, it is possible to read it and give effect to it in a way which is compatible with Convention rights. The contention is that article 4 of the 1975 Order, which releases certain prospective employers and other specified decision makers from the prohibition against acting in reliance on spent convictions and cautions, should be qualified by words such as save where this would violate the article 8 rights of any person. No doubt it is true that many of the specified employers (such as public hospitals and schools) and other decision makers are public authorities for whom it is unlawful to act incompatibly with Convention rights and who therefore have in any event to make the judgements thereby required. Nevertheless, as the Court of Appeal held, it would be unsatisfactory for each individual decision maker to be made the arbiter albeit perhaps only the initial arbiter of whether his proposed action would violate the rights of the person whom he has questioned. The 1975 Order is the responsibility of the Secretary of State for Justice. It is for him to devise a regime which is not capable of operating so as to violate rights under article 8 and the court should not lend itself to a construction which enables him to pass this buck to individual decision makers. So it was that the Court of Appeal exercised its discretion to grant a declaration that the 1975 Order was ultra vires. When is subordinate legislation ultra vires? A leading, relatively recent, example is Director of Public Prosecutions v Hutchinson [1990] 2 AC 783. The Secretary of State for Defence made a byelaw prohibiting all entry into designated land at Greenham Common without authority. His statutory authority for doing so was expressed not to extend to interference with any right of common. It turned out that there were 62 commoners who had rights to take gravel and wood from, and to graze animals on, part of the land which he had designated. So he had no power to prohibit entry in such unqualified terms. Then the question arose whether the byelaw could be severed so that its validity could be retained in respect of people who, like the appellants, were not commoners yet had entered the land. To this the House of Lords gave a negative answer. It held, at p 811, that the fact that the invalid feature of the byelaw could not be excised with a blue pen did not preclude severance. What precluded it was that, if the byelaw was so construed as to allow the 62 commoners to enter the land, the legislative purpose behind it would be undermined: p 813. By way of contrast the House cited with approval Dunkley v Evans [1981] 1 WLR 1522, in which the Minister of Agriculture had made an order prohibiting fishing for herring in designated waters. One per cent of the area which he designated was a stretch of water off Northern Ireland which he had no power to include in his designation. The respondents had been fishing for herring in the remaining 99% of the area. The Divisional Court held that the order was severable and that the respondents should have been convicted. These then, are examples of the classic situation in which the width of the subordinate legislation exceeds the contours expressed in the authority for it to be made. Sometimes the court decides that the operation of a piece of subordinate legislation has violated fundamental rights in circumstances in which the logic of the decision means that its operation will always violate fundamental rights. A good example is A v HM Treasury [2010] UKSC 2, [2010] 2 AC 534. By a subparagraph of an article of an order purportedly made pursuant to the United Nations Act 1946, the Treasury provided that any person listed by the Sanctions Committee of the United Nations, on the basis that he was associated with an organisation threatening international peace, was a designated person for the purposes of another order, which dramatically deprived him of access to financial resources. Two of the parties before the court had been so listed. The Supreme Court held that the absence in the order of a facility for them to mount a domestic challenge to the basis of their listing by the Sanctions Committee ran counter to their fundamental rights. The court therefore held that the subparagraph was ultra vires but that a judge had been wrong to declare the whole order to be ultra vires: paras 81 and 83 (Lord Hope) and para 241 (Lord Mance). It is easy to see that the vice of the order was not related to the particular circumstances of the two parties who had been listed: the rights of every person listed by the Sanctions Committee would be violated by the absence in the order of a facility for challenge. The conclusion about T in the present case is, however, of an entirely different character. It is that, in the light of the circumstances surrounding his receipt of the warnings, the requirement in the 1975 Order that he should disclose them to the college and its entitlement to act in reliance on them violated his rights under article 8. It cannot possibly be said that the operation of the order will always be such as to violate the rights of those required to make disclosure of spent convictions and cautions under it: for in some, perhaps many, cases the circumstances of the conviction or caution will not render its disclosure disproportionate to the objective behind the order. It is in the light of the above considerations that the Court of Appeals declaration that the entire 1975 Order was ultra vires falls to be assessed. Its effect was that the operation of the entire order always violated article 8 rights and therefore that all actions taken by questioners in reliance on disclosures made pursuant to it since 2 October 2000, when section 1 of the 1998 Act came into force, had been unlawful in that, not having been permitted by the 1974 Act, they had not been the subject of any valid exception under the order. The Financial Conduct Authority, for example, which intervenes in the appeals to this court, complains unanswerably that it was given no notice of the Court of Appeals intention to declare the order to be ultra vires and thus no opportunity to address it; and that only subsequently did it discover that the jurisdiction which it and its predecessor had long purported to exercise so as to withhold specified permissions and approvals in the discharge of its regulatory functions by reference to spent convictions and cautions had been declared non existent. The Financial Conduct Authority points out that, as a public authority, it must not act incompatibly with a Convention right; that its decisions are reviewable, including for alleged violation of Convention rights, by the Upper Tribunal (Tax and Chancery Chamber) pursuant to section 133 of the Financial Services and Markets Act 2000; and that the Court of Appeal did not find, and could not have found, that in its case the operation of the 1975 Order violated rights under article 8. But the effect of the declaration of ultra vires was still more astonishing: for, by a sidewind, its effect was to declare that the regime for the issue of certificates under the 1997 Act was also invalid. Application for a CRC and an ECRC can be made only if accompanied by a statement that it is required for the purposes of an exempted question: see para 11(c) above. An exempted question is a question to which exemption from protection arises under the 1975 Order: see para 11(d) above. If the order is ultra vires, there is no valid definition of an exempted question and it follows that no valid application for a CRC or for an ECRC can be made. In that about four million certificates are issued each year, the declaration raises the spectre of the unlawful issue of many millions of certificates. It follows that the Court of Appeals declaration of ultra vires in relation to the 1975 Order was, apart from anything else, entirely inconsistent with its declaration of incompatibility in relation to the 1997 Act. As noted in para 53 above, it was a fundamental feature of the declaration of incompatibility that it would not affect the validity or continuing operation of the 1997 Act. Yet the declaration of ultra vires had precisely that consequence. What was the source of the Court of Appeals jurisdiction to make the declaration that the 1975 Order was ultra vires? Section 8(1) of the 1998 Act provides that: In relation to any act of a public authority which the court finds is unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. So the subsection does not confer powers. It refers to existing powers and confirms their applicability to unlawful acts of public authorities. The existing power to make a declaration in proceedings for judicial review is to be found in section 31(2) of the Senior Courts Act 1981, which provides that: A declaration may be made under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to (a) (b) (c) it would be just and convenient for the declaration to be made all the circumstances of the case, In Attorney Generals Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, Lord Bingham suggested in para 24 that, in Convention terms, the words just and appropriate in section 8(1) above mean effective, just and proportionate. Although the notion of convenience has been applicable to the grant of discretionary remedies ever since 1925, it may no longer be helpful and in particular it may sound insufficiently demanding; and Lord Binghams Convention terms seem just as apt in extracting the meaning of the words just and convenient in section 31(2) above as they are in relation to the words in section 8(1). In my view the declaration of ultra vires was not just to all those who had been parties to the lawful operation of the order; was not appropriate; and on any view was not proportionate. It is therefore wrong for courts to assume that, where a persons human rights have been violated by the application of subordinate legislation in circumstances in which the application was not mandated by primary legislation, the appropriate remedy is always to declare the subordinate legislation to be ultra vires. It was nevertheless appropriate for the Court of Appeal to indicate in its judgment, as the Secretaries of State have recognised in introducing the 2013 amendments, that the interlocking character of the 1997 Act with the 1975 Order demanded that the requisite amendments to the former should broadly be reflected in the latter. So the question arises: should some other form of declaration in relation to the 1975 Order be substituted for that made by the Court of Appeal? Without affecting the validity of the order, might the court, for example, declare that the Secretary of State for Justice acted unlawfully between 2 October 2000 and 29 May 2013 in failing to cause it to be amended so as to render it compatible with article 8 of the Convention? I am grateful to Lord Reed for demonstrating at paras 148 and 149 that the answer is no. The obstruction lies in section 6(6)(a) of the 1998 Act which provides that a failure to lay before Parliament a proposal for legislation cannot amount to an unlawful act within the meaning of section 6(1). As Lord Reed points out, any order made by the Secretary of State by way of amendment of the 1975 Order is, by section 10(2) of the 1974 Act, made subject to approval by resolution of each House of Parliament so, speaking for myself, I am clear that the subject of the suggested declaration of unlawfulness would indeed be the Secretary of States failure to lay before Parliament a proposal for legislation and would thus be impermissible. The rationale behind section 6(6) of the 1998 Act is the thread, central to the whole Act, of respect for Parliamentary supremacy (see the speech of the Lord Chancellor, Lord Irvine of Lairg, in the House of Lords, 24 November 1997, vol.583, cols 814 5) but whether respect for Parliamentary supremacy truly requires protection to be given to the Secretary of State in circumstances such as the present is an interesting question. Lord Reed proceeds to conclude at para 157 that no judicial remedy in relation to the 1975 Order is necessary. I respectfully agree with the reasons which he gives for that conclusion. LORD REED If a person applies for a job, the employer is entitled under the common law to ask whatever questions of the applicant he considers relevant, and the applicant is obliged, if he chooses to answer them, to do so truthfully. If therefore he is asked about his criminal record, he can decline to answer the question, in which event he may of course not be considered further for the position. If he chooses to answer the question, however, he is under an obligation to do so truthfully. If he lies about his past, a resultant contract of employment will be regarded as having been induced by a fraudulent misrepresentation. If the deceit is discovered, the employer is in principle entitled to have the contract set aside. A person who obtained employment by means of deceit is also in principle liable to prosecution. The position of a person applying for appointment to certain offices, such as judicial office, or for admission to certain professions, such as accountancy or the legal profession, or for permission to carry on certain other regulated activities, such as providing financial services or operating a casino, is broadly analogous. At common law, the applicant may again be asked about his criminal record. If he chooses to answer the question, he is again under a duty to do so truthfully, and his failure to do so will expose him to the risk of adverse consequences under both the civil and the criminal law. The Rehabilitation of Offenders Act 1974 The common law position was altered significantly by the Rehabilitation of Offenders Act 1974 (the 1974 Act). This landmark measure, enacted following the report of a committee chaired by Lord Gardiner, Living it Down the Problem of Old Convictions (1972), was designed to facilitate the rehabilitation of offenders who have not been reconvicted of any serious offence for a period of years, and to penalise the unauthorised disclosure of their previous convictions. The provisions of the Act are complex, and have undergone repeated amendment. The central provision is section 4. Subsection (1) provides: Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid (a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and (b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto. Section 7 imposes limitations upon the effect of section 4(1) in a number of circumstances, so as to ensure for example that evidence of a persons criminal convictions continues to be admissible in criminal proceedings, and in subsection (4) provides the Secretary of State with the power to add to those circumstances: The Secretary of State may by order exclude the application of section 4(1) above in relation to any proceedings specified in the order (other than proceedings to which section 8 below applies) to such extent and for such purposes as may be so specified. Section 4(2) provides: Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority (a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and (b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question. Section 4(2) does not affect the rights of employers or others to ask questions about criminal convictions, but it alters the obligations and liabilities of persons to whom the questions are addressed, by requiring such questions to be treated as not relating to spent convictions, and by exempting such persons from any liability by reason of their failure to disclose such convictions. A person with a spent conviction is therefore entitled to treat a question about his criminal record as not relating to spent convictions; and he cannot incur any civil or criminal liability if he answers the question on that basis. Section 4(3) provides: Subject to the provisions of any order made under subsection (4) below, (a) any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent conviction or any circumstances ancillary to a spent conviction (whether the conviction is his own or another's); and (b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment. Section 4(3) deals with the situation where no question is asked, but where an obligation to disclose criminal convictions arises for some other reason. In that situation too, such an obligation is not to extend to spent convictions, and neither the spent conviction nor the failure to disclose it is to be a proper ground for dismissing or excluding the person from (read short) any occupation or employment. Section 4(4) enables exceptions to be made to the general principles set out in section 4(2) and (3): The Secretary of State may by order (a) make such provision as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order; (b) provide for such exceptions from the provisions of subsection (3) above as seem to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order. The operation of section 4(2) and (3) is therefore subject to any order made under section 4(4), and it also depends of course upon the provisions defining the circumstances in which convictions become spent. As originally enacted, the 1974 Act was silent on the subject of cautions, and the equivalent warnings and reprimands given to offenders under the age of 18. The Act was however amended with effect from 19 December 2008 by the Criminal Justice and Immigration Act 2008, so as to enable cautions, warnings, and reprimands to become spent. In what follows, I shall refer generally to cautions as including each of these disposals, unless I wish to refer specifically to warnings. The relevant provisions are set out in Schedule 2 to the Act, as added by paragraph 6 of Schedule 10 to the 2008 Act, and in subordinate legislation. They are broadly analogous in structure to those applicable to convictions, subject to the qualification that a caution (other than a conditional caution) becomes spent at the time it is given. In particular, paragraphs 3(1), 3(3), 3(4) and 3(5) of Schedule 2 correspond to sections 4(1), 4(2), 4(3)(a) and 4(3)(b) respectively; paragraph 4 of Schedule 2 corresponds to section 4(4); and paragraph 6(4) of Schedule 2 corresponds to section 7(4). The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 As I have explained, sections 4(4) and 7(4) of the 1974 Act confer a power upon the Secretary of State to make exceptions to the general principles laid down in section 4(1), (2) and (3). That power was exercised when the Secretary of State made the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) (the 1975 Order), which came into force on the same day as the Act. The Order has undergone repeated amendment, but the general scheme has remained the same. For present purposes, the relevant version of the Order is as it stood prior to amendment by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) (the 2013 Order). The substantive provisions of the Order begin with article 3, which excludes the application of section 4(2) of the Act, and paragraph 3(3) of Schedule 2 to the Act, to questions asked in a number of specified circumstances. These include admission to a number of specified professions, appointment to certain offices and employments, and working with children or in circumstances raising issues of national security. Article 3A of the 1975 Order, added by article 3 of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2010 (SI 2010/1153), excludes the application of section 4(2) of the Act, and paragraph 3(3) of Schedule 2 to the Act, in two particular situations. Put shortly, the first is where it is necessary to assess the suitability of a person for work with children, and that person is barred from regulated activity relating to children, or is included in the list kept under the Protection of Children Act 1999, or is subject to a direction made under section 142 of the Education Act 2002. The second situation is the analogous situation relating to work with vulnerable adults, where the person is barred from regulated activity relating to vulnerable adults or is included in the list kept under the Care Standards Act 2000. Article 4 of the 1975 Order excludes the application of section 4(3)(b) of the 1974 Act, and paragraph 3(5) of Schedule 2 to the Act, to professions, offices and employments falling within the scope of article 3. Article 4A of the Order, added by article 3 of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012 (SI 2012/1957), excludes the application of sections 4(2) and (3) specifically in relation to the election of police and crime commissioners. Article 5 of the Order excludes the application of section 4(1) of the Act, and paragraph 3(1) of Schedule 2 to the Act, in relation to particular proceedings, such as disciplinary proceedings in respect of members of the professions falling within the scope of article 3. Finally, article 6 of the Order deals specifically with offices and employments in the Channel Islands and the Isle of Man. The Police Act 1997 Part V of the Police Act 1997 (the 1997 Act) created a statutory scheme for the disclosure of criminal records and, in limited circumstances, other information held by the police relating to individuals, where required in order to assess the suitability of a person for employment in particular types of position of trust or sensitivity, such as those involving contact with children, or suitability for the grant of particular types of licence or permit, such as gaming, betting and lottery licences. In particular, sections 113A and 113B (inserted by section 163(2) of the Serious Organised Crime and Police Act 2005) have the practical effect of enabling employers and regulatory bodies to obtain access to such records and information when considering applications falling within the scope of the 1975 Order. The application for a criminal record certificate (or, under section 113B, for an enhanced criminal record certificate) must be made to the Disclosure and Barring Service (DBS) by the individual to whom the certificate relates. It must be accompanied by a statement by the prospective employer or regulatory body that the certificate is required for the purposes of an exempted question: that is to say, a question in relation to which section 4(2) of the 1974 Act, or paragraph 3(3) or (4) of Schedule 2 to the Act, has been excluded by an order made under section 4(4) of the Act. In consequence, the circumstances must fall within the scope of articles 3, 3A or 4A of the 1975 Order. In such a situation, disclosure is made under section 113A of every relevant matter recorded on the Police National Computer. Under section 113A as it stood at the relevant time, prior to its amendment by the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200), a relevant matter was any conviction or caution, whether spent or not, other than a disregarded caution within the meaning of Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 (which is concerned with sexual offences committed upon a consenting adult). Section 113B provides for the disclosure of additional information where it is required for the purpose of an exempted question which is asked for a prescribed purpose. Such purposes include considering the suitability of a person to engage in a regulated activity relating to children or vulnerable adults, as defined in legislation. In that situation, in addition to the information which would be disclosed under section 113A, disclosure is also made under section 113B(4) of any information held on local police records which the chief officer of the relevant police force reasonably believes to be relevant, and which in his opinion ought to be included in the certificate. In exercising these functions, the chief officer is required to have regard to guidance published by the Secretary of State. The process of obtaining a criminal record certificate is thus initiated by the person to whom it relates. He applies for the certificate because he wishes to obtain an employment, or some form of permit or licence to carry on an activity, which involves such a degree of trust, or is of such sensitivity, as to have been excluded from the general regime for the rehabilitation of offenders laid down in the 1974 Act. In practice, without the certificate he will not be able to obtain the employment or licence in question, since the employer or regulatory authority is likely to insist upon it. The certificate will only be seen by the applicant and by the employer or authority to which he produces it: it is an offence for the latter to make further disclosure of the certificate, under section 124. Provision is made in section 117 for the applicant to be able to challenge the inclusion of information in an enhanced criminal record certificate. Provision is made in section 119B, inserted by section 28 of the Safeguarding Vulnerable Groups Act 2006, for the independent monitoring of the operation of section 113B(4), so as to ensure compliance with article 8 of the Convention. It follows that the relevant provisions of the 1997 Act are different in nature from the 1974 Act and the 1975 Order. The 1974 Act innovates upon the common law in relation to the rights and obligations of employers and persons seeking employment (and, in an analogous manner, in relation to those of persons seeking to be admitted to some office or to be permitted to carry on some activity, and the persons responsible for controlling admission to such offices or the right to carry on such activities). The 1975 Order limits the effect of the 1974 Act, and in consequence preserves the common law position in relation to the employments, offices and activities falling within its scope. Part V of the 1997 Act as amended, and in particular sections 113A and 113B, are on the other hand concerned with the disclosure by the DBS of the criminal records of individuals which are held on the Police National Computer and, where section 113B applies, of additional information held in local police records. There are however both legal and practical connections between the provisions of the 1997 Act and the 1975 Order. Sections 113A and 113B of the 1997 Act are legally dependent upon the 1975 Order, in that the information disclosed under those sections must be required for the purposes of a question falling within the ambit of the 1975 Order. But the converse is not true: the amendment or repeal of sections 113A and 113B would have no effect upon the legal status of the 1975 Order, which was in force for more than 20 years before the 1997 Act was enacted. The amendment or repeal of those sections would nevertheless affect the practical working of the 1975 Order, to the extent that, in circumstances falling within their scope, disclosure under those sections provides a means of obtaining information which might otherwise be obtained from the individual by virtue of the 1975 Order. Since it provides a means of obtaining information which is independent of the individual and potentially more reliable, the effect of the 1997 Act is to improve the effectiveness of the vetting of potential employees by employers and others who come within its scope. Personal data and the Convention The United Kingdom has never had a secret police or internal intelligence agency comparable to those that have existed in some other European countries, the East German Stasi being a well known example. There has however been growing concern in recent times about surveillance and the collection and use of personal data by the state. Some might argue that the grounds for such concern are illustrated in the present case by the information that about four million criminal record certificates are provided annually under Part V of the 1997 Act. But such concern on this side of the Channel might be said to have arisen later, and to be less acutely felt, than in many other European countries, where for reasons of history there has been a more vigilant attitude towards state surveillance. That concern and vigilance are reflected in the jurisprudence of the European Court of Human Rights in relation to the collection, storage and use by the state of personal data. The protection offered by the common law in this area has, by comparison, been of a limited nature. The contrast is exemplified by the judgments in Malone v Metropolitan Police Commissioner [1979] Ch 344 and Malone v United Kingdom (1984) 7 EHRR 14. The higher level of concern elsewhere in Europe is reflected in the repeated condemnation by the European court of the law of this country in this area, often on the basis that the law contains no adequate safeguards, in such cases as Malone v United Kingdom (1984) 7 EHRR 14, Halford v United Kingdom (1997) 24 EHRR 523, Khan v United Kingdom (2000) 31 EHRR 1016, Peck v United Kingdom (2003) 36 EHRR 719, Copland v United Kingdom (2007) 45 EHRR 858, S v United Kingdom (2008) 48 EHRR 1169 and Kennedy v United Kingdom (2010) 52 EHRR 207. Although there is a relationship between the disclosure of criminal records and the rehabilitation of offenders, the retention and use by the state of data relating to individuals, including data relating to their criminal records, therefore raise different issues under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) from the question whether employers and regulatory authorities are entitled to ask applicants for employment or a licence about their past histories. Part V of the 1997 Act is accordingly best considered separately from the 1975 Order. I shall consider the aspect of the present appeals relating to the 1997 Act before turning to the aspect concerning the 1975 Order. Domestic case law and the judgments of the European Court of Human Rights Under article 1 of the Convention, the member states undertake to secure to everyone within their jurisdiction the rights and freedoms defined in Section I. Those include the right set out in article 8, which provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. There is a substantial body of judgments of the European court concerned with the effect of article 8 in relation to the retention and use by the state of personal data. As I have indicated, many of the judgments concern the United Kingdom. The issue has also been considered by the courts of this country, but none of the domestic judgments cited to us fully reflects the Strasbourg courts approach to the application of article 8 in this context, or appears to me to provide an answer to the present appeals. In particular, although the judgments of Lord Hope and Lord Neuberger in R (L) v Comr of Police for the Metropolis (Secretary of State for the Home Department intervening) [2009] UKSC 3; [2010] 1 AC 410 contain much that is valuable in relation to the applicability of article 8 in the present context and, as I shall explain, passages from the judgments were subsequently incorporated by the Strasbourg court into its own reasoning on that point they are of less assistance in relation to the application of article 8(2) in the circumstances of the present appeals. In the first place, the court was concerned in that case only with the disclosure of information under the then equivalent of section 113B(4) of the 1997 Act: that is to say, the additional information contained in an enhanced criminal record certificate. That issue does not arise on the facts of the present appeals. Secondly, and more importantly, the court did not approach the question of justification under article 8(2) in the way in which it would be addressed by the European court. As Lord Hope explained at para 41, there was no suggestion in that case that the relevant legislation contravened article 8: the argument focused upon whether it had been interpreted and applied in a way that was proportionate. Following the common law conception of the judicial function, the court dealt with the appeal on the basis of the arguments presented to it. As I shall explain, the European courts consideration of article 8(2) in this context begins by addressing the question whether the interference with the right protected by article 8 is in accordance with the law; and it often ends there. It ended there, in particular, in a carefully considered judgment of the Strasbourg court, which I shall discuss shortly, that addressed the very point in issue in these appeals in relation to the 1997 Act. Rotaru v Romania Although the Strasbourg jurisprudence in this area goes back more than 30 years, a suitable starting point is the judgment of the Grand Chamber in Rotaru v Romania (2000) 8 BHRC 449, in which the court considered the storage and disclosure of a criminal record. The applicant in the case complained about the disclosure by the security services of the contents of a file containing information about him, and his inability to have inaccuracies in the information corrected. It was argued by the government that article 8 was not applicable, since the information in question, which included information about the applicants political activities and his criminal record, related not to his private life but to his public life. That contention was rejected. As in its earlier case law, the court began by emphasising the correspondence between its broad interpretation of private life and that adopted in the Council of Europes Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985, and of which the UK is a signatory (the 1981 Convention). The purpose of the 1981 Convention is to secure for every individual respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (article 1), such personal data being defined in article 2 as any information relating to an identified or identifiable individual. Article 5 requires that personal data undergoing automatic processing shall be, inter alia, stored for specified and legitimate purposes and not used in a way incompatible with those purposes, adequate, relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. Article 6 provides that special categories of data, including personal data relating to criminal convictions, may not be processed automatically unless domestic law provides appropriate safeguards. In relation to this aspect of the case, the court stated at paras 43 44: 43. public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past. 44. In the instant case the court notes that the [letter containing the disclosure] contained various pieces of information about the applicant's life, in particular his studies, his political activities and his criminal record, some of which had been gathered more than 50 years earlier. In the court's opinion, such information, when systematically collected and stored in a file held by agents of the state, falls within the scope of private life for the purposes of article 8(1) of the Convention. As to whether there had been an interference with the right protected by article 8, the court stated at para 46 that both the storing by a public authority of information relating to an individuals private life and the use of it and the refusal to allow for an opportunity for it to be refuted amount to interference with the right to respect for private life secured in article 8(1) of the Convention. In considering whether the interference was justifiable under article 8(2), the court stated at para 47 that that paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be interpreted narrowly. As in many of its earlier judgments in this area, including the Grand Chamber judgment given earlier that year in the case of Amman v Switzerland (2000) 30 EHRR 843, the court held that the holding and use of the information in question had not been in accordance with the law, as required by article 8(2), because of the absence from the relevant national legislation of adequate protection against arbitrary interference. In that regard, the court based its decision upon a number of aspects of the legislation, including the absence of a definition of the kind of information that might be recorded, and the absence of limits as to the age of the information held or the length of time for which it might be kept. MM v United Kingdom This approach was followed in the case of MM v United Kingdom (Application No 24029/07) (unreported) given 13 November 2012, which concerned the disclosure of a caution which the applicant had received for child abduction. Disclosures had been made by the police to organisations to which the applicant had applied for employment as a family support worker. The disclosures occurred in Northern Ireland, prior to the entry into force there of the relevant provisions of the 1997 Act, and were made under common law powers. The European court however treated the complaint as encompassing the continuing threat of future disclosure under sections 113A and 113B of the 1997 Act as amended, the terms of which were for all material purposes indistinguishable from the version with which the present appeals are concerned. As the court observed, the data in question would be retained for life, and would be disclosed under the 1997 Act whenever the applicant applied for employment falling within its scope. It was therefore clear that for as long as her data are retained and capable of being disclosed, she remains a victim of any potential violation of article 8 arising from retention or disclosure (para 159). The judgment is therefore directly relevant to the present appeals. As in Rotaru, the court referred to the 1981 Convention, citing articles 5 and 6. It also referred to a number of other relevant Council of Europe and EU instruments. In particular, it considered in detail Recommendation No R (87) 15 regulating the use of personal data in the police sector, adopted by the Committee of Ministers on 17 September 1987 in the context of an approach to data protection intended to adapt the principles of the 1981 Convention to the requirements of particular sectors. The Recommendation does not have the same status as the 1981 Convention, but sets out principles to serve as guidance to the governments of the member states in their domestic law and practice. Principle 2 concerns the collection of data and states: 2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation. the background The Explanatory Memorandum setting out the to Recommendations adoption states that Principle 2.1 excludes an "open ended, indiscriminate" collection of data by the police (paragraph 43). Principle 5 of the Recommendation deals with communication of police data. Principle 5.2 states: 5.2.i Communication of data to other public bodies should only be permissible if, in a particular case: a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of communicating body are not contrary to this. the 5.2.ii Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case: b. the communication is necessary so as to prevent a serious and imminent danger. Principle 5.3 makes analogous provision in relation to communication to private parties. The Explanatory Memorandum stresses that Principles 5.2 and 5.3 allow communication only in circumstances of an exceptional nature (paragraph 58). Principle 7 deals with length of storage and updating of data. Principle 7.1 requires measures to be taken to delete personal data kept for police purposes if they are no longer necessary for the purposes for which they are stored. In that regard, it requires consideration to be given to a number of criteria, including rehabilitation, spent convictions and the age of the data subject. The Explanatory Memorandum states that it is essential that periodic reviews of police files are undertaken to ensure that they are purged of superfluous data (paragraph 96). In its assessment of the merits of the application, the court reiterated that both the storing of information relating to an individuals private life and the release of such information come within the scope of article 8(1), that even public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities, and that this is all the more true where the information concerns a persons distant past (para 187). In particular, data relating to the applicants caution related to her private life, and their disclosure constituted an interference with her private life. In reaching that conclusion, the court noted that the data constituted both personal data and sensitive personal data within the meaning of the Data Protection Act 1998, and also fell within a special category of data under the 1981 Convention. Further, the data formed part of the applicants criminal record: In this regard the court, like Lord Hope in R (L) v Comr of Police for the Metropolis (Secretary of State for the Home Department intervening) [2009] UKSC 3; [2010] 1 AC 410 [at para 27], emphasises that although data contained in the criminal record are, in one sense, public information, their systematic storing in central records means that they are available for disclosure long after the event when everyone other than the person concerned is likely to have forgotten about it, and all the more so where, as in the present case, the caution has occurred in private. Thus as the conviction or caution itself recedes into the past, it becomes a part of the persons private life which must be respected. (para 188) The court rejected the Governments contention that it was material that disclosure was made to the applicant herself, on her own application: The court notes and agrees with the comments of Lords Hope and Neuberger in R (L) [at paras 43 and 73], to the effect that the fact that disclosure follows upon a request by the data subject or with her consent is no answer to concerns regarding the compatibility of disclosure with article 8 of the Convention. Individuals have no real choice if an employer in their chosen profession insists, and is entitled to do so, on disclosure. (para 189) In considering whether the interference was justified under article 8(2), the court focused initially upon the question whether the interference was in accordance with the law. In order to satisfy that test, the domestic law had to be compatible with the rule of law, and therefore must afford adequate legal protection against arbitrariness (para 193). In particular, following the approach adopted by the Grand Chamber in such cases as Amman v Switzerland, Rotaru v Romania and Bykov v Russia (Application No 4378/02) (unreported) given 10 March 2009, the court considered it essential in the context of the recording and communication of criminal record data, as in relation to telephone tapping, secret surveillance and covert intelligence gathering, to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness (para 195). In that regard, the court drew attention to Principles 2.1, 5 and 7 of Recommendation No R (87) 15. The court acknowledged that there might be a need for a comprehensive record of all cautions, convictions and other information of the nature disclosed under section 113B of the 1997 Act. But it observed that the indiscriminate and open ended collection of criminal record data was unlikely to comply with the requirements of article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data could be collected, the duration of their storage, the use to which they could be put and the circumstances in which they might be destroyed (para 199). The court referred in that connection to passages in the judgments of Lord Hope and Lord Neuberger in R (L) as demonstrating the wide reach of the legislation requiring disclosure and the impact of an adverse certificate upon the hopes of a person who aspires to any post which falls within the scope of disclosure requirements. In relation to the possibility of future disclosure of the applicants caution, the court stated: Pursuant to the legislation now in place, caution data contained in central records, including where applicable information on spent cautions, must be disclosed in the context of a standard or enhanced criminal record check. No distinction is made based on the seriousness or the circumstances of the offence, the time which has elapsed since the offence was committed and whether the caution is spent. In short, there appears to be no scope for the exercise of any discretion in the disclosure exercise. Nor, as a consequence of the mandatory nature of the disclosure, is there any provision for the making of prior representations by the data subject to prevent the data being disclosed either generally or in a specific case. The applicable legislation does not allow for any assessment at any stage in the disclosure process of the relevance of conviction or caution data held in central records to the employment sought, or of the extent to which the data subject may be perceived as continuing to pose a risk such that the disclosure of the data to the employer is justified. (para 204) The court concluded: 206. In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. 207. The cumulative effect of these shortcomings is that the court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicants private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicants caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of article 8 of the Convention in the present case. This conclusion obviates the need for the court to determine whether the interference was necessary in a democratic society for one of the aims enumerated therein. In the present case, counsel for the Secretaries of State were critical of the reasoning of this judgment. Lord Wilson adopts some of their criticisms. I take a different view. The approach adopted by the court in MM appears to me to have been based on its settled case law. As long ago as 1984, the court said in Malone v United Kingdom (1984) 7 EHRR 14, in the context of surveillance measures, that the phrase in accordance with the law implies that the law must give the individual adequate protection against arbitrary interference (para 68). In Kopp v Switzerland (1998) 27 EHRR 91, para 72, it stated that since the surveillance constituted a serious interference with private life and correspondence, it must be based on a law that was particularly precise: It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated. These statements were reiterated in Amman v Switzerland 30 EHRR 843. As I have explained, that approach to the question whether the measure provides sufficient protection against arbitrary interference was applied, in the context of criminal records and other intelligence, in Rotaru v Romania, where the finding that the interference was not in accordance with the law was based upon the absence from the national law of adequate safeguards. The condemnation of Part V of the 1997 Act in MM v United Kingdom is based on an application of the same approach. Put shortly, legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with article 8 rights. This issue may appear to overlap with the question whether the interference is necessary in a democratic society: a question which requires an assessment of the proportionality of the interference. These two issues are indeed inter linked, as I shall explain, but their focus is different. Determination of whether the collection and use by the state of personal data was necessary in a particular case involves an assessment of the relevancy and sufficiency of the reasons given by the national authorities. In making that assessment, in a context where the aim pursued is likely to be the protection of national security or public safety, or the prevention of disorder or crime, the court allows a margin of appreciation to the national authorities, recognising that they are often in the best position to determine the necessity for the interference. As I have explained, the courts focus tends to be upon whether there were adequate safeguards against abuse, since the existence of such safeguards should ensure that the national authorities have addressed the issue of the necessity for the interference in a manner which is capable of satisfying the requirements of the Convention. In other words, in order for the interference to be in accordance with the law, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question. The criticism that the court in MM did not allow for any margin of appreciation is therefore misplaced. Whether a system provides adequate safeguards against arbitrary treatment, and is therefore in accordance with the law within the meaning of the Convention, is not a question of proportionality, and is therefore not a matter in relation to which the court allows national authorities a margin of appreciation. The criticism that the court reached its conclusion in MM on a basis that had not been argued by the applicant reflects assumptions about the judicial role that do not hold good across the English Channel. In Strasbourg, the civilian principle jura novit curia applies: the court indeed referred to the principle in its judgment. This was by no means the first occasion on which the court had found a violation on a basis which the applicant had not raised: the court gave some other examples at para 150 of the judgment. The present case the 1997 Act The respondent T received two warnings from the police in 2002, when he was 11 years old, in respect of the theft of two bicycles. He has no other criminal record. The warnings were disclosed under Part V of the 1997 Act in 2008, when he applied for a part time job with a football club which might involve contact with children. They were disclosed again in 2010, when he applied for a place on a sports studies course, which again might involve contact with children. Under the legislation as it then stood, they were bound to be disclosed throughout the rest of his life, whenever he made an application falling within the ambit of Part V of the 1997 Act. The respondent JB received a caution from the police in 2001, when she was 41years old, in respect of the theft from a shop of a packet of false fingernails. She has no other criminal record. The caution was disclosed under Part V of the 1997 Act in 2009, when she completed a training course for employment in the care sector and was required by the training organsiation to obtain a criminal record certificate. The organisation told her that it felt unable to put her forward for employment in the care sector. In the light of the judgment in MM v United Kingdom, it is plain that the disclosure of the data relating to the respondents cautions is an interference with the right protected by article 8(1). The legislation governing the disclosure of the data, in the version with which these appeals are concerned, is indistinguishable from the version of Part V of the 1997 Act which was considered in MM. That judgment establishes, in my opinion persuasively, that the legislation fails to meet the requirements for disclosure to constitute an interference in accordance with the law. That is so, as the court explained in MM, because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data under section 113A. I would therefore dismiss the appeals of the Secretaries of State against the grant of declarations of incompatibility in respect of sections 113A and 113B of the 1997 Act. Although I have reached that conclusion on the basis that Part V of the 1997 Act (as it stood at the material time) fails to meet Convention requirements as to the quality of the law, I agree with Lord Wilson that the disclosure of the respondents cautions could not in any event be regarded as necessary in a democratic society. In the case of the respondent T, the disclosure of the warnings for dishonesty which had been given to him when he was a young child bore no rational relationship to the aim of protecting the safety of children with whom, as an adult, he might come into contact. In the case of the respondent JB, the impact upon her private life of the disclosure of her caution for minor dishonesty, many years earlier, was disproportionate to its likely benefit in achieving the objective of protecting people receiving care. The 1975 Order and the Convention: introduction The challenge made to the 1975 Order in these proceedings raises different issues from the challenge to the 1997 Act. Part V of the 1997 Act is concerned with the use by the state of data which it collects and stores, relating to the criminal records of individuals. The 1975 Order is on the other hand concerned largely with relationships between employers and potential employees, and has the effect, broadly speaking, that those relationships, in circumstances falling within the scope of the Order, remain governed by the common law of contract and tort. It is less immediately obvious why this should be regarded as an interference by the state with the right to respect for private life. Positive and negative obligations The primary argument advanced on behalf of the respondent T is that the effect of the 1975 Order, taken together with the common law, is to require applicants for employment of a kind falling within its scope, or for a licence to carry on a regulated activity falling within its scope, to make a full disclosure of their criminal records when asked about them by prospective employers or regulatory bodies, however old, trivial or irrelevant a conviction or caution may be. The 1975 Order is therefore, it is argued, an unjustifiable interference by the state with the applicants right to respect for his private life under article 8. Counsel for the Secretaries of State submit that the respondents argument amounts to an assertion that article 8 imposes a positive obligation upon contracting states to enact legislation establishing a scheme which excuses applicants for employment from any obligation to provide information to employers about their criminal records, except to the extent that an obligation to provide specific information may be proportionate in the particular circumstances. This question of classification should not inhibit the court from considering the challenge to the 1975 Order and, if it is valid, granting an appropriate remedy. Even if the respondents argument is correctly characterised as involving the assertion of a positive obligation on the part of the state, that does not mean that it is necessarily ill founded. The European court has said repeatedly that, although the purpose of article 8 is essentially to protect the individual against arbitrary interference by public authorities, it does not merely compel the state to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals: see, amongst many other authorities, the courts recent judgment in Wgrzynowski and Smolczewski v Poland (Application No 33846/07) (unreported) given 16 July 2013, para 54. The court developed the concept of the positive obligation precisely to express the principle that the state cannot fulfil its duty under article 1 of the Convention to secure the rights guaranteed by simply remaining passive: it must, for example, ensure through its legal system the protection of those whose lives are at risk, the recognition of novel forms of family relationship, and the prevention of undue media intrusion into the private lives of individuals. Furthermore, as the European court has often said, the boundary between the state's positive and negative obligations under article 8 does not lend itself to precise definition. There are many situations which could be analysed on either basis, particularly where the complaint concerns a defect in a states existing law. In such a situation (as, for example, in the series of cases concerning the failure of the United Kingdom to amend its law so as to recognise the change of gender of transsexual people), a negative/positive dichotomy is unhelpful, since the situation can be analysed either on the basis that the existing law results in a breach of a negative obligation not to interfere with the relevant Convention right, or on the basis that the state is in breach of a positive obligation to adapt its law so as to comply with the Convention right. The mode of analysis selected can hardly determine the outcome of the complaint. I doubt therefore whether there is much value in debating whether the argument advanced on behalf of T is more aptly regarded as involving a positive or a negative obligation. The complaint about the 1975 Order can be analysed either as concerning a violation resulting from the existing law (ie the common law, to the extent that it is excluded from the ambit of the 1974 Act by the 1975 Order), and therefore as involving the breach of a negative obligation, or as concerning a violation resulting from the states failure to extend more widely the scope of the 1974 Act, and therefore as involving the breach of a positive obligation. The real issue, however it is presented, is whether the obligation imposed upon T by the law of the United Kingdom to disclose to any potential employer in his chosen career, for the remainder of his life, the fact that he had received two warnings for stealing a bicycle when he was a child of 11, or otherwise lose the opportunity of being employed, involves an interference with his right to private life which is unjustifiable under article 8(2). Relevant international instruments The search for common standards, whether evidenced by international instruments or by national laws and practices, is a constant thread running through the case law of the European court. By anchoring developments in its jurisprudence to developments at the national or international level, the court seeks to ensure that it keeps pace with societal developments. I shall therefore begin by considering relevant developments at the international level. There is no doubt that the importance attached to the rehabilitation of offenders in a variety of international instruments can be a relevant consideration in the application of the Convention. For example, in its judgment in MM v United Kingdom the court referred at para 142 to Recommendation No R (84) 10 on the criminal record and rehabilitation of convicted persons, adopted by the Committee of Ministers on 21 June 1984. The document sets out measures which the governments of the member states are recommended to introduce where necessary. In particular, recommendation 1 is to provide that the information mentioned on the criminal record will be communicated only in the form of extracts whose content will be strictly limited to the legitimate interest of the recipients. That recommendation reflects the view, expressed in the preamble to the document, that the disclosure of criminal records outside the context of criminal proceedings may jeopardise the convicted person's chances of social reintegration, and should therefore be restricted to the utmost. Other recommendations include to provide for an automatic rehabilitation after a reasonably short period of time (recommendation 10) and to provide that rehabilitation implies prohibition of any reference to the convictions of a rehabilitated person except on compelling grounds provided for in national law (recommendation 13). In its judgment in V v United Kingdom (1999) 30 EHRR 121 the court also referred to Recommendation R (87) 20 on social reactions to juvenile delinquency, adopted by the Committee of Ministers on 17 September 1987. The document recommends the governments of member states to review, if necessary, their legislation and practice with a view: 10. to ensuring that the entries of decisions relating to minors in the police records are treated as confidential and only communicated to the judicial authorities or equivalent authorities and that these entries are not used after the persons concerned come of age, except on compelling grounds provided for in national law. There are a number of other international instruments which are also relevant to the rehabilitation of juvenile offenders, and which the court has referred to in its case law. First, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), adopted by the United Nations General Assembly on 29 November 1985, contain a number of relevant provisions. Rule 21, concerned with records, provides: 21.1 Records of juvenile offenders shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the case at hand or other duly authorized persons. 21.2 Records of juvenile offenders shall not be used in adult proceedings in subsequent cases involving the same offender. These Rules are not binding in international law: in the Preamble, states are invited, but not required, to adopt them. The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the contracting states, including all of the member states of the Council of Europe. Article 40 provides: 1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. Finally, in this connection, the International Covenant on Civil and Political Rights 1966 provides in article 14(4), which broadly corresponds to article 6 of the European Convention, that: In the case of juvenile persons, the procedure shall be such as will take account of their age, and the desirability of promoting their rehabilitation. Some of these instruments are of greater significance than others in the present context, but they are consistent in their emphasis upon the importance attached to the rehabilitation of minor and juvenile offenders, and to the confidentiality of their criminal records as an aid to promoting their rehabilitation. In particular, recommendations 10 and 13 of Recommendation No R (84) 10, recommendation 10 of Recommendation R (87) 20, and rule 21 of the Beijing Rules, are directly relevant to the present context. That a person should in practice be required throughout his adult life to disclose the fact that he committed a minor offence as a juvenile, if he wishes to pursue a wide range of careers, is difficult to reconcile with these provisions, in the absence of what recommendation 10 of Recommendation R (87) 20 describes as compelling grounds. The laws of the member states When considering what the position might be under the Convention, it is also relevant to consider whether there is or is not a consensus across the member states: as the European court has often said, where no consensus exists, the margin of appreciation afforded to states is generally a wide one. No comparative analysis was however presented by any of the parties to the appeals. Although a certain amount of information is readily available, notably in the Home Office report, Breaking the Circle a Report of the Review of the Rehabilitation of Offenders Act (2002), the Report of the Irish Law Reform Commission on Spent Convictions, LRC 84 2007 (2007), and the report published by KPMG, Disclosure of Records in Overseas Jurisdictions (2009), it would not be appropriate to draw firm conclusions from it in the absence of submissions. The reports that I have mentioned indicate that a survey would probably be of limited assistance in any event, since almost all the other member states do not have legislation equivalent to the 1974 Act, but address the issue of rehabilitation in other ways, such as provisions in their constitution or civil code which prohibit unjustified discrimination against ex offenders. The reports focus upon the vetting of potential employees on the basis of criminal record certificates. In that context, there appears to be a widely held view that the disclosure of information about a minor conviction of a juvenile offender, after he has become an adult, is not appropriate. That is consistent with the international instruments to which I have referred. It is relevant to note that a child of 11 would not be regarded as criminally responsible in most of the member states. The present case the 1975 Order No judgment or decision of the European Court of Human Rights, or of the European Commission on Human Rights, has been cited to this court relating to legislation (or the absence of legislation) analogous to the 1974 Act, or the exceptions made to it by the 1975 Order: that is to say, legislation relating to the right of employers to require information from applicants for employment about their criminal records, or the obligation of such applicants to provide the information requested. That does not however prevent this court from reaching its own view on the compatibility of the 1975 Order with the Convention rights protected by the Human Rights Act 1998, if the relevant principles are sufficiently clear. It seems to me to be reasonably clear that laws requiring a person to disclose his previous convictions or cautions to a potential employer constitute an interference with the right to respect for private life, protected by article 8. Whereas the European court laid particular emphasis, when considering Part V of the 1997 Act in MM v United Kingdom, upon the interference constituted by the states disclosure of personal data which it had collected and stored, that issue does not arise directly in relation to the disclosure by a person of information retained in his own memory. On the other hand, the same issue arises out of the private aspect of a persons personal history, especially as it fades into the past and becomes forgotten by the world at large. It is also important to remember that article 8 protects the right to personal development, and the right to establish and develop relationships with other human beings, including relationships at work. As the court has said, it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world (Niemitz v Germany (1992) 16 EHRR 97, para 29). Viewed in that way, laws which have the effect of jeopardising a persons ability to pursue his chosen career, or which in practice close off to him a wide range of potential employments, must be regarded as interfering with his private life: see, for example, Sidabras v Lithuania (2004) 42 EHRR 104. The fact that the relevant laws do not, strictly speaking, require an ex offender to disclose his criminal record, since he can avoid doing so by refraining from applying for jobs in the relevant sectors or by abandoning such an application when the inevitable question is asked, is no answer to these points. The question then arises whether the interference with the right to respect for private life resulting from the 1975 Order is justifiable under article 8(2). This question can in my view be addressed most conveniently by considering in the first place whether the interference resulting from the Order, in a case such as that of the respondent T, has a legitimate aim and is necessary in a democratic society. As I shall explain, that question admits of a clear answer. The question whether the interference is in accordance with the law appears to me to be less straightforward, and it is unnecessary to answer it. The conclusion reached in relation to the 1997 Act cannot automatically be extended to the 1975 Order, since the question whether the domestic law affords adequate safeguards against abuse must be judged by reference to the degree of intrusiveness of the interference being considered. As I have explained, particularly strict standards apply in relation to the collection, storage and use by the state of personal data, as under Part V of the 1997 Act. It may be arguable that the requirements in the context of the 1975 Order are somewhat less stringent, as the particularly sensitive element of the use by the state of personal data is absent. Focusing then on the questions of legitimate aim and necessity in a democratic society, there is undoubtedly a public interest in ensuring the suitability of applicants for certain positions, including those involving the supervision or care of children or vulnerable adults, and those which are of particular sensitivity, such as positions connected with the administration of justice. In principle, measures designed to facilitate the vetting of applicants for such positions fall within the scope of one or more of the legitimate aims listed in article 8(2), namely in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. I cannot however see any rational connection between minor dishonesty as a child and the question whether, as an adult, the person might pose a threat to the safety of children with whom he came into contact. There is therefore no rational connection between the interference with article 8 rights which results from the requirement that a person disclose warnings received for minor dishonesty as a child, and the aim of ensuring the suitability of such a person, as an adult, for positions involving contact with children, let alone his suitability, for the remainder of his life, for the entire range of activities covered by the 1975 Order. It can only be concluded that the interference in issue in this case was not necessary in a democratic society to attain the aim of protecting the safety of children. Remedy I have already explained that the Court of Appeal was correct to make the declaration of incompatibility which it made in relation to the 1997 Act. The position in relation to the 1975 Order appears to me to be less straightforward. The Human Rights Act 1998 makes express provision for two distinct types of remedy to be given. Under section 4, the court can grant a declaration of incompatibility in circumstances falling within the scope of that section. Under section 8, the court can grant a remedy in relation to an act of a public authority which it finds is unlawful under section 6(1). Considering first the possibility of a remedy under section 8, the application of the 1975 Order to a particular person is not an act of the Secretary of State. The Order forms part of the law of the land governing the obligations inter se of (amongst others) employers and applicants for employment. Its operation, and in particular the resultant obligation of an applicant for employment to answer questions about his past history, does not depend upon any action on the part of the Secretary of State. The question then arises whether the making of the 1975 Order was an unlawful act of the Secretary of State within the meaning of section 6(1). The answer would appear to be that it was not. Subject to an exception created by section 22(4), which has no application in these proceedings, none of the operative provisions of the Act is retroactive: Wilson v First County Trust (No 2) [2003] UKHL 40; [2004] 1 AC 816, para 212. Could it however be said that the Secretary of State acted unlawfully by failing to amend the 1975 Order, following the entry into force of the Human Rights Act, so as to establish a proportionate scheme in relation to the disclosure of convictions and cautions (at least until 29 May 2013, when the 2013 Order came into force: whether that Order succeeded in rendering the scheme compatible with Convention rights is not a question raised in these appeals)? By virtue of section 6(6), an act includes a failure to act but does not include a failure to (a) introduce in, or lay before, Parliament a proposal for legislation, or (b) make any primary legislation or remedial order. The term legislation, as used in section 6(6)(a), must include subordinate legislation, given the express reference in section 6(6)(b) to primary legislation. Was the Secretary of States failure in relation to the amendment of the 1975 Order a failure to lay before Parliament a proposal for legislation? I am inclined to think that it was. The power to make orders under the 1974 Act is exercisable in accordance with section 10(2), which requires that a draft of the proposed order must be laid before Parliament and approved by an affirmative resolution. The draft order would appear to me to be properly described as a proposal for legislation. That approach leads to the somewhat unattractive conclusion that whether a failure to make subordinate legislation falls within the scope of section 6 of the Human Rights Act depends upon the particular way in which the legislation must be made: an order made by the Secretary of State subject to annulment by a resolution of either House, for example, would not on any view involve the laying before Parliament of a proposal for legislation. On the other hand, it is consistent with the respect for Parliamentary sovereignty found throughout the Human Rights Act that the decision of a member of either House whether to lay a legislative proposal before Parliament, whether in the form of a Bill or a draft order, should not be the subject of judicial remedies. As I shall explain, however, I find it unnecessary to reach a concluded view upon the point, which was not the subject of submissions. If no remedy can be granted under section 8 of the Human Rights Act, can a declaration of incompatibility be made under section 4? Where primary legislation cannot be interpreted compatibly with Convention rights, the court can make a declaration of incompatibility under section 4(2). The position in relation to subordinate legislation is governed by section 4(3) and (4): (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. By virtue of subsection (3), subsection (4) applies in the present proceedings. Subsection (4)(a) is satisfied: even applying the rule of interpretation set out in section 3(1) of the Act, the 1975 Order cannot be interpreted compatibly with Convention rights. In relation to subsection (4)(b), however, there is no suggestion that the 1974 Act prevents removal of the incompatibility of the 1975 Order with article 8 of the Convention. The condition laid down by section 4(4)(b) of the Human Rights Act is therefore not satisfied. It follows that the court cannot make a declaration of incompatibility under section 4. If, then, there is no remedy that can be granted under either section 4 or section 8 of the Human Rights Act, is there any other basis upon which a remedy might be granted? This question was not addressed in the parties submissions, and I do not consider it necessary to reach a concluded view. A number of potential answers present themselves. An approach that has been adopted in some cases, such as Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303; [2006] 1 WLR 3202 and In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] AC 173 has been to make a declaration that it was unlawful for a public authority to act in the manner required by subordinate legislation which could not be interpreted or given effect in a way which was compatible with Convention rights. That solution does not however appear to be apt in the present case, for the reason I have explained at para 146. A more attractive possibility in the present circumstances is that a declaration might be granted to the effect that the 1975 Order cannot be read or given effect in a way which is compatible with Convention rights, or at least with the Convention rights of the respondent T. Although it appears that a declaration of incompatibility could not be granted under section 4 of the Human Rights Act, for the reasons I have explained at para 151, and the powers conferred by section 10 would therefore not be available, it is arguable that a declaration along the lines I have suggested, reflecting the result of applying section 3(1) of the Act to the 1975 Order, might nevertheless be granted. A further possibility is that the Order might be declared to be ultra vires, on the basis that the entry into force of section 3(1) of the Human Rights Act had the effect that the order making powers conferred by sections 4(4) and 7(4) of the 1974 Act must, as from 2 October 2000, be read and given effect in a way which is compatible with Convention rights, and therefore could not be read as authorising the making of an order which was incompatible with Convention rights. It might perhaps be argued that it follows that the making of the 1975 Order could not after 2 October 2000 be regarded as being authorised by the 1974 Act. On the other hand, the idea that subordinate legislation which was intra vires when made could subsequently become ultra vires would give rise to numerous counter arguments and questions. One such question concerns the effect which a declaration that the Order was to be treated as ultra vires with effect from 2 October 2000 might have upon actions taken since that date by persons affected by the Order. Lord Wilson comments, in relation to the Court of Appeals declaration that the 1975 Order was ultra vires, that its effect was that all actions taken by questioners in reliance on disclosures made pursuant to it had been unlawful. Its effect in his view was indeed still more astonishing, since if the Order was ultra vires, it would follow that no valid application for a criminal records certificate could have been made. These are serious concerns, but I would wish to reserve my opinion as to whether they are well founded. In a suitable case, consideration would have to be given to the protection of legal certainty in our administrative law, under reference to such authorities as R v Wicks [1998] AC 92, Boddington v British Transport Police [1999] 2 AC 143 and Mossell (Jamaica) Ltd v Office of Utilities Regulations [2010] UKPC 1, to the Convention principle of legal certainty (discussed, for example, in Cadder v HM Advocate (HM Advocate General for Scotland intervening) [2010] UKSC 43; [2010] 1 WLR 2601, para 58), and to the possibility, if necessary to protect legal certainty, of either exercising the courts discretion to refuse to provide a remedy, or alternatively granting a remedy with only prospective effect. In the circumstances of the present case, however, it does not appear to me to be necessary for the court to insist upon further discussion of these questions, or of the other possible remedies that I have discussed. The respondent T does not complain of any adverse consequences which he has suffered as a result of the 1975 Order: on the contrary, he failed to disclose his cautions when asked questions about his record, as he mistakenly believed that they no longer formed part of his record, and no adverse consequences are said to have resulted from that failure. The harm of which he complains resulted rather from the operation of the 1997 Act. As a result of these proceedings, the 1975 Order has been amended with the intention of rectifying the problem identified. There is therefore no possibility of T being affected in future by the 1975 Order in the form in which it has been considered in these proceedings. He can be regarded for the purposes of the Convention as having obtained just satisfaction by reason of the courts acceptance that his complaint was well founded, and the resultant amendment of the Order. In these circumstances, it appears to me that the court can properly conclude that, even if a remedy might in principle be granted, this is not a case in which, in relation to the 1975 Order, any judicial remedy is necessary. LORD NEUBERGER, LADY HALE AND LORD CLARKE We agree with Lord Reed and Lord Wilson that the appeal of the Secretaries of State against the grant of a declaration of incompatibility in respect of sections 113A and 113B of the Police Act 1997 should be dismissed; but that their appeal against the declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is ultra vires should be allowed; and that there is no need for a judicial remedy in respect of that Order. They disagree on only one matter: whether those sections of the 1997 Act are incompatible because they fail to meet the requirement that the interference with the Convention right be in accordance with the law. As to that, we agree with Lord Reed that those sections of the 1997 Act are incompatible for that reason, although we also agree with both Lord Reed and Lord Wilson that the interferences in these cases failed to meet the requirement that they be necessary in a democratic society. In all other respects, we agree with both judgments.

UK-Abs

Under the Rehabilitation of Offenders Act 1974, where a person is asked about his criminal record the question will be treated as not extending to spent convictions. Consequently, he is entitled not to disclose these and cannot be liable for a failure to do so. Equally, a prospective employer is not entitled to make any decision prejudicial to the individual by reference to spent convictions or to any failure to disclose them [6]. This applies to cautions, warnings or reprimands, which are spent as soon as they are given [76]. These appeals concern the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and sections 113A and 113B in Part V of the Police Act 1997. The 1975 Order makes certain questions exempt from the above provisions of the 1974 Act, including where they relate to specified professions and employments, and to working with children and vulnerable adults [78 79]. Part V of the 1997 Act deals with enhanced criminal record certificates (ECRCs). These are issued where an exempted question within the meaning of the 1975 Order is asked, including by a prospective employer. Disclosure is then made of every relevant matter recorded on the Police National Computer, including, at the relevant time, any spent conviction or caution [83 84]. In T, the police issued warnings in 2002 to an 11 year old boy in respect of the theft of two bicycles. The warnings were disclosed in 2008 under Part V of the 1997 Act when T applied for a part time job with a football club possibly involving contact with children. They were disclosed again in 2010 when he applied for a place on a sports studies course which again might have involved contact with children [117]. In JB, the police issued a caution to a 41 year old woman in 2001 in respect of the theft from a shop of a packet of false fingernails. In 2009 she completed a training course for employment in the care sector. She was required to obtain an ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector [118]. The respondents have no other criminal records. Both claim that the references in the ECRCs to their cautions violated their right to respect for private life under article 8 of the European Convention on Human Rights. T also asserts that his obligation to disclose the warnings violated the same right. T and JB were successful in the Court of Appeal, which made declarations that the relevant provisions of the 1997 Act were incompatible with article 8. The Court of Appeal in T held that the 1975 Order was also incompatible with article 8 and ultra vires (that is, that it went beyond the powers set out in) the 1974 Act. The Secretaries of State now appeal to this Court. While they have made amendment orders designed to eliminate the problems identified by the Court of Appeal, their appeals concern the 1975 Order and 1997 Act as they stood at the time [3]. The Court unanimously (1) dismisses the appeals against the declarations of incompatibility in respect of the 1997 Act; and (2) allows the appeal against the declaration that the 1975 Order was ultra vires [158]. The respondents cautions represent an aspect of their private lives, respect for which is guaranteed by article 8 [16]. Laws requiring a person to disclose his previous convictions or cautions to a potential employer constitute an interference with that right [138]. The disclosures in the ECRCs also constituted article 8 interferences, significantly jeopardising the respondents entry into their chosen fields of endeavour [20]. Lord Reed in line with 2012 decision of the European Court of Human Rights in MM v UK considers that sections 113A and 113B of the 1997 Act are incompatible with article 8 because they fail to meet the requirement of legality, that is, that the interference with the Convention right be in accordance with law. Legality requires safeguards which enable the proportionality of the interference to be adequately examined [108 119; 158]. Legislation like the present which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with article 8 rights [113 119]. Lord Neuberger, Lord Clarke and Lady Hale agree with Lord Reeds conclusion on legality [158], while Lord Wilson disagrees [28 38], emphasising the importance of the distinction between the tests of legality and necessity in a democratic society. On this point he is critical of the European Courts approach in MM. The Court unanimously holds that the article 8 interferences under both the 1997 Act and the 1975 Order could not, in any event, be said to meet the requirement of being necessary in a democratic society [50; 121; 158]. Lord Wilson notes that it was the Home Secretary who identified a need to scale back the criminal records system to common sense levels [48]. Lord Reed points to a lack of a rational connection between dishonesty as a child and the question of whether, as an adult, the person might pose a threat to the safety of children with whom he comes into contact [142]. The Court upholds the declarations of incompatibility in relation to the 1997 Act. It is impossible to read and give effect to its provisions in a way which was compatible with the respondents Convention rights [53; 120]. The Court, however, allows the appeal in T against the decision that the 1975 Order was ultra vires. This was inconsistent with the declaration of incompatibility, which stated that it did not affect the validity or continuing operation of the 1997 Act, Part V of which in fact relied upon the validity of the terms of the Order [61 62]. No judicial remedy in relation to the Order is necessary. Lord Reed explains that it had no adverse consequences for T and he can be regarded for the purposes of the Convention as having obtained just satisfaction given the courts acceptance that his complaint is well founded and the resultant amendment of the Order [66;157 158].

This is the judgment of the Court on the issue of whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or commission. The answer to this rather technical sounding question, which has produced inconsistent judicial decisions over the past 200 years, as well as a great deal of more recent academic controversy, is important in practical terms. If the bribe or commission is held on trust, the principal has a proprietary claim to it, whereas if the principal merely has a claim for equitable compensation, the claim is not proprietary. The distinction is significant for two main reasons. First, if the agent becomes insolvent, a proprietary claim would effectively give the principal priority over the agents unsecured creditors, whereas the principal would rank pari passu, ie equally, with other unsecured creditors if he only has a claim for compensation. Secondly, if the principal has a proprietary claim to the bribe or commission, he can trace and follow it in equity, whereas (unless we develop the law of equitable tracing beyond its current boundaries) a principal with a right only to equitable compensation would have no such equitable right to trace or follow. The facts On 22 December 2004, FHR European Ventures LLP purchased the issued share capital of Monte Carlo Grand Hotel SAM (which owned a long leasehold interest in the Monte Carlo Grand Hotel) from Monte Carlo Grand Hotel Ltd (the Vendor) for 211.5m. The purchase was a joint venture between the claimants in these proceedings, for whom FHR was the vehicle. Cedar Capital Partners LLC provided consultancy services to the hotel industry, and it had acted as the claimants agent in negotiating the purchase. It is common ground that Cedar accordingly owed fiduciary duties to the claimants in that connection. Cedar had also entered into an agreement with the Vendor (the Exclusive Brokerage Agreement) dated 24 September 2004, which provided for the payment to Cedar of a 10m fee following a successful conclusion of the sale and purchase of the issued share capital of Monte Carlo Grand Hotel SAM. The Vendor paid Cedar 10m on or about 7 January 2005. On 23 November 2009 the claimants began these proceedings for recovery of the sum of 10m from Cedar (and others). The trial took place before Simon J, and the main issue was whether, as it contended, Cedar had made proper disclosure to the claimants of the Exclusive Brokerage Agreement. Simon J gave a judgment in which he found against Cedar on that issue [2012] 2 BCLC 39. There was then a further hearing to determine what order should be made in the light of that judgment, following which Simon J gave a further judgment [2013] 2 BCLC 1. In that judgment he concluded that he should (i) make a declaration of liability for breach of fiduciary duty on the part of Cedar for having failed to obtain the claimants fully informed consent in respect of the 10m, and (ii) order Cedar to pay such sum to the claimants, but (iii) refuse to grant the claimants a proprietary remedy in respect of the monies. The claimants appealed to the Court of Appeal against conclusion (iii), and it allowed the appeal for reasons given in a judgment given by Lewison LJ, with supporting judgments from Pill LJ and Sir Terence Etherton C [2014] Ch 1. Accordingly, the Court of Appeal made an order which included a declaration that Cedar received the 10m fee on constructive trust for the claimants absolutely. Cedar now appeals to the Supreme Court on that issue. There is and was no challenge by Cedar to the Judges conclusions (i) and (ii), so the only point on this appeal is whether, as the Court of Appeal held, the claimants are entitled to the proprietary remedy in respect of the 10m received by Cedar from the Vendor. Prefatory comments The following three principles are not in doubt, and they are taken from the classic summary of the law in the judgment of Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1, 18. First, an agent owes a fiduciary duty to his principal because he is someone who has undertaken to act for or on behalf of [his principal] in a particular matter in circumstances which give rise to a relationship of trust and confidence. Secondly, as a result, an agent must not make a profit out of his trust and must not place himself in a position in which his duty and his interest may conflict and, as Lord Upjohn pointed out in Boardman v Phipps [1967] 2 AC 46, 123, the former proposition is part of the [latter] wider rule. Thirdly, [a] fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to the other. Because of the importance which equity attaches to fiduciary duties, such informed consent is only effective if it is given after full disclosure, to quote Sir George Jessel MR in Dunne v English (1874) LR 18 Eq 524, 533. Another well established principle, which applies where an agent receives a benefit in breach of his fiduciary duty, is that the agent is obliged to account to the principal for such a benefit, and to pay, in effect, a sum equal to the profit by way of equitable compensation. The law on this topic was clearly stated in Regal (Hastings) Ltd v Gulliver (Note) (1942) [1967] 2 AC 134, 144 145, by Lord Russell, where he said this: The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff, or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The principals right to seek an account undoubtedly gives him a right to equitable compensation in respect of the bribe or secret commission, which is the quantum of that bribe or commission (subject to any permissible deduction in favour of the agent eg for expenses incurred). That is because where an agent acquires a benefit in breach of his fiduciary duty, the relief accorded by equity is, again to quote Millett LJ in Mothew at p 18, primarily restitutionary or restorative rather than compensatory. The agents duty to account for the bribe or secret commission represents a personal remedy for the principal against the agent. However, the centrally relevant point for present purposes is that, at least in some cases where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the equitable rule (the Rule) is that he is to be treated as having acquired the benefit on behalf of his principal, so that it is beneficially owned by the principal. In such cases, the principal has a proprietary remedy in addition to his personal remedy against the agent, and the principal can elect between the two remedies. Where the facts of a particular case are within the ambit of the Rule, it is strictly applied. The strict application of the Rule can be traced back to the well known decision in Keech v Sandford (1726) Sel Cas Ch 61, where a trustee held a lease of a market on trust for an infant, and, having failed to negotiate a new lease on behalf of the infant because the landlord was dissatisfied with the proposed security for the rent, the trustee negotiated a new lease for himself. Lord King LC concluded at p 62 that, though I do not say there is a fraud in this case and though it may seem hard, the infant was entitled to an assignment of the new lease and an account of the profits made in the meantime a conclusion which could only be justified on the basis that the new lease had been beneficially acquired for the infant beneficiary. Since then, the Rule has been applied in a great many cases. The question on this appeal is not so much concerned with the application of the Rule, as with its limits or boundaries. Specifically, what is in dispute is the extent to which the Rule applies where the benefit is a bribe or secret commission obtained by an agent in breach of his fiduciary duty to his principal. On the one hand, Mr Collings QC contends for the appellant, Cedar, that the Rule should not apply to a bribe or secret commission paid to an agent, because it is not a benefit which can properly be said to be the property of the principal. This has the support of Professor Sir Roy Goode, who has suggested that no proprietary interest arises where an agent obtains a benefit in breach of his duty unless the benefit either (i) flows from an asset which was (a) beneficially owned by the principal, or (b) intended for the principal, or (ii) was derived from an activity of the agent which, if he chose to undertake it, he was under an equitable duty to undertake for the principal. Sir Roy suggested that to treat [a principal] as having a restitutionary proprietary right to money or property not derived from any asset of [the principal] results in an involuntary grant by [the agent] to [the principal] from [the agents] pre existing estate Proprietary Restitutionary Claims in Restitution: Past, Present and Future (1998) ed Cornish, p 69 and see more recently (2011) 127 LQR 493. Professor Sarah Worthington has advanced a slightly different test. She suggests (summarising at the risk of oversimplifying) that proprietary claims arise where benefits are (i) derived from the principals property, or (ii) derived from opportunities in the scope of the agents endeavours on behalf of the principal, but not (iii) benefits derived from opportunities outside the scope of those endeavours Fiduciary Duties and Proprietary Remedies: Addressing the Failure of Equitable Formulae (2013) 72 CLJ 720. On the other hand, it is suggested by Mr Pymont QC on behalf of the respondent claimants in this appeal, that the Rule does apply to bribes or secret commissions received by an agent, because, in any case where an agent receives a benefit, which is, or results from, a breach of the fiduciary duty owed to his principal, the agent holds the benefit on trust for the principal. This view has been supported by Lord Millett writing extra judicially. In Bribes and Secret Commissions [1993] Rest LR 7, he suggested that, on grounds of practicality, policy and principle, a principal should be beneficially entitled to a bribe or secret commission received by his agent and see more recently, (2012) 71 CLJ 583. He bases his conclusion on the proposition that equity will not permit the agent to rely on his own breach of fiduciary duty to justify retaining the benefit on the ground that it was a bribe or secret commission, and will assume that he acted in accordance with his duty, so that the benefit must be the principals. This approach is also supported by Lionel Smith, Constructive trusts and the no profit rule (2013) 72 CLJ 260, whose view, in short, is that the basic rule should be that an agent who obtains a benefit in breach of his fiduciary duty to his principal holds that benefit on trust for his principal. The decision as to which view is correct must be based on legal principle, decided cases, policy considerations, and practicalities. We start by summarising the effect of many of the cases which touch on the issue; we then turn to the policy and practical arguments, and finally we express our conclusion. The decided cases There is a number of 19th century cases not involving bribes or secret commissions, where an agent or other fiduciary makes an unauthorised profit by taking advantage of an opportunity which came to his attention as a result of his agency and judges have reached the conclusion that the Rule applied. Examples include Carter v Palmer (1842) 8 Cl & F 657, where a barrister who purchased his clients bills at a discount was held by Lord Cottenham to have acquired them for his client. The Privy Council in Bowes v City of Toronto (1858) 11 Moo PC 463 concluded that the mayor of a city who bought discounted debentures issued by the city was in the same position as an agent vis vis the city, and was to be treated as holding the debentures on trust for the city. Bagnall v Carlton (1877) 6 Ch D 371 involved complex facts, but, pared to a minimum, agents for a prospective company who made secret profits out of a contract made by the company were held to be trustees for the company of those profits (per James, Baggallay and Cotton LJJ). In the Privy Council case of Cook v Deeks [1916] 1 AC 554, a company formed by the directors of a construction company was held to have entered into a contract on behalf of the construction company as the directors only knew of the contractual opportunity by virtue of their directorships. In Phipps v Boardman [1964] 1 WLR 993 (affirmed [1965] Ch 992, and [1967] 2 AC 46), where agents of certain trustees purchased shares, in circumstances where they only had that opportunity because they were agents, Wilberforce J held that the shares were held beneficially for the trust. More recently, in Bhullar v Bhullar [2003] 2 BCLC 241, the Court of Appeal reached the same conclusion on similar facts to those in Cook (save that the asset acquired was a property rather than a contract). Jonathan Parker LJ said this at para 28: [W]here a fiduciary has exploited a commercial opportunity for his own benefit, the relevant question, in my judgment, is not whether the party to whom the duty is owed (the company, in the instant case) had some kind of beneficial interest in the opportunity: in my judgment that would be too formalistic and restrictive an approach. Rather, the question is simply whether the fiduciarys exploitation of the opportunity is such as to attract the application of the rule. Turning now to cases concerned with bribes and secret commissions, the effect of the reasoning of Lord Lyndhurst LC in Fawcett v Whitehouse (1829) 1 Russ & M 132 was that an agent, who was negotiating on behalf of a prospective lessee and who accepted a loan from the lessor, held the loan on trust for his principal, the lessee. In Barker v Harrison (1846) 2 Coll 546, a vendors agent had secretly negotiated a sub sale of part of the property from the purchaser at an advantageous price, and Sir James Knight Bruce V C held that that asset was held on trust for the vendor. In In re Western of Canada Oil, Lands and Works Co, Carling, Hespeler, and Walshs Cases (1875) 1 Ch D 115, the Court of Appeal (James and Mellish LJJ, Bramwell B and Brett J) held that shares transferred by a person to individuals to induce them to become directors of a company and to agree that the company would buy land from the person, were held by the individuals on trust for the company. In In re Morvah Consols Tin Mining Co, McKays Case (1875) 2 Ch D 1, the Court of Appeal (Mellish and James LJJ and Brett J) decided that where a company bought a mine, shares in the vendor which were promised to the companys secretary were held by him for the company beneficially. The Court of Appeal (Sir George Jessel MR and James and Baggallay LJJ) in In re Caerphilly Colliery Co, Pearsons Case (1877) 5 Ch D 336 concluded that a company director, who received shares from the promoters and then acted for the company in its purchase of a colliery from the promoters, held the shares on trust for the company. In Eden v Ridsdale Railway Lamp and Lighting Co Ltd (1889) 23 QBD 368, a company was held by the Court of Appeal (Lord Esher MR and Lindley and Lopes LJJ) to be entitled as against a director to shares which he had secretly received from a person with whom the company was negotiating. There are a number of other 19th century decisions to this effect, but it is unnecessary to cite them. Inducements and other benefits offered to directors and trustees have been treated similarly. In Sugden v Crossland (1856) 2 Sm & G 192, Sir William Page Wood V C held that a sum of money paid to a trustee to persuade him to retire in favour of the payee was to be treated as a part of the trust fund. Similarly, in Nant y glo and Blaina Ironworks Co v Grave (1878) 12 Ch D 738, shares in a company given by a promoter to the defendant to induce him to become a director were held by Sir James Bacon V C to belong to the company. In Williams v Barton [1927] 2 Ch 9, Russell J decided that a trustee, who recommended that his co trustees use stockbrokers who gave him a commission, held the commission on trust for the trust. The common law courts were meanwhile taking the same view. In Morison v Thompson (1874) LR 9 QBD 480, Cockburn CJ, with whom Blackburn and Archibald JJ agreed, held that a purchasers agent who had secretly agreed to accept a commission from the vendor of a ship, held the commission for the benefit of his principal, the purchaser, in common law just as he would have done in equity see at p 484, where Cockburn CJ referred to the earlier decision of Lord Ellenborough CJ to the same effect in Diplock v Blackburn (1811) 3 Camp 43. In Whaley Bridge Calico Printing Co v Green (1879) 5 QBD 109, Bowen J (albeit relying on equity at least in part) held that a contract between the vendor and a director of the purchaser, for a secret commission to be paid out of the purchase money, was to be treated as having been entered into for the benefit of the purchaser without proof of fraud. It is fair to say that in the majority of the cases identified in the previous five paragraphs it does not appear to have been in dispute that, if the recipient of the benefit had received it in breach of his fiduciary duty to the plaintiff, then he held it on trust for the plaintiff. In other words, it appears to have been tacitly accepted that the Rule applied, so that the plaintiff was entitled not merely to an equitable account in respect of the benefit, but to the beneficial ownership of the benefit. However, many of those cases contain observations which specifically support the contention that the Rule applies to all benefits which are received by an agent in breach of his fiduciary duty. In Sugden at p 194, Sir William Page Wood V C said that it is a well settled principle that if a trustee make a profit of his trusteeship, it shall enure to the benefit of his cestuique trusts. And in McKays Case at p 5, Mellish LJ said that it was quite clear that, according to the principles of a Court of Equity, all the benefit which the agent of the purchaser receives under such circumstances from the vendor must be treated as received for the benefit of the purchaser. In Carlings Case at p 124, James LJ said the arrangement amounted to a a simple bribe or present to the directors, constituting a breach of trust on their part and that the company would be entitled to get back from their unfaithful trustees what the unfaithful trustees had acquired by reason of their breach of trust. In Pearsons Case Sir George Jessel MR said at pp 340 341 that the director as agent could not retain that present as against the actual purchasers and must be deemed to have obtained [the benefit] under circumstances which made him liable, at the option of the cestuis que trust, to account either for the value or for the thing itself . In Eden, Lord Esher said at p 371 that if an agent put[s] himself in a position which the law does not allow [him] to assume he commit[s] a wrong against his principal, and [i]f that which the agent has received is money he must hand it over to his principal, if it is not money, but something else, the principal may insist on having it. Lindley and Lopes LJJ each said that they were of the same opinion as Lord Esher, and Lindley LJ observed at p 372 that it would be contrary to all principles of law and equity to allow the plaintiff to retain the gift. It is also worth noting that in Morison at pp 485 486, Cockburn CJ quoted with approval from two contemporary textbooks. First, he cited Story on Agency, para 211, where it was said that it could be laid down as a general principle, that, in all cases when a person is an agent for other persons, all profits and advantages made by him in the business, beyond his ordinary compensation, are to be for the benefit of his employers. Secondly, he referred to Paley on Principal and Agent, p 51, which stated that not only interest, but every other sort of profit or advantage, clandestinely derived by an agent from dealing or speculating with his principals effects, is the property of the latter, and must be accounted for. The cases summarised in paras 13 17 above and the observations set out in paras 19 20 above are all consistent with the notion that the Rule should apply to bribes or secret commissions paid to an agent, so that the agent holds them on trust for his principal, rather than simply having an equitable duty to account to his principal. It is true that in many of those cases there was apparently no argument as to whether the benefit obtained by the fiduciary was actually held on trust for the principal. However, in some of the cases there was a dispute on the nature of the relief; in any event, the fact that it was assumed time and again by eminent barristers and judges must carry great weight. However, there is one decision of the House of Lords which appears to go the other way, and several decisions of the Court of Appeal which do go the other way, in that they hold that, while a principal has a claim for equitable compensation in respect of a bribe or secret commission received by his agent, he has no proprietary interest in it. The House of Lords decision is Tyrrell v Bank of London (1862) 10 HL Cas 26. The facts of the case are somewhat complex and the reasoning of the opinions of Lord Westbury LC, Lord Cranworth and Lord Chelmsford is not always entirely easy to follow. The decision has been carefully and interestingly analysed by Professor Watts, Tyrrell v Bank of London an Inside Look at an Inside Job (2013) 129 LQR 527. In very brief terms, a solicitor retained to act for a company in the course of formation secretly arranged to benefit from his prospective clients anticipated acquisition of a building called the Hall of Commerce by obtaining from the owner a 50% beneficial interest in a parcel of land consisting of the Hall and some adjoining land. After the client had purchased the Hall from the owner, it discovered that the solicitor had secretly profited from the transaction and sued him. Sir John Romilly MR held that the solicitor had held on trust for the client both (i) his interest in (and therefore his subsequent share of the proceeds of sale of) the Hall, and (ii) with very considerable hesitation, his interest in the adjoining land (1859) 27 Beav 273, especially at p 300. On appeal, the House of Lords held that, while the Master of the Rolls was right about (i), he was wrong about (ii): although the client had an equitable claim for the value of the solicitors interest in the adjoining land, it had no proprietary interest in that land. Lord Westbury LC made it clear at pp 39 40 that the fact that the client had not been formed by the time that the solicitor acquired his interest in the land did not prevent the claim succeeding as the client had been conceived, and was in the process of formation. He also made it clear at p 44 that, in respect of the profit which the solicitor made from his share of the Hall (which he described as the subject matter of the transaction, and, later at p 45, that particular property included in the [clients] contract), the solicitor must be converted into a trustee for the [client]. However, he was clear that no such trust could arise in relation to the adjoining land, which was outside the limit of the agency, and so there [was] no privity, nor any obligation, although the solicitor must account for the value of that property p 46. Lord Cranworth agreed, making it clear that the financial consequences for the solicitor were no different from those that followed from the Master of the Rolls order, although he had thought that possibly we might arrive at the conclusion that the decree was, not only in substance, but also in form, perfectly correct p 49. Lord Chelmsford agreed, and discussed bribes at pp 59 60, holding that the principal had no right to a bribe received by his agent. Although there have been suggestions that, with the exception of Lord Chelmsfords obiter dicta about bribes, the decision of the House of Lords in Tyrrell was not inconsistent with the respondents case on this appeal, it appears clear that it was. If, as the House held, the solicitor was liable to account to the client for the profit which he had made on the adjoining land, that can only have been because it was a benefit which he had received in breach of his fiduciary duty; and, once that is established, then, on the respondents case, the Rule would apply, and that profit would be held on trust for the client (or, more accurately, his share of the adjoining land would be held on trust), as in Fawcett, Sugden, Carter, Bowes and Barker, all of which had been decided before Tyrrell, and of which only Fawcett was cited to the House. We turn to the Court of Appeal authorities which are inconsistent with the notion that the Rule applies to bribes or secret commissions. In Metropolitan Bank v Heiron (1880) 5 Ex D 319, the Court of Appeal held that a claim brought by a company against a director was time barred: the claim was to recover a bribe paid by a third party to induce the director to influence the company to negotiate a favourable settlement with the third party. It was unsuccessfully argued by the bank that its claim was proprietary. Brett LJ said at p 324 [n]either at law nor in equity could this sum be treated as the money of the company, but he apparently considered that, once the company had obtained judgment for the money there could be a trust. Cotton LJ expressed the same view. James LJ simply thought that there was an equitable debt and applied the Limitation Acts by analogy. This approach was followed in Lister & Co v Stubbs (1890) 45 Ch D 1, where an agent of a company had accepted a bribe from one of its clients, and an interlocutory injunction was refused on the ground that the relationship between the company and its agent was that of creditor and debtor not beneficiary and trustee. Cotton LJ said at p 12 that the money which [the agent] has received cannot be treated as being the money of the [company]. Lindley LJ agreed and said at p 15 that the notion that there was a trust startle[d] him, not least because it would give the company the right to the money in the event of the agents bankruptcy. Bowen LJ agreed. Lister was cited with approval by Lindley LJ in In re North Australian Territory Co, Archers case [1892] 1 Ch 322, 338, and it was followed in relation to a bribe paid to an agent by Sir Richard Henn Collins MR (with whom Stirling and Mathew LJJ agreed) in Powell & Thomas v Evan Jones & Co [1905] 1 KB 11, 22, where the principal was held entitled to an account for the bribe, but not to a declaration that the bribe was held on trust. The same view was taken in the Court of Appeal in Attorney Generals Reference (No 1 of 1985) [1986] QB 491, 504 505, where Lord Lane CJ quoted from the judgments of Cotton and Lindley LJJ in what he described as a powerful Court of Appeal in Lister, and followed the reasoning. In Regal (Hastings), the decision in Lister was referred to by Lord Wright at p 156, as supporting the notion that the relationship in such a case is that of debtor and creditor, not trustee and cestui que trust. However, that was an obiter observation, and it gets no support from the other members of the committee. More recently, in 1993, in Attorney General for Hong Kong v Reid, the Privy Council concluded that bribes received by a corrupt policeman were held on trust for his principal, and so they could be traced into properties which he had acquired in New Zealand. In his judgment on behalf of the Board, Lord Templeman disapproved the reasoning in Heiron, and the reasoning and outcome in Lister, and he thought his conclusion inconsistent with only one of the opinions, that of Lord Chelmsford, in Tyrrell. In Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119, paras 75ff, Lawrence Collins J indicated that he would follow Reid rather than Lister, as did Toulson J in Fyffes Group Ltd v Templeman [2000] 2 Lloyds Rep 643, 668 672. But in Sinclair Investments Ltd v Versailles Trade Finance Ltd [2012] Ch 453, in a judgment given by Lord Neuberger MR, the Court of Appeal decided that it should follow Heiron and Lister, and indeed Tyrrell, for a number of reasons set out in paras 77ff, although it accepted that this Court might follow the approach in Reid. In this case, Simon J considered that he was bound by Sinclair, whereas the Court of Appeal concluded that they could and should distinguish it. Legal principle and academic articles As mentioned above, the issue raised on this appeal has stimulated a great deal of academic debate. The contents of the many articles on this issue provide an impressive demonstration of penetrating and stimulating legal analysis. One can find among those articles a powerful case for various different outcomes, based on analysing judicial decisions and reasoning, equitable and restitutionary principles, and practical and commercial realities. It is neither possible nor appropriate to do those articles justice individually in this judgment, but the court has referred to them for the purpose of extracting the principle upon which the Rule is said to be based. In addition to those referred to in paras 10, 11 and 23 above, those articles include Hayton, The Extent of Equitable Remedies: Privy Council versus the Court of Appeal [2012] Co Law 161, Swadling, Constructive trusts and breach of fiduciary duty (2012) 18 Trusts and Trustees 985, Virgo, Profits Obtained in Breach of Fiduciary Duty: Personal or Proprietary Claim? (2011) 70 CLJ 502, Edelman Two Fundamental Questions for the Law of Trusts (2013) 129 LQR 66 and others listed by Sir Terence Etherton, The Legitimacy of Proprietary Relief, (2014) Birkbeck Law Review vol 2(1), 59, at p 60. At p 62 Sir Terence refers to this relentess and seemingly endless debate, which, in the Court of Appeal in this case, Pill LJ described as revealing passions of a force uncommon in the legal world [2014] Ch 1, para 61. The respondents formulation of the Rule, namely that it applies to all benefits received by an agent in breach of his fiduciary duty to his principal, is explained on the basis that an agent ought to account in specie to his principal for any benefit he has obtained from his agency in breach of his fiduciary duty, as the benefit should be treated as the property of the principal, as supported by many judicial dicta including those in para 19 above, and can be seen to be reflected in Jonathan Parker LJs observations in para 14 above. More subtly, it is justified on the basis that equity does not permit an agent to rely on his own wrong to justify retaining the benefit: in effect, he must accept that, as he received the benefit as a result of his agency, he acquired it for his principal. Support for that approach may be found in Mellish LJs judgment in McKays Case at p 6, and Bowen Js judgment in Whaley Bridge at p 113. The appellants formulation of the Rule, namely that it has a more limited reach, and does not apply to bribes and secret commissions, has, as mentioned in para 10 above, various different formulations and justifications. Thus, it is said that, given that it is a proprietary principle, the Rule should not apply to benefits which were not derived from assets which are or should be the property of the principal, a view supported by the reasoning of Lord Westbury in Tyrrell. It has also been suggested that the Rule should not apply to benefits which could not have been intended for the principal and were, rightly or wrongly, the property of the agent, which seems to have been the basis of Cotton LJs judgment in Heiron at p 325 and Lister at p 12. In Sinclair, it was suggested that the effect of the authorities was that the Rule should not apply to a benefit which the agent had obtained by taking advantage of an opportunity which arose as a result of the agency, unless the opportunity was properly that of the [principal] para 88. Professor Worthingtons subsequent formulation, referred to in para 10 above, is very similar but subtly different (and probably more satisfactory). Each of the formulations set out in paras 30 and 31 above have their supporters and detractors. In the end, it is not possible to identify any plainly right or plainly wrong answer to the issue of the extent of the Rule, as a matter of pure legal authority. There can clearly be different views as to what requirements have to be satisfied before a proprietary interest is created. More broadly, it is fair to say that the concept of equitable proprietary rights is in some respects somewhat paradoxical. Equity, unlike the common law, classically acts in personam (see eg Maitland, Equity, p 9); yet equity is far more ready to accord proprietary claims than common law. Further, two general rules which law students learn early on are that common law legal rights prevail over equitable rights, and that where there are competing equitable rights the first in time prevails; yet, given that equity is far more ready to recognise proprietary rights than common law, the effect of having an equitable right is often to give priority over common law claims sometimes even those which may have preceded the equitable right. Given that equity developed at least in part to mitigate the rigours of the common law, this is perhaps scarcely surprising. However, it underlines the point that it would be unrealistic to expect complete consistency from the cases over the past 300 years. It is therefore appropriate to turn to the arguments based on principle and practicality, and then to address the issue, in the light of those arguments as well as the judicial decisions discussed above. Arguments based on principle and practicality The position adopted by the respondents, namely that the Rule applies to all unauthorised benefits which an agent receives, is consistent with the fundamental principles of the law of agency. The agent owes a duty of undivided loyalty to the principal, unless the latter has given his informed consent to some less demanding standard of duty. The principal is thus entitled to the entire benefit of the agents acts in the course of his agency. This principle is wholly unaffected by the fact that the agent may have exceeded his authority. The principal is entitled to the benefit of the agents unauthorised acts in the course of his agency, in just the same way as, at law, an employer is vicariously liable to bear the burden of an employees unauthorised breaches of duty in the course of his employment. The agents duty is accordingly to deliver up to his principal the benefit which he has obtained, and not simply to pay compensation for having obtained it in excess of his authority. The only way that legal effect can be given to an obligation to deliver up specific property to the principal is by treating the principal as specifically entitled to it. On the other hand, there is some force in the notion advanced by the appellant that the Rule should not apply to a bribe or secret commission paid to an agent, as such a benefit is different in quality from a secret profit he makes on a transaction on which he is acting for his principal, or a profit he makes from an otherwise proper transaction which he enters into as a result of some knowledge or opportunity he has as a result of his agency. Both types of secret profit can be said to be benefits which the agent should have obtained for the principal, whereas the same cannot be said about a bribe or secret commission which the agent receives from a third party. The respondents formulation of the Rule has the merit of simplicity: any benefit acquired by an agent as a result of his agency and in breach of his fiduciary duty is held on trust for the principal. On the other hand, the appellants position is more likely to result in uncertainty. Thus, there is more than one way in which one can identify the possible exceptions to the normal rule, which results in a bribe or commission being excluded from the Rule see the differences between Professor Goode and Professor Worthington described in paras 10 and 32 above, and the other variations there described. Clarity and simplicity are highly desirable qualities in the law. Subtle distinctions are sometimes inevitable, but in the present case, as mentioned above, there is no plainly right answer, and, accordingly, in the absence of any other good reason, it would seem right to opt for the simple answer. A further advantage of the respondents position is that it aligns the circumstances in which an agent is obliged to account for any benefit received in breach of his fiduciary duty and those in which his principal can claim the beneficial ownership of the benefit. Sir George Jessel MR in Pearsons Case at p 341 referred in a passage cited above to the agent in such a case having to account either for the value or for the thing itself . The expression equitable accounting can encompass both proprietary and non proprietary claims. However, if equity considers that in all cases where an agent acquires a benefit in breach of his fiduciary duty to his principal, he must account for that benefit to his principal, it could be said to be somewhat inconsistent for equity also to hold that only in some such cases could the principal claim the benefit as his own property. The observation of Lord Russell in Regal (Hastings) quoted in para 6 above, and those of Jonathan Parker LJ in Bhullar quoted in para 14 above would seem to apply equally to the question of whether a principal should have a proprietary interest in a bribe or secret commission as to the question of whether he should be entitled to an account in respect thereof. The notion that the Rule should not apply to a bribe or secret commission received by an agent because it could not have been received by, or on behalf of, the principal seems unattractive. The whole reason that the agent should not have accepted the bribe or commission is that it puts him in conflict with his duty to his principal. Further, in terms of elementary economics, there must be a strong possibility that the bribe has disadvantaged the principal. Take the facts of this case: if the vendor was prepared to sell for 211.5m, on the basis that it was paying a secret commission of 10m, it must be quite likely that, in the absence of such commission, the vendor would have been prepared to sell for less than 211.5m, possibly 201.5m. While Simon J was not prepared to make such an assumption without further evidence, it accords with common sense that it should often, even normally, be correct; indeed, in some cases, it has been assumed by judges that the price payable for the transaction in which the agent was acting was influenced pro rata to account for the bribe see eg Fawcett at p 136. The artificiality and difficulties to which the appellants case can give rise may be well illustrated by reference to the facts in Eden and in Whaley Bridge. In Eden, the promoter gave 200 shares to a director of the company when there were outstanding issues between the promoter and the company. The Court of Appeal held that the director held the shares on trust for the company. As Finn J said in Grimaldi v Chameleon Mining NL (No 2) (2012) 287 ALR 22, para 570, the effect of that decision, if Heiron and Lister were rightly decided, would appear to be that where a bribe is paid to an agent, the principal has a proprietary interest in the bribe if it consists of shares but not if it consists of money, which would be a serious anomaly. In Whaley Bridge, a director of a company who negotiated a purchase by the company for 20,000 of a property was promised but did not receive 3,000 out of the 20,000 from the vendor. The outcome according to Bowen J was that the vendor was liable to the company for the 3,000, because the company was entitled to treat the contract between the vendor and the director as made by the director on behalf of the company. Bowen J held that it could not be successfully denied that if the 3,000 had been paid to the director he would have held it on trust for the company. Mr Collings suggested that the decision was correct because, unlike in this case, the director and vendor had agreed that the 3,000 would come out of the 20,000 paid by the company. Not only is there no trace of such reasoning in Bowen Js judgment, but it would be artificial, impractical and absurd if the issue whether a principal had a proprietary interest in a bribe to his agent depended on the mechanism agreed between the briber and the agent for payment of the bribe. The notion that an agent should not hold a bribe or commission on trust because he could not have acquired it on behalf of his principal is somewhat inconsistent with the long standing decision in Keech, the decision in Phipps approved by the House of Lords, and the Privy Council decision in Bowes. In each of those three cases, a person acquired property as a result of his fiduciary or quasi fiduciary position, in circumstances in which the principal could not have acquired it: yet the court held that the property concerned was held on trust for the beneficiary. In Keech, the beneficiary could not acquire the new lease because the landlord was not prepared to let to him, and because he was an infant; in Boardman, the trust could not acquire the shares because they were not authorised investments; in Bowes, the city corporation would scarcely have been interested in buying the loan notes which it had just issued to raise money. The respondents are also able to point to a paradox if the appellant is right and a principal has no proprietary right to his agents bribe or secret commission. If the principal has a proprietary right, then he is better off, and the agent is worse off, than if the principal merely has a claim for equitable compensation. It would be curious, as Mr Collings frankly conceded, if a principal whose agent wrongly receives a bribe or secret commission is worse off than a principal whose agent obtains a benefit in far less opprobrious circumstances, eg the benefit obtained by the trustees agents in Boardman. Yet that is the effect if the Rule does not apply to bribes or secret commissions. Wider policy considerations also support the respondents case that bribes and secret commissions received by an agent should be treated as the property of his principal, rather than merely giving rise to a claim for equitable compensation. As Lord Templeman said giving the decision of the Privy Council in Attorney General for Hong Kong v Reid [1994] 1 AC 324, 330H, [b]ribery is an evil practice which threatens the foundations of any civilised society. Secret commissions are also objectionable as they inevitably tend to undermine trust in the commercial world. That has always been true, but concern about bribery and corruption generally has never been greater than it is now see for instance, internationally, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1999 and the United Nations Convention against Corruption 2003, and, nationally, the Bribery Acts 2010 and 2012. Accordingly, one would expect the law to be particularly stringent in relation to a claim against an agent who has received a bribe or secret commission. On the other hand, a point frequently emphasised by those who seek to justify restricting the ambit of the Rule is that the wide application for which the respondents contend will tend to prejudice the agents unsecured creditors, as it will serve to reduce the estate of the agent if he becomes insolvent. This was seen as a good reason in Sinclair for not following Reid see at [2012] Ch 453, para 83. While the point has considerable force in some contexts, it appears to us to have limited force in the context of a bribe or secret commission. In the first place, the proceeds of a bribe or secret commission consists of property which should not be in the agents estate at all, as Lawrence Collins J pointed out in Daraydan, para 78 (although it is fair to add that insolvent estates not infrequently include assets which would not be there if the insolvent had honoured his obligations). Secondly, as discussed in para 37 above, at any rate in many cases, the bribe or commission will very often have reduced the benefit from the relevant transaction which the principal will have obtained, and therefore can fairly be said to be his property. Nonetheless, the appellants argument based on potential prejudice to the agents unsecured creditors has some force, but it is, as we see it, balanced by the fact that it appears to be just that a principal whose agent has obtained a bribe or secret commission should be able to trace the proceeds of the bribe or commission into other assets and to follow them into the hands of knowing recipients (as in Reid). Yet, as Mr Collings rightly accepts, tracing or following in equity would not be possible, at least as the law is currently understood, unless the person seeking to trace or follow can claim a proprietary interest. Common law tracing is, of course, possible without a proprietary interest, but it is much more limited than equitable tracing. Lindley LJ in Lister at p 15 appears to have found it offensive that a principal should be entitled to trace a bribe, but he did not explain why, and we prefer the reaction of Lord Templeman in Reid, namely that a principal ought to have the right to trace and to follow a bribe or secret commission. Finally, on this aspect, it appears that other common law jurisdictions have adopted the view that the Rule applies to all benefits which are obtained by a fiduciary in breach of his duties. In the High Court of Australia, Deane J said in Chan v Zacharia (1984) 154 CLR 178, 199 that any benefit obtained in circumstances where a conflict . existed or by reason of his fiduciary position or of opportunity or knowledge resulting from it is held by the fiduciary as constructive trustee. More recently, the Full Federal Court of Australia has decided not to follow Sinclair: see Grimaldi, where the decision in Reid was preferred see the discussion at paras 569 584. Although the Australian courts recognise the remedial constructive trust, that was only one of the reasons for not following Sinclair. As Finn J who gave the judgment of the court said at para 582 (after describing Heiron and Lister as imposing an anomalous limitation on the reach of Keech v Sandford at para 569), Australian law in this connection matches that of New Zealand , Singapore, United States jurisdictions and Canada. As overseas countries secede from the jurisdiction of the Privy Council, it is inevitable that inconsistencies in the common law will develop between different jurisdictions. However, it seems to us highly desirable for all those jurisdictions to learn from each other, and at least to lean in favour of harmonising the development of the common law round the world. Conclusions The considerations of practicality and principle discussed in paras 33 44 above appear to support the respondents case, namely that a bribe or secret commission accepted by an agent is held on trust for his principal. The position is perhaps rather less clear when one examines the decided cases, whose effect we have summarised in paras 13 28 above. However, to put it at its lowest, the authorities do not preclude us adopting the respondents case in that they do not represent a clear and consistent line of authority to the contrary effect. Indeed, we consider that, taken as a whole, the authorities favour the respondents case. First, if one concentrates on the issue of bribes or secret commissions paid to an agent or other fiduciary, the cases, with the exception of Tyrrell, were consistently in favour of such payments being held on trust for the principal or other beneficiary until the decision in Heiron which was then followed in Lister. Those two decisions are problematical for a number of reasons. First, relevant authority was not cited. None of the earlier cases referred to in paras 13, 14 or 16 above were put before the court in Heiron (where the argument seems to have been on a very different basis) or in Lister. Secondly, all the judges in those two cases had given earlier judgments which were inconsistent with their reasoning in the later ones. Brett LJ (who sat in Heiron) had been party to the decision in McKays and Carlings Cases; Cotton LJ (who sat in Heiron and Lister) had been party to Bagnall (which was arguably indistinguishable), James LJ (who sat in Heiron) was party to Pearsons and McKays Cases, as well as Bagnall; Lindley LJ (who sat in Lister) had been party to Eden; and Bowen LJ (who sat in Lister) had decided Whaley Bridge. Thirdly, the notion, adopted by Cotton and Brett LJJ that a trust might arise once the court had given judgment for the equitable claim seems to be based on some sort of remedial constructive trust which is a concept not referred to in earlier cases, and which has authoritatively been said not to be part of English law see per Lord Browne Wilkinson in Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669, 714 716. Fourthly, the decisions in Heiron and Lister are difficult to reconcile with many cases not concerned with bribes or secret commissions paid to agents, such as those set out in paras 12, 13 and 15 above. If the reasoning in Heiron and Lister is correct, then either those other cases were wrongly decided or the law is close to incoherent in this area. As for the domestic cases subsequent to Lister, they are all explicable on the basis that it was either conceded or decided that the reasoning in the Court of Appeal in Lister was binding. Further, even after Lister, cases were being decided in which it seems to have been accepted or decided by Chancery Judges that where an agent or other fiduciary had a duty to account for a benefit obtained in breach of his fiduciary duty, the principal was entitled to a proprietary interest in the benefit examples include Wilberforce J in Phipps, Lord Templeman in Reid, and Lawrence Collins J in Daraydan Holdings Ltd. Were it not for the decision in Tyrrell, we consider that it would be plainly appropriate for this Court to conclude that the courts took a wrong turn in Heiron and Lister, and to restate the law as being as the respondents contend. Although the fact that the House of Lords decided Tyrrell in the way they did gives us pause for thought, we consider that it would be right to uphold the respondents argument and disapprove the decision in Tyrrell. In the first place, Tyrrell is inconsistent with a wealth of cases decided before and after it was decided. Secondly, although Fawcett was cited in argument at p 38, it was not considered in any of the three opinions in Tyrrell; indeed, no previous decision was referred to in the opinions, and, although the opinions were expressed with a confidence familiar to those who read 19th century judgments, they contained no reasoning, merely assertion. Thirdly, the decision in Tyrrell may be explicable by reference to the fact that the solicitor was not actually acting for the client at the time when he acquired his interest in the adjoining land hence the reference in Lord Westburys opinion to the limit of the agency and the absence of privity [or] obligation as mentioned in para 24 above. In other words, it may be that their Lordships thought that the principal should not have a proprietary interest in circumstances where the benefit received by the agent was obtained before the agency began and did not relate to the property the subject of the agency. Quite apart from these three points, we consider that, the many decisions and the practical and policy considerations which favour the wider application of the Rule and are discussed above justify our disapproving Tyrrell. In our judgment, therefore, the decision in Tyrrell should not stand in the way of the conclusion that the law took a wrong turn in Heiron and Lister, and that those decisions, and any subsequent decisions (Powell & Thomas, Attorney Generals Reference (No 1 of 1985) and Sinclair), at least in so far as they relied on or followed Heiron and Lister, should be treated as overruled. In this case, the Court of Appeal rightly regarded themselves as bound by Sinclair, but they managed to distinguish it. Accordingly, the appeal is dismissed.

UK-Abs

This appeal concerns the issue of whether a bribe or secret commission received by an agent is held by that agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or commission. If the bribe or commission is held on trust, the principal has a proprietary claim to it, whereas if the principal merely has a claim for equitable compensation, the claim is not proprietary. The distinction is important for two main reasons. First, if the agent becomes insolvent, a proprietary claim would give the principal priority over the agents unsecured creditors. Secondly, if the principal has a proprietary claim to a bribe or commission, he can trace and follow it in equity. On 22 December 2004, FHR European Ventures LLP purchased the issued share capital of Monte Carlo Grand Hotel SAM from Monte Carlo Grand Hotel Ltd (the Seller) for 211.5m. The purchase was a joint venture between the claimants in these proceedings, for whom FHR was the vehicle. Cedar Capital Partners LLC provided consultancy services to the hotel industry, and it had acted as the claimants agent in negotiating the purchase. Cedar accordingly owed fiduciary duties to the claimants. Cedar had also entered into an Exclusive Brokerage Agreement with the Seller, which provided for the payment to Cedar of a 10m fee following a successful conclusion of the sale and purchase of the issued shared capital of Monte Carlo Grand Hotel SAM. The Seller paid Cedar 10m on or about 7 January 2005. On 23 November 2009 the claimants began these proceedings for recovery of the sum of 10m from Cedar. The main issue at trial was whether Cedar had made proper disclosure to the claimants of the Exclusive Brokerage Agreement. Simon J found against Cedar on that issue, and made a declaration of liability for breach of fiduciary duty on the part of Cedar for having failed to obtain the claimants fully informed consent in respect of the 10m, and ordered Cedar to pay that sum to the claimants. However, he refused to grant the claimants a proprietary remedy in respect of the monies. The claimants successfully appealed to the Court of Appeal, who made a declaration that Cedar received the 10m fee on constructive trust for the claimants absolutely. Cedar now appeals to the Supreme Court on this issue. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the judgment of the court. Where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the general equitable rule (the Rule) is that he is to be treated as having acquired the benefit on behalf of his principal, so it is beneficially owned by the principal. The dispute in this case is the extent to which the Rule applies where the benefit is a bribe or secret commission obtained by an agent in breach of his fiduciary duty to his principal. While it is not possible, as a matter of pure legal authority, to identify any plainly right or plainly wrong answer to the issue of the extent of the Rule, considerations of practicality and principle support the case that a bribe or secret commission accepted by an agent is held on trust for his principal. The only point on this appeal is whether the claimants are entitled to the proprietary remedy in respect of the 10m received by Cedar from the Seller [4]. The following principles are not in doubt: 1) An agent owes a fiduciary duty to his principal because he is someone who has undertaken to act for or on behalf of his principal in a particular matter in circumstances which give rise to a relationship of trust and confidence; 2) As a result, an agent must not make a profit out of his trust, and must not place himself in a position in which his duty and his interest may conflict; and 3) A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty, by putting himself in a position where his duty to one principal may conflict with his duty to the other [5]. Another well established principle, which applies where an agent receives a benefit in breach of his fiduciary duty, is that the agent is obliged to account to the principal for such a benefit, and to pay, in effect, a sum equal to profit by way of equitable compensation [6]. The principals right to seek an account undoubtedly gives him a right in equitable compensation in respect of the bribe or secret commission, which equals the quantum of that bribe or commission. In cases to which the Rule applies, the principal has a proprietary remedy in addition to his personal remedy against the agent, and the principal can elect between the two remedies [7]. What is in dispute is the extent to which the Rule applies where the benefit is a bribe or secret commission obtained by an agent in breach of his fiduciary duty to his principal [9]. The appellant contends that the Rule should not apply to a bribe or secret commission paid to an agent, because it is not a benefit which can properly be said to be the property of the principal [10]. The respondents argue that the Rule does apply to bribes or secret commissions received by an agent, because, in any case where an agent receives a benefit, which is, or results from, a breach the fiduciary duty owed to his principal, the agent holds the benefit on trust for the principal [11]. It is not possible to identify any plainly right or plainly wrong answer to the issue of the extent of the Rule, as a matter of pure legal authority [32]. The respondents formulation of the Rule has the merit of simplicity: any benefit acquired by an agent as a result of his agency and in breach of his fiduciary duty is held on trust for the principal. In contrast, the appellants position is more likely to result in uncertainty [35]. Wider policy considerations also support the respondents case that bribes and secret commissions received by an agent should be treated as the property of his principal, rather than merely giving rise to a claim for equitable compensation. Bribes and secret commissions undermine trust in the commercial world, and one would expect the law to be particularly stringent in relation to a claim against an agent who has received a bribe or secret commission [42]. The argument that the respondents version of the Rule will tend to prejudice the agents unsecured creditors has limited force in the context of a bribe or secret commission. In the first place, the proceeds of a bribe or secret commission consists of property which should not be in the agents estate at all. Secondly, the bribe or commission will very often have reduced the benefit from the relevant transaction which the principal will have obtained, and therefore can fairly be said to be his property. Finally, it is just that a principal whose agent has obtained a bribe or secret commission should be able to trace the proceeds of the bribe or commission into other assets and to follow them into the hands of knowing recipients [43 44]. Considerations of practicality and principle support the case that a bribe or secret commission accepted by an agent is held on trust for his principal. While the position is less clear when one examines the decided cases, taken as a whole the authorities support the respondents case [46]. The cases, with the exception of Tyrrell v Bank of London (1862) 10 HL Cas 26, are consistently in favour of bribes or secret commissions being held on trust for the principal or other beneficiary until the decision in Metropolitan Bank v Heiron (1880) 5 Ex D 319, which was then followed in Lister & Co v Stubbs (1890) 45 Ch D 1. The domestic cases subsequent to Lister are explicable on the basis that the issue was either conceded, or decided on the basis that Lister was binding. The decision in Tyrrell should not stand in the way of the conclusion that the law took a wrong turn in Heiron and Lister, and that those decisions, and any subsequent decisions in so far as they relied on or followed Heiron and Lister, should be treated as overruled [47 50].

140 years after the Judicature Act 1873, the stitching together of equity and the common law continues to cause problems at the seams. The present appeal concerns the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to be secured by a first charge over the borrowers property. As is customary in such transactions, the solicitors acted for both the bank and the borrowers. In June 2006 Mr and Mrs Sondhi applied to borrow 3.3m from the appellant (the bank). The loan was to be secured by a first legal charge over the borrowers home, which had been valued at 4.25m. The property was at that time the subject of a first legal charge in favour of Barclays Bank plc (Barclays). The Barclays charge secured borrowings on two accounts amounting to about 1.5m. The bank agreed to the borrowers proposal and made a formal offer on terms which included a condition that the existing mortgage was to be redeemed on or before completion of the mortgage advance. The bank retained the respondents (the solicitors) to act for it by a letter of instruction dated 5 July 2006. The letter of instruction stated that the solicitors were instructed in accordance with Council of Mortgage Lenders (CML) Handbook for England and Wales, 2nd edition. The handbook stated among other things that on completion the mortgage lender required a fully enforceable first charge over the property by way of legal mortgage, and that all existing charges must be redeemed on or before completion. The handbook also stated: You must hold the loan on trust for us until completion. If completion is delayed, you must return it to us when and how we tell you. The letter of instruction included copies of the banks offer to the borrowers and its conditions of offer. The solicitors were told by the borrowers that the property was mortgaged to Barclays. On 31 July Barclays provided them with information about the two accounts, which showed the total balance due as a little over 1.5m, but this was not a redemption statement. Meanwhile the solicitors asked the bank to forward the funds because completion was imminent. The bank did so on 1 August, and the solicitors telephoned Barclays for a redemption figure. Unfortunately there was then a misunderstanding. The solicitors were given a redemption figure for one of the two Barclays accounts which they mistakenly took to be the total figure. They were at fault because they should have realised from the information supplied by Barclays that the figure related only to one account. However, on 1 August the solicitors remitted to Barclays the figure which they wrongly believed was the total necessary to redeem the Barclays mortgage and remitted the balance of the 3.3m less expenses to the borrowers. The borrowers had executed what was intended to be a first charge over the property in favour of the bank, but there remained due to Barclays a debt of approximately 309,000 secured by the prior Barclays charge. Barclays naturally refused to release its charge unless the outstanding debt was paid in full. At first the borrowers promised to pay the necessary sum to Barclays but they failed to keep their word. The solicitors did not immediately tell the bank of their error, as they should, because they hoped to be able to resolve it. When eventually they informed the bank there were negotiations between the bank and Barclays with the result that the bank executed a deed of postponement acknowledging the primacy of the Barclays charge and Barclays consented to the registration of the appellant banks charge as a second charge. Subsequently the borrowers defaulted, and the property was repossessed and sold by Barclays in February 2011 for 1.2m, of which the bank received 867,697. The issue is how much the bank is entitled to recover from the solicitors. The bank claims that it is entitled to the full amount of its loan less the amount recovered by it. The solicitors contend that their liability is limited to the amount by which the bank suffered loss by comparison with its position if the solicitors had done as they should, which was to have paid Barclays the full amount of the Barclays debt so as to redeem the Barclays charge. The difference, leaving interest aside, is between 2.5m and 275,000 in round figures. The action The bank alleged that the solicitors acted in breach of trust, breach of fiduciary duty, breach of contract and negligence. It claimed relief in the forms of (i) reconstitution of the fund paid away in breach of trust and in breach of fiduciary duty, (ii) equitable compensation for breach of trust and breach of fiduciary duty, and (iii) damages for breach of contract and negligence, in each case with interest. The solicitors admitted that they acted negligently and in breach of contract but denied the other allegations and they claimed relief under section 61 of the Trustee Act 1925 if found to have acted in breach of trust. At the trial, before His Honour Judge Cooke, the bank accepted that the solicitors had acted in good faith. The judge found that the solicitors acted in breach of trust, which he analysed as follows: 23. In the present case, . what the defendants instructions authorised them to do with the funds paid to them was to pay to Barclays (or to its account) such sum as was required to procure a release of its charge, and pay the balance to the borrowers or to their order. Had they complied with their instructions they would have paid (taking all the figures in round terms) 1.5m to Barclays and 1.8m to the borrowers. In the event they paid 1.2m to Barclays and 2.1m to the borrowers. In my judgment, in so doing they committed a breach of trust in so far as payment was made contrary to the authority they had been given. 24. It does not however in my judgment necessarily follow that the whole of the payment of 3.3m was made in breach of trust. The difference between what the defendant did and what it ought to have done if it had complied with its instructions was the 300,000 that should have been paid to Barclays but was instead paid to the borrowers. That in my judgment was the extent of the breach of trust committed. It was not a breach of trust to pay 1.2m to Barclays; that payment was made as partial performance of the authority and obligation to discharge Barclays secured debt. It was not a breach of trust to pay 1.8m to the borrowers, as that was the sum to which they were entitled. The breach consisted of the failure to retain an additional 300,000 and apply that to the discharge of the Barclays debt. As to the remedy, the judge held that prima facie the bank was entitled to reconstitution of the trust fund by repayment of the amount wrongly paid away. As to the banks alternative claim for equitable compensation or damages, he said that where the breach consisted of failure to discharge a prior mortgage, with the result that the banks interest had been postponed to the Barclays charge, the bank was entitled to equitable compensation for the additional amounts due to Barclays for which Barclays had security in priority to the bank. The solicitors were therefore liable to the bank for the additional amount ultimately obtained by Barclays by reason of its prior security. The judge added that in those circumstances he did not intend to venture into the argument as to the appropriate remedy if the solicitors committed a breach of trust in paying out any part of the advance, except to find as a fact what would have happened but for the breach of trust. That question, he said, could be approached on one of two bases, namely what would the outcome have been if the solicitors had either (i) dealt with the funds held in the manner they were authorised to do or (ii) instead of making the unauthorised payment they did, had asked the bank for instructions at that point, disclosing the reasons why the payment was outside their existing authority. He concluded that on either approach the answer would be the same on the facts of the case. There would have been a short delay while the solicitors obtained a redemption figure in a form that bound Barclays to release its charge; they would then have paid that amount to Barclays; they would in due course have received a release and they would have registered the banks charge as a first charge. He added that, on the implausible scenario that the solicitors realising that they did not have a valid redemption quotation had approached the bank for further instructions, the bank would not have withdrawn from the transaction but would have instructed the solicitors to carry on with it, complying with their existing instructions. The judge added that it was clear from the evidence that the bank was anxious to lend to the borrowers and that the domestic re mortgage was driven by the need to facilitate business lending which the bank was very keen to make. The judge therefore gave judgment for the bank in the sum of 273,777 plus interest. It was not necessary in the circumstances for him to deal with the issue of relief under section 61 of the Trustee Act, which would have arisen if he had held that the bank was prima facie entitled to recover the entire amount of the loan. The Court of Appeal (Arden, Sullivan and Patten LJJ) held that the judge was wrong to treat the breach of trust as limited to that part of the mortgage advance which was paid to the borrowers instead of being used to discharge their liability to Barclays on the second account. The judgment of the court was given by Patten LJ. Citing earlier authorities and the provisions of the CML Handbook, he held that the solicitors had no authority to release any part of the funds advanced by the bank unless and until they had a redemption statement from Barclays coupled with an appropriate undertaking which enabled them to be sure that they would be able on completion to register the banks charge as a first charge over the property. The solicitors have not challenged the Court of Appeals reasoning on that point. However, the Court of Appeal upheld the judges decision regarding the relief to which the bank was entitled and dismissed the banks appeal. In reaching its conclusion the Court of Appeal applied what it understood to be the reasoning of the House of Lords in Target Holdings Ltd v Redferns [1996] AC 421. It held that where the breach of trust occurred in the context of a commercial transaction such as the present, Target Holdings established that equitable principles of compensation although not employing precisely the same rules of causation and remoteness as the common law, do have the capacity to recognise what loss the beneficiary has actually suffered from the breach of trust and to base the compensation recoverable on a proper causal connection between the breach and the eventual loss (per Patten LJ at para 47). Applying that principle to the facts found by the judge, Patten LJ said at para 49: If one asks as at the date of trial and with the benefit of hindsight what loss AIB has suffered then the answer is that it has enjoyed less security for its loan than would have been the case had there been no breach of trust. If [the solicitors] had obtained from Barclays a proper redemption statement, coupled with an undertaking to apply the sums specified in the statement in satisfaction of the existing mortgage, then the transaction would have proceeded to complete and AIB could have obtained a first legal mortgage over the Sondhis property. But although that did not happen, AIB did obtain a valid mortgage from the Sondhis which they were eventually able to register as a second charge and use to recover part of their loan from the proceeds of the security in priority to the Sondhis other creditors. Even had there been no such mortgage they would have been subrogated to Barclays first charge insofar as they discharged part of the Sondhis indebtedness by the payment of the 1.2m. In my view all of these are matters to be taken into account in considering what loss has ultimately been caused by the solicitors breach of trust. In the light of the judges findings it is not open to AIB to contend that but for the breach of trust it simply would have asked for its money back. As to the point made by the bank that in the present case the breach of trust was never made good because the bank never obtained a first charge over the intended security (by contrast with the position in Target Holdings), Patten LJ considered this irrelevant to the question of principle about how the banks equitable compensation was to be calculated. Target Holdings stood as authority for the broad principle identified by Lord Browne Wilkinson as follows: Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach. Like the trial judge, the Court of Appeal did not find it necessary to express any views about section 61 of the Trustee Act. Target Holdings The present case bears a close similarity to Target Holdings, but there is one factual difference which the bank submits is of critical importance. Both parties rely on Target Holdings in support of their respective cases. Neither party has expressly asked this court to depart from its reasoning, but part of the banks argument involves a re interpretation of the reasoning in Target Holdings which is in truth a dressed up attack on it. The reasoning in Target Holdings has attracted a considerable amount of commentary, partly supportive but mostly critical. There was only one speech, given by Lord Browne Wilkinson. In view of the arguments to which it has led, it is necessary to look at his speech in some detail. The facts of Target Holdings were described by Lord Browne Wilkinson as redolent of fraud, but the murky aspects did not affect the decision of the House of Lords. The matter reached the House of Lords on an appeal by the defendant solicitors against an order for summary judgment. The undisputed facts were that the plaintiff finance company agreed to make loans to a company called Crowngate on the security of commercial property, for which Crowngate provided a professional valuation at 2m. The solicitors acted both for the finance company and for Crowngate. For the purposes of the transaction the finance company transferred about 1.5m to the solicitors without any express instructions as to its release. It was common ground that the solicitors had implied authority to pay the money to or to the order of Crowngate on completion of the conveyance of the land to Crowngate, provided that Crowngate had executed a charge in favour of the finance company. The solicitors wrongly released the bulk of the money to Crowngate before completion of the conveyance or the execution of a charge by Crowngate. The conveyance of the property to Crowngate and its execution of a legal charge in favour of the finance company took place some days later. Crowngate later defaulted on repayment of the loans and was wound up as insolvent. The finance company sold the property as mortgagee for 500,000. The finance company sued the solicitors for breach of trust and negligence in releasing funds to Crowngate at a time when they had no authority to do so. On an application for summary judgment, the judge at first instance gave the solicitors unconditional leave to defend the claim in negligence, and there was no appeal against that part of his order. On the claim for breach of trust he gave the solicitors conditional leave to defend, but the Court of Appeal by a majority gave summary judgment to the finance company for the amount which the solicitors had advanced prematurely to Crowngate, less the amount recovered by the finance company. Peter Gibson LJ (with whom Hirst LJ agreed) held that the basic liability of a trustee in breach of trust was not to pay damages, but to restore to the trust fund that which had been lost to it or to pay compensation to the beneficiary for what he had lost. If a trustee wrongly paid away trust monies to a stranger, there was an immediate loss to the trust fund and the trustee came under an immediate duty to restore the monies to the trust fund. The remedies of equity were sufficiently flexible to require the finance company to give credit for monies received on the subsequent realisation of its security, but otherwise the solicitors liability was to pay the whole of the monies wrongly paid away. In a dissenting judgment Ralph Gibson LJ held that it was necessary for the court to examine the nature of the relationship between the parties out of which the solicitors equitable duty arose. If, having regard to the relationship and its purpose, the obligations of the parties, its purpose and the obligations of the parties within it, it appeared just to regard the breaches as having caused no loss, because the loss would have happened if there had been no breach, the court should so hold. Lord Browne Wilkinson began his speech by saying that the appeal raised a novel point on the liability of a trustee who commits a breach of trust to compensate beneficiaries for such breach. He framed the issue in this way: Is the trustee liable to compensate the beneficiary not only for losses caused by the breach but also for losses which the beneficiary would, in any event, have suffered even if there had been no such breach? He observed that at common law there are two principles fundamental to an award of damages. First, the defendants wrongful act must cause the damage of which complaint is made. Second, the plaintiff is to be put in the same position as he would have been in if he had not suffered the wrong for which he is now getting his compensation or reparation (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, per Lord Blackburn). Equity, he said, approaches liability for making good a breach of trust from a different starting point, but the same two principles are applicable as much in equity as at common law. Under both systems liability is fault based: the defendant is only liable for the consequences of the legal wrong he has done to the plaintiff and to make good the damage caused by such wrong. He therefore approached the consideration of the rules of equity relevant to the appeal with a strong predisposition against holding that Redferns should be held liable to compensate Target for a loss caused otherwise than by the breach of trust. Lord Browne Wilkinson examined two arguments made on behalf of the finance company. First, he considered whether Redferns were under a continuing duty to reconstitute the trust fund by paying back into client account the monies paid away in breach of trust (argument A). Secondly, he considered the argument accepted by the majority of the Court of Appeal that there was an immediate right to have the trust fund reconstituted at the moment of the breach of trust, which gave rise to a cause of action regardless of later events (argument B). Lord Browne Wilkinson prefaced his consideration of the arguments by some important observations about the nature of a beneficiarys rights under a trust. His starting point was that the basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law. It followed that in relation to a traditional trust where a fund is held in trust for a number of beneficiaries having different, usually successive equitable interests, the right of each beneficiary is to have the whole fund vested in the trustees so as to be able to satisfy his equitable interest. The equitable rules of compensation for breach of trust, he said, have been largely developed in relation to such traditional trusts, where the only way in which all the beneficiaries rights can be protected is to restore to the trust fund what ought to be there. (As will be seen, some commentators have criticised his use of the term compensation for breach of trust in this context. They say that it confuses compensation with the primary accounting responsibility of a trustee.) In such a case, according to Lord Browne Wilkinson, the basic rule is that a trustee in breach of trust must either restore to the trust the assets which have been lost by reason of the breach of trust or pay monetary compensation to the trust estate. In so doing, courts of equity did not award damages but would make an in personam order for the payment of equitable compensation: Nocton v Lord Ashburton [1914] AC 932, at paras 952, 958, per Viscount Haldane LC. Having thus considered how courts of equity would enforce the basic right of a beneficiary to have the trust duly administered in a case where the trust was subsisting and where the only right of each beneficiary was to have the trust fund reconstituted as it should be, Lord Browne Wilkinson went on to consider the position if at the time of the action the trust had come to an end, for example by the beneficiary becoming absolutely entitled to the trust fund. In such a case, there was no need for restitution to the trust fund in order to protect other beneficiaries. The normal order would therefore be for the payment of compensation directly to the beneficiary. The measure of compensation would be the difference between what the beneficiary had in fact received and the amount which he would have received but for the breach of trust. That analysis (which I will refer to as Lord Browne Wilkinsons fundamental analysis) provided the foundation for all that followed. Lord Browne Wilkinson rejected the argument that a beneficiary had automatically a continuing right to the reconstitution of the trust fund (argument A). He repeated that in relation to a traditional trust, a beneficiary who was absolutely entitled to a trust fund had no automatic right to have the fund reconstituted. Moreover, while the fundamental principles of equity apply to all trusts, certain detailed rules applicable to one form of trust (a traditional trust) do not necessarily have to be applied to other forms of trust (a commercial trust) if the rationale does not sensibly apply to the latter. The House of Lords was concerned with a bare trust. Bare trusts may arise in a number of different contexts. In the case under consideration, it was one incident of a commercial transaction involving agency. The purpose of the solicitors retainer was to achieve the banks commercial objective. It was one aspect of arrangements between the parties which were mostly contractual. He said at p 436: I do not intend to cast any doubt on the fact that monies held by solicitors on client account are trust monies or that the basic equitable principles apply to any breach of such trust by solicitors. But the basic equitable principle applicable to breach of trust is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach. I have no doubt that, until the underlying commercial transaction has been completed, the solicitor can be required to restore to client account monies wrongly paid away. But to import into such trust an obligation to restore the trust fund once the transaction has been completed would be entirely artificial. (My emphasis). He added that, once a conveyancing transaction has been completed, the client has no right to have the solicitors client account reconstituted as a trust fund. To anticipate the argument discussed below, the bank relied on the second italicised sentence in this passage. It was submitted that in this case, in contrast with Target Holdings, the underlying commercial transaction was never completed because the shortfall in the payment needed to redeem the Barclays charge was never paid. To return to Lord Browne Wilkinsons analysis, argument B was the rationale of the judgments of the majority in the Court of Appeal. In rejecting it Lord Browne Wilkinson cited the (dissenting) judgment of McLachlin J in Canson Enterprises Ltd v Boughton & Co. (1991) 85 DLR (4th) 129 and, in particular, the following passage at p 163: In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie, the plaintiffs loss of opportunity. The plaintiffs actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach. Lord Browne Wilkinson added: In my view this is good law. Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach. On that approach Lord Browne Wilkinson held that Target was not entitled to the summary judgment which the Court of Appeal had ordered. The arguments There were two branches to the arguments advanced on behalf of the bank by Mr Jeremy Cousins QC and Mr Nicholas Davidson QC. I have referred to the first in para 35. The second was advanced partly by Mr Cousins but in greater detail by Mr Davidson, who reinforced his argument by reference to the Solicitors Accounts Rules. Mr Davidson adopted in his argument the views expressed by Lord Millett (then Sir Peter Millett) in his article Equitys Place in The Law of Commerce (1998) 114 LQR 214 and more recently in his judgment in Libertarian Investments Ltd v Hall [2013] HKCFA 93; [2014] 1 HKC 368. A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he misapplies the trust fund, or part of it, he must immediately reconstitute the trust fund in full. If he fails to do so, the court will order him to reconstitute the fund in specie, if that is possible, or pay the equivalent sum in money so as to produce the same result in financial terms. So in Target Holdings, where the solicitor wrongly paid out the funds before obtaining an executed mortgage, he remained liable to restore the fund; but he was deemed notionally to have done so and to have paid out the money properly at the moment when the preconditions for an authorised disposal of the fund were met. The present case is different, it was submitted, because the solicitors failed on discovering their mistake to pay Barclays the additional sum necessary to redeem its charge. They could and should have done so, in which case their position would have been indistinguishable from that of Redferns. But it was now too late. This, Mr Davidson submitted, is the correct analysis of Target Holdings. Solicitors Accounts Rules are made under section 32 of the Solicitors Act 1974 (amended by the Legal Services Act 2007). At the material time the relevant Rules were the 1998 Rules. (On 6 October 2011 the Solicitors Regulation Authority made the SRA Accounts Rules 2011, which replaced the 1998 Rules.) The payment out of the banks money to the borrowers on 1 August 2006 was unauthorised by the bank and so was a breach of rule 22 of the 1998 Rules regarding the operation of a solicitors client account. Rule 7 obliged the solicitors to remedy the breach on its discovery. The rule provided: (1) Any breach of the rules must be remedied promptly upon discovery. This includes the replacement of any money improperly withheld or withdrawn from a client account. (2) In a private practice, the duty to remedy breaches rests not only on the person causing the breach, but also on all the principals in the practice. This duty extends to replacing missing client money or controlled trust money from the principals own resources, even if the money has been misappropriated by an employee or fellow principal, and whether or not a claim is subsequently made on the Solicitors Indemnity or Compensation Funds. Mr Graeme McPherson QC submitted on behalf of the solicitors that the Court of Appeal was right to see the case in terms of causation of loss, and it was also right in concluding that the proper measure of the banks loss was the difference between its actual financial position and the position in which it would have been if the solicitors had not acted in breach of trust. On the findings of the trial judge, the loss to the bank (excluding interest) was the amount by which the value of its security was less than it should have been, which was the same as the amount of the overpayment to the borrowers and underpayment to Barclays. Mr McPherson submitted that the Court of Appeal correctly applied the fundamental principles stated by Lord Browne Wilkinson. The commercial transaction in which the solicitors were instructed was completed in the sense that Lord Browne Wilkinson used that expression when the loan monies were advanced to the borrowers, thereby creating the relationship of lender and borrower between the bank and the borrowers, notwithstanding that the solicitors had wrongly failed to see that a sufficient part of the loan money was paid to Barclays on completion of the loan for the redemption of the Barclays mortgage. The bank was entitled to have the solicitors breach of trust remedied, but the appropriate remedy was for the solicitors to make good the shortfall. That remedy was provided by the judgment of Judge Cooke. The bank was right, he submitted, to concede that if the shortfall had been made good before Barclays enforced its charge by selling the land, the bank would not have been entitled to recover the additional amount claimed by it. The argument that since the solicitors failed to do so, they were liable additionally for the loss which the bank would still have suffered if the shortfall had been made good, lacked justice or common sense. Whether the amount for which Barclays had superior security was paid by the solicitors before or after the sale of land made no difference to the banks financial position and ought not to affect the legal result. As to the Solicitors Accounts Rules, rule 7 was not prescriptive about the form of remedy or how money improperly withdrawn from a client account should be replaced. In this case, Mr McPherson submitted, a proper form of replacement would have been to pay to Barclays the amount which had been wrongly paid to the borrowers rather than to Barclays. The solicitors failure to do so promptly might expose them to a risk of disciplinary proceedings, but did not affect the legal analysis. Discussion The debate which has followed Target Holdings is part of a wider debate, or series of debates, about equitable doctrines and remedies and their inter relationship with common law principles and remedies, particularly in a commercial context. The parties have provided the court with nearly 900 pages of academic writing. Much of it has been helpful, but to attempt even to summarise the many threads of argument which run through it, acknowledging the individual authors, would be a lengthy task and, more importantly, would not improve the clarity of the judgment. Nor is it necessary to set out a full historical account of all the case law cited in the literature reaching back to Caffrey v Darby (1801) 6 Ves Jun 488. In the present case the solicitors owed a compendium of duties to the bank. Their relationship was governed by a contract but they held the money advanced by the bank on trust for the purpose of performing their contractual obligations. They broke their contract and acted in breach of trust when they released to the borrowers the money advanced by the bank, less a part of the sum required to redeem the Barclays mortgage, when they should have paid to Barclays the full amount required for that purpose, in return for an undertaking to issue a redemption certificate, and should have released the diminished balance to the borrowers. The determination of this appeal involves two essential questions. The more important question in the appeal is whether Lord Browne Wilkinsons statement in Target Holdings of the fundamental principles which guided him in that case should be affirmed, qualified or (as the bank would put it) reinterpreted. Depending on the answer to that question, the second is whether the Court of Appeal properly applied the correct principles to the facts of the case. Two main criticisms have been made of Lord Browne Wilkinsons approach. They have been made by a number of scholars, most recently by Professor Charles Mitchell in a lecture on Stewardship of Property and Liability to Account delivered to the Chancery Bar Association on 17 January 2014, in which he described the Court of Appeals reasoning in this case as incoherent. He expressed the hope that if the case reaches the Supreme Court their Lordships will recognise that Lord Browne Wilkinson took a false step in Target when he introduced an inapt causation requirement into the law governing substitutive performance claims. He added that if it is thought too harsh to fix the solicitors in this case with liability to restore the full amount of the loan (subject only to a deduction for the amount received by the sale of the property), the best way to achieve this is not to bend the rules governing substitutive performance claims out of shape, but to use the Trustee Act 1925, section 61, to relieve them from some or all of their liability. The primary criticism is that Lord Browne Wilkinson failed to recognise the proper distinctions between different obligations owed by a trustee and the remedies available in respect of them. The range of duties owed by a trustee include: (1) a custodial stewardship duty, that is, a duty to preserve the assets of the trust except insofar as the terms of the trust permit the trustee to do otherwise; (2) a management stewardship duty, that is, a duty to manage the trust property with proper care; (3) a duty of undivided loyalty, which prohibits the trustee from taking any advantage from his position without the fully informed consent of the beneficiary or beneficiaries. Historically the remedies took the form of orders made after a process of accounting. The basis of the accounting would reflect the nature of the obligation. The operation of the process involved the court having a power, where appropriate, to falsify and to surcharge. According to legal scholars whose scholarship I have no reason to doubt, in the case of a breach of the custodial stewardship duty, through the process of an account of administration in common form, the court would disallow (or falsify) the unauthorised disposal and either require the trust fund to be reconstituted in specie or order the trustee to make good the loss in monetary terms. The term substitutive compensation has come to be used by some to refer to a claim for the value of a trust asset dissipated without authority. (See the erudite judgment in Agricultural Land Management Ltd v Jackson (No 2) [2014] WASC 102 of Edelman J, who attributes authorship of the term to Dr Steven Elliott.) In a case of breach of a trustees management stewardship duty, through the process of an action on the basis of wilful default, a court could similarly falsify or surcharge so as to require the trustee to make good the loss resulting from the breach. The phrase wilful default is misleading because, as Brightman LJ explained in Bartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) [1980] Ch 515, 546, conscious wrongdoing is not required. In this type of case the order for payment by the trustee of the amount of loss is referred to by some as reparative compensation, to differentiate it from substitutive compensation, although in a practical sense both are reparative compensation. In a case of breach of the duty of undivided loyalty, there are possible alternative remedies. If the trustee has benefited from it, the court will order him to account for it on the application of the beneficiary. In Bristol and West Building Society v Mothew [1998] Ch 1 Millett LJ described such relief as primarily restitutionary or restorative rather than compensatory. Alternatively, the beneficiary may seek compensation in respect of his loss. The history of the account of profits is more complex than this summary might suggest, and the whole concept of equitable compensation has developed and become far more prominent in the law since Nocton v Lord Ashburton. However, what I have said is sufficient to identify the main criticism advanced against Lord Browne Wilkinsons approach in Target Holdings. It is said that he treated equitable compensation in too broad brush a fashion, muddling claims for restitutive compensation with claims for reparative compensation. The relevant principle, it is suggested, in a case of unauthorised dissipation of trust funds is that the amount of the award is measured by the objective value of the property lost, determined at the date when the account is taken and with the benefit of hindsight, per Millett NPJ in Libertarian Investments Ltd v Hall [2014] 1 HKC 368, para 168. In determining the value of what has been lost, the court must take into account any offsetting benefits received, but it is not relevant to consider what the trustee ought to have done. The court is concerned only with the net value of the lost asset. This argument has the approval of Edelman J in Agricultural Land Management Ltd v Jackson (No2), and there are statements in the authorities cited by him which support that approach, for example, by Lord Halsbury LC in Magnus v Queensland National Bank (1888) 37 Ch D, at paras 466, 472, although the issue in that case was different. The defendant advanced an argument which Bowen LJ, at para 480, likened to a case where A man knocks me down in Pall Mall, and when I complain that my purse has been taken, the man says, Oh, but if I had handed it back again, you would have been robbed over again by somebody else in the adjoining street. It is good sense and good law that if a trustee makes an unauthorised disbursement of trust funds, it is no defence to a claim by the beneficiary for the trustee to say that if he had not misapplied the funds they would have been stolen by a stranger. In such a case the actual loss has been caused by the trustee. The hypothetical loss which would have otherwise have occurred through the strangers intervention would have been a differently caused loss, for which that other person would have been liable. Bowen LJs example is far removed in terms of causation of loss from the present case, where the loan agreement involved the bank taking the risk of the borrowers defaulting, and the fault of the solicitors lay in releasing the funds without ensuring that the bank received the full security which it required, with the consequence that the amount of the banks exposure was greater than it should have been. In Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 Tipping J rightly observed that while historically the law has tended to place emphasis on the legal characterisation of the relationship between the parties in delineating the remedies available for breach of an obligation, the nature of the duty which has been breached can often be more important, when considering issues of causation and remoteness, than the classification or historical source of the obligation. Tipping J identified three broad categories of breach by a trustee. First, there are breaches of duty leading directly to damage or to loss of trust property. Secondly, there are breaches involving an element of infidelity. Thirdly, there are breaches involving a lack of appropriate skill and care. He continued at para 687: In the first kind of case the allegation is that a breach of duty by a trustee has directly caused loss of or damage to the trust property. The relief sought by the beneficiary is usually in such circumstances of a restitutionary kind. The trustee is asked to restore the trust estate, either in specie or by value. The policy of the law in these circumstances is generally to hold the trustee responsible if, but for the breach, the loss or damage would not have occurred. This approach is designed to encourage trustees to observe to the full their duties in relation to trust property by imposing on them a stringent concept of causation [ie a test by which a but for connection is sufficient]. Questions of foreseeability and remoteness do not come into such an assessment. According to the banks argument, the responsibility of the solicitors is still more stringent. It seeks to hold them responsible for loss which it would have suffered on the judges findings if they had done what they were instructed to do. This involves effectively treating the unauthorised application of trust funds as creating an immediate debt between the trustee and the beneficiary, rather than conduct meriting equitable compensation for any loss thereby caused. I recognise that there are statements in the authorities which use that language to describe the trustees liability. For example, in Ex p Adamson; In re Collie (1878) 8 Ch D, at paras 807, 819, James and Baggallay LJJ said that the Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for an equitable debt, or liability in the nature of a debt. This was long before the expression equitable compensation entered the vocabulary. Equitable monetary compensation for what in that case was straightforward fraud was clothed by the court in the literary costume of equitable debt, the debt being for the amount of the loss caused by the fraud. Whatever label is used, the question of substance is what gives rise to or is the measure of the equitable debt or liability in the nature of a debt, or entitlement to monetary compensation, and what kind of but for test is involved. It is one thing to speak of an equitable debt or liability in the nature of a debt in a case where a breach of trust has caused a loss; it is another thing for equity to impose or recognise an equitable debt in circumstances where the financial position of the beneficiaries, actual or potential, would have been the same if the trustee had properly performed its duties. Conclusion There are arguments to be made both ways, as the continuing debate among scholars has shown, but absent fraud, which might give rise to other public policy considerations that are not present in this case, it would not in my opinion be right to impose or maintain a rule that gives redress to a beneficiary for loss which would have been suffered if the trustee had properly performed its duties. The same view was expressed by Professor Andrew Burrows in Burrows and Peel (eds.), Commercial Remedies, 2003, pp 46 47, where he applauded Target Holdings for impliedly rejecting older cases that may have supported the view that the accounting remedy can operate differently from the remedy of equitable compensation. Despite the powerful arguments advanced by Lord Millett and others, I consider that it would be a backward step for this court to depart from Lord Browne Wilkinsons fundamental analysis in Target Holdings or to re interpret the decision in the manner for which the bank contends. All agree that the basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law. Where there has been a breach of that duty, the basic purpose of any remedy will be either to put the beneficiary in the same position as if the breach had not occurred or to vest in the beneficiary any profit which the trustee may have made by reason of the breach (and which ought therefore properly to be held on behalf of the beneficiary). Placing the beneficiary in the same position as he would have been in but for the breach may involve restoring the value of something lost by the breach or making good financial damage caused by the breach. But a monetary award which reflected neither loss caused nor profit gained by the wrongdoer would be penal. The purpose of a restitutionary order is to replace a loss to the trust fund which the trustee has brought about. To say that there has been a loss to the trust fund in the present case of 2.5m by reason of the solicitors conduct, when most of that sum would have been lost if the solicitors had applied the trust fund in the way that the bank had instructed them to do, is to adopt an artificial and unrealistic view of the facts. I would reiterate Lord Browne Wilkinsons statement, echoing McLachlin Js judgment in Canson, about the object of an equitable monetary remedy for breach of trust, whether it be sub classified as substitutive or reparative. As the beneficiary is entitled to have the trust properly administered, so he is entitled to have made good any loss suffered by reason of a breach of the duty. A traditional trust will typically govern the ownership management of property for a group of potential beneficiaries over a lengthy number of years. If the trustee makes an unauthorised disposal of the trust property, the obvious remedy is to require him to restore the assets or their monetary value. It is likely to be the only way to put the beneficiaries in the same position as if the breach had not occurred. It is a real loss which is being made good. By contrast, in Target Holdings the finance company was seeking to be put in a better position on the facts (as agreed or assumed for the purposes of the summary judgment claim) than if the solicitors had done as they ought to have done. Other considerations reinforce my view that the House of Lords did not take a wrong step in Target Holdings. Most critics accept that on the assumed facts of Target Holdings the solicitors should have escaped liability. But if causation of loss was not required for them to be liable, some other way had to be found for exonerating them from liability (unless the court was to use section 61 of the 1925 Act as a deus ex machina). The solution suggested by the bank is that the solicitors in Target Holdings should be treated as if the moneys which had been wrongly paid out had remained in or been restored to the solicitors client account and had then been properly applied after the solicitors had obtained the necessary paperwork. There is something wrong with a state of the law which makes it necessary to create fairy tales. As to the criticism of the passage in Target Holdings where Lord Browne Wilkinson said that it would be wrong to lift wholesale the detailed rules developed in the context of traditional trusts and apply them to a bare trust which was but one incident of a wider commercial transaction involving agency, it is a fact that a commercial trust differs from a typical traditional trust in that it arises out of a contract rather than the transfer of property by way of gift. The contract defines the parameters of the trust. Trusts are now commonly part of the machinery used in many commercial transactions, for example across the spectrum of wholesale financial markets, where they serve a useful bridging role between the parties involved. Commercial trusts may differ widely in their purpose and content, but they have in common that the trustees duties are likely to be closely defined and may be of limited duration. Lord Browne Wilkinson did not suggest that the principles of equity differ according to the nature of the trust, but rather that the scope and purpose of the trust may vary, and this may have a bearing on the appropriate relief in the event of a breach. Specifically, Lord Browne Wilkinson stated that he did not cast doubt on the fact that monies held by solicitors on client account are trust monies, or that basic equitable principles apply to any breach of such trust by solicitors. What he did was to identify the basic equitable principles. In their application, the terms of the contract may be highly relevant to the question of fact whether there has been a loss applying a but for test, that is, by reference to what the solicitors were instructed to do. If the answer is negative, the solicitors should not be required to pay restitutive monetary compensation when there has in fact been no loss resulting from their breach. That is not because special rules apply to solicitors, but because proper performance of the trustees obligations to the beneficiary would have produced the same end result. I agree with the view of Professor David Hayton, in his chapter Unique Rules for the Unique Institution, the Trust in Degeling & Edelman (eds), Equity in Commercial Law (2005), pp 279 308, that in circumstances such as those in Target Holdings the extent of equitable compensation should be the same as if damages for breach of contract were sought at common law. That is not because there should be a departure in such a case from the basic equitable principles applicable to a breach of trust, whether by a solicitor or anyone else. (If there were a conflict between the rules of equity and the rules of the common law, the rules of equity would prevail by reason of section 49(1) of the Senior Courts Act 1981, derived from the provisions of the Judicature Act 1875.) Rather, the fact that the trust was part of the machinery for the performance of a contract is relevant as a fact in looking at what loss the bank suffered by reason of the breach of trust, because it would be artificial and unreal to look at the trust in isolation from the obligations for which it was brought into being. I do not believe that this requires any departure from proper principles. There remains the question whether the Court of Appeal properly applied the reasoning in Target Holdings to the facts of the present case. It was argued on behalf of the bank that this case falls within Lord Browne Wilkinsons statement that [u]ntil the underlying commercial transaction has been completed, the solicitor can be required to restore to the client account monies wrongly paid away. This argument constricts too narrowly Lord Browne Wilkinsons essential reasoning. Monetary compensation, whether classified as restitutive or reparative, is intended to make good a loss. The basic equitable principle applicable to breach of trust, as Lord Browne Wilkinson stated, is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach. In this case, proper performance of the obligations of which the trust formed part would have resulted in the solicitors paying to Barclays the full amount required to redeem the Barclays mortgage, and, as Patten LJ said, the bank would have had security for an extra 300,000 or thereabouts of its loan. When Lord Browne Wilkinson spoke of completion he was talking about a commercial transaction. The solicitors did not complete the transaction in compliance with the requirements of the CML Handbook. But as a commercial matter the transaction was executed or completed when the loan monies were released to the borrowers. At that moment the relationship between the borrowers and the bank became one of contractual borrower and lender, and that was a fait accompli. The Court of Appeal was right in the present case to understand and apply the reasoning in Target Holdings as it did. The further argument advanced on behalf of the bank in this court about the Solicitors Accounts Rules takes matters no further, for the reasons which Mr McPherson gave in his response to it. The solicitors were at fault in not reporting to the bank what they had done and in failing at that stage to remedy their breach of trust by ensuring that the shortfall was paid to Barclays. Their failure to do so was a breach of the rules, which could have disciplinary consequences but it does not affect the outcome in the present appeal. There is, as Mr McPherson submitted, no satisfactory logical reason why the question of the solicitors liability to provide redress to the bank for a loss which it would have suffered in any event should turn on their compliance or non compliance with their obligations under rule 7. My analysis accords with the reasoning of Lord Reed and with his general conclusions at paragraphs 133 to 138. Equitable compensation and common law damages are remedies based on separate legal obligations. What has to be identified in each case is the content of any relevant obligation and the consequences of its breach. On the facts of the present case, the cost of restoring what the bank lost as a result of the solicitors breach of trust comes to the same as the loss caused by the solicitors breach of contract and negligence. For those reasons I would dismiss the appeal. LORD REED I agree that this appeal should be dismissed. I have reached that conclusion for reasons which are substantially the same as those of Lord Toulson. Given the importance of the case, I have thought it right to set out my own reasoning, which considers the relationship between equitable compensation and common law damages on a somewhat broader basis. In his speech in Target Holdings Ltd v Redferns [1996] AC 421, Lord Browne Wilkinson drew upon the minority judgment of McLachlin J in Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129. It may be helpful to begin by considering that case before turning to Target Holdings itself, not only because of the influence of McLachlin Js judgment upon the reasoning in that case, and in other cases in common law jurisdictions around the world, but also because the judgments in the case illustrate two approaches to equitable compensation: approaches which differ in respect of the relationship which they postulate between equitable compensation and common law damages. That issue lies at the heart of the arguments in this appeal. Canson Enterprises Ltd v Boughton & Co 80. The Canson Enterprises case was not concerned with a breach of trust, but with a breach of fiduciary duty by an agent. The claim was brought by developers of land against the lawyers who had acted for them in the purchase of the land. The lawyers acted in breach of their fiduciary duty by failing to disclose their knowledge that a third party was making a secret profit from the purchase. The development proved to be a failure as a result of the negligence of the engineers and contractors involved. The appellants sought to recover the loss incurred on the development from the lawyers, on the basis that they would not have proceeded with the purchase if they had known of the secret profit. Recognising that the loss would not be recoverable in an action founded on breach of contract, negligence or deceit, the appellants instead sought equitable compensation for breach of fiduciary duty, arguing that such compensation was unlimited by principles of causation, remoteness or intervening acts. 81. La Forest J, giving the judgment of the majority of the Supreme Court of Canada, distinguished at p 146 between the breach of a trustees obligation to hold the object of the trust, where on breach the concern of equity is that it be restored or, if that cannot be done, to afford compensation for what the object would be worth, and on the other hand a mere breach of duty, where the concern of equity is to ascertain the loss resulting from the particular breach of duty. In the former situation the difference between restoration and damages was abundantly clear, but in the latter situation the difference in practical result between compensation and damages is by no means as clear (p 145). La Forest J went on to observe at p 148, in relation to claims of the latter kind: The truth is that barring different policy considerations underlying one action or the other, I see no reason why the same basic claim, whether framed in terms of a common law action or an equitable remedy, should give rise to different levels of redress. On that footing (and subject to the proviso contained in the first part of that sentence), principles developed in the common law, such as the mitigation of damages and contributory negligence, could also be applied to analogous claims brought in an equitable context. In the instant case, damages equivalent to those for deceit were appropriate, and the appellants claim was therefore rejected. La Forest J acknowledged that the same result could have been produced using equitable principles alone. 82. McLachlin J agreed in the result, but based her analysis entirely on equitable principles. Her judgment, with which Lamer CJC and LHeureux Dub J concurred, merits detailed consideration. 83. First, she rejected the argument that the starting point, when quantifying compensation for breach of fiduciary duty, should be an analogy with tort or contract. In her view, that approach overlooked the unique foundation and goals of equity. In negligence and contract the parties were taken to be independent and equal actors, concerned primarily with their own self 84. interest. Consequently, the law sought a balance between enforcing obligations by awarding compensation, and preserving optimum freedom for those involved in the relationship. The essence of a fiduciary relationship, by contrast, was that one party pledged herself to act in the best interests of the other. The freedom of the fiduciary was diminished by the nature of the obligation she had undertaken. The fiduciary relationship had trust, not self interest, at its core. It therefore could not be assumed that an analogy with tortious damages was appropriate. Such an analogy would also have suggested that some well established equitable principles should not operate, such as the presumption that trust funds would be put to the most profitable use, and the requirement to disgorge profits gained through a breach of duty, even though such profits were not made at the expense of the person to whom the duty was owed. An analogy with tort would not be of great assistance in any event, since tort offered different measures of compensation, depending on the nature of the wrong. Rather than attempt to decide which tort was the closest analogy, the better approach was to look at the policy behind compensation for breach of fiduciary duty and determine how best to further that policy. In so far as shared concerns made it helpful, insights might be accepted from the law of tort. 85. Furthermore, an analogy with tort would require an artificial distinction to be drawn between a breach of trust involving the misapplication of property, where the tort analogy was on any view inapplicable, and other breaches of trust or of fiduciary obligations. In the former case, equity required property wrongfully appropriated to be restored together with an account of profits. Where there was no property which could be restored, the court could award compensation in lieu, with the ideal of restoring that which was lost through the breach of duty. That distinction should not obscure the fact that the measure of compensation was restitutionary in both cases. Any further distinction was difficult to support. It followed that equitable compensation was assessed at a different time from damages in tort or contract, and that the foreseeability of loss was not relevant. In a passage cited with approval in Target Holdings, McLachlin J said: 86. In this area tort and contract law are of little help. There, the general rule is that damages are assessed as at the time of the wrongful act, in view of what was then foreseeable, either by a reasonable person, or in the particular expectation of the parties. The basis of compensation at equity, by contrast, is the restoration of the actual value of the thing lost through the breach. The foreseeable value of the items is not in issue. As a result, the losses are to be assessed as at the time of trial, using the full benefit of hindsight. (p 162) That result reflected the nature of fiduciary obligations. In negligence, the law protected reasonable freedom of action of the defendant, and the reasonableness of his or her action could be judged by what consequences could be foreseen. In the case of a breach of fiduciary duty, as in deceit, there was no need to look to the consequences to judge the reasonableness of the actions. A breach of fiduciary duty was a wrong in itself, regardless of whether a loss could be foreseen. 87. Liability was however not unlimited. There was in the first place a requirement of causation: Just as restitution in specie is limited to the property under the trustee's control, so equitable compensation must be limited to loss flowing from the trustee's acts in relation to the interest he undertook to protect. (p 160) A further limitation arose from the plaintiffs responsibility not to act unreasonably. When the plaintiff, after due notice and opportunity, failed to take the most obvious steps to alleviate his or her losses, then it could rightly be said that the plaintiff had been the author of his own misfortune. I would comment that, rather than being a distinct principle, this might be regarded as following from the requirement of a direct causal connection. 88. A further potential limitation related to the interventions of third parties. McLachlin J distinguished between cases such as Caffrey v Darby (1801) 6 Ves Jun 488, where the failure of the trustees to take reasonable steps to recover payments owed to the trust had enabled a third party to default, and cases such as the instant case, where the plaintiff suffered loss as a result of the act of a third party after the fiduciarys obligation had terminated and the plaintiff had taken control of the property. These cases illustrate how the intervention of a third party may, or may not, interrupt the causal connection between a breach of trust and subsequent loss. 89. McLachlin J summarised her conclusions in another passage which was cited with approval in Target Holdings: In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie the plaintiff's lost opportunity. The plaintiff's actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach. The plaintiff will not be required to mitigate, as the term is used in law, but losses resulting from clearly unreasonable behaviour on the part of the plaintiff will be adjudged to flow from that behaviour, and not from the breach. Where the trustee's breach permits the wrongful or negligent acts of third parties, thus establishing a direct link between the breach and the loss, the resulting loss will be recoverable. Where there is no such link, the loss must be recovered from the third parties. (p 163) Discussion 90. It may be helpful at this stage to discuss three important points which can be derived from this illuminating judgment, and to which I shall return after considering other relevant authorities. The first is the distinction between liability and remedy. A breach of trust involving the misapplication of trust property can be remedied by means of proceedings designed to secure the performance of the trust. Such proceedings can include the drawing up of an account as a preliminary to the distribution of the trust fund. If property has been misapplied, the relevant entry in the account will be disallowed and the property must be restored by the trustee. If the property cannot be restored in specie, the trustee must restore the trust fund to the position it would have been in but for the breach, by paying into the fund sufficient pecuniary compensation to meet that objective. The compensation then forms part of the trust fund and is held on the same terms as the remainder of the fund. Alternatively, and more commonly in practice, proceedings may be brought directly for such a monetary remedy. 91. As I shall explain, another remedy can be sought where the trust is no longer subsisting, namely the payment of compensation directly to the beneficiary absolutely entitled to the trust fund. The liability, in that situation, is to compensate the beneficiary for the diminution in the value of the trust fund which was caused by the breach of trust, to the extent of the beneficiarys interest. The measure of compensation is therefore the same as would be payable on an accounting, although the procedure is different. 92. The second point is that the loss resulting from a breach of duty has to be measured according to legal rules, and that different rules apply to the breach of different obligations. The rules applicable to the tort of negligence, for example, have a rationale related to the nature of that tort. In general, and subject to special rules applicable to particular situations, which have their own rationale, the liability resulting from a failure to take reasonable care to guard against a reasonably foreseeable risk is limited to such consequences as are reasonably foreseeable at the time of the negligent act. The different rule applicable to the tort of deceit has a different rationale, related to the different nature of that tort: the liability of a person who intentionally deceives another is to compensate for all the loss which that person suffers in consequence, whether it is foreseeable or not. In that situation, foreseeability does not enter into the wrongfulness of the defendants conduct, and there is no reason why it should limit the extent of his responsibility. The tort of conversion has a different rule again: the defendant is liable to pay the value of the asset in question, measured as at the date when it was converted. And so, mutatis mutandis, for other breaches of duty, whether in tort, contract or equity. 93. The rules appropriate to a breach of duty by a trustee similarly have to be determined in the light of the characteristics of the obligation in question. This focus upon the trustees obligations is the third and most important point. Putting the matter very broadly, compensation for the breach of an obligation generally seeks to place the claimant in the position he would have been in if the obligation had been performed. Equitable compensation for breach of trust is no different in principle: again putting the matter broadly, it aims to provide the pecuniary equivalent of performance of the trust. 94. Some of the typical obligations of the trustee of a fund are strict: for example, the duty to distribute the fund in accordance with the purposes of the trust. Others are obligations of reasonable care: for example, the duty to exercise reasonable care and skill in the management of the fund. Since these equitable obligations relate to a fund held for trust purposes, the trustees liability for a breach of trust will, again putting the matter broadly, depend upon its effect upon the fund: the measure of compensation will generally be based upon the diminution in the value of the fund caused by the trustees default. 95. The only other observation I need make in relation to the judgment of McLachlin J concerns the statement that causation should be assessed on a common sense view. In its context, that statement served to emphasise that principles of causation developed in other contexts cannot be applied automatically in an equitable setting. Difficult questions of causation do not however always have an intuitively obvious answer. Legal analysis is as important in equity as in the common law. Target Holdings Ltd v Redferns 96. The facts of Target Holdings Ltd v Redferns are well known. The case concerned a claim against a firm of solicitors, sued for its involvement in a mortgage fraud. Fraud as well as negligence was pleaded. The solicitors had parted with the mortgage advance to the wrong person, prior to the completion of the transaction and without obtaining the security. The transaction was however subsequently completed and the security was obtained. It later proved hopelessly inadequate. The claimant sought summary judgment on the basis of the unauthorised payment. They argued that the solicitors came under an immediate duty to restore the money paid away in breach of trust, and that it was irrelevant that the claimant had subsequently received exactly the security that it was intending to obtain. This was described by Lord Browne Wilkinson as argument (B). Before the House of Lords, it was also argued that the claimant remained entitled at the date of judgment to have the solicitors reconstitute the trust fund (argument (A)). 97. The Court of Appeal gave judgment in favour of the claimant. An appeal was allowed by the House of Lords, for reasons given by Lord Browne Wilkinson. The reasoning has been much debated, and in view of the invitation to review it in the present appeal it is necessary to consider it in some detail. 98. His Lordship began by noting that the case was concerned with the rights of a beneficiary, and summarised the nature of such rights: The basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument The equitable rules of compensation for breach of trust have been largely developed in relation to traditional trusts, where the only way in which all the beneficiaries rights can be protected is to restore to the trust fund what ought to be there. In such a case the basic rule is that a trustee in breach of trust must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach or compensation for such loss. If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed Even if the immediate cause of the loss is the dishonesty or failure of a third party, the trustee is liable to make good that loss to the trust estate if, but for the breach, such loss would not have occurred. Thus the common law rules of remoteness of damage and causation do not apply. However there does have to be some causal connection between the breach of trust and the loss to the trust estate for which compensation is recoverable, viz the fact that the loss would not have occurred but for the breach. (p 434) 99. Where the trust was still subsisting, the only right of each beneficiary was to have the trust fund reconstituted as it should be. Where however the trust had come to an end, and the beneficiary had become absolutely entitled, it was normally inappropriate to order the reconstitution of the trust fund and its subsequent distribution: instead, the court ordered the payment of compensation directly to the beneficiary: The measure of such compensation is the same, ie the difference between what the beneficiary has in fact received and the amount he would have received but for the breach of trust. Accordingly, in traditional trusts for persons by way of succession, once those trusts had been exhausted and the fund had become absolutely vested in possession, the beneficiary was not normally entitled to have the exhausted trust reconstituted: his right was to be compensated for the loss he had suffered by reason of the breach. 100. What Lord Browne Wilkinson was discussing at this point was a question of remedy. The pecuniary remedy for a breach of trust affecting the trust fund cannot involve a payment to a particular beneficiary, unless the beneficiary is absolutely entitled to the fund. Absent such entitlement, the only way to ensure that each beneficiary is appropriately compensated is for the payment to be made into the trust fund, to be held in accordance with the terms of the trust. This is accomplished by adding the appropriate amount to the fund, so that the fund is restored or replenished. Where, on the other hand, the trust is no longer subsisting, compensation for the breach of trust can be paid directly to the beneficiary absolutely entitled. As Lord Browne Wilkinson explained, the measure of compensation is the same as if there had been an accounting and execution of the trust: in other words, the difference between what the beneficiary ought to have received and what he has in fact received as a result of the diminution in the trust fund. 101. His Lordship then turned to argument (A). He began by stating that even if the equitable rules developed in relation to traditional trusts were directly applicable to such a case as this, a beneficiary absolutely entitled to a trust fund had no automatic right to have the trust fund reconstituted. He had already explained why that was so, but had also explained the corollary, namely that the beneficiary would in that event be entitled to compensation in the same measure (unless the trustee was under no liability, for example by reason of acquiescence by the beneficiary in the breach of trust). His Lordships focus was again on the question of the appropriate remedy, rather than the measure of liability. He continued: But in my judgment it is in any event wrong to lift wholesale the detailed rules developed in the context of traditional trusts and then seek to apply them to trusts of quite a different kind. In the modern world the trust has become a valuable device in commercial and financial dealings. The fundamental principles of equity apply as much to such trusts as they do to the traditional trusts in relation to which those principles were originally formulated. But in my judgment it is important, if the trust is not to be rendered commercially useless, to distinguish between the basic principles of trust law and those specialist rules developed in relation to traditional trusts which are applicable only to such trusts and the rationale of which has no application to trusts of quite a different kind. (p 435) 102. This is one of a number of passages in the speech which have given rise to debate. The point that there are different types of trust, and that it would be mistaken to think that they must all be governed in every respect by identical rules, had also been made by McLachlin J in Canson Enterprises at pp 156 157. In particular, as Lord Browne Wilkinson pointed out, commercial trusts, usually arising out of contractual relationships rather than the transfer of property by way of gift, differ in a number of respects from the more traditional trust. That is not to say that there is a categorical distinction between trusts in commercial and non commercial relationships, or to assert that there are trusts to which the fundamental principles of equity do not apply. It is, on the other hand, to recognise that the duties and liabilities of trustees may depend, in some respects, upon the terms of the trust in question and the relationship between the relevant parties (cf Kelly v Cooper [1993] AC 205, 214 215). 103. Lord Browne Wilkinson then considered the particular type of trust with which the appeal was concerned. He began by identifying the relevant characteristics of the trust: 104. Lord Browne Wilkinson continued: This case is concerned with a trust which has at all times been a bare trust. Bare trusts arise in a number of different contexts: eg by the ultimate vesting of the property under a traditional trust, nominee shareholdings and, as in the present case, as but one incident of a wider commercial transaction involving agency. In the case of moneys paid to a solicitor by a client as part of a conveyancing transaction, the purpose of that transaction is to achieve the commercial objective of the client, be it the acquisition of property or the lending of money on security. The depositing of money with the solicitor is but one aspect of the arrangements between the parties, such arrangements being for the most part contractual. (p 436) I do not intend to cast any doubt on the fact that moneys held by solicitors on client account are trust moneys or that the basic equitable principles apply to any breach of such trust by solicitors. But the basic equitable principle applicable to breach of trust is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach. I have no doubt that, until the underlying commercial transaction has been completed, the solicitor can be required to restore to client account moneys wrongly paid away. But to import into such trust an obligation to restore the trust fund once the transaction has been completed would be entirely artificial. The obligation to reconstitute the trust fund applicable in the case of traditional trusts reflects the fact that no one beneficiary is entitled to the trust property and the need to compensate all beneficiaries for the breach. That rationale has no application to a case such as the present. To impose such an obligation in order to enable the beneficiary solely entitled (ie the client) to recover from the solicitor more than the client has in fact lost flies in the face of common sense and is in direct conflict with the basic principles of equitable compensation. In my judgment, once a conveyancing transaction has been completed the client has no right to have the solicitor's client account reconstituted as a trust fund. (p 436) 105. This passage contains a number of ideas. The first is that the basic equitable principle applicable to breach of trust is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach. That is a broad proposition, which leaves open what precisely is meant by loss, and how it is assessed. As McLachlin J explained in Canson Enterprises, the basic obligation of a defaulting trustee is to restore the trust fund to the position it would have been in but for the default. In relation to the breach of a fiduciary duty, her Ladyship said (in the passage cited at para 89, also cited by Lord Browne Wilkinson with approval at a later point in his speech) that, by analogy, compensation for breach of such a duty attempts to restore to the plaintiff what has been lost as a result of the breach. Lord Browne Wilkinsons dictum should in my view be understood in that sense: the loss is what the beneficiary has been deprived of as a result of the breach. 106. The second idea is that, where a solicitor holds money on trust as an incident of a commercial transaction, he can be required to restore moneys paid away until the commercial transaction has been completed, but not after that point, since it would be artificial to impose the same obligation once the transaction has been completed. Lord Browne Wilkinson is again focusing on procedure: as he had previously explained, the appropriate remedy where the trust is no longer in subsistence is the payment of compensation directly to the beneficiary. Consistently with that general approach, it would be inappropriate to require a trustee to reconstitute the trust fund (such as a solicitors client account) in a case where a bare trust had come into being for the purpose of a commercial transaction which had in practical terms been completed, leaving no active obligations for the trustee to perform. As he had previously explained, the measure of compensation would be the same as the loss to the trust fund. 107. The third idea, expressed in the penultimate sentence of the passage I have cited, is that to impose an obligation to reconstitute the trust fund, in order to enable the client to recover more than he has in fact lost, flies in the face and is in direct conflict with the basic principles of equitable compensation. That is clearly correct. As Lord Browne Wilkinson went on to explain, an obligation to reconstitute the trust fund does not inexorably require a payment into the fund of the value of misapplied property: for example, where the consequences of the breach of trust have been mitigated by subsequent events. 108. Lord Browne Wilkinson might however be understood, from the juxtaposition of the two final sentences (the last sentence stating a conclusion which might be read as being based on his rejection of the idea postulated in the preceding sentence), to be envisaging that the remedy of an accounting might result in the trustees paying more into the trust fund than had actually been lost by the beneficiary entitled to the fund. I doubt however whether that was what Lord Browne Wilkinson meant. The direct payment of equitable compensation to the beneficiary is procedurally different from the reconstitution and distribution of the trust fund, but the end result should not be different: otherwise, the beneficiary would receive something other than his entitlement under the trust. Equally, the remedy of an accounting and execution of the trust cannot require more to be paid into the trust fund than is missing from it. 109. Argument (A) was thus dismissed on a procedural ground: the wrong remedy had been sought. Lord Browne Wilkinson then turned to argument (B). He noted that the Court of Appeal had drawn a distinction between the case in which the breach of trust consisted of some failure in the administration of the trust, and the case where a trustee wrongfully paid away trust moneys. There was, he said, no doubt that in the former case, the restitution or compensation payable was assessed at the date of trial, not of breach. In the latter case, however, the Court of Appeal considered that events between the date of breach and the date of trial were irrelevant in assessing the loss suffered by reason of the breach. 110. As Lord Browne Wilkinson remarked, the fact that there was an accrued cause of action as soon as the breach was committed did not mean that the quantum of the compensation payable was fixed on that date. The quantum was fixed at the date of judgment, as the figure then necessary to put the trust fund or the beneficiary back into the position it would have been in had there been no breach. 111. In that regard, Lord Browne Wilkinson cited the judgment of McLachlin J in Canson Enterprises, which he described as containing an illuminating exposition of the rules applicable to equitable compensation for breach of trust. In particular, he cited passages from the judgment which I also have cited at paras 86, 87 and 89, in which her Ladyship discussed causation, foreseeability and the time of assessment. He commented: In my view this is good law. Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach. (p 439) In the instant case, the claimant obtained exactly what it ought to have obtained, namely a valid security for the sum advanced, and therefore suffered no compensatable loss. 112. Finally, there was accepted to be a triable issue as to whether the premature payment of the mortgage advance to its recipients had been essential to enable the entire transaction to proceed. Lord Browne Wilkinson commented that if that was established, the loss suffered by the claimant by reason of the breach of trust would be the total sum advanced less the proceeds of the security. That comment is consistent with the approach to foreseeability, and to interventions by third parties, adopted by McLachlin J. 113. Although the passages which I have discussed in paras 102 and 105 108 may be capable of a different interpretation, at least if read in isolation, it appears therefore that Lord Browne Wilkinson intended his approach to be consistent with that of McLachlin J in Canson Enterprises. 114. The result of the appeal was undoubtedly correct. The mortgage advance had been paid out prematurely and to the wrong person, with the consequence that at that point the trustee did not have the charges which he ought to have had. That deficiency was however remedied when the charges were obtained some weeks later. The assets under the control of the trustee were then exactly what they ought to have been. There was nothing missing from the trust fund, and therefore no basis for a claim for restoration. For the same reason, there was no basis for a claim to compensation by the mortgagee. 115. Lord Browne Wilkinsons judgment has been interpreted by some academic lawyers as adopting a reparative measure of compensation, as distinct from McLachlin Js substitutive analysis. That interpretation is based primarily on Lord Browne Wilkinsons statement that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach. That dictum has been interpreted as meaning that equitable compensation is to be assessed in the same way as common law damages, either generally or at least in circumstances such as those with which the case was concerned. 116. I do not understand that to have been Lord Browne Wilkinsons meaning. As I have explained at paras 99 100, 105 108 and 110 111, and particularly in view of his endorsement of the passages cited from McLachlin Js judgment, which I discussed at paras 86 and 87 89, I am not persuaded that Lord Browne Wilkinson intended to depart from the orthodox view that the equitable obligation arising from a breach of trust affecting the trust fund is to restore the fund to the position it would have been in but for the breach, and that the measure of compensation, whether it is payable into the trust fund or directly to a beneficiary, should be assessed on that basis. Furthermore, as I shall shortly explain, Target Holdings has not been understood in other leading common law jurisdictions as having established that the basis upon which equitable compensation is assessed is the same as the basis upon which common law damages are calculated. If that were its effect, the development of equity in English law would be at odds with its development in those jurisdictions. The case law since Target Holdings 117. It remains to consider, prior to turning to the present case, some of the most significant cases in this area since Target Holdings. 118. In Bristol and West Building Society v Mothew [1998] Ch 1, a case concerned with a negligent misrepresentation made by a solicitor to his client, Millett LJ drew a distinction at pp 16 17 between a duty which is special to fiduciaries, such as the fiduciary duty of loyalty, and a duty which is incumbent upon a fiduciary but is not peculiar to a person in that position, such as the duty of care imposed on those who have assumed responsibility for the property or affairs of others. Millett LJ commented: Although the remedy which equity makes available for breach of the equitable duty of skill and care is equitable compensation rather than damages, this is merely the product of history and in this context is in my opinion a distinction without a difference. Equitable compensation for breach of the duty of skill and care resembles common law damages in that it is awarded by way of compensation to the plaintiff for his loss. There is no reason in principle why the common law rules of causation, remoteness of damage and measure of damages should not be applied by analogy in such a case. (p 17) 119. As I shall explain, that dictum has been questioned, or given a restrictive application, in a number of other jurisdictions. It is unnecessary to consider it in detail in the present appeal. It may however be helpful to make two observations. First, Millett LJ was not considering the liability of a trustee. Secondly, as McLachlin J pointed out in Canson Enterprises, the application by analogy of the common law rules is complicated by the fact that there is no single set of common law rules. It is necessary to consider the specific characteristics of the obligation in question (such as the duty to exercise care in the management of a trust fund), and the respects in which it resembles or differs from obligations arising in other areas of the law (such as duties of care in contract or in tort), in order for the law governing liability for the breach of these various obligations to be coherent. 120. The only other decision in this jurisdiction which need be mentioned is FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45; [2014] 3 WLR 535. The case concerned the question whether a principal had a proprietary claim to a secret profit received by his agent in breach of his fiduciary duty. I note in passing that the alternative remedy, a personal claim to payment of the amount brought out by an account of profits, was described by the court as equitable compensation. In order to avoid confusion, it is necessary to note that the expression was being used in a different sense from the one that it bears in the present context. 121. In reaching its conclusion in the FHR case, the court was influenced by the case law of other common law jurisdictions, remarking at para 45 that it seemed highly desirable for all those jurisdictions to learn from each other, and at least to lean in favour of harmonising the development of the common law round the world. With that observation in mind, I turn to the more recent case law of Canada, Australia, New Zealand and Hong Kong. 122. In Canada, the argument in Canson Enterprises has been carried forward in a number of cases. In M(K) v M(H) [1992] 3 SCR 6, 80 81, 86 it was agreed that where the same policy objectives underlie two different causes of action similar measures of compensation may be appropriate; and the same approach can be seen in Cadbury Schweppes v FBI Foods [1999] 1 SCR 142. In Hodgkinson v Simms [1994] 3 SCR 377 La Forest J, giving the judgment of the majority, drew the same distinction as had been drawn by McLachlin J in Canson Enterprises between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one partys duty to act in the others best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn. The decision of the majority in Canson Enterprises was explained as holding that a court exercising equitable jurisdiction was not precluded from considering the principles of remoteness, causation and intervening act where necessary to reach a just result. 123. In Australia, McLachlin Js analysis of the distinction between fiduciary relationships and those regulated by tort and contract has been accepted by the High Court: Pilmer v Duke Group Ltd [2001] HCA 31; (2001) 207 CLR 165, para 71. The court has consequently questioned the view, based on the dictum of Millett LJ in Bristol and West Building Society v Mothew, that equitable compensation for breach of the duty of skill and care in the administration of a trust should be governed by common law rules: Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; (2003) 212 CLR 484, paras 39 40. The Australian cases proceed on the basis that liability in respect of losses sustained by reason of a breach of duty by a trustee or other fiduciary is determined by equitable principles, and that these may require different rules from those which govern the assessment of damages in tort or contract: see for example Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449, which concerned causation, and Pilmer v Duke Group Ltd, which concerned contributory negligence. In the latter case, McHugh, Gummow, Hayne and Callinan JJ said at para 85: In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and these do not necessarily reflect the rules for assessment of damages in tort or contract. 124. Target Holdings was considered by the High Court of Australia in Youyang Pty Ltd v Minter Ellison Morris Fletcher, a case on broadly analogous facts, with the important distinction that the security which would have been good was never provided (in addition, the plaintiff investor was not the client of the solicitor trustee). The court distinguished Target Holdings on the basis that it was a case where, ultimately, the property was conveyed to the mortgagor and the charges were executed. That element being absent in Youyang, the defendant solicitors were ordered to repay the monies which they had paid out in breach of trust. The court regarded it as beside the point that, after the money had been disbursed in breach of trust, there was also conduct by third parties which resulted in the loss of the unsecured funds. In those respects the decision appears to me to be consistent with the approach adopted in Target Holdings. 125. As in Target Holdings, the court observed that the nature of the remedy for breach of trust could vary to reflect the terms of the trust and the breach of which complaint was made. In particular, as in Target Holdings, the solicitors did not hold the moneys for indeterminate or contingent beneficial interests, and the case was not one where the appropriate remedy was to have duly administered a restored trust fund. 126. McLachlin Js approach in Canson Enterprises to the assessment of compensation for the breach of a fiduciary duty, as set out in the passage which I have cited at para 89, was also accepted by Elias CJ in the Supreme Court of New Zealand: Premium Real Estate Ltd v Stevens [2009] NZSC 15; [2009] 2 NZLR 384, paras 34 36. In relation to remoteness of damage, it was observed that the question of foreseeability in common law claims was effectively overtaken by the relationships out of which fiduciary duties arose, and that different policy considerations might affect remoteness of damage in cases of breach of fiduciary duty than in common law claims. But the necessity of demonstrating that a loss was caused by the claimed breach of fiduciary duty followed from the compensatory justification for the remedy. 127. In the earlier case of Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664, Millett LJs dictum in Bristol and West Building Society v Mothew [1998] Ch 1, 17 was cited with approval by the Court of Appeal. The case was not concerned with the duty of a trustee to exercise reasonable care and skill in the management of a trust fund, but, like Mothew, with a duty of care relating to the provision of information. The trustee was required, under a debenture deed securing advances by banks to a property investment company, to take care to detect breaches of the deed by the company. The plaintiff bank claimed to have suffered loss as a consequence of the trustees negligent failure to detect and report breaches by the company, notwithstanding the absence of any diminution in the value of the security. The case illustrates how the obligations of a trustee under a commercial trust can differ from those typically imposed by more traditional trusts: as Tipping J observed, the relationship of trustee and beneficiary was in a sense, incidental (p 688). 128. This rapid, and inevitably somewhat superficial and selective, tour dhorizon can be completed by considering two decisions of the Hong Kong Final Court of Appeal. First, in Akai Holdings Ltd v Kasikornbank PCL [2011] 1 HKC 357, it was said, under reference to Target Holdings and the Australian case of Maguire v Makaronis, that the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated) (para 131). It was also accepted, under reference to those cases and to the judgment of McLachlin J in Canson Enterprises, that the losses made good are only those which, on a common sense view of causation, were caused by the breach (para 152). 129. Secondly, in Libertarian Investments Ltd v Hall [2014] 1 HKC 368 Ribeiro PJ carried out a valuable review of the authorities concerned with equitable compensation in the context of a commercial relationship. He noted that where a relationship was fiduciary, there might be obligations which were not fiduciary in nature; and, equally, even in a commercial relationship, there might be aspects which engaged fiduciary obligations. As Blanchard J had stated in Amaltal Corpn Ltd v Maruha Corpn [2007] NZSC 40; [2007] 3 NZLR 192, para 21: That is because in the nature of that particular aspect of the relationship one party is entitled to rely upon the other, not just for adherence to contractual arrangements between them, but also for loyal performance of some function. Hence the important focus was on the nature of the obligation in question. 130. Ribeiro PJ accepted the suggestion made by Brennan CJ in Breen v Williams (1996) 186 CLR 71 that fiduciary duties could arise either from agency or from a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other. An obvious example of the agency type of situation was the case where a person received money or other property for and on behalf of or as trustee of another person. Accordingly: It is plain that fiduciary duties may well arise as aspects of a commercial relationship. Moreover, it is clear that legal and equitable rights and remedies are capable of co existence, even in a single transaction. (para 70) 131. Ribeiro PJ accepted McLachlin Js explanation of the distinction between fiduciary and common law relationships in a commercial context, and its reflection in the differences between equitable compensation and common law damages in relation to causation, foreseeability, mitigation of loss and the time of assessment (at paras 72, 80 81, 90 92 and 96). 132. Ribeiro PJ also considered the distinction drawn by Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1, 17, between the breach of a duty of skill and care within a fiduciary relationship and the breach of a duty which is fiduciary in nature. He accepted the view expressed by Tipping J in Bank of New Zealand v New Zealand Guardian Trust Co Ltd that, where there was a breach of a duty of care by a trustee which did not result in any loss to the trust fund, any liability in damages which might arise would be assessed by applying common law rules (para 77). On the other hand, where loss was caused by the fiduciary to trust property, strict rules on causation applied. Those were rules borrowed from those developed in relation to traditional trusts, requiring the trustee to restore to the trust fund what he had caused it to lose as a result of his breach of trust. In support of that restitutionary theory of equitable compensation, Ribeiro PJ cited Lord Browne Wilkinsons dictum in Target Holdings at p 434: If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed. Causation was established on a but for basis, without the constraints of common law rules on remoteness and foreseeability. General conclusions 133. Notwithstanding some differences, there appears to be a broad measure of consensus across a number of common law jurisdictions that the correct general approach to the assessment of equitable compensation for breach of trust is that described by McLachlin J in Canson Enterprises and endorsed by Lord Browne Wilkinson in Target Holdings. In Canada itself, McLachin Js approach appears to have gained greater acceptance in the more recent case law, and it is common ground that equitable compensation and damages for tort or breach of contract may differ where different policy objectives are applicable. 134. Following that approach, which I have discussed more fully at paras 90 94, the model of equitable compensation, where trust property has been misapplied, is to require the trustee to restore the trust fund to the position it would have been in if the trustee had performed his obligation. If the trust has come to an end, the trustee can be ordered to compensate the beneficiary directly. In that situation the compensation is assessed on the same basis, since it is equivalent in substance to a distribution of the trust fund. If the trust fund has been diminished as a result of some other breach of trust, the same approach ordinarily applies, mutatis mutandis. 135. The measure of compensation should therefore normally be assessed at the date of trial, with the benefit of hindsight. The foreseeability of loss is generally irrelevant, but the loss must be caused by the breach of trust, in the sense that it must flow directly from it. Losses resulting from unreasonable behaviour on the part of the claimant will be adjudged to flow from that behaviour, and not from the breach. The requirement that the loss should flow directly from the breach is also the key to determining whether causation has been interrupted by the acts of third parties. The point is illustrated by the contrast between Caffrey v Darby, where the trustees neglect enabled a third party to default on payments due to the trust, and Canson Enterprises, where the wrongful conduct by the third parties occurred after the plaintiff had taken control of the property, and was unrelated to the defendants earlier breach of fiduciary duty. 136. It follows that the liability of a trustee for breach of trust, even where the trust arises in the context of a commercial transaction which is otherwise regulated by contract, is not generally the same as a liability in damages for tort or breach of contract. Of course, the aim of equitable compensation is to compensate: that is to say, to provide a monetary equivalent of what has been lost as a result of a breach of duty. At that level of generality, it has the same aim as most awards of damages for tort or breach of contract. Equally, since the concept of loss necessarily involves the concept of causation, and that concept in turn inevitably involves a consideration of the necessary connection between the breach of duty and a postulated consequence (and therefore of such questions as whether a consequence flows directly from the breach of duty, and whether loss should be attributed to the conduct of third parties, or to the conduct of the person to whom the duty was owed), there are some structural similarities between the assessment of equitable compensation and the assessment of common law damages. 137. Those structural similarities do not however entail that the relevant rules are identical: as in mathematics, isomorphism is not the same as equality. As courts around the world have accepted, a trust imposes different obligations from a contractual or tortious relationship, in the setting of a different kind of relationship. The law responds to those differences by allowing a measure of compensation for breach of trust causing loss to the trust fund which reflects the nature of the obligation breached and the relationship between the parties. In particular, as Lord Toulson explains at para 71, where a trust is part of the machinery for the performance of a contract, that fact will be relevant in considering what loss has been suffered by reason of a breach of the trust. 138. This does not mean that the law is clinging atavistically to differences which are explicable only in terms of the historical origin of the relevant rules. The classification of claims as arising in equity or at common law generally reflects the nature of the relationship between the parties and their respective rights and obligations, and is therefore of more than merely historical significance. As the case law on equitable compensation develops, however, the reasoning supporting the assessment of compensation can be seen more clearly to reflect an analysis of the characteristics of the particular obligation breached. This increase in transparency permits greater scope for developing rules which are coherent with those adopted in the common law. To the extent that the same underlying principles apply, the rules should be consistent. To the extent that the underlying principles are different, the rules should be understandably different. The present case 139. In the present case, AIB transmitted 3.3m to Redler for the purpose of discharging the Sondhis debt to Barclays, discharging the related charge which Barclays held over their property, paying the balance of the money to the Sondhis and obtaining a first charge over the property. If Redler had performed their trust, they would on completion have held a registrable first charge which secured a debt of 3.3m. In the event, on completion they held a second charge in respect of that debt; but Barclays continued to hold a first charge in respect of an undischarged debt of 309,000, and AIBs charge could not be registered because Barclays charge included a covenant against the registration of other charges. Following negotiations between AIB and Barclays, it was agreed during 2008 that AIBs charge could be registered and that Barclays priority would be limited to 273,777.42, with the consequence that AIBs interest was worth 273,777.42 less than it should have been. That proved to be the position in 2011, when the security was enforced and these proceedings were begun: the proceeds of sale were insufficient to meet the Sondhis liabilities to both Barclays and AIB, and in consequence AIB received 273,777.42 less than they would have done if Redler had fulfilled their instructions. 140. AIB argue that they are entitled to payment of the entire 3.3m, less the 867,697.78 which they received on the sale of the property, on the basis that Redlers liability for their breach of trust is unlimited by causation or remoteness. In my opinion that argument is based on three fallacies, each of which is fatal to AIBs claim. First, it assumes that Redler misapplied the entire 3.3m, whereas in my opinion all that was misapplied was the 309,000 which was paid to the Sondhis rather than Barclays. Since the Court of Appeals decision to the contrary was not challenged, however, it is necessary to consider the appeal on the basis on which it was argued by both parties, namely that the breach of trust involved the misapplication of the entire 3.3m. On that premise, the appeal fails because it rests on the remaining fallacies. The second fallacy in AIBs argument is that it assumes that the measure of Redlers liability was fixed as at the date of the breach of trust: a proposition which was rejected in Target Holdings and in the Commonwealth authorities which I have cited. The third fallacy is that the argument assumes that liability does not depend on a causal link between the breach of trust and the loss: Redler is sought to be made liable for the consequences of the hopeless inadequacy of the security accepted by AIB before Redlers involvement, despite the fact that Redlers breach of trust did not affect that security except to the extent, initially, of 309,000, and finally of 273,777.42. That proposition also was rejected in Target Holdings and in the Commonwealth cases. 141. In these circumstances, applying the approach to the assessment of equitable compensation which I have explained, it appears to me that the loss to the trust estate as a result of Redlers breach of trust proved to be 273,777.42: that amount proved to be the pecuniary value of the difference between a first ranking security and one which was postponed to Barclays. That was also the loss to AIB, who were absolutely entitled to the trust estate. The trust no longer being on foot, the appropriate order is for Redler to pay AIB 273,777.42 plus interest from 2011. 142. Since AIB have already been awarded 273,777.42 plus interest against Redler (and no issue being raised in relation to the interest), it follows that they are not entitled to anything more. Their appeal should therefore be dismissed. LORD NEUBERGER, LADY HALE AND LORD WILSON 143. We agree that this appeal should be dismissed for the reasons given by Lord Toulson and Lord Reed.

UK-Abs

In 2006, AIB Group (UK) plc (the Bank) agreed to lend Mr and Mrs Sondhi 3.3m to be secured by a first legal charge over their home, valued at 4.25m. This was on the condition that the existing first legal charge in favour of Barclays Bank plc (Barclays) (borrowings on Barclays accounts amounting to 1.5m) was to be redeemed on or before completion of the Banks mortgage advance. Mark Redler & Co Solicitors (the Solicitors), also acting for Mr and Mrs Sondhi, were instructed on this basis and retained to act on the Banks behalf. Having requested the Bank to forward the funds because completion was imminent, the Solicitors: (i) remitted to Barclays an amount they thought was the total necessary to redeem the Barclays mortgage; and (ii) remitted the balance of the 3.3m less expenses to Mr and Mrs Sondhi. In fact, the Solicitors mistakenly remitted to Barclays an amount which was approximately 300,000 less than was necessary to redeem the Barclays mortgage. As a result, the Bank did not obtain a fully enforceable first charge over the property. When the Bank found out about this, there were negotiations between the Bank and Barclays. As a consequence, the Bank executed a deed of postponement acknowledging the primacy of Barclays charge and Barclays consented to the registration of the Banks charge as a second charge. Subsequently, Mr and Mrs Sondhi defaulted and their property was repossessed and sold by Barclays in February 2011 for 1.2m. The Bank received 867,697, approximately 300,000 less than it should have done if the Solicitors had remitted the correct amount to Barclays. The Bank brought proceedings against the Solicitors claiming, amongst other things, breach of trust. In terms of relief, the Bank argued that it was entitled to recover the full amount of its loan less the 867,697 recovered (approximately 2.5m). HHJ Cooke, at first instance, found that although the Solicitors had acted in breach of trust, the Bank could only recover the amount the Solicitors in fact paid to Mr and Mrs Sondhi but which should have been paid to Barclays (approximately 300,000). The Court of Appeal agreed with HHJ Cookes decision on the relief to which the Bank was entitled. In doing so, it applied what it understood to be the reasoning of Target Holdings Ltd v Redferns [1996] AC 412 (Target Holdings) in relation to equitable principles of compensation. The Supreme Court unanimously dismisses the appeal. Lord Toulson finds that the Bank is only entitled to the amount by which it suffered loss (approx. 300,000). Lord Reed writes a separate judgment coming to the same conclusion and with reasons which are substantially the same. Lord Neuberger, Lady Hale and Lord Wilson agree with both Lord Toulson and Lord Reed. Having considered the House of Lords judgment in Target Holdings [21] [36], Lord Toulson finds that it would be a backward step to depart from, or re interpret, Lord Browne Wilkinsons fundamental analysis of the principles of equitable compensation in that case [63]. A monetary award which reflects neither loss caused nor profit gained by the wrongdoer, such as the one argued for by the Bank, would be penal [64]. Moreover, to argue that the Bank has suffered a loss of 2.5m in this case is to adopt an artificial and unrealistic view of the facts [65]. Rather, one must look at the rationale of the monetary remedy for breach of trust; given that the beneficiary of a trust is entitled to have it properly administered, he is entitled to recover losses suffered by reason of the breach of duty [66]. Here, that loss was approximately 300,000 of the Banks loan which it failed to obtain security over. In Target Holdings, Lord Browne Wilkinson stated that, [u]ntil the underlying commercial transaction has been completed, the solicitors can be required to restore the client account monies wrongly paid away [72]. In the current case, although the Solicitors did not complete the transaction in the manner in which it was required, the transaction was, nevertheless, completed as a commercial matter when the loan monies were released to Mr and Mrs Sondhi [74]. The fact that the Solicitors may also have breached the Solicitors Accounts Rules does not affect the analysis [75]. Lord Reed undertakes a broader analysis of the relationship between equitable compensation and common law damages. He considers, first, the Canadian Supreme Court case of Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129 (Canson Enterprises), focusing mainly on the judgment of McLachlin J [80] [89]. Lord Reed then considers Target Holdings [96] [116]. In that case, Lord Browne Wilkinson did not intend to say that equitable compensation is to be assessed in the same way as common law damages [115]. He was not departing from the orthodox view that where a breach of trust occurs, an equitable obligation arises to restore the trust fund to the position it would have been in but for the breach and that the measure of compensation should be assessed on that basis [116]. A number of common law jurisdictions have subsequently followed the general approach of McLachlin J in Canson Enterprises and Lord Browne Wilkinson in Target Holdings [121] [133]. This is that where trust property has been misapplied, the doctrine of equitable compensation requires the trustee to restore the trust fund, or to pay the beneficiary where the trust has ended, to the position it would have been in if the trustee had performed his obligation [134]. Despite structural similarities when assessing equitable compensation and common law damages, liability of a trustee for breach of trust is not generally the same as liability in damages for tort or breach of contract [136]. The nature of the obligation breached and the relationship between the parties affect the measure of compensation [137]. In the present case, the Banks argument is based on three fallacies: (i) it assumes that the Solicitors misapplied the entire 3.3m as opposed to approximately 300,000 (however, the Court of Appeals decision to the contrary was not challenged before the Supreme Court); (ii) it assumes that the measure of the Solicitors liability was fixed at the date of the breach of trust; and, (iii) it assumes that liability does not depend on a causal link between breach of trust and loss. (ii) and (iii) were rightly rejected in Target Holdings [140]. The Bank should recover its loss, which was approximately 300,000 [141].

The appeal raises troublesome issues of construction of para 4 of Chapter 2 of Part 1 of Schedule 1 to the Mobile Homes Act 1983 (the 1983 Act). By section 1, the 1983 Act applies to any agreement under which a person (the occupier) is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence; and, by section 2, the terms set out in Part 1 of Schedule 1 to it shall, notwithstanding any express term to the contrary, be implied in any such agreement between the site owner and the occupier. Thus, by paragraph 1 of Chapter 2 of Part 1, a term is, subject to an irrelevant exception, implied that the occupiers right to station his mobile home on the site shall subsist until the agreement is determined under one of four subsequent paragraphs. Of the three (now numbered 4, 5 and 5A) which relate to determination by the site owner, the relevant paragraph is 4 (the para 4 term) which provides that: The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. In the present case the occupiers breach was an act of anti social behaviour. It raises the following issues: (i) Can an occupier remedy a breach of a covenant against anti social behaviour? If not, what is the effect of the para 4 term? (ii) (iii) Alternatively, if so, (a) how may he comply with a notice to remedy and (b) what is the effect of his obligation to do so within a reasonable time? Mr Telchadder, who is an occupier of a mobile home, appeals against an order of the Court of Appeal (Mummery LJ, Black LJ and Dame Janet Smith) dated 16 May 2012, [2012] EWCA Civ 635, by which it dismissed an appeal against an order made by HHJ Moloney QC in the Southend County Court on 17 August 2011. In proceedings brought by Wickland (Holdings) Ltd (Wickland), which owns and operates a site for mobile homes at Meadowview Park, Little Clacton, Essex, Judge Moloney held that, pursuant to the para 4 term, Wickland was entitled to terminate its agreement with Mr Telchadder dated 1 June 2006 and he proceeded to order that his licence to station his mobile home at Plot No.160 at the park be terminated forthwith. Pending determination of this appeal and, were it to fail, of a potential application to suspend execution of the judges order under section 4 of the Caravan Sites Act 1968 (the 1968 Act), Mr Telchadder continues to station his mobile home at Plot no. 160 and to occupy it there. The site at Meadowview Park is protected within the meaning of sections 5(1) of the 1983 Act and 1(2) of the 1968 Act. It is not a site for holiday caravans: the mobile homes are for occupation throughout the year and are fixed to the ground and, notwithstanding their description, they are not easily removed. There are about 200 homes on the site. The close proximity in which they are set places a premium on good neighbourliness. About 30% of the occupiers are aged at least 70 and children aged under 16 are not permitted permanently to reside there. Wickland does not own the homes and it appears that the occupiers themselves almost always own them. Occupiers who merely rent the homes from third parties may well not be protected under the 1983 Act: see Clayden, The Law of Mobile Homes and Caravans, 2nd ed (2003), p 87. On 1 June 2006 Mr Telchadder entered into a written agreement with Wickland for the right to station a mobile home, which he owns, on the park, at Plot No.160, on payment of a pitch fee of 1516 p.a. subject to annual review. The terms which the 1983 Act required to be implied into the agreement, therefore including the para 4 term, were all set out expressly in accordance with section 1(2)(d) of that Act. Mr Telchadder also expressly undertook not to act in such a way as to annoy or disturb other occupiers of the park. Furthermore he undertook to comply with the Park Rules, which were annexed to the agreement. By way of preface to the rules, Wickland stated that their object was not to place unnecessary restrictions on residents but to ensure that they might live peacefully in unspoilt surroundings and it explained that some of them were necessary because residents lived in closer proximity than house dwellers. One rule forbade residents to carry offensive weapons or any other objects likely to give offence while on the park. Another rule repeated the prohibition against acts of annoyance to other residents. Judge Moloney found that Mr Telchadder, who is middle aged, was somewhat eccentric and suffered certain mental problems, had a mild learning disability and exhibited autistic traits. On 31 July 2006 Miss Puncher, a female resident of the park, complained to Wickland that a man in camouflage clothing, with camouflage netting over his head, had startled her by jumping out at her from behind a tree on the park and by waving at her. The man was Mr Telchadder. Although Wickland did not plead this incident in its Particulars of Claim, the judge held that he thereby breached a term of the agreement for the purposes of the para 4 term, in that he broke his undertaking not to act so as to annoy or disturb other occupiers of the park; and the successive appeals have proceeded on that basis. By letter dated 15 August 2006 to Mr Telchadder, Wickland wrote: there is the extremely serious matter of your behaviour in that you are dressing in what appears to be military combat clothing and obscuring your face with a mask while outside your home in the Park area. You are also making unwanted approaches to some Residents while dressed in this manner causing alarm and distress. Your apparel in itself is not a great problem but not really desirable or in keeping with Meadowview Park, it is your actions which are not acceptable in that: A. ON NO ACCOUNT MUST YOU MASK OR OBSCURE YOUR FACE WHEN YOU ARE IN ANY AREA OF THE PARK OUTSIDE YOUR HOME B. ON NO ACCOUNT MUST YOU MAKE UNSOLICITED APPROACHES OR ADVANCES TO OTHER RESIDENTS ON MEADOWVIEW PARK Should you ignore either A or B above you will leave us no alternative but to apply to Colchester Court to have your Agreement terminated and your home removed from Meadowview Park. Judge Moloney held that the letter dated 15 August 2006 amounted to a notice to remedy the breach which had occurred on 31 July 2006 for the purposes of the para 4 term. The Court of Appeal agreed with him; and the current appeal proceeds on that basis. The central fact in this appeal is that Mr Telchadder committed no further breach of the agreement until 15 July 2009, almost three years after the notice dated 15 August 2006. It is true that in June 2007 and April 2008 Wickland had written further letters to Mr Telchadder, prompted by further complaints by residents of a relatively minor character, but the judge attached no significance to them. On 15 July 2009 Mr Telchadder (so the judge found) told Mr Carter, a resident of the park, that two women had reported him for jumping out on them in the woods and that he, Mr Telchadder, was going to kill them. When Mr Carter told him to calm down, he said Ill fucking kill you as well Ive got shotguns and air rifles. Mr Carter called the police and Mr Telchadder left. But he soon returned, swinging a stick and repeating that he was going to kill him. The judge found, however, that Mr Telchadder never intended to implement his threats to kill the women or Mr Carter and that the threats were stupid and ill advised. By letter dated 12 August 2009 Wickland informed Mr Telchadder that, because he had been harassing, threatening and terrorising other residents, it proposed to apply to court for termination of his agreement. On 8 September 2009 it issued its claim for possession of Plot No.160. But the hearing of the claim did not begin until 15 August 2011 and, in the intervening period of almost two years, Mr Telchadder, so the judge found, perpetrated other acts to which the judge had regard in considering, for the purpose of sub para (b) of the para 4 term, whether it was reasonable for the agreement to be terminated. The other acts were as follows: (i) (ii) In October 2009 an anonymous note was delivered to Mr Carters home. Mr Carter decorates his home with two Samurai swords. The note asked Mr Carter to leave one of the swords outside for the writer to collect. Later Mr Carter saw Mr Telchadder lurking outside his house. Mr Telchadder (so the judge found) had written the note. In February 2010 Mr Telchadder harassed and intimidated two elderly residents, one of whom was also disabled, as a result of which, on his plea of guilty, the local magistrates made an order restraining him from contacting them again. (iv) (iii) In July 2010 Mr Telchadder behaved in a threatening manner to a member of the family which owns and operates Wickland. In March 2011 Mr Telchadder left empty shotgun cartridges outside Mr Carters home. In April 2011 Mr Telchadder approached two elderly residents, who asked him to go away and threatened to call the police. At their request another resident joined them. Later Mr Telchadder returned, confronted the other resident, used foul language towards him and put his face up close to him. The other resident pushed him away. (v) Legislation About 85,000 households live in mobile homes on about 2000 sites governed by the 1983 Act. The number of households is increasing: in 2002 there were only about 65,000. As at Meadowview, a substantial proportion of the residents of mobile homes (about 68% in 2002 and probably more today) are elderly. The law has been slow to bring security of tenure to occupiers of mobile homes. First, limited, steps were taken in the 1968 Act. Section 2 provides that, where a contract is terminable by notice, at least four weeks notice must be given. Section 3(1) makes it a criminal offence for a site owner to recover possession of a plot otherwise than by court order. Section 4(1) empowers the court to suspend execution of a possession order for up to a year at a time. The Mobile Homes Act 1975 (the 1975 Act), by section 2(1), obliged a site owner to enter into a written agreement with an occupier for a minimum of five years. Section 3 required the agreement to include a number of terms there specified, including provision for: (g) the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it; Before proceeding to consider the 1983 Act, I should compare section 3(g) of the 1975 Act with section 146(1) of the Law of Property Act 1925 (the 1925 Act), which replaced section 14(1) of the Conveyancing and Law of Property Act 1881 (44 & 45 Vict c 41) and which restricts a lessors right of forfeiture for breach of covenant on the part of the lessee. The right is unenforceable unless and until the lessor serves on the lessee a notice (i) (ii) (iii) specifying the particular breach complained of; and if the breach is capable of remedy, requiring the lessee to remedy the breach; and in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money for the breach. In drafting section 3(g) of the 1975 Act the draftsman almost certainly had section 146(1) of the 1925 Act in mind. Both subsections require service of a notice of the breach which gives the lessee/occupier a reasonable opportunity to remedy it. More importantly for present purposes, both qualify their provisions by reference to the case of a breach which is capable of remedy or capable of being remedied. But the qualification operates at different stages. Section 146(1) requires service of a notice in any event but, if the breach is capable of remedy, the notice must require the lessee to remedy it and he must be given a reasonable time in which to do so. Section 3(g), by contrast, did not require service of a notice at all unless the breach was capable of being remedied. For reasons irrelevant to this appeal, the limited security of tenure which, by the 1975 Act, Parliament sought to give to occupiers of mobile homes proved to be flawed. The 1983 Act largely replaced the 1975 Act and, in particular, section 6(2) of the former (together with its related Schedule) repealed section 3(g) of the latter. The three terms implied by paragraphs 4, 5 and 5A of Chapter 2 of Part 1 of Schedule 1 to the 1983 Act, and which represent the owners only means of determining an agreement to which the Act applies, take an unusual form. They provide that the owners very entitlement to determine the agreement arises only once a court (or in some cases a tribunal) has been satisfied of one of the three facts respectively there specified and has concluded that it is reasonable for the agreement to be determined. If, at the end of the proceedings, his entitlement thus arises, the owner can, as the history of the present case demonstrates, there and then exercise his entitlement and obtain an order that the licence be duly terminated. Thus I arrive back at the para 4 term, set out in 1 above. The difficulties surround the requirement in sub para (a), which it is convenient to set out again, namely that the court should be satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; Omitted from sub para (a) of the para 4 term is any reference to a breach which is capable of being remedied, such as was included in section 3(g) of the 1975 Act and as is, with minor terminological variation, included in section 146(1) of the 1925 Act. Debate surrounds the omission. We should surely assume that the draftsman of sub para (a) had in mind the words of the provision which it was replacing and we should strive to attach significance to the omission. But there is nothing in the para 4 term, even when considered in the context of the other terms and of the apparent purpose of the entire 1983 Act, which casts any light on the reasons for the omission. In the end the question is whether to seek to attribute significance to the omission by concluding that the twin requirements in sub para (a) to serve notice and to afford to the occupier a reasonable time within which to comply with it apply even to a breach which is incapable of remedy. In my opinion the question has only to be asked for it to be rejected. It would be nonsensical to require service of a notice to remedy a breach which is incapable of remedy. A similar approach was adopted by Lord Reid in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235. The basis of the decision of the House of Lords was that, in context, the word condition in the contract between the parties did not mean a term, breach of which afforded to the other party an immediate and unqualified right to rescind. But, in his reasoning to that end, Lord Reid adverted to clause 11(a)(i) of the contract which entitled either party to determine the agreement if the other shall have committed a material breach of its obligations hereunder and shall have failed to remedy the same within 60 days of being required in writing so to do. In a passage with which Lord Simon of Glaisdale agreed, Lord Reid said, at p 249, that it appeared to him that the clause was intended to apply to all material breaches of the agreement which were capable of being remedied. So, although it was contractual rather than statutory, the provision, as here, referred to a breach, to a written requirement to remedy it and to a failure to do so; and, notwithstanding the absence of any express limitation to breaches capable of remedy, it was construed to be so limited. I conclude that the twin requirements in sub para (a) of the para 4 term refer only to a breach capable of remedy. Perhaps the draftsman of sub para (a) considered that the reference in section 3(g) of the 1975 Act to a breach capable of remedy was unnecessary. Alternatively his omission of it might even have been a rare, inadvertent error. Breach Capable of Remedy The next challenge is to identify the nature of a breach which, in the context of the 1983 Act, is capable of remedy. The only jurisprudence which affords assistance relates to the interpretation of the clause in section 146(1) of the 1925 Act that if the breach is capable of remedy. I see no danger in borrowing from it. The breach by a lessee (or a licensee) most obviously capable of remedy is a breach of a positive obligation. Under the agreement Mr Telchadder had, for example, obligations to pay the pitch fee monthly in advance and to keep his mobile home insured and in a sound state of repair. Any breach of these obligations would ordinarily have been capable of remedy by belatedly paying the fee (together with interest) and by belatedly insuring or repairing the home (together with damages for any loss caused by his delay in doing so). In Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340, at p 355, Slade LJ, with whom the other members of the Court of Appeal agreed, accepted that the breach of a positive covenant would ordinarily be capable of remedy. Ordinarily but not always. Slade LJ noted that, for instance, the burning down of the premises during a period of the tenants failure to insure would be irremediable. So, no doubt, would be their collapse by reason of a failure to repair. But what about a breach of a negative obligation? In Rugby School (Governors) v Tannahill [1935] I QB 87 the school owned a property in Great Ormond Street which, in breach of her covenant not to do so, its lessee allowed to be used as a brothel. The Court of Appeal rejected the trial judges conclusion that breach of a negative covenant was never capable of remedy. But, although the lessee had closed the brothel, it proceeded to hold that the stigma attaching to the property and the resultant loss of value rendered the breach irremediable (Greer LJ, p 91) or, at least, irremediable within a reasonable time (Maugham LJ, pp 93 94). Notwithstanding an early grumble of discontent (see Hoffmann v Fineberg) [1949] Ch 245), the law has proceeded from the foot of the observations of the Court of Appeal in the Rugby School case that some breaches of negative covenants are remediable within the meaning of section 146(1) of the 1925 Act. As OConnor LJ said in the Expert Clothing case, at p 362: To stop doing what is forbidden by a negative covenant may or may not remedy the breach even if accompanied by compensation in money. Thus to remove the window boxes and pay for the repair of any damage done will remedy the breach, but to stop using the house as a brothel will not, because the taint lingers on and will not dissipate within a reasonable time. In Savva v Hussein (1996) 73 P and CR 150 the breaches by a lessee of commercial premises were of negative covenants, namely not to change the exterior sign and not to alter the premises without consent. The Court of Appeal held that the breaches were remediable. Staughton LJ said at p 154: In my judgmentthe question is: whether the remedy referred to is the process of restoring the situation to what it would have been if the covenant had never been broken, or whether it is sufficient that the mischief resulting from a breach of the covenant can be removed. When something has been done without consent, it is not possible to restore the matter wholly to the situation which it was in before the breach. The moving finger writes and cannot be recalled. That is not to my mind what is meant by a remedy, it is a remedy if the mischief caused by the breach can be removed. In the case of a covenant not to make alterations without consent or not to display signs without consent, if there is a breach of that, the mischief can be removed by removing the signs or restoring the property to the state it was in before the alterations. Aldous LJ, at p 157, cited the conclusion of Slade LJ in the Expert Clothing case that the test was whether the harm resulting from the breach could effectively be remedied and noted that the breach in that case was of a positive covenant. He observed: There is in my view nothing in the statute, nor in logic, which requires different considerations between a positive and negative covenant, although it may be right to differentiate between particular covenants. The test is one of effect. In Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 1 WLR 201, the breach by a lessee of commercial premises was also of a negative covenant, namely not to share possession of the premises. The Court of Appeal held that the lessors notice failed to comply with section 146(1) of the 1925 Act in that it specified only other alleged breaches which it had failed to establish. But the court went on to observe that the breach was remediable and indeed had been remedied by a discontinuance of the sharing of possession. Neuberger LJ, with whom Mummery LJ agreed, suggested at para 64 that the proper approach to the remediability of a breach should be practical rather than technical; and he conjectured at para 65 that the great majority of breaches of covenant should be capable of remedy. The breaches of negative covenants in the Rugby School, Savva and Akici cases had a continuing effect. They precipitated a state of affairs. The brothel stayed open until it was closed and even then the continuing stigma precluded remediability. The sign stayed up until it was taken down; the alterations remained until they were removed. Possession remained shared until the sharing was discontinued. Mr Telchadder entered into negative covenants of analogous effect. He undertook, for example, not to erect a shed on the plot licensed to him. Had he done so, the breach would surely have been remediable by his dismantling it and paying any necessary compensation. But the nature of the covenant which he broke and of his breach of it was of a different order. The covenant was not to act so as to annoy or disturb other occupiers and the breach was to jump out at Miss Puncher while he was dressed in camouflage and thereby to startle her. Nothing could thereafter have been done to unstartle Miss Puncher. That is why the word does not exist. The incident had ended. It must have been highly unpleasant for her but there is unsurprisingly no evidence that she suffered other than transient distress. So its effects had ended too. Was that breach remediable and, if so, how? In my view the answer is to be found by a practical inquiry whether and if so how (to adapt the words of Staughton LJ in the Savva case) the mischief resulting from Mr Telchadders breach could be redressed. In relation to a breach of a covenant against anti social behaviour, there is no escape from the conclusion that the inquiry requires a value judgement on the part, first, of the covenantee and, then, of the court in determining whether the requirements of section 146(1) of the 1925 Act, or, as the case may be, of the para 4 term have been satisfied. Had Mr Telchadder not only jumped out at Miss Puncher but, for example, deliberately perpetrated a significant injury upon her, Wickland might well have been entitled to conclude that the breach was irremediable; that there was therefore no need for it to serve a notice to remedy; that it should apply directly to the court under the para 4 term; but that, as a prelude to doing so, it should notify Mr Telchadder of its proposed application and of its reasons for having concluded that the breach was irremediable and that therefore there was no need for it to serve a notice to remedy. Obviously there would have been a risk that the circuit judge would either have disagreed with Wickland about the irremediability of the breach or have declined to consider it reasonable for the agreement to be terminated. Nevertheless, by reference only to the simple facts postulated, Wickland might have contemplated that risk with equanimity. But Mr Telchadders breach was in no way of that gravity. To an inquiry whether, and if so how, the mischief resulting from it could be redressed, the practical response is to say: yes, of course it can be redressed by his committing no further breach of his covenant against anti social behaviour for a reasonable time. That was in effect Wicklands own reaction to the breach when it wrote the letter dated 15 August 2006, namely that Mr Telchadder should remedy it by not perpetrating any further breach. I need to recognise, however, that the para 4 term refers to a failure to comply within a reasonable time. That preposition is apt when the necessary remedy is to do something say belatedly to pay the pitch fee required by a positive obligation or to remove an alteration effected in breach of a negative obligation. It is inapt when the necessary remedy is not to do something: it makes no sense to require Mr Telchadder not to commit a further breach within a reasonable time. In this context sense can be made of the para 4 term only by reading the word within as if it meant for. A Reasonable Time In the Court of Appeal Mummery LJ, with whom the other members of the court agreed, said at para 52: [Counsel for Mr Telchadder] objected that the notice could not possibly have been intended by Parliament to have perpetual effect. As there had been compliance for a reasonable time following the 2006 notice, it was necessary, he asserted, to serve another notice before commencing proceedings. I do not agree. Paragraph 4 does not set any end date for the expiration of a notice. There is no reason why the notice served in this case should not have continuing effect for the whole period of [Mr Telchadders] occupation of the mobile home on Plot Number 160. All that the notice was seeking to achieve was future compliance with continuing obligations in circumstances where [a breach] had already occurred. It is, indeed, tempting to reflect that Mr Telchadder had committed a breach of the agreement; that it was hardly oppressive to require him to abide by it for as long as it was to subsist; and that, even were he to commit a further breach, the safety net of sub para (b) of the para 4 term remained in place to protect him unless it was reasonable for the agreement to be terminated. But, with respect to a distinguished judge, I consider that Mummery LJ has failed to afford proper value to sub para (a) of the para 4 term. If, which I doubt, it is helpful to speak of the expiration of the notice, it occurs under sub para (a) once the occupier has complied with it within a reasonable time. It is wrong to say that para 4 sets no end date for its expiration. To equate the phrase within a reasonable time with throughout the subsistence of the agreement is, in this context, to deprive it of all significance. It raises the prospect of an order for termination based primarily upon a breach committed perhaps 20 or 30 years earlier, provided that (which seems doubtful) the site owner is then in a position to prove it. And it places the occupier for whom, like Mr Telchadder, the requisite remedy happens to be not to do something in an anomalously different situation from that of the occupier for whom the requisite remedy happens to be to do something. The latter can do it promptly, thereby comply with the notice and rid himself of its overhanging effects under sub para (a). Wickland protests that to reject the Court of Appeals conclusion that the requirement to comply with the notice continues indefinitely is to permit the anti social occupier to play cat and mouse with the site owner to the distress of the park community. The spectre is that the occupier commits a breach and is served with a notice; that he commits no further breach for a reasonable time and thereby complies with the notice; that thereupon he commits a further breach; that the cycle begins again; and that his licence cannot be terminated. I trust that the spectre is indeed just that unreal; but I am confident that, all other things being equal, a reasonable time for compliance with a notice to remedy a second breach will be longer than for compliance with a notice to remedy a first. Conclusion It remains only to consider whether in all the circumstances the period of almost three years during which Mr Telchadder complied with the notice dated 15 August 2006 amounted to a reasonable time for him to comply with it. My view is that it clearly did so; and it is inappropriate to speculate about whether some shorter period would also have done so. In retrospect it is obvious that, following the breach dated 15 July 2009, Wickland should have served a further notice to remedy; or, in the light of its seriousness, have raised an allegation that it was irremediable, upon which, no doubt, there would have been lively argument. Relevant to that issue would have been a finding (which the judge did not make) as to whether, although Mr Telchadder never intended to implement his threats to kill, Mr Carter took them seriously. It is too late to introduce into these proceedings the issue of whether that breach was irremediable. But, in the light of the surprising absence, until now, of any analysis of the proper application of the para 4 term to a breach of a covenant against anti social behaviour, Wickland can hardly be criticised for having proceeded as it did. I would allow Mr Telchadders appeal and would determine the issues identified in para 2 above as follows: (i) An occupier can in principle remedy a breach of a covenant against anti social behaviour but some such breaches are so serious as to be irremediable. (ii) Not applicable (iii) (a) The occupier complies with a notice to remedy a remediable breach of such a covenant by not committing any further breach of it within a reasonable time. (b) The effect of his obligation not to do so within a reasonable time is that he must not do so for a reasonable time. Since drafting this judgment, I have read, in draft, the judgments of Lady Hale, of Lord Carnwath (with which Lord Reed agrees) and of Lord Toulson. I suggest that the effect of the four judgments is as follows: (a) I, Lady Hale and Lord Toulson conclude that, in the case of an irremediable breach, the para 4 term does not require service of a notice to remedy it. But our conclusion in this respect is not central to this decision because the breach dated 31 July 2006 was not irremediable and in any event a notice to remedy it was duly served. (b) All members of the court conclude that Mr Telchadders appeal should be allowed but the reasons given by Lord Carnwath and Lord Reed for their subscription to that conclusion represent a minority view. Their reasons are that, in the case of a remediable breach of a covenant against anti social behaviour, compliance with the notice to remedy must continue indefinitely (Lord Carnwath, para 91 below) but that there needs to be a causal or temporal link between the notice to remedy and the subsequent breach (para 92 below), which was absent in the present case (para 96 below). (c) By contrast, the reasons of the majority are, in essence, that a breach of such a covenant is remediable if the mischief resulting from it can be redressed; and that Mr Telchadder redressed the mischief resulting from the breach dated 31 July 2006, and thereby complied with the notice to remedy, by not committing a further breach prior to 15 July 2009. LADY HALE The issue in this case is simple to state but difficult to decide: is it open to the owner of a mobile home park to launch proceedings to evict the occupier of a plot, on the basis of a notice to remedy a breach of the term of his licence to occupy which prohibited anti social behaviour, some years after that notice was served? The answer is important for the large and growing number of people who live in mobile homes and to the owners of the sites where their homes are located. It is important that the occupiers, many of whom are elderly or vulnerable, are protected, not only from anti social behaviour by their neighbours, but also from over hasty eviction from their homes. The site owner is only able to terminate his agreement with the occupier in the circumstances laid down in Part 1 of Schedule 1 to the Mobile Homes Act 1983. The relevant one for our purposes is para 4: The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body [in this case the local county court] (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. The problem lies with the interpretation of paragraph 4(a). This has three elements: that the occupier has breached a term of the agreement; (i) that the owner has served a notice to remedy that breach; and (ii) (iii) that the occupier has not complied with the notice within a It is easy to see how this works in the case of a breach of a positive obligation which can readily be put right. If the mobile home has not been painted when it should have been painted, the owner can serve a notice telling the occupier to paint it, and if the occupier does not paint it within a reasonable time, then para 4(a) is satisfied. If the occupier has not paid his site fees on time, the reasonable time. owner can serve a notice telling him to pay, and if he does not do so (with interest) within a reasonable time, then para 4(a) is satisfied. Incidentally, it is for the court, not the owner, to decide what is a reasonable time, but there is nothing to prevent the owner telling the occupier what he thinks will be a reasonable time, after which he may go to court. It is not so easy to see how this works (a) in the case of a breach which cannot be put right; and (b) in the case of a breach of a negative obligation which can be put right. Does the owner have to serve a notice at all in case (a)? What is the effect of a notice in case (b)? The views of the court on this issue are, strictly speaking, obiter dicta, as we are all agreed that the breach in respect of which the notice was served in this case, the incident on 31 July 2006 (see para 7) which prompted the letter of 15 August 2006 (see para 8), could be put right. 48. This brings me to the second question. What is the effect of a notice in the case of a breach of a negative obligation which can nevertheless be put right? Lord Wilson has helpfully pointed out (para 28) that it is easy to see how a breach of some negative obligations can be put right: putting up a prohibited shed can be put right by taking the shed down; allowing children under 16 to live in the mobile home can be put right by turning them out. It is not so easy to see how breach of a covenant not to annoy or disturb other residents can be put right: but I agree with Lord Wilson (para 30) and Lord Toulson (para 64) that an incident such as that on 31 July 2006 can be put right by refraining from such behaviour for a reasonable time, time enough for the fears and anxieties it caused to calm down. I also agree with Lord Toulson (para 63) that, while the occupier remains under a contractual obligation not to annoy or disturb other residents throughout the term of the agreement, the effect of a notice to remedy lapses once a reasonable time has elapsed without further incident. 49. This is the majority view and constitutes the ratio decidendi of this case. Whatever the reasonable time in question, it must have elapsed before the incident on 15 July 2009 which prompted these proceedings. I would only add that the minority view, that there must be some causal or temporal link between the notice to remedy and the acts which justify the courts intervention (para 92 of Lord Carnwaths judgment), is likely to lead to the same result in most cases. 50. The different analyses of para 4(a) lead to different conclusions as to how the site owners should have dealt with the much more serious incident on 15 July 2009. There would, as Lord Wilson points out (para 36), have been lively argument about whether the breach was remediable. If it was not, then on the majority view, no notice was required and the site owners could have begun proceedings immediately, although they would have been wise to serve the sort of notice he suggests (at para 31). It appears that, in the minority view, notice would have been required. But it also appears to be their view that the site owners would not have had to wait for a reasonable time before launching proceedings (note that the court has to make its findings before the site owner is entitled to terminate forthwith). For the reasons given earlier, I have difficulty in accepting that analysis. That difficulty reinforces my view that Lord Wilsons analysis is the correct one. LORD TOULSON 51. The interpretation of para 4(a) of the Mobile Homes Act 1983 raises the question what is required to remedy a breach. A linked question is, what is the correct procedure if a breach cannot be remedied within a reasonable time? I agree with Lord Wilson that the answer to the first question calls for a practical approach, that is, whether and how the mischief caused by the breach can be redressed. The context is a relationship between an occupier of land and the owner of the land, who also has responsibilities towards others living in close proximity including the elderly and vulnerable. In a case of anti social behaviour by an occupier towards a neighbour, much must depend on the nature of the conduct in determining whether and how the mischievous effect of a particular breach may be remediable. 52. 53. A minor incident may not be expected to cause lasting harm to the peace of mind of other residents. In some cases an apology may be an appropriate means of redress. But human nature being what it is, there may be cases (for example, involving serious violence or threats of violence) where the conduct is such as to cause physical harm or feelings of fear and anxiety which the injured person could not be expected to get over within a reasonable time period, regardless of the other persons subsequent behaviour. There is no reason why neighbours, especially if elderly and vulnerable, should be expected to live for months (let alone years) in a state of fear and anxiety. 54. The second question presents a difficulty because of the wording of the term implied by para 4, which entitles the owner to terminate the agreement if the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. 55. Lord Wilson observes that it would be nonsensical to require service of a notice to remedy a breach which is incapable of remedy. Therefore he says that the requirement to serve a notice to remedy should be read by necessary implication as limited to a breach which is capable of remedy (within a reasonable time). 56. Lord Carnwath observes that para 4 replaced (with amendments) an analogous provision in section 3 of the Mobile Homes Act 1975 which expressly limited the requirement for service of a notice to a breach which is capable of remedy. He says that the omission of similar words from para 4 must have been deliberate and that the court should not read into it words which the drafter has omitted. Lord Carnwath concludes that a notice to remedy must be served in all cases. He also says that in the case of a negative user condition, compliance with a notice to remedy will require ceasing the use indefinitely. There is no shorter reasonable period for compliance with obligations which the occupier is already contractually bound to observe for the full term of the agreement. It is not difficult to imagine cases where the irreparable effects of an occupiers conduct may be such that the only reasonable course is for the owner to be able to terminate the contract forthwith. Four possible approaches have been canvassed in the course of argument. First, some egregious misconduct might arguably be treated as amounting to a repudiation of the contract, and so entitling the owner to treat the contract as terminated without going through the statutory procedure of Schedule 1; but even if that were so, it would be unlikely to cover every instance of an irremediable breach. As a possible solution to the problem of an irremediable breach, it would therefore be incomplete. 57. 58. No such limitation applies on Lord Wilsons approach, which is that a notice to remedy is not required in the case of an irremediable breach as a matter of construction of the Schedule. 59. A third possible solution is that the owner must serve a notice to remedy as a matter of form, but that the notice may adopt the Hill & Redman formula, quoted by Lord Carnwath at para 79, of stating the occupier must remedy the breach if he can; and that the notice may also state that the owner does not believe it to be capable of remedy and will therefore be issuing proceedings. 60. A fourth approach is that a notice to remedy is required in all cases and that even in the case of an irremediable breach the occupier must be allowed a period of time amounting to a reasonable time to comply with the notice before possession proceedings are begun. I would reject that approach. If the consequences of the breach are such that they are impossible to remedy, I cannot see how a reasonable time to comply with the notice could be assessed by the owner or the court. They would face the conundrum what is a reasonable time to perform the impossible? The question defies an answer. Any period chosen would be arbitrary and purposeless. It would serve simply to delay matters in circumstances which may sometimes be dangerous or intolerable for other occupiers. 62. 61. Both Lord Wilsons and Lord Carnwaths favoured solutions involve some straining of language. The former involves reading words of limitation into the provision about service of a notice to remedy. The latter involves reading the words after service of a notice to remedy the breach, has not complied with the notice within a reasonable time as satisfied in a case where there was nothing which the occupier could have done to comply with it, and so was not given any time to do so. In practical terms it makes no difference whether the notice requirement in para 4 (a) is construed as limited to breaches which are capable of remedy (within a reasonable time) or applies in all cases but may be satisfied in the case of an irremediable breach in the way just considered. In that sense the difficulty which arises from the unsatisfactory wording of the statute does not matter in terms of the result, but I prefer the approach of Lord Wilson. It makes no sense to require a person to remedy something which is incapable of remedy, and, but for the legislative history, I would have little difficulty in reading the requirement of service of a notice to remedy as confined to a remediable breach, just as the House of Lords in L Schuler AG v Wickman Machine Tools Ltd [1974] AC 235 construed a contractual requirement of a notice to remedy in a similar fashion. The legislative history to which Lord Carnwath has referred makes it all the more of a mystery why para 4(a) omits any words of qualification, but it is a matter of judgment what weight should be given to the legislative history in a given case. Sometimes it may throw considerable light on the proper interpretation of a later statute; in other cases the court may be left uncertain about the reason for a change of wording, in which event a comparative study will not help the court in its task of giving to the current statute the meaning which appears to fit best with its purpose. In this case the statutory scheme of serving a notice to remedy a breach and allowing the occupier a reasonable time in which to do so serves an obvious purpose in the case of a remediable breach, but would serve no comprehensible purpose if the breach is irremediable and would therefore be a vain requirement. 63. The question which I have been discussing arose in argument but it is strictly obiter. The issue at the heart of the appeal arises from the proposition that a notice to remedy a breach of a negative user condition requires indefinite compliance. Contractual conditions have effect throughout the life of the contract. A notice to remedy a breach which has occurred is rather different, and I do not share the view that it is continuing and indefinite in the same way. 64. 65. 66. I come back to my starting point that whether a breach can be remedied for the purposes of the para 4 procedure depends on whether the mischief caused by that breach can be redressed within a reasonable time. A notice to remedy gives the occupier the opportunity to do so, and should not be regarded as a gateway throughout the remainder of the contract for termination in the event of a subsequent breach. That does not mean that in the case of a serial offender every breach must be looked at without reference to past history. Repeated misconduct may lead to the proper conclusion that the cumulative mischief caused by him has passed the point of being remediable and that the owner should be entitled to terminate the contract forthwith. Although I have expressed myself differently from Lord Wilson, in practical terms I suspect that the result is likely to be the same. In the present case the owner did not regard the offensive behaviour towards Miss Puncher in July 2006 as causing irremediable harm. The incident in July 2009, which the judge described as very serious, might have been seen as sufficiently harmful to justify immediate termination of the agreement, with or without reference to the past background, but the case was not argued before us on that basis. Like Lord Wilson, I do not consider that the possession order can be justified on the platform of the notice which had been served on the appellant 3 years earlier. So I agree that the appeal must be allowed. I agree with Lord Wilsons summary of the effect of the judgments. LORD CARNWATH (with whom Lord Reed agrees): 67. I gratefully adopt Lord Wilsons exposition of the relevant facts and the legal background. In this judgment I will address: i) The structure and effect of the para 4 term; ii) The particular problem of negative user conditions and repeated breaches; iii) The resolution of this appeal. The structure of paragraph 4 A long pedigree 68. Paragraph 4 is best understood, in my view, as the draftsmans attempt to reproduce the essential features of the section 146 regime as it had evolved through the authorities, but in simpler and more modern form, appropriate for the relatively uncomplicated legal world of the mobile home. So seen it is not in my view necessary to depart materially from its ordinary wording. In this respect I respectfully disagree with Lord Wilsons approach to construction (para 20) for reasons I shall explain in this section. 69. As he shows (para 16), provisions restricting the right of an owner to terminate a lease or licence for breach of its terms have a pedigree dating from the 19th century. Relevant in the present context are the following: i) Section 146(1) of the Law of Property Act 1925 (replacing section 14 of the Conveyancing and Law of Property Act 1881) provided that a right of forfeiture under a lease for breach of covenant shall be unenforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (c) in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. Even where these requirements were satisfied, the landlord faced a further hurdle in the right of the tenant (under s 146(2)) to apply to the court for relief from forfeiture, in relation to which the court had a wide discretion to grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit. ii) The Mobile Homes Act 1975 section 3 (no longer in force) provided that the written agreement for stationing a mobile home to be occupied as a residence (required by s 1) was to contain specified terms and conditions, including: (g) the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it; iii) Finally, para 4 itself: the Mobile Homes Act 1983 Schedule 1, provided for certain terms or conditions to be implied by [the] Act, including : 4. The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. Reference was also made before the Court of Appeal (paras 34, 40) to analogous provisions under the Housing Acts 1985 and 1988, but it was noted that the contents of the notices are generally prescribed by regulations. They were not relied on by either party in this court. 70. Common to each of these provisions is the concept of giving notice of the breach to the tenant or licensee and allowing him a reasonable time (or opportunity) to remedy it. The 1983 Act In the present case we have to look at the issue of construction through the eyes of the draftsman of the 1983 Act. In doing so it is clearly reasonable to assume that he would have had in mind the approach adopted in authorities under section 146 and its predecessor. 71. 72. Lord Wilson has referred to Rugby School v Tannahill [1935] 1 QB 87, which in 1983 was still the leading authority on the subject. (It was so regarded by the Court of Appeal in Expert Clothing Service in 1985.) The judge, MacKinnon J [1934] 1 KB 695, had taken the apparently logical view that a negative covenant was in principle incapable of remedy. The Court of Appeal declined to endorse such an absolute rule. Greer LJ said: I think perhaps [the judge] went further than was really necessary for the decision of this case in holding that a breach of any negative covenant the doing of that which is forbiddencan never be capable of remedy. It is unnecessary to decide the point on this appeal; but in some cases where the immediate ceasing of that which is complained of, together with an undertaking against any further breach, it might be said that the breach was capable of remedy. (p 90) However, the court accepted the landlords argument so far as directed to a case where the nature of the particular breach (use as a brothel in that case) would have an effect on value even after the use had ceased. 73. Maugham LJ referred in his concurring judgment ([1935] 1 KB 87 at pp 92 93) to authorities dating from 1893 (including the House of Lords case of Fox v Jolly [1916] 1 AC 1), which showed that the section has always been construed, having regard to the common sense of the matter, that the tenant is to be given reasonable information as to what he is required to do, and he is given the right to apply to the Court for relief. He cited, as an example of this common sense interpretation, the early decision (Lock v Pearce [1893] 2 Ch 271) that although its language pointed in the opposite direction the section did not require the notice to claim compensation which the lessor did not want. 74. The draftsmen of what became the relatively short lived 1975 Act borrowed from section 146 the distinction between remediable and irremediable breaches, but none of its other significant features. There was no general requirement for a notice specifying the breach, and no general discretion for the court to oversee the process of enforcement. 76. 75. The structure of the 1983 provision was quite different from the 1975 model, but much closer to that of section 146 as it had evolved. The key features were the service of a notice to remedy the breach (not in terms limited to breaches capable of remedy), non compliance with the notice after a reasonable time, and a judgment of the court as to the merits (reasonableness) of termination. As under section 146, the reference to compliance within a reasonable time was not to something needing to be specified in the notice itself, but rather a matter to be judged retrospectively by the court in considering the merits of enforcement. It is hardly surprising that the draftsman of a modern Act for a different subject matter did not find it necessary or desirable to replicate all the 19th Century language. For example, the phrase considers it reasonable was an entirely adequate substitute for the convoluted language used to express the comparably broad discretion conferred on the court by section 146(2). The more controversial feature of the 1983 model was the omission of the reference to breaches capable of remedy. I shall return to that after considering the post 1983 case law. (For completeness I should note that new parliamentary materials on the background to this provision, submitted by the respondents following the hearing, were at best inconclusive and for the most part clearly inadmissible under ordinary principles of statutory construction.) Post 1983 developments 77. As Lord Wilson has shown, the courts have continued to grapple with these issues since 1983, but in context of breaches of covenant quite different from the present. The more significant include Expert Clothing (1986) (breach of positive covenant to reconstruct), Savva (1996) (covenant against alteration of premises without consent), and Akici (2005) (covenant against sharing possession of commercial premises). As the judgments in the last case indicate, the approach of the courts is practical rather than technical ([2006] 1 WLR 201, para 64), and most breaches are now regarded as capable of remedy. As regards negative covenants relating to user, it appears to be accepted that breaches can be remedied by ceasing the unlawful use concerned, save where the breach causes the premises to be stigmatised (Hill & Redmans Law of Landlord and Tenant para [4685]). 78. The result of the narrowing of categories of breach regarded as incapable of remedy is conveniently summarised in Woodfall: Landlord and Tenant para 17.132.1, after referring to the stigma cases: Until recently it was assumed that breach of a covenant against carrying out alterations without consent was also irremediable. However, the position appears to have changed. The test is now one of fact and degree as to whether in reality the mischief can be remedied. Similarly, it now appears that parting with or sharing possession, at least where it falls short of creating or transferring a legal interest, is a remediable breach. In addition the following breaches have been held to be incapable of remedy: 1. running catering premises contrary to the licensing laws in breach of a covenant to conduct them according to those laws; 2. contravening the Food and Drugs Act resulting in 14 convictions; 3. assigning the lease without the landlords consent; 4. sub letting the premises or part thereof; 5. using the property for the sale of obscene material; 6. using the premises for espionage resulting in convictions under the Official Secrets Act. 79. (The references to all but the last of the six examples are from cases decided before 1983.) In the modern law, technical issues about such distinctions, and the contents of a section 146 notice more generally, should not normally be of practical concern for landlords or the courts. A well drafted notice will simply state that the tenant is required to remedy the breach, if it is capable of remedy (Hill & Redman para [4681]). Nor need the notice itself specify what is a reasonable time for compliance. All that the statute requires is that a reasonable time to remedy the breach must elapse between service of the notice and the exercise of the right of re entry or forfeiture (Billson v Residential Apartments Ltd [1992] 1 AC 494, 508 per Sir Nicolas Browne Wilkinson V C). 80. Thus, unless the breach is one of the limited categories now regarded as incapable of remedy under section 146, the practical purpose of the notice is simply to alert the tenant to the nature of the alleged breach and give him an opportunity to remedy it, and, if he is unwilling or unable to remedy to do, to trigger his right to invoke the jurisdiction of the court to consider the overall merits of enforcement in the context of an application for relief. Although these principles have been refined and restated in more recent cases, the general approach has not changed materially, at least since the Rugby School case in 1935. Alternative interpretations I turn to Lord Wilsons proposed explanation for the omission of the reference to breaches capable of remedy, and of its consequences (para 20). He suggests that, assuming no rare, inadvertent error, the words were treated in effect as surplusage, because it would have been nonsensical to require notice to remedy a breach which was incapable of remedy (para 20). He concludes that the twin requirements to serve notice and to afford the occupier a reasonable time to comply apply only to a breach capable of remedy. 81. 82. That seems to me, with respect, to involve unwarranted violence to the statutory language. I would discount the possibility of an error by the draftsman, who was replacing the very recent wording of the 1975 Act, covering the same issue on a matter of some public controversy. We must proceed on the basis that the omission was deliberate. 83. There is another explanation which is no less plausible in my view, and has the merit of consistency with the language used. The draftsman was seeking to reproduce the general effect of the section 146 protection in simplified form, including the general requirement for a formal notice as a preliminary step to enforcement. However, he may have thought it desirable to dispense at the notice stage with the historic distinction between remediable and irremediable breaches, and the baggage of sometimes confusing case law associated with it. He may have considered it an unnecessary complication, given the very limited categories of breach still recognised as in principle incapable of remedy, following the Rugby School cases, and the even more limited significance of most of them for ordinary owners and occupiers of mobile homes. In those circumstances no practical harm would result from a general requirement for a notice to remedy as a preliminary to court action. 84. As I understood it the alternative reading now proposed by Lord Wilson was not advanced by either side at the hearing in this court. There was, however, some discussion of the operation of the paragraph in relation to breaches which on any view would be incapable of remedy, one of the more extreme examples being setting fire to the adjoining mobile homes. One suggested answer was that such a breach might be treated as a repudiation of the contract under common law principles, and thereby implicitly excluded from the protection of Schedule 1 of the 1983 Act. Whatever the merits of that argument, I agree with Lord Toulson that the general requirement for a notice to remedy cannot sensibly be understood as carrying with it the implication that every breach, however grave, must be treated by the court as remediable. There will be breaches sufficiently serious that, as he suggests, the owner will be entitled to treat the notice to remedy as a matter of form only, and to commence proceedings for possession forthwith. In such cases the court may be satisfied that the occupier has failed to comply, not because he has failed to act within a particular time, but, because having regard to the nature of the breach, there was nothing he could have done to remedy it. This will be matter to be determined, by reference to the practical realities of mobile home life, rather than to parallels with cases in a different context under a different statute. Negative user conditions and repeated breaches 85. Whatever the true explanation for the structure and wording of para 4, the principal difficulty in the present case arises from the intermittent nature of the breaches in question. The mischief lies not so much in that of the initial breach, which in common sense terms can be readily dispelled (as Lord Wilson says: para 30), but in its repetition at irregular intervals over a significant period. Those features do not appear in any of the cases to which we have been referred under section 146. Indeed, none of the more recent authorities was concerned with breach of a negative user condition, that is one prohibiting conduct of a specified kind. In respect of such breaches, the law does not appear to have developed materially since the Rugby School case in 1935. 86. Lord Wilson (para 33) has referred to an argument relied on by the owners in the present case, which he describes as the cat and mouse spectre The spectre is that the occupier commits a breach and is served with a notice; that he commits no further breach for a reasonable time and thereby complies with the notice; that thereupon he commits a further breach; that the cycle begins again; and that his licence cannot be terminated. 87. He discounts this concern as unreal. I do not think that the argument can be dismissed so summarily. It is of interest that some 80 years ago a similar argument was successful at first instance in the Rugby School case. In holding that negative covenants were in principle irremediable, McKinnon J took account of a very obvious disadvantage from the landlords point of view of the opposite approach: supposing the case of a breach of covenant not to do something and, when the landlord complained, an immediate abstention from the user of the premises in breach of the covenant, the landlord would be deprived of any cause of action, or, if he had already begun one, he would have it dismissed with costs. And that might happen again and again; the landlord would have to give a fresh notice in each case, with the same result. ([1934] 1 KB 695, 701). This passage was also cited with approval as part of Harman Js grumble of discontent in Hoffmann v Fineberg [1949] Ch 245, 254: Lord Wilson para 25. 88. The Court of Appeal in Rugby School did not find it necessary to address the point, in view of its conclusion on the facts of the case. However, its reasoning may provide a clue to the answer. The assumption behind McKinnon Js concern was that a notice to remedy the breach would become spent as soon as there had been compliance, for however short a period, and would have no effect if the offending use was resumed thereafter. That does not appear to be how Greer LJ saw the matter (para 72 above). His view of compliance required not simply the immediate ceasing of that which is complained of but also an undertaking against any further breach. Although it was unnecessary for him to explore the legal practicalities of that suggestion, it shows that immediate cessation by itself was not enough. 89. Thus, in the context of a negative user condition, compliance with the notice meant not simply a temporary pause, but ceasing the use altogether and indefinitely. If when the matter came to court, it was found that the tenant had, following a period of abstinence, resumed the offending use, the court would be able to hold both that a reasonable time had elapsed and that he had failed to comply, and (subject to questions of relief under section 146(2)) to uphold the landlords right to enforce. The same approach in my view can be applied under the 1983 Act, and it provides a practical and common sense answer to the cat and mouse problem as it arises under para 4. 90. That reading also provides an answer to Lord Wilsons concern about the need to give some meaning to the words within a reasonable time. He concludes that, in relation to breach by an occupier of a negative user condition, the effect of the obligation not to do the prohibited act within a reasonable time is that he must not do it for a reasonable time (paras 30, 35(iii)). The implicit assumption is that the landlord, and ultimately the court, would have to determine what was the reasonable time during which the occupier should be expected to comply with the covenant, so as to bring any repetition of the breach within the scope of that particular notice to remedy. Again, with respect, I find this an unwarranted distortion of the wording of the provision. First, it would be strange to find the same phrase within a reasonable time being used in two quite different senses in the same provision. Secondly, I find it difficult to understand why or on what basis the landlord or the court should be expected to specify a reasonable period for the occupier to comply with his obligations under the agreement, other than the full term for which he is already contractually bound. 91. On the reading I have proposed, it is an unnecessary distortion. Compliance within a reasonable time in this context means immediate and continuing compliance. If when the matter comes to court, that has not been achieved, the court can be satisfied of the matters required under para 4(a), and the determining issue will be that of reasonableness under (b). That approach seems to me both consistent with the wording of the paragraph, and one which maintains a fair balance between the interests of owner and occupier. The present case 92. It remains to apply these principles to the present case. The application of the analysis outlined above would have presented no real difficulty if the later breaches had occurred within a short time after the first (and only) qualifying notice to remedy. Further incidents within a few weeks or even months of the notice to remedy could fairly have been treated as parts of a continuing failure to comply, properly referable to the same notice, regardless of the intervening periods of good behaviour. The problem arises because of the very long gap (some three years) between that notice to remedy and the breaches which in the event triggered the court action. The structure of para 4 suggests the need for some causal or temporal link between the notice to remedy and the acts which justify the courts intervention. As Lord Toulson says, a notice to remedy should not be regarded as a gateway for termination for any breach throughout the remainder of the contract. I agree with him, however, that the history may be relevant in judging whether a later breach is truly irremediable. In the Court of Appeal, Mummery LJ did not see the gap in time as an obstacle. As he explained in a passage quoted by Lord Wilson (para 31), he saw no reason why the notice served in 2006 should not have continuing effect for the whole period of the defendant's occupation of the mobile home (para 52). 93. 94. As I understand it, the judge had adopted a similar approach. He had helpfully explained his view of the law at the beginning of his judgment: First of all, my interpretation of clause 4(a) is that what is required is that there be what I might call an initial breach, then a notice to remedy that breach, and a failure to comply with the notice within a reasonable time. In the context of this case, which concerns what I can roughly call antisocial behaviour, that would mean an instance of antisocial behaviour, a notice complaining of it and requiring him to desist from it and then a proven instance of further antisocial behaviour in disregard of the notice. (para 4) 95. His factual conclusion under para 4(a) came towards the end of the judgment (para 33). Having set out the relevant clause 14 prohibiting any act which may be or become a nuisance, damage, annoyance or inconvenience to the neighbours. he said: I do find, first of all, that he was warned against antisocial behaviour of that kind by the notice of 15 August 2006 No unsolicited approaches or advances to other residents on Meadowview Park causing alarm and distress and it appears to me that that is sufficient, though I think only just sufficient, to constitute a notice complaining of harassment of neighbours and warning him of the consequences of harassment to neighbours. As I have found, I take the view that on 15 July 2009 he did engage in a very serious incident of such antisocial behaviour when he made the threats to kill to Mr. Carter and made threatening gestures with a pole in the manner that I have found. So I do I consider that that is a pleaded and actionable and proven breach after notice, satisfying the requirements of clause 4(a) and opening the way to the court to remove him if it considers it reasonable to do so. 96. 97. He then went on to express his conclusions on the issue of reasonableness under (b), in relation to which no there is no challenge. In agreement with the other members of the court, I have concluded that this reasoning cannot be supported. He does appear to have treated the notice to remedy the August 2006 breach as a sufficient platform in itself for the action in respect of the breach three years later. Although my interpretation of para 4 differs in some respects from that of Lord Wilson, I agree with him, and with Lord Toulson, that the lapse of that period between the notice to remedy, and the conduct on which the court ultimately based its order, was too great. I reach this conclusion with some regret. Faced with a very disturbing case, and in the absence of clear guidance in the statute or the cases, the judge adopted what seemed a sensitive and practical approach, and his conclusion on the reasonableness of termination is not under challenge. I also agree with what Lord Toulson says about the July 2009 incident, viewed as a potential ground for proceedings in its own right. However, that was not the basis on which the case has proceeded. 98. Accordingly, for the reasons given above, but in agreement with Lord Wilson as to the conclusion, I would allow the appeal. The main practical difference of my approach is that it gives effect to the natural reading of the paragraph by requiring a formal notice to remedy in every case, even where the owner intends to assert that it is irremediable. As to the issues identified by Lord Wilson (paras 2, 35) I agree with his answer to questions (i) and (ii), but would answer question (iii) as explained in para 91 above. On the first question, I agree with Lord Wilson (para 20) that, strictly speaking, the site owner does not have to serve a notice in respect of a breach which cannot be put right. I do not see this as writing words into the Act. A notice to remedy necessarily implies that a remedy is possible. The site owner is telling the occupier to remedy the breach and how to do it. How can he do that if no remedy is possible? Why indeed, in such a rare and egregious case, should he have to wait for a reasonable time to elapse before bringing proceedings? If a notice to remedy were always required, then it seems to me that a failure to remedy within a reasonable time would also be required. I have difficulty in seeing how the first can be required, even in the case of an irremediable breach, without the second. It follows that the owner would have to wait for a reasonable time before bringing proceedings even in respect of an irremediable breach. I do not myself see any room for the common law doctrine of a repudiatory breach of contract to apply (the first possibility aired by Lord Toulson at para 57). The site owner is not entitled to bring the agreement to an end otherwise than in accordance with the provisions of Schedule 1: para 1 provides that (subject to an irrelevant exception) the right to station the mobile home on land forming part of the protected site shall subsist until the agreement is determined under paras 3, 4, 5 or 6 below. In practice, however, given the view expressed by the Court of Appeal in Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 1 WLR 201 that the great majority of breaches should be capable of remedy, it would be unwise for a site owner to bring proceedings without giving the occupier some sort of either/or notice: You have done [this] in breach of [this] term of your agreement. I do not consider that this breach is capable of remedy. However, in case the court takes a different view, I hereby give you notice that you must remedy the breach within a reasonable time of this notice. If you do not, I may bring proceedings against you. 46.

UK-Abs

The Appellant owns and occupies a mobile home that sits on a plot at Meadowview Park, a mobile homes site belonging to the Respondent. He pays an annual pitch fee to the Respondent for licence to use the plot. Under the terms of his agreement with the Respondent (the agreement), he is not permitted to act in such a way as to annoy or disturb other occupiers of Meadowview Park (the anti social behaviour covenant) [5]. Under the Mobile Homes Act 1983 (the 1983 Act), a site owner can only terminate an occupiers licence in certain limited circumstances [1]. This appeal concerns Paragraph 4 of Chapter 2 of Part 1 of Schedule 1 to the 1983 Act (para 4), which provides: The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. Previously, Section 3(g) of the Mobile Homes Act 1975 (the 1975 Act) provided for the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it (emphasis added). However, in the 1983 Act any such clarification that the notice and reasonable time requirements only apply to remediable breaches was omitted [20]. The Appellant suffers some mental ill health, has a mild learning difficulty and exhibits autistic traits [6]. On 31 July 2006 he startled another resident of Meadowview Park, Miss Puncher, by jumping out at her from behind a tree wearing camouflage clothing [7]. In doing so he breached the anti social behaviour covenant. On 15 August 2006 the Respondent wrote to the Appellant warning that he must not make unsolicited approaches to other residents, or the Respondent would apply to court to have the agreement terminated and his mobile home removed. This letter amounted to notice to the Appellant to remedy his breach of the anti social behaviour covenant for the purposes of para 4 [8]. The Appellant did not commit any further breach until 15 July 2009, when he told another resident, Mr Carter, that two women had reported him for jumping out on them in the woods and he was going to kill them. The Appellant then made threats to kill Mr Carter [10]. The Respondent applied to court for termination of the agreement [11]. On 17 August 2011 HHJ Moloney QC found that the requirements of para 4 were satisfied, granted the Respondents application and ordered that the Appellants licence to station his mobile home at Meadowview Park be terminated. The Appellant appealed to the Court of Appeal and his appeal was dismissed on 16 May 2012 [3]. The Supreme Court unanimously allows the Appellants appeal against the order to terminate his licence to station his mobile home at Meadowview Park. Lord Wilson gives the main judgment. Lady Hale and Lord Toulson give concurring judgments. Lord Carnwath (with whom Lord Reed agrees) gives a concurring judgment allowing the appeal for different reasons. The panel reached the following conclusions as to the correct application of para 4: Whether para 4 applies to an irremediable breach Lord Wilson (with whom Lady Hale [44] and Lord Toulson [62] agree) holds that the notice requirement in para 4 applies only to a breach that is remediable [22]; it would be nonsensical to require service of a notice to remedy a breach which is incapable of remedy [20]. Lord Carnwath (with whom Lord Reed agrees) considers that a notice to remedy is required in all cases because the omission of limiting words in para 4 (such as the words in the 1975 Act, namely in the case of a breach which is capable of being remedied) must be regarded as deliberate [81]. The views of the court on this question are obiter dicta as the panel unanimously holds that the Appellants breach of 31 July 2006 was remediable [47] (see below). Whether a breach of an anti social behaviour covenant can be remedied It is the unanimous view of the court that an occupier can in principle remedy a breach of an anti social behaviour covenant. To decide if a breach is remediable requires a practical enquiry as to whether, and if so how, the mischief resulting from the breach can be redressed [31][52]. Some breaches are so serious as to be irremediable [37][53]. What constitutes compliance with a notice to remedy a breach of an anti social behaviour covenant Lord Wilson [37], Lady Hale [48] and Lord Toulson [63 64] hold that the occupier complies with a notice to remedy by not committing any further anti social behaviour for a reasonable time. Lord Wilson explains that in cases involving breach of a negative obligation, the words within a reasonable time in para 4 must be read as meaning for a reasonable time [32]. Lady Hale characterises reasonable time as such time as is sufficient for the fears and anxiety caused by the anti social behaviour to calm down [48]. Lord Carnwath (with whom Lord Reed agrees) takes the minority view that that in the case of a negative user condition, compliance with a notice to remedy must continue indefinitely [90]. Whether the requirements of para 4 were satisfied in this case The mischief resulting from the Appellants breach of 31 July 2006, namely the alarm caused to Miss Puncher, was capable of being redressed [32]. In the view of the majority (Lord Wilson [36], Lady Hale [49] and Lord Toulson [65]) the period of almost three years during which the Appellant complied with the 15 August 2006 notice did amount to reasonable time. Therefore, following the Appellants further breach on 15 July 2009, the Respondent ought to have served a fresh notice to remedy, or to have raised an allegation that this later breach was irremediable [36]. As it failed to do so, the agreement could not be terminated pursuant to para 4. Lord Carnwath (and Lord Reed) would allow the appeal on the alternative basis that there needs to be a causal or temporal link between the notice to remedy and the subsequent breach [91] which was absent in this case [95].

This is a judgment on (i) an appeal brought by the Secretary of State for Work and Pensions, against the Court of Appeals decision in favour of Ms Caitlin Reilly and Mr Jamieson Wilson, that the Jobseekers Allowance (Employment, Skills and Enterprise Scheme) Regulations (SI 2011/917) (the 2011 Regulations), purportedly made under section 17A of the Jobseekers Act 1995 (the 1995 Act), do not comply with the requirements of that section, and (ii) a cross-appeal brought by Miss Reilly and Mr Wilson against the Court of Appeals rejection of two other attacks they made on the way in which the Secretary of State had caused the Employment, Skills and Enterprise Scheme (the Scheme) to be operated. The Secretary of States appeal is complicated by the fact that, since the Court of Appeals judgment was handed down, (i) the 2011 Regulations have been repealed and replaced by the Jobseekers Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013/276) (the 2013 Regulations), and (ii) the Jobseekers (Back to Work Schemes) Act 2013 (the 2013 Act) has come into force, and its effect is agreed to be to validate the 2011 Regulations retrospectively. We deal with this aspect in paras 33-41 below. We will begin by describing the relevant statutory and regulatory provisions as they stood in 2011, and will then summarise the relevant facts relating to Miss Reilly and to Mr Wilson; after explaining the effect of the decision of the courts below, we will then turn to the effect of the 2013 Act and Regulations; after that, we will address the four sets of issues in turn, and will end by summarising our conclusions. The relevant statutory and regulatory provisions in 2011 According to its long title, one of the purposes of the 1995 Act was to provide for a jobseeker's allowance and to make other provision to promote the employment of the unemployed. Regulations made in 1996 included (i) provision for the circumstances in which the allowance was to be paid, (ii) requirements as to availability for employment, actively seeking employment, a Jobseekers Agreement, and (iii) sanctions in the event of non-compliance. There were subsequently many amendments to and additions to these Regulations. Section 1 of the 1995 Act provides, so far as material: (1) An allowance, to be known as a jobseekers allowance, shall be payable in accordance with the provisions of this Act. (2) Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he- (a) is available for employment; (b) has entered into a jobseekers agreement which remains in force; (c) is actively seeking employment; . (e) is not engaged in remunerative work.. Sections 17A and 17B were added to the 1995 Act by section 1(2) of the Welfare Reform Act 2009. Section 17A of the 1995 Act (section 17A) is headed Schemes for assisting persons to obtain employment: work for your benefit schemes etc, and it provides, so far as relevant: (l) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment. (2) Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment. (5) Regulations under this section may, in particular, make provision - (a) for notifying participants of the requirement to participate in a scheme within subsection (l); (b) for securing that participants are not required to meet the jobseeking conditions or are not required to meet such of those conditions as are specified in the regulations; (d) for securing that the appropriate consequence follows if a participant has failed to comply with the regulations and it is not shown, within a prescribed period , that the participant had good cause for the failure; (6) In the case of a jobseekers allowance , the appropriate consequence for the purposes of subsection (5)(d) is that the allowance is not payable for such period (of at least one week but not more than 26 weeks) as may be prescribed. Section 17B(1) of the 1995 Act entitles the Secretary of State to do certain things [f]or the purposes of, or in connection with, any scheme under section 17A(1), including (a) mak[ing] arrangements for the provision of facilities and (b) provid[ing] support for arrangements made by other persons for the provision of facilities. Section 35 of the 1995 Act provides that, at least in the context of section 17A, prescribed means specified in or determined in accordance with regulations. The circumstances in which a jobseekers allowance is not payable, include, according to section 19(5), cases where the claimant: (a) has, without good cause, refused or failed to carry out any jobseeker's direction which was reasonable, having regard to his circumstances; (b) has, without good cause (i) neglected to avail himself of a reasonable opportunity of a place on a training scheme or employment programme; (ii) after a place on such a scheme or programme has been notified to him by an employment officer as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him; (iii) given up a place on such a scheme or programme; or (iv) failed to attend such a scheme or programme on which he has been given a place... The 2011 Regulations were purportedly made under section 17A, and they came into force in May 2011. Regulation 2 provided that the Scheme means the Employment, Skills and Enterprise Scheme and then went on to state: The Employment, Skills and Enterprise Scheme means a scheme within section 17A (schemes for assisting persons to obtain employment: work for your benefit schemes etc) of the [1995] Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search). Regulation 3 of the 2011 Regulations provided: The Secretary of State may select a claimant for participation in the Scheme. Regulation 4 of the 2011 Regulations stated: (1) Subject to regulation 5, a claimant (C) selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2). (2) The notice must specify - (a) that C is required to participate in the Scheme; (b) the day on which C's participation will start; (c) details of what C is required to do by way of participation in the Scheme; (d) that the requirement to participate in the Scheme will continue until C is given notice by the Secretary of State that Cs participation is no longer required ; (e) information about the consequences of failing to participate in the Scheme . Regulation 5 of the 2011 Regulations set out the circumstances in which the requirement to participate in a scheme ceases. Regulation 6 provided: A claimant who fails to comply with any requirement notified under regulation 4 is to be regarded as having failed to participate in the Scheme. Regulation 7 provided an opportunity for a claimant who fails to participate in the Scheme to show good cause for that failure. The consequences of failure to participate in the Scheme were set out in regulation 8, and they are often known as benefits sanctions: (1) Where the Secretary of State determines that a claimant (C) has failed to participate in the Scheme, and C has not shown good cause for the failure in accordance with regulation 7, the appropriate consequence for the purpose of section 17A is as follows. (2) In the case of a jobseeker's allowance . the appropriate consequence is that Cs allowance is not payable for the period specified in paragraphs (4) to (7) (the specified period). (4) The period is 2 weeks in a case which does not fall within paragraph (6) . (6) [T]he period is 26 weeks where - (a) on two or more previous occasions the Secretary of State determined that Cs jobseeker's allowance was not payable or was payable at a lower rate because C failed without good cause to participate in the Scheme, and (b) a subsequent determination is made no more than 12 months after the date on which Cs jobseeker's allowance was not payable or was payable at a lower rate following the most recent previous determination. The facts: general In March 2012, jobseekers allowance was being received by just over 1.6 million people aged over 18, of whom around 357,000 had been in receipt of the allowance for more than a year. About 480,000 were aged under 24, of whom 55,000 had been in receipt of the allowance for more than a year. Forecast expenditure on the allowance in the year 2011/12 was just under 5bn. In a nutshell, the amendments to the 1995 Act effected in 2009, including section 17A, envisaged that regulations would (i) require participants to undertake unpaid work, or work-related activity, during a prescribed period, to improve their prospects of employment and (ii) impose sanctions (in particular, loss of the allowance) on those who without good cause failed to participate in such schemes. Those regulations materialised as the 2011 Regulations, which came into force on 20 May 2011, and, as explained above, provided for the Scheme. A variety of work for your benefit programmes have been made under the 2011 Regulations. The present appeals concern two such schemes. The sector-based work academy scheme (sbwa scheme) was launched in August 2011, and is administered by advisers at social security offices, or Jobcentres, which, until 2011, were run by an executive government agency under the name of Jobcentre Plus. The stated target of the sbwa scheme is those who do not have any serious barriers to finding work, but who would benefit from a short period of work-focused training and work-experience placement linked to a genuine job vacancy. The Community Action Programme (CAP) was launched in November 2011, and its stated aim is to help very long-term unemployed claimants back into work. It provides up to six months work experience, and is administered by private companies, one of which is called Ingeus Ltd (Ingeus), most of whose recruits are referred or identified by Jobcentres. The facts relating to Miss Reilly and Mr Wilson Miss Reilly was born in 1989 and first claimed jobseekers allowance in August 2010. Three months later, she got a paid work experience placement at a museum pursuant to a Government scheme, and was paid the minimum wage subsidised by that scheme. When that placement ended, she continued to work voluntarily at the museum, with a view to pursuing a career in museums. She has always complied with the jobseeking conditions, and has been committed to seeking employment. Miss Reilly is no longer claiming jobseekers allowance as she has obtained paid employment at a supermarket. From 31 October 2011, Miss Reilly participated, albeit unwillingly, in the sbwa scheme. This involved a weeks training, a two-week unpaid work placement at a Poundland store, and a further weeks training. She participated in the scheme because her Jobcentre adviser informed her that her participation in the scheme was mandatory. That was wrong: it is not mandatory to take part in the sbwa scheme, although once a claimant accepts a place, she must complete the scheme. She asserts that had she been correctly informed about the scheme, she would have exercised her right not to participate in it. Contrary to regulation 4 of the 2011 Regulations (regulation 4), Miss Reilly did not receive any written notice concerning her participation in the sbwa scheme. Mr Wilson was born in 1971, and worked as a qualified Heavy Goods Vehicle driver from 1994 to 2008, since when he has been unemployed. Mr Wilson started receiving jobseekers allowance in 2009. In August 2011 his Jobcentre adviser told him that in order for him to continue to receive his jobseekers allowance he had to take part in a new programme that was under trial in his area. He was given a letter stating that if he did not find a job within three months he would be referred to the CAP which would involve up to six months of near full-time work experience with additional weekly job search support requirements. The letter informed him that a refusal to participate could result in the loss of his benefit, and that, if he had any questions, he should ask his personal adviser. At a meeting in September 2011, Mr Wilsons adviser gave him another letter stating that if he had not found a job in two months, the CAP would commence. Again, it informed him that he might lose his benefit if he did not participate in the CAP. In October 2011, at another meeting with his adviser, he was given a letter to similar effect with the period of one month being specified as the deadline. In November 2011, Mr Wilson was selected to participate in the CAP. Once a person is selected in this way, participation in the CAP scheme is mandatory. On 16 November 2011, Mr Wilson received a letter from Jobcentre concerning the CAP scheme, which stated, inter alia: At your interview today, your adviser explained that you had to take part in the [CAP] from 16/11/11. Ingeus will be in touch with you shortly to arrange this. The [CAP] will involve doing up to six months of near fulltime work experience, with some additional weekly job search support The [CAP] is an employment programme established in law under the [2011 Regulations]. To keep getting Jobseekers Allowance, you will need to take part in the [CAP] until you are told otherwise or your award of jobseeker's allowance comes to an end; and complete any activities that Ingeus asks you to do. If you dont take part in the [CAP], under the [2011 Regulations] your jobseekers allowance may be stopped for up to 26 weeks. You could also lose your National Insurance credits. At a subsequent meeting with Ingeuss representative, Mr Wilson was told that his placement was due to begin on 28 November 2011 with an organisation that collects and renovates used furniture and distributes it to needy people, and that his participation was mandatory. He was told he would be required to work for 30 hours a week for 26 weeks or until he found employment of 16 hours a week or more. These details were not set out in writing. Mr Wilson explained that he had strong objections to being required to undertake labour unpaid and therefore was not prepared to work for free, particularly for such a long period of time. As a result of his refusal to participate in the CAP scheme, a two week benefits sanction was imposed on Mr Wilson in early May 2012. Later the same month, it was decided to impose two further benefits sanctions as a result of Mr Wilsons successive failures to attend a job search session with Ingeus on two occasions during April 2012. In total, these second and third benefits sanctions resulted in a cessation of benefit payments for 6 months. These proceedings In early 2012, Miss Reilly and Mr Wilson issued separate claims for judicial review claims challenging the 2011 Regulations, as well as the sbwa scheme and the CAP, on four grounds: i) That the 2011 Regulations are ultra vires section 17A because they fail to prescribe (i) a description of the sbwa scheme or the PAC, (ii) the circumstances in which a person can be required to participate in those schemes, or (iii) the period during which participants are required to undertake work on those schemes; ii) That the requirement that Miss Reilly and Mr Wilson participate in a scheme was unlawful, because the notice provisions contained in regulation 4 were not complied with; iii) That it is unlawful for the Government to enforce the 2011 Regulations in the absence of a published policy as to the nature of the relevant scheme and the circumstances in which individuals could be required to undertake unpaid work; iv) That Miss Reilly had been subjected to forced or compulsory labour contrary to article 4 of the European Convention on Human Rights (the Convention) and/or that the Regulations were contrary to article 4. The Secretary of State challenged each ground (save that he admitted a breach of regulation 4 in relation to Miss Reilly). Foskett J granted each claim on ground (ii) and dismissed them on grounds (i), (iii) and (iv): [2012] EWHC 2292 (Admin). In relation to ground (ii), the judge held that the Secretary of State had breached regulation 4(2), by the failure to provide any written notice to Miss Reilly (such breach being admitted), and regulation 4(2)(e), by failing to provide information about the consequences of failing to participate in the Scheme to Mr Wilson. The judge also held that, the consequence of the breach of regulation 4 was that no sanctions could be lawfully imposed on Miss Reilly or Mr Wilson for failure to participate in the scheme, but the failure did not make it unlawful for the Secretary of State to require an individual to participate in either scheme. Miss Reilly and Mr Wilson appealed against (a) Foskett J's findings on grounds (i), (iii) and (iv), (b) in relation to ground (ii), his rejection of the contention that the written notice supplied to Mr Wilson also breached regulation 4(2)(c), and (c) his rejection of the contention that the consequence of a breach of regulation 4 is that the requirement to participate in the scheme is unlawful. The Secretary of State cross-appealed the finding of a breach of regulation 4 in Mr Wilson's case. The Court of Appeal (a) allowed the appeal of Miss Reilly and Mr Wilson on grounds (i) and (ii), (b) dismissed the Secretary of State's cross-appeal, (c) quashed the 2011 Regulations, (d) declared that the Secretary of State acted unlawfully in requiring Miss Reilly to participate in the sbwa scheme, and (e) dismissed the appeal of Miss Reilly and Mr Wilson on grounds (iii) and (iv) [2013] EWCA Civ 66, [2013] 1 WLR 2239. As decided by the Court of Appeal, a) The 2011 Regulations are ultra vires section 17A, as they contain insufficient details about the sbwa scheme or the CAP, and should be quashed (although the other two grounds of attack described in para 27(i) above were rejected); b) In any event the requirements of regulation 4 were not complied with in relation to Miss Reilly or Mr Wilson; Subject to (a), the Secretary of State was not obliged to publish his c) policy any more extensively than he had done in order to enforce the schemes; and d) The enforcement of the schemes did not involve an infringement of Miss Reillys rights under article 4 of the Convention (article 4). The Secretary of State appeals to this court against conclusion (a) and, in relation to Mr Wilson, against conclusion (b); and Miss Reilly and Mr Wilson cross-appeal against conclusions (c) and (d). The 2013 Regulations and the 2013 Act On 12 February 2013 (the same day as the Court of Appeal handed down judgment in these proceedings), the 2013 Regulations came into force. They were proleptically drafted with a view to addressing the conclusion which was in fact reached by the Court of Appeal, namely that the 2011 Regulations were ultra vires section 17A, and to ensuring that the Government could continue to require claimants to participate in work for your benefit schemes. Regulation 3 of the 2013 Regulations is headed Schemes for Assisting Persons to Obtain Employment, and para (1) states that The schemes described in the following paragraphs are prescribed for the purposes of section 17A(1) (schemes for assisting persons to obtain employment: work for your benefit schemes etc) of the Act. The following seven paragraphs of regulation 3 of the 2013 Regulations describe seven different schemes, which were the schemes which had been brought in purportedly under the 2011 Regulations, and they included: (4) Full-time Training Flexibility is a scheme comprising training of 16 to 30 hours per week, for any claimant who has been receiving jobseekers allowance for a continuous period of not less than 26 weeks ending on the first required entry date to the scheme. (6) The sector-based work academy is a scheme which provides, for a period of up to 6 weeks, training to enable a claimant to gain the skills needed in the work place and a work experience placement for a period to be agreed with the claimant, and either a job interview with an employer or support to help participants through an employers application process. (8) The Work Programme is a scheme designed to assist a claimant at risk of becoming long-term unemployed in which, for a period of up to 2 years, the claimant is given such support as the provider of the Work Programme considers appropriate and reasonable in the claimant's circumstances, subject to minimum levels of support published by the provider, to assist the claimant to obtain and sustain employment which may include work search support, provision of skills training and work placements for the benefit of the community. Regulation 4(1) of the 2013 Regulations provides that [t]he Secretary of State may select a claimant for participation in a scheme described in regulation 3, and regulation 5 mirrors the notice requirements contained in regulation 4 of the 2011 Regulations. On 26 March 2013 (the same day as the Secretary of State sought permission to appeal the decision of the Court of Appeal), the 2013 Act came into force after having been fast-tracked through Parliament. The 2013 Act was plainly intended to undo the decision of the Court of Appeal, in that, pursuant to subsections (2), (3), (4)-(8), and (10)-(12) of section 1, it retrospectively validates (i) the 2011 Regulations, (ii) the programmes listed in regulation 3(2) of the 2013 Regulations, (iii) notices issued under regulation 4 of the 2011 Regulations, and (iv) the benefit sanctions imposed under those regulations in relation to the schemes. Subsection (14) of section 1 provides that the 2011 Regulations are to be treated as having been revoked by the 2013 Regulations on the coming into force of the 2013 Regulations. The 2013 Act is, we were told, currently the subject of a challenge in the Administrative Court on the ground that it does not comply with the Convention. The issues before this Court The substantive issues before us are the same as those before Foskett J and the Court of Appeal; they are set out in para 27 above, and the Court of Appeals conclusion on each issue is as summarised in para 31 above. It is convenient to take each of the four points in turn. However, before doing so, it is necessary to address the effect of the 2013 Regulations and the 2013 Act on this appeal and cross-appeal. On behalf of Miss Reilly and Mr Wilson, Ms Lieven QC submits that we should not consider the Secretary of States appeal on issue (a), as that issue is now academic, because, even if the Court of Appeal was right to hold that, prior to the 2013 Act coming into force, the 2011 Regulations were ultra vires, Parliament has now validated those regulations through the 2013 Act. The submission has obvious force as a matter of principle. This court, like other courts, is normally concerned with stating the law as it is, not as it was. Further, it is rather unattractive for the executive to be taking up court time and public money to establish that a regulation is valid, when it has already taken up Parliamentary time to enact legislation which retrospectively validates the regulation. That very point was made on behalf of Miss Reilly and Mr Wilson in order to oppose the Secretary of States application for permission to appeal to this court, and, at least viewed from our present perspective, we consider that there was considerable force in the point. However, permission to appeal has been given to the Secretary of State, the issue concerned is not the only point at stake in the appeal, the issue may be of some significance to the drafting of regulations generally, and the retrospectively validating legislation is under attack. Bearing in mind those factors, we are of the view that issue (a) should be considered, although the precise formulation of any order that is made will have to be carefully considered, bearing in mind the effect of the 2013 Act. Accordingly, we turn to consider the four issues on which Foskett J and the Court of Appeal ruled, and which were argued before us. The first issue: Were the 2011 Regulations ultra vires? The question to which this first issue gives rise is whether the 2011 Regulations satisfied the requirements of section 17A(1), as expanded by section 35 of the 1995 Act. The principal point in this connection is whether, as the Court of Appeal held, regulation 2 of the 2011 Regulations (regulation 2) contained a sufficiently prescribed description of the sbwa scheme and the CAP. To recapitulate, a) section 17A(1) authorised the making of Regulations which impos[ed] on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment, and, by section 35, prescribed means specified in or determined in accordance with regulations; and b) regulation 2 identified the Employment, Skills and Enterprise Scheme, which means a scheme within section 17A known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search). Whether one takes the Employment, Skills and Enterprise Scheme (which is really a group of schemes including the sbwa scheme and the CAP) as a single scheme, or whether, as seems more natural, one takes the sbwa scheme and the CAP as separate schemes, they were undoubtedly schemes which fell within the ambit of regulation 2. However, the question which arises is whether regulation 2 was or contained a prescribed description of the scheme in question. In other words, the question is whether regulation 2 could fairly be said to have been a regulation either (i) which specified a description of (the Employment, Skills and Enterprise Scheme or) the sbwa scheme or the CAP, or (ii) in accordance with which (the Employment, Skills and Enterprise Scheme or) the sbwa scheme or the CAP could be said to have been determined. For the Secretary of State, Mr Eadie QC argued that the self-evident need for flexibility in the precise characteristics of any scheme introduced under section 17A renders it unlikely that Parliament can have intended much, if anything, in the way of specific information about any scheme to be included in any regulation made thereunder. The need for flexibility cannot be doubted. As Pill LJ said in the Court of Appeal, at para 49, [t]he needs of jobseekers will vary infinitely, as will the requirements of providers prepared to participate in arrangements with them. Over and above the question of flexibility, as Ms Lieven QC, for Miss Reilly and Mr Wilson, effectively accepted, once one decides that section 17A(1) requires more specific information about a scheme than what is contained in regulation 2, it is not easy to identify the precise extent of the information required. However, even bearing in mind these points, it appears clear to us that regulation 2 does not satisfy the requirements of section 17A(1). The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the impermissibility of sub-delegation are of crucial importance. The observations of Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 349, 362 are in point: John Citizen should not be in complete ignorance of what rights over him and his property have been secretly conferred by the minister, as otherwise [f]or practical purposes, the rule of law breaks down because the aggrieved subjects legal remedy is gravely impaired. More specifically, in relation to the point at issue, we cannot improve on the reasoning of Sir Stanley Burnton in the Court of Appeal, where he said this: 75. Where Parliament in a statute has required that something be prescribed in delegated legislation, it envisages, and I think requires, that the delegated legislation adds something to what is contained in the primary legislation. There is otherwise no point in the requirement that the matter in question be prescribed in delegated legislation. However, the description of the Employment, Skills and Enterprise Scheme in the 2011 Regulations adds nothing to the description of such schemes in the Act. ... In effect, the Secretary of State contends that any scheme he creates is a scheme within the meaning of section 17A notwithstanding that it is not described in any regulations made under the Act. Furthermore, it is not possible to identify any provision of the Regulations that can be said to satisfy the requirement that the description be determined in accordance with the Regulations. 76 Description of a scheme in regulations is important from the point of view of Parliamentary oversight of the work of the administration. It is also important in enabling those who are required to participate in a scheme, or at least those advising them, to ascertain whether the requirement has been made in accordance with Parliamentary authority. Sir Stanley immediately went on to say, [t]he question as to precisely how much detail must be included in the Regulations in order to comply with the requirements of the Act does not arise for consideration in this appeal, since the Regulations contain none. However, while it is a fundamental duty of the courts to ensure that the executive carries out its functions in accordance with the requirements of Parliament, as expressed in primary legislation, it is also incumbent on courts to be realistic in the standards they set for such compliance. In this case, it is not only self-evident, but it is clear from the contents of regulation 3 of the 2013 Regulations, part of which is set out in para 34 above, that it is not unrealistic to hold that the Secretary of State could have done significantly more than was done in the earlier regulation 2 to describe the individual schemes such as the sbwa scheme and the CAP. It is neither necessary nor appropriate for us to decide whether regulation 3 of the 2013 Regulations complies with the requirements of section 17A: the issue is not before us, and has not been argued, and in any event it may be influenced by the provisions of the 2013 Act. Given the conclusion that the 2011 Regulations are ultra vires because they fail to provide a prescribed description of any scheme, it is strictly unnecessary to consider the further grounds raised by Miss Reilly and Mr Wilson for contending that the 2011 Regulations were invalid, but we will do so briefly. Those grounds are that the Regulations fell foul of the requirements of section 17A that any regulations made thereunder must, under subsection (1), prescribe the circumstances in which, and, under subsection (2), the period for which, claimants may be required to participate in prescribed schemes. The Court of Appeal rejected these two further grounds, and, while accepting that each ground is not without force, we agree with the Court of Appeal. The argument that the 2011 Regulations fail to prescribe the circumstances in which a claimant may be required to participate in a scheme, was largely based on regulation 3 of the 2011 Regulations (set out in para 11 above). It is said that, by merely providing that the Secretary of State may select a claimant for participation in a scheme, it suffers from the same vice as the alleged prescribed description of the schemes, in that it does no more than sub-delegate, in a completely unqualified way, the whole exercise of prescribing the circumstances to the Secretary of State. However, as Pill LJ indicated in para 58 of his judgment, one must also consider regulation 4 in this context. It seems to us that, particularly given the need for flexibility, regulation 4 contains sufficient detail to justify the conclusion that the circumstances in which a claimant can be required to participate in a scheme is to be determined in accordance with the 2011 Regulations. The fact that the regulation is concerned with the contents of a notice is irrelevant to this issue, but the very open-ended nature of what is left to the Secretary of State by regulation 4 could well be a problem in other circumstances where flexibility was not so obviously essential. Substantially the same point can be made about the statutory requirement in section 17A(2) for a period to be prescribed and the terms of regulation 4(2)(d) and 5(2) of the 2011 Regulations. Ms Lieven argued that the regulations thus provide for an open-ended period, but we do not see why that is intrinsically incapable of being a prescribed period. Again, we agree with Pill LJ who said at para 59, that the period is specified by way of events with which it will begin and end, and that, bearing in mind the undoubted need for flexibility where possible, it is a tenable specification. The second issue: Was the notice served on Mr Wilson valid? As described in para 21 above, no written notice was given to Miss Reilly, contrary to regulation 4(1) and 4(2) set out in para 12 above. In relation to Mr Wilson, there is a dispute which falls to be determined, namely whether the letter of 16 November 2011, quoted in para 24 above, complied with regulation 4(2)(c) and regulation 4(2)(e). In agreement with Foskett J, the Court of Appeal held that it did not satisfy the latter provision, but they also found that it did not satisfy regulation 4(2)(c). In our opinion, there was a failure to comply with regulation 4(2)(c). The letter of 16 November 2011 merely informed Mr Wilson that he had to perform any activities requested of him by Ingeus, without giving him any idea of the likely nature of the tasks, the hours of work, or the place or places of work. It seems to us, therefore, that the letter failed to give Mr Wilson details of what [he was] required to do by way of participation. Again, it is necessary to balance practicality, in the form of the need of the Secretary of State and his agents for flexibility, against the need to comply with the statutory requirement, which was plainly included to ensure that the recipient of any such letter should have some idea of where he or she stood. A requirement as general and unspecific as one which stipulates that the recipient must complete any activities that Ingeus asks you to do, coupled with the information that the course will last about six months falls some way short of what is required by the words of regulation 4(2)(c), even bearing in mind the need for practicality. The alleged breach of regulation 4(2)(e) is rather different in nature, and we have concluded that it is not made out. It arises from the fact that the letter of 16 November 2011 states that Mr Wilson would lose his benefits for up to 26 weeks if he did not participate in the CAP. The true position was that he risked losing his jobseekers allowance for two weeks initially, and thereafter for a period of 26 weeks, which could potentially be continued on a rolling basis see regulation 8(4) and (6) of the 2011 Regulations, set out in para 14 above. We see some force in Ms Lievens criticisms of the letter, but the question is whether they are sufficient to provide additional grounds for holding the notice invalid. The crucial issue is not so much one of contractual construction of the letter: it is whether Mr Wilson was (or perhaps whether a reasonable person in Mr Wilsons position would have been) significantly prejudiced or misled by the terms of the letter so far as any sanction was concerned. Regulation 4(2)(e) required the notice to contain information about the consequences of failing to participate, but it did not specify how detailed the information needed to be. If the letter had warned Mr Wilson in general terms that failing to participate might result in loss of benefit, we think that it would have been sufficient. The letter was more specific, in that it said that he risked losing up to 26 weeks loss of benefit, which was the maximum on any one occasion. This would have made it plain to Mr Wilson that he could face a lengthy period of loss of benefit if he failed to participate. Whether the issue is to be judged from the perspective of Mr Wilson or of a reasonable person in his position, we are not persuaded that the imperfections of the warning were sufficiently misleading or prejudicial that the letter should be held invalid on that account . The third issue: The Secretary of States duty to publish information about the schemes As explained above, i) Section 17A empowers the Secretary of State, by regulations, to require a claimant for jobseekers allowance to participate in a scheme of any prescribed description which is designed to assist the claimant to obtain employment, and the required participation may include an obligation to undertake (unpaid) work or work-related activity. ii) Under the 2011 Regulations, the claimant is to be given a written notice which must specify certain particulars - ie the date when he is required to start, details of what he is required to do, information about when the requirement will end and information about the consequences of failing to participate. The question arises whether fairness to a claimant requires any (and, if so, what) other information about a scheme in which he or she may be required to participate should be made publicly available. Ms Lievens submission is that any criteria established by the Secretary of State for the exercise of the power to require a person to engage in unpaid work should be made public as a matter of fairness to individuals and as a safeguard against arbitrariness. In support of that submission, she relies on the decision and reasoning in R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admin). Salih was concerned with a provision of the Immigration and Asylum Act 1999 which empowered, but did not require, the Secretary of State to provide or arrange support for asylum seekers and their dependants who appeared to him to be destitute or likely to become destitute within 14 days. It was the established practice of the Secretary of State to exercise that power if an application was made by an asylum seeker, and that policy was communicated to the Refugee Council, but not to individual asylum seekers who would qualify to receive benefits under the policy. Having said at para 51 that [m]isery and suffering may be involved and [f]undamental human rights may be engaged, Stanley Burnton J continued in the next paragraph by stating the following principle: These considerations lead me to conclude that it is not open to the Home Secretary to decide to refrain from making known his hard cases policy. On principle a policy such as that should be made known to those who may need to avail themselves of it. Leaving aside contexts such as national security, it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute. In R (WL Congo) v Secretary of State for the Home Department, [2012] 1AC 245, para 36, Lord Dyson (with whom a majority of the other members of the Supreme Court agreed) endorsed Stanley Burnton Js statement of general principle. WL was a case of detention and the Court of Appeal had distinguished Stanley Burnton Js statement on that basis, but Lord Dyson did not find that a satisfactory ground for distinction. He considered that a policy relating to a scheme which imposed penalties or other detriments was at least as important as one which conferred benefits. On the question how much detail needed to be conveyed, Lord Dyson said at para 38: The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made. (Emphasis added.) By the same token, the administration of a scheme by which a person may be required to engage in unpaid work on pain of discontinuance of benefits is a matter of considerable importance to a claimant for jobseekers allowance. (It is also of significance to the public at large, which has a legitimate interest in the way that public funds are disbursed and in proper steps being taken to encourage and assist such claimants to obtain paid employment.) For the individual, the discontinuance or threat of discontinuance of jobseekers allowance may self- evidently cause significant misery and suffering. The ability to appeal against a notice or a withholding of benefits (to a First-tier Tribunal of the Social Entitlement Chamber under section 12(2) of the Social Security Act 1998) is a form of protection. However, it is necessarily retrospective and, in practice, it may be small comfort to a person who is faced with an immediate termination of benefit. Fairness therefore requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made. Such claimants are likely to vary considerably in their levels of education and ability to express themselves in an interview at a Jobcentre at a time when they may be under considerable stress. The principle does not depend on the categorisation of the Secretary of States decision to introduce a particular scheme under statutory powers as a policy: it arises as a matter of fairness from the Secretary of States proposal to invoke a statutory power in a way which will or may involve a requirement to perform work and which may have serious consequences on a claimants ability to meet his or her living needs. Properly informed claimants, with knowledge not merely of the schemes available, but also of the criteria for being placed on such schemes, should be able to explain what would, in their view, be the most reasonable and appropriate scheme for them, in a way which would be unlikely to be possible without such information. Some claimants may have access to information downloadable from a government website, if they knew what to look for, but many will not. For many of those dependent on benefits, voluntary agencies such as Citizens Advice Bureaus play an important role in informing and assisting them in relation to benefits to which they may be entitled, how they should apply, and what matters they should draw to the attention of their Jobcentre adviser. In his evidence, Mr Iain Walsh, a senior civil servant, explains that the main way in which information is provided to claimants about the sbwa scheme and the CAP is through personal meetings with a Jobcentre adviser prior to a referral. In relation to the sbwa scheme, there is a document entitled Sector-based work candidates (SBWA) Adviser Guidance, which, in a section headed Initial discussions with the claimant, sets out a list of matters about which a claimant is to be informed. The section begins with the following instructions: Give the claimant full details of the sbwa. This should include as much information as possible about the course, the employer, the role etc. The customer must be given full information about the sbwa to ensure they can make an informed decision about taking part, especially as there are mandatory elements once the claimant has agreed to participate. Insofar as such information is of a general kind, there can be no doubt that it is in everyones interest that the Jobcentre adviser provides it to a claimant either in written form or via the website, with an explanation (preferably in writing) as to where and how it can be accessed. If that is not done, it may be harder evidentially for the Secretary of State to show that a claimant has been given all the information fairly required in order to be enable him or her to make an informed decision. However, the critical question is whether the claimant is in fact given by one means or another all the information which is fairly and reasonably required. If the Jobcentre adviser does what the sbwa Adviser Guidance requires, the Secretary of States public law duty will have been discharged. On the uncontradicted evidence of Miss Reilly, that did not happen in her case, but the court does not have a basis for concluding that the Adviser Guidance was routinely ignored. In relation to the CAP, there is no comparable evidence about the instructions given to Jobcentre advisers at the pre-referral stage. There is some correspondence between Mr Wilson and the relevant Jobcentre personnel, but it does not take matters very far. Mr Walsh has not set out or produced any document showing what instructions were given to Jobcentre advisers about any information which they were to give to a claimant regarding the CAP before serving a notice requiring him or her to take part in it. The letters produced by Mr Wilson show that he was told on a number of occasions by letter that if he wanted more information he could find it out from the adviser at the Jobcentre. However, his uncontradicted evidence is that on receipt of those letters he asked for further information from the Jobcentre adviser, who said that she was unable to give him any. The nearest document corresponding to the sbwa Adviser Guidance which Mr Walsh has produced is a document issued by the department to CAP providers entitled Community Action Programme (CAP) Provider Guidance. The document goes into considerable detail about the nature of the scheme and the providers duties. It was published on the departments website at www.dwp.gov.uk/supplying-dwp/what-we-buy/welfare-to-work-services/provider- guidance/community-action-programme.shtnl. This document recognises that, in designing a work programme, account must be taken of the personal circumstances of the claimant, such as whether he or she has caring responsibilities; but it is plain that it is left to the provider to decide the details of what the participant is to be required to do after an initial engagement meeting. The inability of the Jobcentre adviser to answer Mr Wilsons questions is readily explained by the sequence of events, whereby the service of the notice under regulation 4, which required details to be given of what a claimant was required to do, occurred at a time when those details remained to be determined by the job provider. For the reasons already explained, the Secretary of State owed a duty as a matter of fairness to see that Miss Reilly and Mr Wilson were respectively provided with sufficient information about the sbwa scheme and the CAP, in order for them to be able to make informed and meaningful representations to the decision-maker before a notice requiring their participation was served on them. However, it would be wrong to be prescriptive as to how that information should be given. It is a proper matter for a court to determine whether, and if so what, information is required to be communicated by the government, and whether a particular means of communication satisfied that requirement. However, it should not, absent unusual circumstances, be for the court to prescribe a specific means of communication. In this case, it would involve the court going too far if it was to rule that descriptions of the schemes must, as a matter of law, be published to the world at large. The desirability of publication in the manner described in para 65 above is obvious, but practical desirability does not equate to legal requirement. Further, as this case illustrates, Mr Wilson was none the wiser for the fact that the CAP Provider Guidance was published on the departments website. A failure to see that a claimant was adequately informed before service of a notice under regulation 4 would be likely to, but would not necessarily, vitiate the service of the notice. That would depend on whether the failure was material. Public law is flexible in dealing with the effects of procedural failures. Ultimately the issue must be determined by reference to the justice of the particular case. If the effect of the lack of information given to a claimant materially affected him or her by removing the opportunity of making representations which could have led to a different outcome, it would normally be unjust to allow the notice to stand. If it was immaterial on the facts, justice would not require the notice to be set aside. The respondents seek a declaration that the Secretary of State was lawfully required to publish and make available to jobseekers the terms of schemes established under section 17A. For the reasons given, that is to state the Secretary of States duty too broadly and prescriptively. We have stated the nature of the Secretary of States duty in para 73 above and do not consider it necessary to grant relief by way of a formal declaration to that effect. On the facts of the present case, there was a failure to provide either Ms Reilly or Mr Wilson with adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required. This would have been a ground for treating the notice served on Mr Wilson as ineffective if it had otherwise complied with the requirements of the statute, but we have already held that it was ineffective and do not consider that any further relief is required. The fourth issue: Article 4 of the European Convention on Human Rights The final point which needs to be considered is the contention that the 2011 Regulations fell foul of article 4, and that, by requiring Miss Reilly to work pursuant to the 2011 Regulations meant that her article 4 rights were infringed. The Court of Appeal dealt with the point somewhat delphically, essentially on the basis that it took matters no further, in the light of the decisions they had reached on the other points at issue. Article 4 provides: 1. No one shall be held in slavery or servitude. 2 No one shall be required to perform forced or compulsory labour. 3 For the purpose of this article the term forced or compulsory labour shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations. Ms Lievens case that article 4 has been infringed rests, unsurprisingly, on paragraph 2 of the article, not paragraph 1. Further, the only basis upon which the alleged infringement of article 4 is maintained is that the effect of the 2011 Regulations being invalid (and of her being misinformed as to her rights) is that the requirement that Miss Reilly work for Poundland as a condition of retaining her jobseekers allowance was unlawful, and, as a result, she was unlawfully required to perform forced or compulsory labour. Ms Lievens argument involves two steps. First, Ms Reillys work at Poundland was exactedunder menace of [a] penalty, ie disallowance of jobseekers allowance, and was therefore prima facie forced labour, and for that she relies on the decision of the Strasbourg court in Van Der Mussele v Belgium (1983) 6 EHRR 163, para 34. Secondly, the Secretary of State could not rely on article 4.3(d) because the illegality of the regulations and the notice prevented the Secretary of State being able to argue that the work was part of Ms Reillys normal civic obligations. In our judgment the argument fails at the first step. As the court noted in Van Der Mussele at para 32, article 4 was largely based on Convention 29 of the International Labour Organisation, the main aim of which was to stop exploitation of labour in the colonies. Forced labour is not fully defined and may take various forms, but exploitation is at its heart. Article 4.3 contains particular instances of obligatory labour which are common features of life in democratic societies and do not represent the mischief at which the article is aimed. It is important to understand, as the court explained in Van Der Mussele at paras 37 and 38, that article 4.3 is not intended to limit the exercise of the right guaranteed by article 4.2 (ie provide an exception to a right otherwise conferred by article 4.2), but to delimit (ie show the bounds of) the very content of the right, and it therefore serves as an aid to the interpretation of the whole of article 4.2. The diverse instances identified in article 4.3 are grounded on the governing idea of the general interest, social solidarity and what is in the normal or ordinary course of affairs. Therefore even where there exists a risk comparable to the menace of a penalty, it is necessary to consider, in the light of the underlying objectives of article 4, whether the service required of an individual falls within the prohibition of compulsory labour. The argument advanced by Ms Lieven that any work done under menace of a penalty imposed by the state contravenes the prohibition of forced labour under article 4 unless it comes within one or other of the paragraphs of article 4.3, thus involves a wrong approach to the nature and structure of the article. In the present case we are concerned with a condition imposed for the payment of a claim for a state benefit. Jobseekers allowance, as its name suggests, is a benefit designed for a person seeking work, and the purpose of the condition is directly linked to the purpose of the benefit. The provision of a conditional benefit of that kind comes nowhere close to the type of exploitative conduct at which article 4 is aimed. Nor is it to the point that according to Ms Reilly the work which she did for Poundland was unlikely in fact to advance her employment prospects. Whether the imposition of a work requirement as a condition of a benefit amounts to exacting forced labour within the meaning of article 4 cannot depend on the degree of likelihood of the condition achieving its purpose. Attempts to argue that the attachment of a work condition to the payment of state unemployment benefit contravened article 4 have failed at Strasbourg. There are three reported instances. In X v Netherlands (1976) 7 DR 161, the applicant was a specialised worker in the building industry. He claimed unemployment benefit and was required as a condition of payment to accept work which he considered to be unsuitable for a person with his qualifications and socially demeaning. He refused the offer and brought a complaint of a violation of article 4. The Commission declared the complaint inadmissible, observing that it was open to the claimant to refuse the work and that its acceptance was only a condition for the grant of unemployment benefit. There could therefore be no question of forced or compulsory labour within the meaning of article 4. In Talmon v Netherlands [1997] EHRLR 448 the applicant was a scientist. He claimed unemployment benefit and was required as a condition to accept work which he considered unsuitable. Because of his refusal to do it, his benefit payments were reduced. He complained that by having his benefits reduced he was being forced to do work to which he had a conscientious objection, contrary to article 4. The application was declared manifestly ill-founded and inadmissible. In Schuitemaker v Netherlands (Application No 15906/08) (unreported) 4 May 2010 the applicant was a philosopher by profession. She claimed unemployment benefit and was told that her benefits would be reduced unless she was willing to take up a wider range of employment than she considered suitable. She complained under article 4 that she was being forced to take up labour irrespective of whether it would be suitable for her. The court held that her application was inadmissible. It noted that the obligation of which she complained was in effect a condition for the granting of benefits, and it stated as a general principle that a state which has introduced a system of social security is fully entitled to lay down conditions which have to be met for a person to be eligible for benefits under that system. Van Der Mussele, on which Ms Lieven relies, was a different type of case. The applicant was a trainee advocate. He was required to represent at his own expense some criminal defendants who were entitled to legal aid. The sanction if he refused to do so was that he would not be registered as an advocate. He complained of a violation of article 4. The obvious difference between that case and the present is that it was not a simple case of a conditional benefit, where the purpose of the benefit was intended to be enhanced by the condition. Rather, it was a case of the state fulfilling its legal obligations to third parties at the expense of the applicant. The court accepted, at para 32, that the menace of the penalty and the lack of voluntariness on the part of the applicant met the starting point for considering whether he had been subjected to forced labour in violation of article 4. However, that was only the beginning of the inquiry. To amount to a violation of article 4, the work had to be not only compulsory and involuntary, but the obligation to work, or its performance, must be unjust, oppressive, an avoidable hardship, needlessly distressing or somewhat harassing. As we read the judgment, the court was not there setting out five different categories but was using a variety of expressions to elucidate a single underlying concept, which we have referred to as exploitation. In Van Der Mussele, at para 40, the court concluded for a combination of reasons that there had been no forced labour within the meaning of article 4.2, having regard to the social standards generally obtaining in Belgium and in other democratic societies. The court therefore considered it unnecessary to decide whether the work in question was in any event justified under article 4.3 (d). We do not consider that the imposition of the work condition in this case, intended as it was to support the purpose for which the conditional benefit was provided, met the starting point for a possible contravention of article 4. If it did, we do not consider that it fell within article 4.2, having regard to the Strasbourg guidance and the underlying objective of the article. Does it make a difference to this analysis that what Ms Reilly was told about her obligation to take part in the sbwa scheme, as a condition of receiving jobseekers allowance, was unauthorised and wrong as a matter of domestic law? The answer is No. The fact that the requirement was invalid does not of itself mean that it also fulfilled the characteristics of forced labour within the meaning of article 4.2. The logic of the contrary argument would produce strange results. If, for example, a public sector employee were wrongly directed to do something which was in fact beyond the terms of his contract of employment, and the employee did as he was told from fear of disciplinary action, we do not accept that the invalidity of the order would of itself trigger a violation of article 4. Equally, if the 2011 Regulations had unjustifiably discriminated between jobseekers on the ground of gender, and hence had been unlawful, it cannot be right that anyone required to work pursuant to such regulations would therefore have had their article 4 rights infringed. Whether the requirement was invalid under domestic law and whether it involved a violation of article 4 are different issues, and proof of the former does not of itself determine the latter. Conclusion Accordingly, were it not for the 2013 Act and the 2013 Regulations, we would have affirmed the order of the Court of Appeal. In the light of the 2013 Act and the 2013 Regulations, however, a more subtly expressed form of order will be required, and we would invite counsel to try and agree the appropriate wording. In the light of the 2013 Act and the 2013 Regulations, however, a more subtly expressed form of order will be required, and we would invite counsel to try and agree the appropriate wording.

UK-Abs

These appeals concern the legality of the Secretary of States Employment, Skills and Enterprise Scheme (ESES), which was designed to assist claimants of job seekers allowance (JSA) to obtain employment or self employment. The Jobseekers Act 1995 (the 1995 Act) provides for JSA to be paid to certain categories of unemployed persons. Section 17A of the 1995 Act provided that the Secretary of State could make regulations requiring JSA claimants in prescribed circumstances to participate in work or work related schemes of a prescribed description for a prescribed period. By section 35, prescribed means specified in or determined in accordance with regulations. Purportedly acting under section 17A of the 1995 Act, the Secretary of State made the Jobseekers Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (the 2011 Regulations:). These set up the ESES, defined by Regulation 2 as a scheme under section 17A to assist JSA claimants to obtain employment, which could include work related activity. By Regulation 3, the Secretary of State could select a JSA claimant for participation in the Scheme. Regulations 4 provided that such a claimant was required to participate once the Secretary of State had provided a notice in writing specifying (among other things) details of what participation involved, and Regulations 4 8 provided that failing to participate without good cause would lead to benefits sanctions. A number of work for your benefit programmes were created under ESES including the sector based work academy scheme (SBWA scheme), a short term scheme aimed at clearly employable individuals, and the Community Action Programme (CAP) aimed at the very long term unemployed. The first Respondent unwillingly participated for four weeks in the SBWA scheme having been informed, wrongly, that her participation was mandatory. She received no written notice. The second Respondent was selected to participate in the CAP. He was informed orally that he would be required to work for 30 hours/week for 26 weeks or until he found employment. He repeatedly refused to participate, and was subject to benefits sanctions with the effect that he received no JSA for 6 months. The Respondents brought judicial review claims. They argued that (i) the 2011 Regulations are unlawful, since they did not fulfil the requirements of section 17A of the 1995 Act in prescribing the programmes, the circumstances by which individuals are selected, or the period of participation (lawfulness), (ii) the Respondents did not receive the information required by Regulation 4 of the 2011 Regulations (notification), (iii) the Government was required to have a published policy setting out the details of the relevant schemes (publication), and (iv) that the first Respondent had been subject to forced or compulsory labour contrary to Article 4 ECHR (forced labour). The High Court found for the Respondents on ground (ii) only: the Secretary of State had accepted that the first Respondents notice did not satisfy Regulation 4, and the Court held that the second Respondents notice also failed to comply. The Court of Appeal upheld the High Courts decision on ground (ii), but also allowed the appeal on ground (i), and thereby quashed the 2011 Regulations. The Secretary of State appeals to the Supreme Court against the Court of Appeals decision on grounds (i) and (ii). The Respondents cross appeal against the Court of Appeals decision on grounds (iii) and (iv). Following the Court of Appeals decision, the Government passed the Jobseekers Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (the 2013 Regulations) and the Jobseekers (Back to Work Schemes) Act 2013 (the 2013 Act). The effect of these was retrospectively to validate the 2011 Regulations and to set out fuller details of seven schemes, including the SBWA scheme and the successors of the CAP, pursuant to section 17A of the 1995 Act. Lord Neuberger and Lord Toulson give the unanimous judgment of the Court. On ground (i) lawfulness, the Supreme Court dismisses the Secretary of States appeal, holding that the 2011 Regulations are invalid, since they did not contain a sufficiently detailed prescribed description of the SBWA or CAP schemes. On ground (ii) notification, the Court dismisses the Secretary of States appeal, holding that the notice given to the second Respondent was insufficiently detailed. On ground (iii) publication, the Supreme Court holds that the Secretary of State had failed to provide sufficient information about the schemes to the Respondents. On ground, (iv) forced labour, the Court dismisses the Respondents cross appeal: the Regulations do not constitute forced or compulsory labour. Given the existence of the 2013 Act and 2013 Regulations, however, the appropriate form of the order would require submissions from counsel. (i) Lawfulness: The SBWA and CAP are schemes falling within the 2011 Regulations. However, Regulation 2 contains no prescribed description of the ESES, SBWA scheme or CAP [45]. Even taking into account the need for flexibility in the detail of schemes, where a statute allows the making of regulations with a significant impact on peoples lives, the need for legal certainty is of crucial importance [46 47]. To be meaningful, the prescribed description must add something to what is said in the 1995 Act, and the description of ESES in the 2011 Regulations added nothing to the words of section 17A [48 50]. Therefore the 2011 Regulations were unlawful. However, the prescribed circumstances were sufficiently set out in Regulations 3 and 4 together, given the obvious need for flexibility [51]. Likewise, it was legitimate for the prescribed period to be an open ended one [52]. (ii) Notification: The notice served on the second Respondent simply informed him that he had to perform any activities requested by the private company operating the CAP, without any indication of the nature of the likely tasks, hours or places of work. This was insufficient to satisfy Regulation 4(2)(c), which required that the notice give the second Respondent details of what [the second Respondent] is required to do by way of participation in the Scheme [54 55]. However, the letter was sufficiently detailed with regard to the consequences of failure to participate: while there might have been imperfections, the second Respondent was not significantly prejudiced or misled [56 57]. (iii) Publication: The Regulations invoked a statutory power which involved a requirement to work on pain of loss of benefits. Therefore fairness required that the claimants should have sufficient information about the scheme to be able to make freely informed representations before a decision was made [64 66], which the Secretary of State failed to do [67 73, 76]. (iv) Forced labour: Article 4 ECHR requires that no one shall be required to perform forced or compulsory labour. However, this does not include work forming part of normal civic obligations. The latter provision delimits the ambit of the former [78, 81 82]. Therefore it was wrong to say that any work done under threat of penalty constituted forced labour unless it was required by lawfully imposed civic obligations [79 80]. JSA is a benefit for work seekers, and the 2011 Regulations impose a condition on that benefit directly linked to its purpose. This comes nowhere close to the type of exploitative conduct at which article 4 is aimed [83, 90]. The fact that, as a matter of domestic law, the first Respondents notice was unlawful made no difference [91].

This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. The appellant, Mr Anson was at all material times resident but non-domiciled in the UK for UK tax purposes. He was liable to UK income tax on his UK sourced income and on foreign income remitted to the UK. He was non-resident in the US for US tax purposes, but was liable to US federal and state taxes on his US sourced income. Mr Anson was at all material times a member of a Delaware limited liability company, which was classified as a partnership for US tax purposes. As a member of an entity classified as a partnership, Mr Anson was liable to US federal and state taxes on his share of the profits. Mr Anson remitted the balance to the UK, and was therefore liable to UK income tax on the amounts remitted, subject to any double taxation relief which might be available. The respondent Commissioners decided that Mr Anson was not entitled to any double taxation relief, on the basis, put shortly, that the income which had been taxed in the US was not his income but that of the limited liability company. The question is whether they were correct to do so. The facts The relevant period comprises the seven UK tax years running from 6 April 1997 to 5 April 2004. Throughout that period, Mr Anson was a member of HarbourVest Partners LLC (the LLC), a limited liability company formed under the law of Delaware and carrying on business in Boston, Massachusetts. The LLC was originally formed in 1996, when its founder members, including Mr Anson, provided the necessary capital. The amount paid was returned to the members in 1999 by way of distribution. The business of the LLC consisted of the management of a number of venture capital funds. It had no economic interest in the funds, or in the gains or losses from fund investments, but earned fees from its investment management activities. Its accounts were made up in respect of calendar years, which were also US tax years. The LLC was established under the Delaware LLC Act (the LLC Act), and under the terms of a limited liability company agreement (the LLC agreement) governed by Delaware law. The most significant provisions of the LLC Act will be mentioned shortly. The LLC agreement was an agreement between the members: the LLC itself was not party to it. Article IV dealt with members capital accounts. In particular, section 4.1 provided for the crediting to each members capital account of his capital contributions, and for the debiting to his account of all distributions made to him. Section 4.2 required the members capital accounts to be adjusted, at least annually, in specified respects. In particular, it provided (read short) that all gross income and gains realized during the period in question shall be credited, and all losses, deductions and expenses during the period in question shall be debited, to the respective capital accounts of the members pro rata, in accordance with ratios prescribed in the agreement, and subject to specified adjustments. Mr Ansons profit share was 11.5%, which was similar to his ownership interest. Article V set out the provisions relating to distributions. Section 5.1 provided: Subject to the provisions of this article V, to the extent cash is available, distributions of all of the excess of income and gains over losses, deductions and expenses allocated in accordance with section 4.2 with respect to any calendar year will be made by the company at such time within seventy-five (75) days following the end of such calendar year and in such amounts as the managing members may determine in their sole discretion. The managing members may from time to time in their discretion make additional distributions in accordance with the provisions of this article V. Mr Anson was not a managing member during the relevant period. Among the other provisions of the LLC agreement, it is necessary to note article XI, which dealt with dissolution, and made provision in that eventuality for the sale of the assets, the allocation of losses or gains to members in accordance with section 4.2, and distributions to the members. Under article 12.2, members were entitled on request to access to the books and records and to information about the business. During each calendar year, all the LLCs income and gains were credited, and all losses, deductions and expenses were debited, to its members capital accounts on a quarterly basis, in accordance with section 4.2. The excesses of the income and gains over the losses, deductions and expenses that is to say, the profits - were distributed to the members on a quarterly basis in arrears, in accordance with section 5.1, on the basis of the ratios set out in the LLC agreement. The following matters of Delaware law were agreed by the expert witnesses who gave evidence before the First-tier Tribunal (Judges John F Avery-Jones CBE and Ian Menzies-Conacher FCA) (the FTT) and were found as facts: i) The LLC was a legal entity which was brought into existence by executing a certificate of formation, filing of that certificate with the Delaware Secretary of State, and entering into an LLC agreement. ii) The business of the LLC was carried on by the LLC itself, rather than by its members, in the sense that the LLC as an entity with separate legal existence was engaged in business. The members were however active in the business, each member being required by the LLC agreement to devote at least 90% of his full business time to the advancement of the LLCs business and interests. iii) The assets used for carrying on the business of the LLC belonged beneficially to the LLC and not to the members. iv) The LLC was liable for the debts incurred as a result of carrying on its business. The members had no liability for the liabilities of the LLC. The FTT made the following additional findings in relation to the nature of a members interest in a Delaware LLC, and in the LLC in particular: i) A Delaware limited liability company interest is defined by section 18-101(8) of the LLC Act as a member's share of the profits and losses of a limited liability company and a member's right to receive distributions of the limited liability company's assets. ii) That interest is in principle assignable, except as provided in the LLC agreement. The assignee has no right to participate in the management of the business except as provided in the agreement and with the approval of all the other members. An assignee does not become a member but becomes entitled to the same economic interest as the assignor. iii) In the present case, the LLC agreement provided that a member's interest could not be transferred except for sales by a former member (a) under provisions giving the LLC a right of first refusal before any such sale, (b) to a person engaged in the full time business of the LLC, with the written consent of the managing members and two-thirds of the other original members, or (c) on death. iv) Section 18-503 of the LLC Act provides that the profits and losses of a limited liability company shall be allocated among the members, and among classes or groups of members, in the manner provided in a limited liability company agreement. v) A limited liability company interest is personal property. A member has no interest in specific limited liability company property (section 18- 701 of the LLC Act). vi) Subject to the LLC agreement, the members manage the LLC and vote in proportion to their interest in profits. vii) The LLC agreement provided that the operation and policy of the LLC was vested in the managing members, who had power to contract on its behalf, but certain matters, such as mergers and incurring liabilities of more than $500,000 in a year, required the consent of the members. viii) The interest of a member in the LLC was not similar to share capital, but was more similar to partnership capital in an English partnership. The parties expert witnesses were asked to address a number of questions which had been listed in an Inland Revenue tax bulletin 39 issued in February 1999 (and subsequently repeated in later bulletins), following the decision of the Court of Appeal in Memec plc v Inland Revenue Comrs [1998] STC 754, as factors which would be considered for the purpose of deciding whether a UK resident with an interest in a foreign entity should be taxed on his share of the profits of the foreign entity as they arose or only when he received a distribution of profits from the entity. One of those questions was the following: Are the persons who have an interest in the entity entitled to share in its profits as they arise; or does the amount of profits to which they are entitled depend on a decision of the entity or its members, after the period in which the profits have arisen, to make a distribution of its profits? Mr Ansons expert, Mr Abrams, treated the question as asking whether there was an automatic entitlement to share in profits, or whether any such entitlement depended, as in the case of a dividend, upon a decision taken after the end of the relevant period. He focused particularly upon section 4.2 of the LLC agreement, since it addressed how profits were allocated among members, and upon section 5.1, since it governed distributions. Applying the approach to contractual interpretation which, according to his evidence, applied under Delaware law, he concluded that section 5.1 created a mandatory requirement (subject to the other provisions of article V, and to cash being available) to distribute the excess of income and gains over losses, deductions and expenses allocated in accordance with section 4.2, in respect of each calendar year, ie the profit. That was consistent with the earlier crediting of the income and gains to the members capital accounts, and the debiting of losses, deductions and expenses, under section 4.2. The members were therefore entitled to participate in a share of the LLCs annual profits as they arose. The witness was clearly not referring to a proprietary entitlement. The Commissioners expert, Mr Talley, treated the question as asking whether the members had a proprietary interest in the profits as they arose. He noted that, in terms of section 18-701 of the LLC Act, the members had no interest in specific property of the LLC. It followed that they had no beneficial interest in the LLCs assets. In that proprietary sense, they were therefore not entitled to a share in the profits prior to a distribution. In a joint statement to the tribunal, each expert responded to the view expressed by the other in relation to this question. Mr Abrams pointed out that assets and profits were distinct concepts in general and under the LLC Act. Section 18- 101(8) defined a members interest in an LLC as including a members share of the profits and losses. The members entitlement to share in the profits was not affected by section 18-701, which concerned a different issue, namely the ownership of specific property of the LLC. Mr Talley, on the other hand, disagreed with Mr Abramss construction of section 5.1 of the LLC agreement: in his opinion, distributions were made at the discretion of the managing members. In his oral evidence, Mr Abrams said that the law of Delaware drew the same distinctions between a loss and a liability, and between a profit and an asset, as had been explained in Reed v Young [1986] 1 WLR 649, 654; [1986] STC 285, 289. In cross-examination, he observed that the questions put to him, which linked entitlement to profits to ownership of the LLCs income receipts as they were received, commingled two different concepts. When the LLC earned fees, the dollars went into the companys bank account. Those assets were the property of the company, just as the companys debts were the liability of the company. Whether the dollars translated into profits was a different issue. Profits and losses were an accounting concept. The LLC Act recognised the distinction between profits and assets in section 18-101. The LLC agreement imposed an obligation to distribute the profits at the end of each year. Mr Talley, in his oral evidence, accepted that profits and assets were distinct concepts in the law of Delaware, and that profits were an accounting measure. He maintained that profits nevertheless had to be reflected in the assets on the balance sheet, and in that sense formed part of the assets. He stated, however, that his primary reason for considering that the members had no entitlement to share in profits prior to a decision to make a distribution was his interpretation of section 5.1 of the LLC agreement as rendering distributions discretionary. In its discussion of this issue, the FTT stated that it accepted the contention, advanced on behalf of Mr Anson and supported by Mr Abrams, that in summary article IV allocated the profit to the members as it arose and article V required payment to be made. It referred first to sections 18-101(8) and 18-503 of the LLC Act. As explained earlier, section 18-101(8) defines limited liability company interest as a members share of the profits and losses of a limited liability company and a members right to receive distributions of the limited liability companys assets, while section 18-503 provides that the profits and losses of a limited liability company shall be allocated among the members, and among classes or groups of members, in the manner provided in a limited liability company agreement. The FTT also noted that the whole of the profits were allocated to the members capital accounts. It continued: This means that the profits do not belong to the LLC in the first instance and then become the property of the members because there is no mechanism for any such change of ownership, analogous to the declaration of a dividend. It is true, as Mr Talley has said, that the assets representing those profits do belong to the LLC until the distribution is actually made but we do not consider that this means that the profits do not belong to the members; presumably the same is true for a Scots partnership. Conceptually, profits and assets are different, as is demonstrated by the reference to both in the definition of limited liability company interest [in section 18-101(8) of the LLC Act]. There is a corresponding liability to the members evidenced by the allocation to their capital accounts. Accordingly, our finding of fact in the light of the terms of the LLC operating agreement and the views of the experts is that the members of [the LLC] have an interest in the profits of [the LLC] as they arise. (para 10) Having reached its conclusion on the basis of the legislation and article IV of the LLC agreement, the FTT did not regard the dispute as to whether distributions under section 5.1 were mandatory or discretionary as relevant. It nevertheless considered the matter, and concluded that distributions were mandatory. In relation to US tax treatment, as the profits generated by the LLC were connected with the conduct of a US trade or business, they were subject to US federal and Massachusetts state taxes, under the US Internal Revenue Code (the Code) and the General Laws of Massachusetts respectively, regardless of the residence or tax domicile of the recipient of the profits. Under the US entity classification rules set out in the US Treasury Regulations, the LLC was classified as a partnership for US tax purposes (it might have elected to be classified as a corporation, but made no such election). The Code states that in such circumstances the partners are liable to tax, rather than the partnership: in other words, the LLCs members, rather than the LLC itself. As a result, each member, including Mr Anson, was personally liable for US federal and Massachusetts state tax on his share of the profits, as his income, whether or not that sum was actually distributed to him. As required by the Code, the LLC filed an annual federal partnership income tax return, reporting the profits of the partnership. Mr Anson was also required to file an annual federal income tax return, in which his share of the LLCs profits was reported as his income. The federal income tax due by Mr Anson in respect of his share of the profits was withheld by the LLC at the rate of 39.6% applicable to withholding tax on foreign partners share of effectively connected income. That withholding tax was remitted to the federal tax authorities, as required by the Code and authorised by the LLC agreement. The LLC was required to file an annual return for partnership withholding tax for each member, and also to complete the foreign partners information statement of withholding tax, which foreign partners needed to furnish with their US federal income tax return in order to claim a withholding tax credit for the tax paid. The distributions made to Mr Anson were accordingly reduced by the amount of the tax withheld and remitted on his behalf. Mr Anson was then credited with the amount of tax withheld, when the amount of federal tax due by him on his share of income was assessed. In relation to state taxes, the LLC was required to submit an annual state income tax return recording the profits of the partnership, using the Massachusetts partnership return of income, together with a partners Massachusetts information schedule for each partner, setting out each partners share of the profits. Mr Anson was also required to file annual state income tax returns, in which he reported his share of the profits. He paid the state income tax directly to the state tax authorities. Double taxation relief Mr Anson was at all relevant times UK resident and ordinarily resident but non-domiciled. He was consequently liable to UK income tax under the Income and Corporation Taxes Act 1988 (the 1988 Act), section 18, Schedule D Case V, on income arising from possessions out of the United Kingdom which he remitted to the UK. He paid taxes in the US on his share of the profits at the rate of 45%, and remitted the balance to the UK. The question is whether he is liable to pay UK income tax on that balance at the rate of 40%, producing what he would say is an effective rate of taxation of 67% (ie 45 in US taxes for every 100 of income, plus 22 in UK tax, calculated as 40% of the 55 remitted after payment of US taxes), or is entitled to double taxation relief. Mr Anson claims double taxation relief in respect of US federal income tax under article 23(2)(a) of the UK/US Double Taxation Convention of 31 December 1975 (the 1975 Convention), for all of the relevant UK tax years up to the year ended 5 April 2003. For the year ended 5 April 2004, he claims double taxation relief under article 24(4)(a) of the UK/US Double Taxation Convention of 24 July 2001 (the 2001 Convention). Both Conventions are given effect in UK law, in the context of this appeal, by Orders in Council made under section 788 of the 1988 Act or the predecessor provision (SI 1980/568 and SI 2002/2848 respectively). Mr Anson also claims unilateral relief in respect of both US federal income tax and Massachusetts state income tax under section 790(4) of the 1988 Act for all of the relevant UK tax years. Article 24(4)(a) of the 2001 Convention is in terms which are not materially different from those of article 23(2)(a) of the 1975 Convention. It is common ground that the relevant provisions of the two Conventions have the same effect, and that the same arguments apply to both, mutatis mutandis. It is also common ground that there is no material difference, so far as the present case is concerned, between the tests imposed by article 23(2)(a) of the 1975 Convention and section 790(4) of the 1988 Act. In those circumstances, the present discussion, like the parties submissions, will focus only on the 1975 Convention. Article 23(2)(a) of the 1975 Convention provides: United States tax payable under the laws of the United States and in accordance with the present Convention, whether directly or by deduction, on profits or income from sources within the United States (excluding in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same profits or income by reference to which the United States tax is computed. The dispute between the parties concerns, in particular, the question whether the UK tax to which Mr Anson is liable is computed by reference to the same profits or income by reference to which the US federal tax was computed, within the meaning of article 23(2)(a), and the analogous question, under section 790(4) of the 1988 Act, whether the UK tax is computed by reference to the same income as the Massachusetts state tax. The proceedings before the FTT There were three issues before the FTT. The first was whether Mr Anson was entitled to relief under the double taxation agreements and section 790(4) of the 1988 Act. The second was whether, if he failed in respect of that claim, he was nevertheless entitled to rely on section 739 of the 1988 Act. The third was whether discovery assessments raised by the Commissioners were valid. In relation to the first issue, counsel for the Commissioners invited the FTT to find that the LLC was opaque rather than transparent, applying the terminology and the approach adopted by the Court of Appeal in the case of Memec, to which it will be necessary to return. Counsel argued that the LLC was opaque, since it, and not its members, carried on its business, was liable for the debts and obligations incurred, owned the business, and had a beneficial interest in the profits of the business. Although the US tax had been charged in respect of the profits of the LLC, UK tax was charged in respect of income derived by Mr Anson from his rights as a member of the LLC. It followed, counsel argued, that the UK tax was not computed by reference to the same profits or income as the US tax, within the meaning of the Conventions and section 790(4). The FTT said that it would address the issue applying the Memec approach, although it preferred to concentrate on the words of the treaty rather than ask whether the LLC was transparent or opaque. It had found as a fact that the LLC carried on business as a principal; that it, and not its members, was liable for its debts and obligations; and that it, and not its members, owned the business. But it had also found that the LLC had nothing equivalent to share capital, and that the members were entitled to the profits as they arose. There was, it said, a spectrum running from an English partnership, where the partnership had no separate personality and the partners owned the assets jointly and carried on the business, and were entitled to the profits, through the Scottish partnership, where the partnership was a legal person which owned the assets, but the partners were entitled to the profits, to the UK company, where the company was a legal person which owned the assets, and the members were normally entitled to profits only after a dividend had been declared. The LLC stood somewhere between a Scottish partnership and a UK company, having the partnership characteristic of the members being entitled to profits as they arise and owning an interest comparable to that of a partnership interest, but also some of the characteristics of a company. It was in their view on the partnership side of the dividing line, particularly in relation to its income. The factor which, the FTT said, it was mainly concerned with in relation to the Conventions was whether the profits belonged to the members as they arose. It had concluded that that was the effect of the LLC agreement and the LLC Act. Accordingly, it said, the appellant is taxed on the same income in both countries. He was therefore entitled to double taxation relief under the Conventions in respect of the federal income tax, and to unilateral relief under section 790(4) in respect of the state taxes. Mr Anson therefore succeeded on the first issue. The FTT went on to hold that, if it had been necessary to decide the other issues, it would have decided them against Mr Anson: [2010] UKFTT 88 (TC). The Upper Tribunal The Commissioners appealed to the Upper Tribunal, and Mr Anson cross- appealed in respect of the section 739 issue. The Upper Tribunal (Mann J) allowed the Commissioners appeal and reversed the decision of the FTT: [2011] UKUT 318 (TCC); [2011] STC 2126. Mann J construed the FTTs finding that the profits belonged to the members as they arose as meaning that the profits vested in the members as their property, rather than as meaning that the members had an entitlement to the profits under the LLC Act and the LLC agreement. In doing so, he laid stress on the FTTs comparison of the LLC with English and Scottish partnerships: a comparison which, he said, would not be nearly as relevant as the FTT plainly thought it to be if it were concerned with a contractual rather than a proprietary entitlement. It appears to be implicit in that comment that Mann J understood the partners in a Scottish partnership to have a proprietary interest in the assets of the partnership, and assumed that the FTT had shared that understanding. Having construed the FTTs finding in that sense, Mann J noted that there was nothing in the evidence to support such a finding. More fundamentally, as Mann J pointed out under reference to Reed v Young, profits are an accounting measure rather than specific assets. If the assets were owned by the LLC, as the FTT found, there could be no distinct entity, profits, owned by the members. Having construed the FTTs decision as being based to a material extent upon a finding of fact which was unsupported by any evidence and was in any event illogical, Mann J concluded that the matter had to be re-considered. This reasoning respectfully appears to me to be open to criticism. First, given a finding by an expert tribunal which was ambiguously expressed, I would hesitate to attribute to the tribunal a conclusion which involved an elementary error on a matter falling squarely within its expertise and which, furthermore, had no basis in the evidence. It is clear from the FTTs decision that it understood that, as it said, conceptually, profits and assets are different. It also understood that the assets of the business were the property of the LLC. It based its conclusion that the profits belong as they arise to the members not upon a confusion between profits and assets, but upon the expert evidence as to the combined effect under Delaware law of sections 18-101(8) and 18-503 of the LLC Act, which respectively defined a members interest in an LLC as his share of profits and losses, and required the profits and losses to be allocated among the members in the manner provided in the LLC agreement, and article IV of the LLC agreement itself, which required all income and expenditure to be respectively credited and debited to the members capital accounts in accordance with their profit shares. The natural reading of the FTTs decision, in those circumstances, is that when it described the profits as belonging to the members it was referring to a right in personam rather than a right in rem. That would be consistent with the evidence of Mr Abrams. It would also be consistent with the comparison which the FTT made between the LLC and a Scottish partnership. Although taxed in the same way as an English partnership (Commissioners for General Purposes of Income Tax for City of London v Gibbs [1942] AC 402), and having many points of similarity to an English partnership, a Scottish partnership differs in possessing separate legal personality. The partners do not, therefore, have any direct proprietary interest in any of the partnership assets (unless they happen to hold assets as trustees for the partnership). They have no title to sue for damage to partnership property, and they have no insurable interest in partnership property: see MacLennan v Scottish Gas Board, First Division, 16 December 1983 (unreported on this point); Arif v Excess Insurance Group Ltd 1987 SLT 473; Mitchell v Scottish Eagle Insurance Ltd 1997 SLT 793. What the partners do own is a share of the partnership. That share is an incorporeal moveable right or ius crediti (Clark, A Treatise of the Law of Partnership and Joint Stock Companies According to the Law of Scotland (1866), I 178; Bell, Commentaries on the Law of Scotland, 7th ed (1870), II 536): the right is a debt or demand against the partnership, as Bell described it. As long as the partnership continues, a partner is entitled under statute to require that the partnership's assets be applied for partnership purposes (Partnership Act 1890, section 20(1)), and to his share of the profits of the partnership business (section 24(1)). On a winding up, a partner is entitled to claim his portion of the net proceeds of sale of partnership assets. Those rights are broadly analogous to those of a member of the LLC under the LLC Act, as found by the FTT: an interest, which is personal property, entitling the member to share in the profits of the LLC in accordance with the LLC agreement, and to share in the net proceeds of sale of the LLCs assets in the event of a dissolution of the LLC. There are, of course, also some differences: in particular, the partners in a Scottish partnership, other than a limited partnership, have an unlimited liability for its debts, whereas the members of the LLC had no liability for its debts beyond their initial capital contributions, prior to their repayment. Nevertheless, given the points of similarity, the comparison made by the FTT between the LLC and a Scottish partnership was understandable, and did not carry the implication which Mann J supposed. On the basis, however, that the FTT had erred in law in this respect, and that it was therefore open to the Upper Tribunal to consider the matter afresh, Mann J accepted that, on the FTTs findings, there was no intermediate step in the form of a third party act, analogous to the declaration of a dividend, which stood between Mr Anson and whatever he was entitled to. The more difficult question was whether the income on which the US tax was paid was the same income, for the purposes of the double taxation treaty, as that which the Commissioners sought to tax. Mann J considered that it was not. The fact that the members of the LLC did not have a proprietary right in the underlying assets seemed to him to be crucial. In the absence of such a right, the profits were owned by the LLC, and a contractual obligation to credit them to the members accounts and to distribute them did not make them the property of the members, at least for English tax purposes. The US taxes and UK income tax were therefore not computed by reference to the same profits. In a separate judgment, Mann J upheld the decision of the FTT on the section 739 issue: [2012] UKUT 59 (TCC); [2012] STC 1014. The Court of Appeal Mr Anson then appealed to the Court of Appeal in respect of the issues concerning relief from double taxation. The court refused the appeal for reasons given by Arden LJ, with which Laws and Lloyd LJJ agreed: [2013] EWCA Civ 63; [2013] STC 557. The Court of Appeal stated that the relevant test for determining whether a person is taxed on the same profits or income in both jurisdictions is whether the source of the profits or income in each jurisdiction is the same (para 30), the source being the source for the purposes of UK tax law (para 37). It derived that test from the case of Memec, which was described as the leading authority on this point (para 30). As I shall explain, that case was concerned with the equivalent of article 23(2)(b) of the 1975 Convention, rather than article 23(2)(a). The issue was whether a dividend had been paid to a UK company by an overseas company in which it held a qualifying interest. It was in that context that, in Memec, the court laid emphasis upon identifying the source of the UK companys income, and on the question whether its partnership (governed by foreign law) with a foreign subsidiary, which received the dividends in question and then made payments to the UK company in accordance with the partnership agreement, was transparent, in the sense that the payment of the dividends to the foreign subsidiary, and its payment to the UK company of the sums due under the partnership agreement, were equivalent to the payment of the dividends directly to the UK company itself. On the basis that the case of Memec had established the approach to be adopted, the court derived from that case the following proposition: Where the taxpayer became entitled to the profit of an entity because of some contractual arrangement to which he is a party, he must show that the contract is actually the source of the profit, rather than a mechanism to secure a right to a profit derived from another source. This will in general mean that, as the judge held, he has to show a proprietary right to the profits. (para 38) This is not easy to follow. At first sight, the first sentence appears to be suggesting the opposite of what was decided in Memec, namely that the taxpayer did not qualify for relief because the source of its income was the contract constituting the partnership, rather than the contract being a mere mechanism for the payment of income derived from the overseas company: see, in particular, the dictum of Lord Asquith in Stainers Executors v Purchase [1952] AC 280, 291, cited by Robert Walker J at first instance in Memec [1996] STC 1336, 1350. The second sentence might also be contrasted with the approach of the Court of Appeal in Memec. As will be explained, the court adopted in that case an approach to transparency which involved analysing the characteristics of the partnership agreement under the governing foreign law, comparing those characteristics with the characteristics of paradigm examples of arrangements which were transparent (such as English and Scottish partnerships) or opaque (such as UK companies), and determining whether in the light of that comparison, having regard to all relevant factors, the foreign partnership was relevantly similar to the transparent or opaque UK entities. That was the approach followed by the FTT in the present case. The Court of Appeal, on the other hand, treated the ownership of business assets as decisive, Arden LJ stating: in order for a member of an entity to show that he was entitled to profits from the moment that the profit arose he will have to show that he has an interest in the assets to the value of the profit. This will necessarily be a proprietary interest. (para 59) The court accepted (at para 70) the Commissioners submission that the FTTs finding, that the effect of the LLC agreement and the LLC Act was that profits of the LLC belonged to the members as they arose, was a holding on UK domestic law, with which the Upper Tribunal was entitled to interfere, rather than a finding of fact as to the position under Delaware law. Arden LJ explained: Delaware law governs the rights of the members of [the LLC] as the law of the place of its incorporation, and the LLC agreement is expressly made subject to that law. However, the question whether those rights mean that the income of [the LLC] is the income of the members is a question of domestic law which falls to be determined for the purposes of domestic tax law applying the requirements of domestic tax law . (para 71) Applying this approach, Arden LJ considered that the Upper Tribunal had been correct to conclude that the profits of the LLC did not belong to the members. The source of the LLCs profits was its trading. Mr Anson was merely entitled to a distribution out of those profits. He had no proprietary interest in the assets of the LLC, and was therefore said to be in a different position from the partners in an English or Scottish partnership. Mr Anson was refused permission to advance a potentially material argument, not raised below, relating to an exchange of notes between the UK and the US dated 24 July 2001, concerned with the application of article 24 of the 2001 Convention in situations where a person was taxed as a resident of one contracting state on income derived through an entity which was fiscally transparent under the laws of either contracting state. A number of criticisms might be made of the Court of Appeals reasoning. First and foremost, the court did not directly address the only relevant question, namely whether the UK tax was computed by reference to the same profits or income by reference to which the US tax was computed. It began by identifying that question, but then appears to have been diverted by a consideration of the issue which it understood to have been decided in Memec, and the approach adopted in that case. As a consequence, the remainder of its judgment focused on the question whether Mr Anson had a proprietary right to the profits of the LLC as they arose. That question not only appears to demonstrate the persistence of the conceptual confusion between profits and assets, but does not address the critical point, namely whether the income taxed in one country is the same as the income taxed in another. The reasoning summarised in para 47 also appears to elide two distinct issues. First, the questions whether the members had a right to the profits, and as to the nature of that right, were questions of non-tax law, governed by the law of Delaware. The FTTs conclusion, whether correctly construed as a finding that Delaware law had the effect of conferring on the members of the LLC an automatic statutory (or contractual) entitlement to the profits of the LLC, or as a finding that Delaware law vested the members with a proprietary right to the profits as they arose, was on either view a finding of fact. Secondly, domestic tax law - in this case, the relevant double taxation agreements as given effect in UK law - then fell to be applied to the facts as so found. This approach was explained by Robert Walker J in Memec at [1996] STC 1336, 1348-1349. It is well illustrated by the contrasting decisions in Baker v Archer-Shee [1927] AC 844 and Archer-Shee v Garland [1931] AC 212, where the taxpayer lost in the House of Lords in the first case, and then succeeded in the House of Lords in the second case, because of the introduction in the second case of evidence establishing that the trust law of the state of New York differed from English trust law. The present appeal Mr Anson now appeals to this court. In the course of the initial hearing of the appeal, counsel were asked about the possible significance of the words in parentheses in article 23(2)(a) of the 1975 Convention (excluding, in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid), and of article 23(2)(b), which allows relief for tax on the profits out of which a dividend is paid in the case of a dividend paid by a US corporation to a UK company controlling at least 10% of voting power in the US corporation. Counsel were also asked whether the form of words employed in article 23(2)(a), in allowing relief in respect of tax computed by reference to the same profits or income, might permit a less technical approach than that ordinarily adopted in UK tax law. Equivalent provisions are contained in the 2001 Convention, and similar provision is also made, in relation to unilateral relief, by section 790(5) and (6) of the 1988 Act. Counsel were given the opportunity to make additional submissions in writing in relation to these points. As a result, substantial submissions were made in writing after the hearing of the appeal, following which a further hearing was held at the request of the Commissioners. Two distinct grounds of appeal are now advanced on behalf of Mr Anson. The first is that, even assuming that US tax was charged on the profits of the LLC, and that Mr Anson was liable to UK tax only on distributions made out of those profits, the US and UK tax were nevertheless charged on the same profits or income, within the meaning of the 1975 and 2001 Conventions. This ground was not advanced below. The second ground is that, as a matter of UK tax law, and on the findings which the FTT made and was entitled to make, Mr Anson was liable to tax in the UK on his share of the profits of the trade carried on by the LLC, which was the same income as had been taxed in the US. The Vienna Convention on the Law of Treaties It is a matter of agreement that, as international treaties, the 1975 and 2001 Conventions have to be interpreted in accordance with articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969; TS 58 (1980); Cmnd 7964). That is so notwithstanding that, although the US is a signatory of the Vienna Convention, the US Senate has not given its consent to it: the provisions of articles 31 and 32 can in any event be applied, since they have been accepted by the International Court of Justice (and also, in this country, by the House of Lords) as being an accurate statement of customary international law. Articles 31 and 32 of the Vienna Convention are in the following terms: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable. Put shortly, the aim of interpretation of a treaty is therefore to establish, by objective and rational means, the common intention which can be ascribed to the parties. That intention is ascertained by considering the ordinary meaning of the terms of the treaty in their context and in the light of the treatys object and purpose. Subsequent agreement as to the interpretation of the treaty, and subsequent practice which establishes agreement between the parties, are also to be taken into account, together with any relevant rules of international law which apply in the relations between the parties. Recourse may also be had to a broader range of references in order to confirm the meaning arrived at on that approach, or if that approach leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable. The object and purpose of the Convention The purposes of the 1975 Convention, as stated in its preamble, are the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains. The preamble does not indicate more precisely what is meant by double taxation: in particular, whether the Convention is restricted to juridical double taxation, or can also extend to economic double taxation. The former is usually considered to arise where two jurisdictions impose income taxes on the same person in respect of the same income. The latter is usually considered to arise where there is taxation of the same or derivative income in separate hands. Context The contemporary background of a treaty, including the legal position preceding its conclusion, can legitimately be taken into account as part of the context relevant to the interpretation of its terms: see, for example, Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd [1961] AC 807, 836; Effort Shipping Co Ltd v Linden Management SA [1998] AC 605, 624-625. The 1975 Convention replaced an earlier double taxation convention between the UK and the US, signed at Washington on 16 April 1945: TS 26 (1946); Cmnd 6902 (the 1945 Convention). The 1945 Convention, to which effect was given by the Double Taxation Relief (Taxes on Income) Order 1946, SR & O 1946/1327, had been amended by a number of protocols, including a Supplementary Protocol signed at Washington on 17 March 1966: TS 65 (1966); Cmnd 3128 (the 1966 Protocol). As I shall explain, article 23(2) of the 1975 Convention repeats almost verbatim a provision of the 1966 Protocol. In interpreting article 23(2), it is therefore necessary to understand the intended effect of the relevant provision of the 1966 Protocol. That in turn requires consideration of the provision of the 1945 Convention which the 1966 Protocol was designed to amend. The background to the 1945 Convention The logical starting point is the background to the 1945 Convention. The UKs income tax legislation taxed income arising from foreign possessions, as I have explained. Relief in respect of foreign taxes was only partial, and was in any event confined to income from the Dominions. Partners in the UK, whether Scottish or English, were assessed jointly, in the name of the partnership, on the total tax due by the individual partners on their shares of the profits of the firm: Commissioners for General Purposes of Income Tax for City of London v Gibbs [1942] AC 402; MacKinlay v Arthur Young McLelland Moores & Co [1990] 2 AC 239. A partners share of the profits of a foreign partnership, on the other hand, was treated as income from a foreign possession: Colquhoun v Brooks (1889) 14 App Cas 493. So far as companies were concerned, the income tax legislation applied an imputation system to ordinary dividends paid by UK companies to UK resident shareholders. In other words, dividend income from a UK company was treated as franked by the companys payment of income tax on its profits. The rationale was that since ordinary dividends were paid out of profits on which the company had paid income tax, it was unjust to subject them to income tax in the hands of the shareholders. As Lord Atkin explained in Cull v Commissioners of Inland Revenue [1940] AC 51, 56: My Lords, it is now clearly established that in the case of a limited company the company itself is chargeable to tax on its profits, and that it pays tax in discharge of its own liability and not as agent for its shareholders. The latter are not chargeable with income tax on dividends, and they are not assessed in respect of them. The reason presumably is that the amount which is available to be distributed as dividend has already been diminished by tax on the company, and that it is thought inequitable to charge it again. Lord Wright gave a similar explanation at p 75: ... the shareholder is not taxed under Schedule D in respect of that part of his income which consists of dividends. The profits have been charged to tax in the hands of the company and that fact is deemed to redound to his benefit. UK tax law did not, therefore, carry the principle of separate corporate personality to its logical conclusion. If it had done so, the profits of the companys trade would have been taxable in the hands of the company, and distributions of the net profits in the form of dividends would also have been chargeable under Schedule D in the hands of the shareholders. As Lord Phillimore noted, however, in Bradbury v English Sewing Cotton Co Ltd [1923] AC 744, 769: Their taxation would seem to be logical, but it would be destructive of joint stock company enterprise. ... The reason for their [scil, the shareholders] discharge may be the avoidance of double taxation, or to speak accurately, the avoidance of increased taxation. Dividends paid by overseas companies to UK resident shareholders did not benefit from similar treatment under the express terms of the legislation, but they were held nevertheless to do so, by virtue of an implied term, to the extent that the profits out of which the dividends were paid had already borne UK income tax: Gilbertson v Fergusson (1881) 7 QBD 562. Some limits to the scope of the decision in Gilbertson v Fergusson were set by the House of Lords in Barnes v Hely Hutchinson [1940] AC 81. The case differed in two respects from Gilbertson v Fergusson. First, UK taxes had not been paid by the overseas company paying the dividend, but by UK companies in which it held shares. Secondly, the dividends received by the taxpayer were preference dividends rather than ordinary dividends, and were therefore paid at a fixed rate, undiminished by the taxes paid by the UK companies. In these circumstances, the taxpayer was held to have been correctly assessed on the full amount of the dividend. It was also emphasised in Barnes that, notwithstanding the concept of franked dividend income, the income received by the shareholder was not the same income as that of the company. Lord Wright explained at pp 94-95: The English company is taxed on the balance of its profits or gains, that is on its income; the shareholder is taxed on his own income. The shareholder is never taxed on the companys fund of profits, but only on the dividend which comes to him in payment of the debt which is created when the company declares the dividend. The tax is in every case on the individuals income, not on a fund possessed by another person, the company, even though it is the fund of profits of that company, from which the individual's income or part of it will be paid. ... This principle must not be obscured by reason of the circumstance that in the way already noted, the dividend is treated as franked by the tax paid by the company. The fund which is taxed in the hands of the company and the dividend which is declared by the company in favour of the shareholder are separate items for taxation law. It is only the latter which is the shareholders income. The decision in Gilbertson v Fergusson was overruled in Canadian Eagle Oil Co Ltd v The King [1946] AC 119, decided a few months after the 1945 Convention had been signed. The facts of the case were similar to those in Barnes v Hely Hutchinson, except that the dividends in question were ordinary dividends. There was held to be no basis for implying into the statute the limitation which had been implied by the Court of Appeal in Gilbertson: there was no necessary implication that economic, as distinct from juridical, double taxation was not intended. No sooner had Gilbertson been overruled, however, than Parliament legislated to restore the relief, limited to ordinary dividends paid by an overseas company which had itself paid UK income tax on part of its profits (so preserving the limitations imposed by the decision in Barnes v Hely Hutchinson): Finance Act 1946, section 31. The relief survives, in an amended form, in current legislation. The 1945 Convention The 1945 Convention (Cmd 6902) was negotiated during 1944 and 1945. The background, and the travaux prparatoires, are discussed in Avery Jones, The History of the United Kingdoms First Comprehensive Double Taxation Agreement [2007] BTR 211. The Convention sought to address a number of issues, including double taxation relief. As I have explained, the UK allowed only partial relief, and confined its scope to the Dominions. The US also allowed partial relief, but on a worldwide basis. Apart from the general desire to extend the scope of the relief, there was a specific concern in relation to the taxation of dividend income, at a time of substantial UK investment in the US (and vice versa) and historically high rates of taxation in both countries. The two countries had fundamentally different systems of taxing dividends. The UK, as I have explained, had an imputation system, assessing UK companies to income tax (at a standard rate of 50%, plus 5% national defence contribution), and treating their dividends as income which had already been taxed. The US, on the other hand, had a classical corporation tax system: the corporation paid tax on its profits (at a rate of 40%), and dividends were paid to shareholders under the deduction of a withholding tax (at a rate of 30%). Given the prevailing rates, the taxation of dividends received by UK shareholders in US corporations, without relief in respect of US taxation of the profits out of which the dividends were paid (except to the limited extent permitted under the Gilbertson principle), presented a serious problem. There was a similar problem for US shareholders in UK companies: they had been held by the US Supreme Court in Biddle v Commissioner 302 US 573 (1938) not to qualify for foreign tax credit relief in respect of the income tax paid by the UK company, since they had not paid the tax (an exception being made for US corporations holding 50% of a UK company). The structure of the 1945 Convention, followed in the 1966 amendments and in the 1975 Convention, was to avoid double taxation primarily by means of distributive provisions allocating the right to tax specified categories of income to one or other of the contracting states. Provisions of that kind covered, in particular, the industrial and commercial profits of enterprises engaged in business in one of the contracting states (article 3), and dividends derived from US corporations and UK companies (article 6). Situations where income continued to be taxable in both countries were addressed by article 13. Article 6 of the 1945 Convention sought to achieve parity of tax treatment for UK shareholders in US corporations, and for US shareholders in UK companies, by reducing the withholding tax on dividends paid to the former to 15% (so that the effective tax charge imposed by the US was 40% on the profits of the corporation, plus 15% withholding tax on the remaining 60%, producing an effective rate of 49%), and by exempting the latter from UK surtax (so that the effective tax charge imposed by the UK was the standard 50% on company profits). As I have explained, article 13 of the 1945 Convention addressed double taxation relief in situations where income might be taxed in both contracting states. Article 13(1) addressed the position in the US: Subject to section 131 of the United States Internal Revenue Code as in effect on the first day of January, 1945, United Kingdom tax shall be allowed as a credit against United States tax. For this purpose, the recipient of a dividend paid by a corporation which is a resident of the United Kingdom shall be deemed to have paid the United Kingdom income tax appropriate to such dividend if such recipient elects to include in his gross income for the purposes of United States tax the amount of such United Kingdom income tax. The first sentence set out the general principle. Section 131 of the US Internal Revenue Code was the provision which had been in issue in the case of Biddle. It allowed foreign tax credit relief in respect of income taxes paid or accrued during the taxable year to [a] foreign country. The second sentence resolved the particular problem which had previously existed in relation to relief for US shareholders in UK companies, by deeming them to have paid the UK income tax paid by the company on its profits. This effectively reversed the decision in Biddle, and so enabled US shareholders to benefit from the general principle stated in the first sentence. Article 13(2) addressed the position in the UK: Subject to such provisions (which shall not affect the general principle hereof) as may be enacted in the United Kingdom, United States tax payable in respect of income from sources within the United States shall be allowed as a credit against any United Kingdom tax payable in respect of that income. Where such income is an ordinary dividend paid by a United States corporation, such credit shall take into account (in addition to any United States income tax deducted from or imposed on such dividend) the United States income tax imposed on such corporation in respect of its profits, and where it is a dividend paid on participating preference shares and representing both a dividend at the fixed rate to which the shares are entitled and an additional participation in profits, such tax on profits shall likewise be taken into account in so far as the dividend exceeds such fixed rate. The first sentence established a general principle that US tax on income from sources within the US was allowable as a credit against UK tax on that income, in other words the same income. The second sentence dealt with the particular case of dividend income, and required such credit the credit against UK tax on the same income - to take into account, in addition to any withholding tax deducted from the dividend, the US tax paid by the corporation on the profits out of which the dividends were paid. This approach, in deeming the tax on the profits of the corporation to have been charged on the shareholders income, followed the imputation approach adopted in the UK case law since Gilbertson v Fergusson. The remainder of the second sentence dealt specifically with preference shares, and limited the relief to any additional participation in profits above the fixed rate payable, in accordance with the decision in Barnes v Hely Hutchinson. Article 13(2) thus introduced a new general relief for US taxes paid on the same income, and applied it to dividend income in accordance with the approach then adopted in UK tax law to relief for UK taxes paid by overseas corporations. UK shareholders in US corporations thus benefited under article 13(2) from similar relief to that accorded to US shareholders in UK companies under article 13(1). Article 13(2) required income to have a source within the US in order to be eligible for relief. The 1945 Convention contained provisions deeming particular types of income to have their source within the UK or the US, in articles 3(3) and 13(3). The 1966 Protocol In 1965, the UK tax regime in relation to dividends changed fundamentally, with the introduction of corporation tax. Relief based upon an imputation system became inappropriate. The 1945 Convention was accordingly amended by the 1966 Protocol, to which effect was given by the Double Taxation Relief (Taxes on Income) (USA) Order 1966 (SI 1966/1188). The new article 6, as inserted by the 1966 Protocol, sought to achieve parity of tax treatment for UK shareholders in US corporations, and for US shareholders in UK companies, by subjecting the dividends in each case to a withholding tax of not more than 15%. position in the US, provided: In relation to double taxation relief, the new article 13(1), dealing with the ... Subject to the provisions of the law of the United States regarding the allowance as a credit against United States tax of tax payable in a territory outside the United States (which shall not affect the general principle hereof), the United States shall, however, allow to a citizen, resident or corporation, as a credit against its taxes, the appropriate amount of United Kingdom income tax paid and, in the case of a United States corporation owning at least 10% of the voting power of a corporation resident in the United Kingdom, shall allow credit for the appropriate amount of United Kingdom tax paid by the corporation paying such dividend with respect to the profits out of which such dividend is paid . The first part of that provision (down to paid, where it first appears) repeated the general principle established by the 1945 Convention. The withholding tax imposed by the UK on dividend income would fall within its scope. In the remainder of the provision, the general relief for dividends, in respect of UK tax on company profits, which had appeared in the 1945 Convention was not repeated. The rationale of that relief - the imputation system - no longer applied in a situation where UK tax was charged on the dividend itself. An exception was however made, in the concluding clause, for cases where the shareholder was a company with a substantial trade investment in the company paying the dividend. The new article 13(2), dealing with double taxation relief in the UK, provided: (2) Subject to the provisions of the law of the United Kingdom regarding the allowance as a credit against United Kingdom tax of tax payable in a territory outside the United Kingdom (which shall not affect the general principle hereof), (a) United States tax payable under the laws of the United States and in accordance with the present Convention, whether directly or by deduction, on profits, income or chargeable gains from sources within the United States (excluding, in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same profits, income or chargeable gains by reference to which the United States tax is computed; (b) In the case of a dividend paid by a company which is a resident of the United States to a company which is resident in the United Kingdom and controls directly or indirectly at least 10% of the voting power in the United States company, the credit shall take into account (in addition to any United States tax creditable under (a)) the United States tax payable by the company in respect of the profits out of which such dividend is paid. Comparing the 1966 version of article 13(2) with the 1945 version, there are a number of significant differences. First, the introduction of the words in parentheses in para (2)(a) made it clear that the only credit to be allowed in the case of US dividends was in respect of the withholding tax, which fell within the scope of the general principle (United States tax payable whether directly or by deduction), and that credit was no longer to be given in respect of the tax paid by the US corporation on its profits. That followed logically from the UKs abandonment of the imputation system. Secondly, para (2)(b) created an exception for cases where the shareholder was a company with a substantial trade investment in the company paying the dividend. Article 13(2) thus continued to provide similar relief, under UK law, to that provided under US law in terms of article 13(1). A third change was the use of the phrase computed by reference to, in article 13(2), in place of the words payable in respect of, which had been used in the 1945 version. The modified wording was introduced following the decision of the House of Lords in Duckering v Gollan [1965] 1 WLR 680. The case concerned a double taxation agreement between the UK and New Zealand, which contained a provision in similar terms to article 13(2) of the 1945 Convention, allowing a credit against UK tax payable in respect of that income. The taxpayer was liable to UK tax on his income, including income arising in New Zealand, for the year 1958- 1959. The tax was computed, on a preceding year basis, by reference to his income in 1957-1958. He had not paid tax in New Zealand which had been computed by reference to that income: as a result of a change in tax law there, his New Zealand tax for 1957-1958 had been computed on a preceding year basis, by reference to his income arising in 1956-1957, and his tax for 1958-1959 had been computed on a current year basis, by reference to his income arising in 1958-1959. He successfully sought a credit against his UK tax for 1958-1959 for the tax paid in New Zealand in 1958-1959, on the basis that he had paid tax in both countries in respect of the same income, despite the fact that the income by reference to which his tax liability was computed in the two jurisdictions was not the same. In the light of that decision, the 1966 Protocol used the phrase computed by reference to. The 1975 Convention The 1975 Convention was subsequently entered into in order to address matters unrelated to the issues which I have been discussing (including, in particular, the introduction in the UK of advance corporation tax in 1973). Article 1(3) introduced a new provision: Notwithstanding any provision of this Convention except paragraph 4 of this article, a contracting state may tax its residents ... and its nationals as if this Convention had not come into effect. Article 1(4) provides that nothing in article 1(3) affects the application of a number of specified provisions, including article 23. The net result is that income may be taxed on the basis of residence or nationality (except where otherwise specified in article 1(4)), as well as on the basis of one of the distributive articles, but double taxation is then to be avoided by applying article 23. The distributive articles include provisions covering business profits (article 7) and dividends (article 10). The latter provision retains the 15% ceiling on withholding tax. Article 23(1), dealing with double taxation relief in the US, provides: In accordance with the provisions and subject to the limitations of the law of the United States (as it may be amended from time to time without changing the general principle hereof), the United States shall allow to a resident or national of the United States as a credit against the United States tax the appropriate amount of tax paid to the United Kingdom; and, in the case of a United States corporation owning at least 10% of the voting stock of a corporation which is a resident of the United Kingdom from which it receives dividends in any taxable year, the United States shall allow credit for the appropriate amount of tax paid to the United Kingdom by that corporation with respect to the profits out of which such dividends are paid. With some minor differences of expression, this provision is in substance the same as article 13(1) of the 1945 Convention as amended by the 1966 Protocol. Article 23(2), dealing with double taxation relief in the UK, provides: (2) Subject to the provisions of the law of the United Kingdom regarding the allowance as a credit against United Kingdom tax of tax payable in a territory outside the United Kingdom (as it may be amended from time to time without changing the general principle hereof): (a) United States tax payable under the laws of the United States and in accordance with the present Convention, whether directly or by deduction, on profits or income from sources within the United States (excluding in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same profits or income by reference to which the United States tax is computed; (b) in the case of a dividend paid by a United States corporation to a corporation which is resident in the United Kingdom and which controls directly or indirectly at least 10% of the voting power in the United States corporation, the credit shall take into account (in addition to any United States tax creditable under (a)) the United States tax payable by the corporation in respect of the profits out of which such dividend is paid. These provisions repeat almost verbatim the terms of article 13(2) of the 1945 Convention, as revised by the 1966 Protocol. The only change is the deletion of the references to chargeable gains. It is also relevant to note article 23(3): For the purposes of the preceding paragraphs of this article, income or profits derived by a resident of a contracting state which may be taxed in the other contracting state in accordance with this Convention shall be deemed to arise from sources within that other contracting state, except that where the United States taxes on the basis of citizenship, the United Kingdom shall not be bound to give credit to a United States national who is resident in the United Kingdom on income from sources outside the United States as determined under the laws of the United Kingdom and the United States shall not be bound to give credit for United Kingdom tax on income received by such national from sources outside the United Kingdom, as determined under the laws of the United States. This provision is of wider scope than article 13(3) of the 1945 Convention, but has the same function of enabling it to be determined whether income has its source within the UK or the US for the purpose of applying article 23(1) and (2). The first ground of appeal In relation to the first ground of appeal, the argument advanced on behalf of Mr Anson focused on the provision made in article 23(2)(a) in respect of dividends. The argument runs as follows. When UK tax is payable on a dividend received from a US corporation, and US tax has been paid by the corporation on the profits out of which the dividend was paid, there can be no question of the UK tax being computed by reference to the same profits or income as the profits of the corporation, if the source of the income is identified on the basis of UK (or, indeed, US) tax law. A dividend is a paradigm case of income which does not have the same source, under UK or US tax law, as the profits out of which it is paid. If the question whether income is the same is to be determined by applying domestic law, there is therefore no need for article 23(2)(a) to contain a provision expressly excluding underlying tax that is to say, tax paid by a corporation on the profits out of which a dividend is paid - from the scope of the relief: it would in any event be excluded by the requirement that the UK and US taxes should be computed by reference to the same profits or income. There appear accordingly to be two possibilities. One is that the provision in relation to dividends adds nothing of substance. The second is that the existence of that provision implies that the underlying tax on dividends would otherwise be within the scope of the relief, and that the identity of income is not therefore determined according to domestic law. The first possibility is not initially attractive, since it is a general principle of treaty interpretation ut res magit valeat quam pereat. Following the jurisprudence of the International Court of Justice (eg United Kingdom v Albania (Corfu Channel) [1949] ICJ 1, 24), the court would be reluctant to conclude that a provision in an agreement made between two governments was otiose, if that conclusion could reasonably be avoided. The point is strengthened when regard is had to article 23(2)(b). Where a dividend is paid by a US corporation to a corporation resident in the UK which controls at least 10% of its voting power, article 23(2)(b) provides that the credit shall take into account, in addition to any US tax creditable under para (2)(a), the US tax payable by the corporation in respect of the profits out of which such dividend is paid. The words the credit refer back to the credit described in para (2)(a), which is a credit against any United Kingdom tax computed by reference to the same profits or income by reference to which the United States tax is computed. Since it is that credit which is to take into account the underlying tax, the apparent implication is that the UK tax paid by the shareholder on his dividend is computed by reference to the same profits or income, within the meaning of the Convention, as the US tax paid by the corporation on the profits or income out of which the dividend was paid. So runs the argument. If article 23(2) is considered in isolation from the remainder of the Convention, and without regard to the context, this is indeed a powerful argument. As I have explained, however, article 23(2) replicates article 13(2) of the 1945 Convention, as amended by the 1966 Protocol. The history of the provision makes it clear that the express treatment of underlying tax on dividends reflected the changes necessitated by the UKs adoption of corporation tax in place of the previous imputation system. Relief for underlying tax had previously been allowed, providing similar relief in the UK to that available in the US under article 13(1). Once the imputation system was abandoned, relief for underlying tax logically went with it. The words in parentheses in article 23(2)(a) of the 1975 Convention served to make clear the alteration in the relief available. There is nothing in the context to suggest that they were intended to have any wider implication. On the contrary, the context suggests that article 23(2) was intended to provide similar relief to that available in the US under article 23(1), as had been the case under the 1945 Convention; and it was always clear from the Biddle decision that the US did not afford relief for underlying tax unless the Convention provided otherwise (as article 13(2) of the 1945 Convention in its original form did, but the later provisions did not). The argument, and this ground of appeal, must therefore be rejected. The second ground of appeal: sources In relation to the second ground of appeal, an argument was advanced on behalf of the Commissioners concerning the meaning of the word sources, as used in article 23(2)(a). Given that the paragraph is concerned with relief against UK tax, they argued, the word sources must be intended to bear the same meaning as it bears in UK tax law. It was therefore necessary to determine the source of the income taxed in each jurisdiction in accordance with UK tax law. That was also consistent, they argued, with article 3(2) of the 1975 Convention, which provides: As regards the application of this Convention by a contracting state any term not otherwise defined shall, unless the context otherwise requires and subject to the provisions of article 25 (Mutual agreement procedure), have the meaning which it has under the laws of that contracting state relating to the taxes which are the subject of this Convention. Since the expressions sources was not defined by the Convention, it was submitted that it must be given the meaning which it had under UK tax law. This argument is inconsistent with the sense in which the word sources is used in article 23(3). That provision explains how the expression, profits or income from sources within the United States, in article 23(2), is to be applied. The general rule is that income or profits derived by a resident of a contracting state which may be taxed in the other contracting state in accordance with this Convention shall be deemed to arise from sources within that other contracting state. As I have explained, one has to look elsewhere in the Convention in order to discover whether particular profits or income may be taxed in the US in accordance with the Convention, and are therefore profits or income from sources within the United States for the purposes of article 23(1) and (2). Articles 6 to 22 of the Convention contain distributive provisions allocating taxing powers between the UK and the US in relation to a range of different types of profits and income, and different categories of taxpayer. This has nothing to do with the schedular source doctrine of UK tax law. It is only where the United States taxes on the basis of citizenship that article 23(3) refers, exceptionally, to sources ... as determined under the laws of the United Kingdom. As Arden LJ observed in Bayfine UK v Revenue and Customs Comrs [2011] EWCA Civ 304; [2012] 1 WLR 1630, para 23, article 23(3) contains its own rule as to how source [is] to be determined, save where tax has been imposed on the basis of citizenship. The case of Bayfine concerned the question whether a UK company was entitled under article 23(2)(a) to a credit, to set against UK tax on its profits, in respect of the US tax which had been paid by its US parent on the same profits. The Commissioners are recorded as having submitted in that case that domestic law did not apply to source for the purpose of article 23, because article 23 contained its own comprehensive clause for defining source: it was a free-standing treaty concept which applied for all the purposes of that article. That submission was accepted by the Court of Appeal, subject to the exception in respect of taxation on the basis of US citizenship. The same reasoning disposes of the Commissioners argument that article 3(2) of the 1975 Convention requires the term sources to be given the meaning which it bears under UK tax law. Article 3(2) directs that, unless the context otherwise requires, any term not otherwise defined is to be given by each contracting state the meaning which it has under the laws of that contracting state. As I have explained, however, article 23(3) explains how the source of profits or income is to be determined for the purposes of article 23, and that explanation is unrelated to the source doctrine of UK tax law. Memec Further arguments were advanced by both parties on the basis of the case of Memec. That case concerned a double taxation agreement between the UK and Germany, originally entered into in 1964 and amended by protocol in 1970, which contained a provision in almost identical terms, mutatis mutandis, to article 13(2) of the 1945 Convention between the UK and the US as amended by the 1966 Protocol. The only difference was that the voting control required to qualify for exceptional relief in respect of underlying tax on dividends, under the equivalent of article 23(2)(b) of the 1975 Convention, was 25% rather than 10%. The provision was therefore for all material purposes also similar to article 23(2) of the 1975 Convention. The taxpayer, Memec plc (Plc), was a partner in a German silent partnership (stille Gesellschaft). The partnership had no separate legal personality, but was a contractual arrangement under which Plc had the right to receive a share of the profits of the business carried on by the other partner, in return for a capital payment. The other partner, Memec GmbH (GmbH), was a German company, wholly owned by Plc. It alone carried on the business of the silent partnership. It alone owned the assets of the business, and the income from those assets as it accrued. It had wholly owned subsidiaries, which were also German companies. The subsidiaries paid dividends to GmbH, and that income formed the principal source of the profits of the partnership, which were shared between the partners in accordance with their agreement. The question was whether Plc could claim credit under the double taxation agreement for German taxes paid by the subsidiaries of GmbH on their trading profits. The first point on which issue was joined (and the only one relevant to the present case) was whether the dividends paid by the trading subsidiaries to GmbH should be treated as having been paid by them to Plc. It was conceded by the Commissioners that, if that premise were established, relief would then be due. The basis of the concession is not recorded in the judgments, but must have been the provision in the UK/German treaty corresponding to article 23(2)(b) of the 1975 Convention (as was submitted on behalf of Mr Anson, and not disputed, in the present appeal). What was being sought was relief in respect of underlying tax on the profits out of which dividends were paid. Such relief was only available under the equivalent of article 23(2)(b), and was only available under that provision in the case of a dividend paid by a company which is a resident of the Federal Republic to a company which is a resident of the United Kingdom. It could hardly have been argued that relief was available under the provision in the treaty corresponding to article 23(2)(a) of the 1975 Convention, since (apart from any other consideration) article 23(2)(a) does not provide relief in respect of the underlying tax on profits out of which dividends are paid. The question under the treaty, therefore, was the one arising under the provision corresponding to article 23(2)(b): were the dividends paid by GmbHs subsidiaries paid by a company which is a resident of the Federal Republic to a company which is a resident of the United Kingdom? The critical issue was whether the dividends were paid by the subsidiaries to Plc, for the purposes of the treaty, notwithstanding that the payments were made to GmbH. The arguments on that issue focused on the question whether the source of the relevant income of Plc was the dividends from the trading subsidiaries, or its contractual right under the agreement to payment of its share of the partnership profits. Another way the argument was expressed was in terms of whether the partnership was transparent, so that its existence could be disregarded in determining whether the dividends were paid by the subsidiaries to Plc. In deciding that relief was not available on this basis, Robert Walker J considered that the decisive point was the absence of any proprietary right enjoyed by Plc in the shares of the trading subsidiaries, or in the dividends accruing on those shares. The shares and the dividends belonged to GmbH. Plc did not therefore receive, or become entitled to, the dividends paid by the trading subsidiaries. Its contractual right to a share of the profits of the partnership must be regarded as a separate source of income. In the Court of Appeal, the approach adopted by Peter Gibson LJ was to consider the characteristics of an English or Scottish partnership which made it transparent, and then to see to what extent those characteristics were shared or not by the silent partnership, in order to determine whether it should be treated for corporation tax purposes in the same way. In that regard, it was observed that the absence of a proprietary right in the shares of the subsidiaries, or in the dividends accruing on those shares, was less obviously a point of distinction from a Scottish partnership than an English one. A clearer distinction was that, unlike an English or Scottish partnership, Plc and GmbH did not carry on business in common: the business was carried on solely by GmbH. Peter Gibson LJ acknowledged that the absence of what English or Scots law would regard as a partnership was not in itself determinative of transparency, but concluded that he saw insufficient justification present in the circumstances of the silent partnership for treating the share of the profits of the GmbH business received by Plc as the same as the profits of the subsidiaries or the dividends which were paid to GmbH alone as shareholder and not to Plc (p 766). Henry LJ agreed, and Sir Christopher Staughton gave a concurring judgment on this issue. The present case is not concerned with a claim to relief under article 23(2)(b). If it were - if, for example, the taxpayer were Anson plc, a UK resident company holding at least 10% of the voting power in the LLC, and the question was whether it was entitled to relief from corporation tax in respect of underlying tax paid in the US by subsidiaries of the LLC then it would be necessary, as in Memec, to consider whether Anson plc could be treated as having been paid the dividends received by the LLC from its subsidiaries. But that is not this case. The issue in this case is not whether the receipts of the LLC from third parties are to be regarded as having been paid to the members of the LLC, but whether the income on which Mr Anson paid tax in the US is the same as the income on which he is liable to tax in the UK. As I shall explain, answering that question involves considering whether income arises to Mr Anson, for the purposes of UK income tax, when his share of profits is allocated to his account, or when he receives distributions of profits. That issue is different from the issue considered in Memec. The answer to the question whether the receipts and expenditure of an entity are paid to and by its members does not necessarily determine whether, when a profit arises in a given accounting period, that profit constitutes the income of the members. The answer to the latter question depends on the respective rights of the entity and its members in relation to the profit, and therefore on the legal regime governing those rights. The correct approach to the present question Article 31(1) of the Vienna Convention requires a treaty to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. It is accordingly the ordinary (contextual) meaning which is relevant. As Robert Walker J observed at first instance in Memec, [1996] STC 1336, 1349, a treaty should be construed in a manner which is international, not exclusively English. That approach reflects the fact that a treaty is a text agreed upon by negotiation between the contracting governments. The terms of the 1975 Convention reflect the intentions of the US as much as those of the UK. They are intended to impose reciprocal obligations, as the background to the UK/US agreements from 1945 onwards makes clear. The terms of article 23(2), in particular, broadly reciprocate those of article 23(1), and are important to businesses in the US as well as to the UK investors who may receive dividends or other income from them. In that context, one would be predisposed to favour an interpretation which reflected the ordinary meaning of the words used and the object of the Convention. This is indeed a point which has been repeatedly made, in other cases concerned with the construction of the UK/US double taxation conventions, in the face of narrow and technical constructions: see, for example, Strathalmond v Inland Revenue Comrs [1972] 1 WLR 1511, 1517-1518, and Inland Revenue Comrs v Commerzbank AG; Inland Revenue Comrs v Banco do Brasil SA [1990] STC 285, 303. In that connection, it is also relevant to note that, by virtue of section 788(3) of the 1988 Act, the arrangements made in a double taxation treaty given effect by an Order made under that section are, subject to the provisions of Part XVIII of the Act (the double taxation provisions), to have effect notwithstanding anything in any enactment. The provisions of the 1975 Convention therefore override inconsistent provisions in domestic UK tax legislation, other than those concerned with double taxation relief. It has not been suggested in this appeal that there is any conflict between the 1975 Convention (on any of the interpretations canvassed in argument) and the provisions of Part XVIII of the 1988 Act. Giving the words used in article 23(2)(a) their ordinary meaning, it is necessary to identify the profits or income by reference to which the taxpayers UK tax liability is computed. That is primarily a question of UK tax law (I say primarily, because the meaning of terms used in the Convention may not be a question of UK tax law: United Kingdom tax, for example, is a defined term). It is then necessary to identify the profits or income from sources within the US on which US tax was payable under the laws of the US and in accordance with the Convention. That is primarily a question of US tax law. It is then necessary to compare the profits or income in each case, and decide whether they are the same. The words the same are ordinary English words. It should however be borne in mind that a degree of pragmatism in their application may be necessary in some circumstances if the object of the Convention is to be achieved, for example where differences between UK and foreign accounting and tax rules prevent a precise matching of the income by reference to which tax is computed in the two jurisdictions. It appears that some potential difficulties of this kind are in practice avoided by the Commissioners accepting that the profits on which foreign tax is computed and in respect of which relief can be claimed are not confined to those arising under UK tax principles in individual UK chargeable periods: see Munro, UK Tax Treaties (2013), para 4.26. Relief under the Convention in the present case Mr Anson is liable to UK income tax under Case V of Schedule D in respect of income arising from possessions out of the United Kingdom. There is no dispute that he had a possession out of the UK for this purpose, although the parties differ as to how it should be described. More importantly, the parties differ as to the stage at which Mr Ansons income, and therefore a liability to tax, arises. Mr Anson maintains that income arises as profits are earned by the LLC, regardless of whether they are distributed. The income which is liable to tax is therefore Mr Ansons share of the profits. The Commissioners argue that income arises only as and when profits are distributed. If no distributions are made, then on the Commissioners argument no tax liability arises. The income liable to tax is therefore the distributions. There is no doubt that taxpayers can be liable to tax in respect of income to which they are entitled without receiving payment of that income. Examples include the income of an interest-in-possession trust (Baker v Archer-Shee) or of a partnership (Reed v Young [1986] 1 WLR 653-654; [1986] STC 285, 289-290; Padmore v Inland Revenue Comrs [1987] STC 36, 51). The Commissioners distinguish partnerships from the present case on the basis that the business of a partnership is carried on by the partners themselves, who are therefore automatically entitled to the profits. There is a dispute between the parties whether that is a correct analysis of a Scottish partnership, but it is unnecessary to resolve that question in the present appeal. The Commissioners distinguish the case of an interest-in-possession trust on the basis that the business (or other profit-generating activity) is carried on by one person on behalf of another, who is automatically entitled to the profits. The present case is different, it is said, because there is no similar entitlement. Expressing the same idea in a different way, in the case of a partnership or an interest-in-possession trust, the source of the taxpayers income is the business carried on by the firm or the trustees respectively, whereas in the present case, it is said, the source of Mr Ansons income is his rights under the LLC agreement. The premise of the Commissioners submissions is that, because the business of the LLC is carried on by the LLC, it necessarily follows that the profits generated by the business belong to the LLC. On that premise, the effect of the LLC agreement must be to require the LLC to transfer its profits to the members. As the Commissioners state in their printed case: If a trader carries on a trade beneficially, the profits belong to him and any instrument which obligates the trader to pay on those profits creates a source for the payee which is a distinct source from that of the trading entitys trade. ... A trader who agrees contractually to pay all, or a part of, his profits to a third party remains taxable on all of his profits. The profits do not belong to the third party and he is not taxable on them. The difficulty with this argument is that it is contradicted by the findings made by the FTT. It is relevant to note, in the first place, that the rights of a member of the LLC were found to arise from the LLC Act, combined with the LLC agreement. Secondly, that agreement was not a contract between the LLC and its members: the LLC was not a party to it, but was brought into being by it, on the terms set out in it and in the provisions of the LLC Act. It was thus the constitutive document of the LLC. It was against that background that the FTT made findings which contradict the premise that the profits belong to the LLC in the first instance and are then transferred by it to the members. Their conclusion, on the contrary, was that, under the law of Delaware, the members automatically became entitled to their share of the profits generated by the business carried on by the LLC as they arose: prior to, and independently of, any subsequent distribution. As the FTT stated: The profits do not belong to the LLC in the first instance and then become the property of the members. ... Accordingly, our finding of fact in the light of the terms of the LLC operating agreement and the views of the experts is that the members of [the LLC] have an interest in the profits of [the LLC] as they arise. As I have explained, the evidence as to Delaware law entitled the FTT to make that finding. The Commissioners challenged it in this court, as they did below, on two bases. The first was that the FTT was describing a proprietary right, as the Upper Tribunal had held. Since there was no basis in the evidence for such a finding, the FTT had erred in law. I reject that criticism for the reasons explained at paras 38-40. Secondly, it was argued that the FTTs finding constituted a holding on domestic law, not a finding of fact on foreign law. I reject that criticism for the reasons explained in para 51. If, then, Mr Anson was entitled to the share of the profits allocated to him, rather than receiving a transfer of profits previously vested (in some sense) in the LLC, it follows that his income arising in the US was his share of the profits. That is therefore the income liable to tax under UK law, to the extent that it is remitted to the UK. There is no dispute as to the income which was taxed in the US: that was Mr Ansons share of the profits of the LLC. Mr Ansons liability to UK tax is therefore computed by reference to the same income as was taxed in the US. He accordingly qualifies for relief under article 23(2)(a). Conclusion For these reasons, I agree with the conclusion reached by the FTT, and would therefore allow the appeal.

UK-Abs

The question on this appeal was whether the appellant, Mr Anson, was entitled to double taxation relief on income he remitted to the UK from the US. This depends on the interpretation of article 23(2)(a) of the UK/US Double Taxation Convention 1975 and its successor, article 24(4)(a) of the UK/US Double Taxation Convention 2001. The relevant question under both provisions is whether the UK tax is computed by reference to the same profits or income by reference to which the United States tax is computed. The relevant period was the seven UK tax years running from 6 April 1997 to 5 April 2004, during which Mr Anson was a member of a Delaware limited liability company (the LLC), classified as a partnership for US tax purposes. As such, Mr Anson was liable to US federal and state taxes on his share of the profits. Mr Anson remitted the balance to the UK and was liable to UK income tax on the amounts remitted, as income arising from possessions outside the UK, subject to any double taxation relief which might be available. The respondents, the Commissioners, decided that he was not entitled to any double taxation relief on the basis that the income that had been taxed in the US was not Mr Ansons income, but that of the LLC. On Mr Ansons appeal, the First tier Tribunal (FTT) found that the combined effect of the Delaware LLC Act (the LLC Act) and the LLC agreement made between the members was that profits of the LLC belong to the members as they arise. It concluded that Mr Anson was taxed on the same income in both countries, so he was entitled to double taxation relief. The Upper Tribunal allowed the Commissioners appeal. The Court of Appeal dismissed Mr Ansons appeal. The Supreme Court unanimously allows Mr Ansons appeal. Lord Reed gives the leading judgment, with which Lord Neuberger, Lord Clarke, Lord Sumption and Lord Carnwath agree. The Upper Tribunal construed the FTTs finding that the profits belonged to the members as they arose as a legally erroneous finding that the profits vested in the members as their property. It was however clear from the FTTs decision that it based its conclusion that the profits belong as they arise to the members not upon a confusion between profits and assets, but upon expert evidence as to the combined effect under Delaware law of the LLC Act and the LLC agreement. The natural reading of the FTTs decision is that when it described the profits as belonging to the members it was referring to a personal right rather than a proprietary right. This is consistent with Mr Ansons expert evidence and with the comparison that the FTT made between the LLC and a Scottish partnership. [38 40] The Court of Appeal focused on whether Mr Anson had a proprietary right to the profits of the LLC as they arose, rather than addressing whether the income taxed in one country is the same as the income taxed in another. The Court of Appeal also accepted the Commissioners submission that the FTTs finding that the profits belonged to the members as they arose was a holding on UK domestic tax law, with which the Upper Tribunal was entitled to interfere. However, questions about whether the members had a right to the profits, and if so, what is the nature of that right, were questions of non tax law, governed by Delaware law. The FTTs conclusion on them was a finding of fact. Domestic tax law then fell to be applied to the facts as so found. [47 51] The Court of Appeal was also diverted by its consideration of the case of Memec plc v Commissioners of Inland Revenue [1998] STC 754, which was concerned with article 23(2)(b) of the 1975 Convention, not article 23(2)(a). [43, 50, 101 109] If the words used in article 23(2)(a) are given their ordinary meaning, it is necessary to identify the profits or income by reference to which the taxpayers UK tax liability is computed, primarily a question of UK tax law. Next one must identify the profits or income from sources within the US on which US tax was payable under the laws of the US and in accordance with the Convention. That is primarily a question of US tax law. Then it is necessary to compare the profits or income in each case, and decides whether they are the same. [113] While Mr Anson maintains that his income arises as profits are earned by the LLC, so that the income liable to tax is his share of the profits regardless of whether they are distributed, the Commissioners position is that his income arises only when profits are distributed by the LLC, so that the income liable to tax is the distributions. The premise of the Commissioners submissions is that, because the business of the LLC is carried on by the LLC, it follows that the profits generated by the business belong to the LLC. This argument is contradicted by the FTTs finding that the members of the LLC have an interest in the profits of the LLC as they arise. The FTT was entitled to make that finding. Therefore, Mr Anson was entitled to the share of the profits allocated to him, rather than receiving a transfer of profits previously vested (in some sense) in the LLC. It follows that his income arising in the US was his share of the profits. That is the income liable to tax under UK law, to the extent that it is remitted to the UK. Mr Ansons liability to UK tax is therefore computed by reference to the same income as was taxed in the US. Accordingly he qualifies for double taxation relief under article 23(2)(a). [115 121] The Court dismisses an alternative ground focused on a provision in article 23(2)(a) relating to the treatment of dividends. The history of that provision makes clear that the treatment of dividends reflects changes necessitated by the UKs adoption of corporation tax; nothing in the context suggests they were intended to have any wider implication. [60 96]

The question at issue on this appeal is whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents canals without the consent of their owners. Discharge into a private watercourse is an entry on the owners land, and as such is an unlawful trespass unless it is authorised by statute. It is common ground that no express statutory right is conferred by the Water Industry Act. The question is therefore whether it should be implied. A statutory right to commit what would otherwise be a tort may of course be implied. But since this necessarily involves an interference with the rights of others, the test has always been restrictive. The implication must be more than convenient or reasonable. It must be necessary. As a general rule, this will involve showing either that the existence of the power is necessarily implicit in the express terms of the statute, or else that the statutory purpose cannot be effectually achieved without the implication. In particular a right to commit what would otherwise be a tort may be implied if a statutory power is incapable of being exercised or a statutory duty is incapable of being performed without doing the act in question: Manchester Corporation v Farnworth [1930] AC 171, 183 (Viscount Dunedin), Allen v Gulf Oil [1981] AC 1001, 1013 (Lord Wilberforce). The law before 1991 It has been said that a court should not routinely investigate the statutory predecessors of provisions in a consolidation statute: R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 388 (Lord Bingham of Cornhill). This is not so much a rule of construction as a valuable warning against the over ready assumption that a consolidating Act means exactly the same as the enactments which it replaces. There are, however, cases where a consolidating Act cannot be understood without reference to the state of the law as it was when it was enacted. This is one of them. Until 1973, sewerage services in England were generally provided by local authorities, initially under powers conferred by local Acts of Parliament and then under powers successively conferred by the Public Health Acts of 1848, 1875 and 1936. The Water Act 1973 transferred the sewerage and water supply functions of local authorities to statutory regional water authorities. The Water Act 1989 privatised the water industry, transferring the sewerage and the water supply functions of the regional water authorities to commercial water undertakers and sewerage undertakers, and comprehensively restated the powers and duties of those charged with these functions. The Water Industry Act 1991 is a consolidating Act which was passed on the recommendation of the Law Commission in order to tidy up the statute law relating to water and sewerage services. It consolidates with amendments the provisions of the Act of 1989, together with a number of other statutes concerned with water management. At the same time, the Water Consolidation (Consequential Provisions) Act 1991 repealed a number of earlier statutory provisions, including some thought to be spent and unnecessary: see section 3(1). It is on these changes that the issues on this appeal turn. No right to discharge from public sewers into private watercourses has ever been expressly conferred by statute. It is, however, common ground that such a right existed at least until 1989 and was the basis on which the industry operated for many years. In Durrant v Branksome Urban District Council [1897] 2 Ch 291, the Court of Appeal held that a right to discharge surface water and treated effluent into private watercourses was impliedly conferred on local authorities by the Public Health Act 1875. Section 15 of that Act imposed on local authorities a duty to cause such sewers to be made as might be necessary for effectually draining their district. The extent of that duty was largely demand led. This was because section 21 entitled any owner or occupier of premises in a local authoritys area to connect to a public sewer, and section 18 provided that a local authority should not be entitled to discontinue the use of a sewer unless it made available another sewer which was as effectual for the use of those served by the existing one. The critical sections from which the Court of Appeal derived the right of discharge into private watercourses were sections 16 and 17. Section 16 empowered a local authority to carry any sewer through, across or under any street or road or, on notice to the owner or occupier, any land within their district. Section 17 was a proviso in the following terms: Nothing in this Act shall authorise any local authority to make or use any sewer, drain or outfall for the purpose of conveying sewage or filthy water into any natural stream or watercourse, or into any canal pond or lake until such sewage or filthy water is freed from all excrementitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or watercourse or in such canal pond or lake. The Court of Appeal did not say that an implied right of discharge into private watercourses was necessary to the efficacy of a local authoritys statutory powers and duties. Nor did they derive it from the mere existence of a power under section 16 to lay sewage pipes through streets, roads or private land. Since the Public Health Act 1875 conferred extensive powers of compulsory purchase on local authorities for the purpose of enabling them to perform their sewerage functions, neither point would have been sound. What they said, adopting the reasoning of North J, the trial judge, was that the right of discharge was implicit in the express terms of section 17, which by restricting the right to discharge foul water into any watercourse impliedly recognised the existence of a right to discharge treated effluent and surface water: see pp 295 (North J), 302 (Lindley LJ), 303 (Lopes LJ), 304 305 (Chitty LJ). There was no provision requiring local authorities to pay for mere exercise of their rights under sections 16 and 17, but they were required by section 308 to pay full compensation for any damage caused by the exercise of any of their powers. This was held to be a sufficient answer to any objection based on the adverse effect on property owners. All of the features of the Public Health Act 1875 on which the Court of Appeal relied in Durrants Case were reproduced in the Public Health Act 1936, which replaced the earlier Act and continued to govern the sewerage powers of local authorities and then of the regional water authorities and privatised sewerage undertakings until 1991. In particular section 17 of the Act of 1875 (the protection against discharges of foul water) and section 308 (the compensation provision) were re enacted with no material changes as sections 30 and 278 of the Act of 1936. When the water industry was privatised by the Water Act 1989, the transfer of sewerage functions and associated assets, rights and duties from the regional water authorities to the new sewerage undertakers was achieved by section 4 of the Water Act 1989 and by schemes made under that section. The object of the schemes was to transfer the property, rights and liabilities of the regional water authorities: see section 4(1). Their contents were regulated by Schedule 2, paragraph 2(1) of which provided that with effect from the transfer date the scheme would transfer to the privatised undertakers in accordance with its provisions all the property, rights and liabilities of the statutory water boards which were not required to be transferred to the National Rivers Authority. In accordance with that provision, the transfer scheme in this case transferred to the undertaker on the transfer date all property, rights and liabilities to which the water authority is entitled or subject immediately before that date. The object of these provisions is to achieve a seamless transfer of the relevant functions, assets, powers and duties to the new undertakers. Under section 4(1), the Secretary of State was empowered to appoint the transfer date on which the functions of the regional water authorities would be transferred to the new undertakers and the transfer schemes would come into effect. Section 194(3)(b) of the Water Act 1989 provided that among other provisions Part II, Chapter III (Provision of Sewerage Services) should automatically come into force on the transfer date, i.e. simultaneously with the transfer of the rest of the undertaking. Part II, Chapter III included all the relevant provisions governing the duties of the privatised sewerage undertakers. These included sections 67 and 69. Section 67 imposed on the privatised sewerage undertakers the duty of effectually draining their area. Section 69 provided that Schedule 8 should have effect for transferring to sewerage undertakers the functions of water authorities relating to the provision of sewerage services and for making amendments of the enactments relating to the transferred functions. Subject to immaterial amendments, Schedule 8, paragraph 1 applied to the privatised sewerage undertakers certain of the provisions of the Public Health Act 1936 which had governed the powers of the regional water authorities since their inception in 1973, as if references in those provisions to a water authority were references to a sewerage undertaker. The incorporated provisions of the Act of 1936 included section 22 (which prevented them from discontinuing the use of a sewer without providing an alternative sewer), section 30 (the protection against the discharge of foul water into watercourses), section 34 (the right of the owner or occupier of any premises to void his drains or sewers into a public sewer) and section 278 (the obligation to make full compensation for any damage sustained by the exercise of the undertakers powers). These provisions included all the provisions of the 1936 Act previously found in the Act of 1875 from which the Court of Appeal in Durrants Case had derived a general right of discharge into private watercourses. The draftsman must therefore have intended in 1989 that that right should subsist. The legislation of 1991 All of these features can be traced through the labyrinthine scheme of amendments, repeals and re enactments into the legislation of 1991, but with significant changes of both form and context. Section 94 of the Water Industry Act 1991, which corresponds to section 15 of the Act of 1875, provides: (1) It shall be the duty of every sewerage undertaker (a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers as to ensure that that area is and continues to be effectually drained; and (b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers. Sections 106 and 116 re enact the provisions originally found in sections 21 and 18 respectively of the Act of 1875 conferring a right on owners and occupiers of premises to connect to a public sewer and forbidding local authorities to discontinue the use of a sewer without providing another equally effective sewer for the use of those served by it. Sections 158 and 159 substantially re enact the power to lay pipes across streets, roads and other land which dated back to section 16 of the Act of 1875. The protection against the use of the powers conferred by the Act to discharge foul water into any watercourse, which was originally enacted as section 17 of the Act of 1875 and section 30 of the Public Health Act 1936, is now to be found in modified form in section 117(5) and (6) of the Water Industry Act. These provide: (5) Nothing in sections 102 to 109 above or in sections 111 to 116 above shall be construed as authorising a sewerage undertaker to construct or use any public or other sewer, or any drain or outfall (a) in contravention of any applicable provision of the Water Resources Act 1991; or (b) for the purpose of conveying foul water into any natural or artificial stream, watercourse, canal, pond or lake, without the water having been so treated as not to affect prejudicially the purity and quality of the water in the stream, watercourse, canal, pond or lake. (6) A sewerage undertaker shall so carry out its functions under sections 102 to 105, 112, 115 and 116 above as not to create a nuisance. The provision for compensation for damage caused by any exercise of sewerage powers, which had originally been found in section 308 of the Act of 1875 and section 278 of the Act of 1936, is now represented by the provisions of Schedule 12 of the Water Industry Act 1991, which are at the same time more specific and more elaborate. Paragraph 2 of Schedule 12 is confined to the pipe laying functions of a sewerage undertaker. It confers a right to compensation in respect of the depreciation of the value of land on which pipe laying works are carried out, injurious affection of other land, and other loss or damage attributable to the exercise of an undertakers power to lay pipes through private land. Paragraph 4 confers a right of full compensation for damage occasioned by the exercise by a sewerage undertaker of its powers under the relevant sewerage provisions. I will return later to this expression. The issues There are two bases on which a right of discharge into private watercourses might be implied into the current statutory regime. The first is that a right corresponding to the one recognised by the Court of Appeal in Durrants Case is implied into the corresponding provisions of the Water Industry Act 1991. The effect of such an implication would be to authorise discharge from future sewage outfalls as well as from those already in use when the Water Industry Act 1991 came into force. The second possibility is that the only right of discharge into private watercourses which survives under the Act of 1991 is a right of discharge from existing outfalls which were already in use on 1 December 1991 when the Act came into force. The alleged general right of discharge: section 159 of the Water Industry Act 1991 The argument for the sewerage undertakers on this appeal is that a general right to discharge into private watercourses should be implied into the Water Industry Act 1991 from the power conferred on an undertaker by section 159 to lay pipes across private land for the purpose of carrying out its functions, together with the definition of those functions in section 94. The problem which confronts this argument is that the particular provisions of the earlier legislation which justified the implication of such a right before 1991 are re enacted in the Water Industry Act 1991 in a somewhat different form and as part of a much more elaborate statutory scheme in which such an implication is more difficult to accommodate. For substantially that reason the Court of Appeal rejected an identical argument in British Waterways Board v Severn Trent Water Ltd [2002] Ch 25. The judgments, and particularly that of Chadwick LJ, contain a detailed analysis of the relevant provisions of the Water Industry Act which makes it unnecessary to repeat the exercise here. In summary, the Court of Appeal held that the Water Industry Act had to be construed as a coherent scheme in its own right, without any a priori assumption that it was intended to reproduce everything in the previous statute law. They considered that that scheme did not include an implied right of discharge into private watercourses, for five main reasons. The first was that section 159 merely authorised the laying of pipes across private land and in itself provided no basis for any implication about the places where those pipes were authorised to discharge. Second, any power derived from section 159 to discharge into private watercourses would not be qualified by the statutory protection in section 117(5) and (6) against the discharge of foul water. This was because in the Act of 1991 these provisions qualify only specified sections of the Act, not including section 159. Therefore, if such a right existed, it would authorise the discharge not only of treated effluent and surface water but foul water, routinely and in unlimited quantities. Third, the provisions of Schedule 12, paragraph 2 of the Act of 1991 for compensation for the exercise of a water undertakers statutory power to lay pipes through private land did not extend to damage caused by discharges from those pipes. The wider duty under paragraph 4 to pay compensation for damage occasioned by a sewerage undertakers exercise of its powers under the relevant sewerage provisions, would not apply because the relevant sewerage provisions is a defined term and does not include section 159. Fourth, although section 159 applied to both water and sewerage undertakers, section 165 conferred an express power of discharge from pipes on water undertakers only. On the face of it, the distinction was deliberate. Fifth, a right of discharge into private watercourses was not necessary to the exercise by the sewerage undertaker of its statutory powers or the performance of its statutory duties. They could discharge into rivers or the sea, or onto their own land, or onto private land or watercourses by agreement with the owner. Any rights which they required but could not obtain (or could not obtain on reasonable terms) could be acquired by compulsory purchase, paying the proper statutory measure of compensation. The Courts conclusion is summarised by Chadwick LJ at para 71: The fallacy, as it seems to me, lies in the underlying (but unspoken) premise that Parliament must have intended that sewerage undertakers should have facilities to discharge (which, plainly, they do require in order to carry out their functions) without paying for those facilities. Whether or not that premise could have been supported in the context of a public authority charged with functions imposed in the interests of public health, it cannot be supported, as it seems to me, in the context of legislation enacted following a decision to privatise the water industry. We were invited to hold that British Waterways Board v Seven Trent Water Ltd was wrongly decided. In my view we should decline that invitation. The reasoning of the Court of Appeal in that case is compelling as applied to the only argument that they were actually considering, namely that a power of discharge could be derived from sections 94(1) and 159 of the Act of 1991. Survival of pre existing rights of discharge This issue might have arisen in British Waterways Board v Severn Trent Water Ltd. That case arose out of a dispute about discharges from a sewer outfall into the Stourbridge canal which had been constructed by a regional water authority in about 1976, under the previous statutory regime. The relevant outfall was therefore already in use at the transfer date pursuant to a right enjoyed by the regional water authorities under the Public Health Act 1936 and transferred to the privatised sewerage undertakers under the Water Act 1989. However, no argument was addressed to the Court of Appeal in that case about the significance of this fact. Its factual and legal significance is, however, critical to the outcome of the present appeal. Manifestly, the purpose of a sewer is to carry away effluent and surface water and discharge it elsewhere. A sewer can be lawfully used only if it is lawful to discharge from it. A sewerage undertaker bringing an outfall into use for the first time after 1 December 1991 can reasonably be expected to have obtained any necessary consents to discharge onto private property in advance of laying the pipes, either by negotiation or by compulsory purchase in the course of the planning or the works. But if the outfall was already in use at that date, it cannot do this. The pipes will already have been laid. The location of their outfalls will have been determined. Where they discharge into a private watercourse, those outfalls will have been created under a statutory regime which entitled the sewerage undertaker or its statutory predecessors to discharge from them. The compulsory acquisition of such a right cannot be achieved overnight. Statutory procedures have to be observed, which may include a public inquiry. It is obvious, and confirmed by the evidence in this litigation, that by 1989 drainage from the existing public sewerage system depended to some extent on outfalls into private watercourses. After well over a century in which sewerage authorities were entitled as of right to construct and discharge from such outfalls one would expect the degree of dependence to be significant. Unless the entitlement to discharge from existing outfalls into private watercourses survives the transfer to privatised water undertakers, the consequence is that in law such discharge must cease forthwith on 1 December 1991. Any continuing discharge thereafter will become tortious from that date. Under the Water Industry Act, the statutory duties of a sewerage undertaker include a duty to operate the system of public sewers so as effectually to drain their area (section 94) and a duty to allow the owners or occupiers of premises to connect to the public sewer system (section 106). Moreover, the undertaker is not permitted to discontinue the use of a sewer until it has provided an alternative sewer capable of serving as effectually (section 116). The result, if the right to discharge into private watercourses ceases as the canal owners suggest, is to make it impossible for the sewerage undertakers lawfully to perform their statutory functions or observe the statutory restrictions on the discontinuance of existing sewers from the moment that the new Act comes into force. This state of affairs will continue thereafter for a considerable period while the existing sewerage system is partially redesigned and rebuilt or the necessary easements are acquired by negotiation or compulsory purchase. When pressed to say how a sewerage undertaker was to comply with this view of the law immediately after 1 December 1991, the canal owners had no answer except that the law would not in practice be enforced by injunction but that if it was they must block the outfalls and allow surface water and treated effluent to backwash through the system into the streets. In fact, section 116 of the Act would rule out even that possibility. This is not just a practically inconvenient way of dealing with an issue which engages an important public interest. It is legally incoherent. Without the clearest possible indication that Parliament intended such a preposterous result, I decline to accept that it is the effect of the current legislative scheme. In my opinion, when the Water Industry Act 1991 (i) imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses, (ii) at the same time applied to them the statutory restrictions in section 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers. A restriction on discontinuing the use of an existing sewer until an alternative has been constructed is not consistent with an obligation to discontinue its use forthwith under the law of tort. The inescapable inference is that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived. The basis of this implication is not section 30 of the Public Health Act 1936, whose statutory predecessor was the basis of the decision in Durrants Case, but section 116 of the 1991 Act viewed against the background of the general duties of sewerage undertakers under the Act. It follows that the repeal of section 30 by the Water Consolidation (Consequential Provisions) Act 1991 is irrelevant. In any event, its repeal would not affect rights of discharge which had already accrued by virtue of the use of existing outfalls: see section 16(1)(c) of the Interpretation Act 1978. It is true that although over a period of time after the coming into force of the Water Industry Act new rights of discharge could have been acquired by negotiation or compulsory purchase or existing sewers or outfalls replaced, the effect of the conclusion which I have reached is that a sewerage undertaker is entitled under the Water Industry Act 1991 to continue discharging into private watercourses from existing outfalls indefinitely. The solution is therefore more extensive than the problem. But that is a lesser anomaly and one which is inherent in the nature of the issue. Once one concludes that because of the time required to do these things after the law was changed, the right of discharge for existing outfalls must survive, it is not possible to arrive by a process of construction at a positive obligation to address the issue after transfer in a different way by acquiring new easements or replacing sewers or outfalls. I should finally deal with the suggestion that this conclusion leaves the owners of private watercourses in a worse position than they were under the Water Act 1989, because of the more limited provisions for compensation for damage and the more limited protections available against abuse. This is a serious objection to the attempt to imply a general right to discharge into private watercourses from section 159 of the 1991 Act, as the Court of Appeal pointed out in British Waterways Board. It does not give rise to difficulty if, as I consider, a more limited right to continue discharging from existing outfalls into private watercourses is to be implied from the restrictions in section 116 on discontinuing the use of existing sewers. As far as compensation is concerned, Schedule 12, paragraph 4 of the Water Industry Act confers a right of full compensation for any exercise by a sewerage undertaker of its powers under the relevant sewerage provisions. Unlike section 159, section 116 is one of the relevant sewerage provisions: see section 219(1). Turning to the question of statutory protection, the Act of 1991 contains a large number of protections against the abusive or harmful use by undertakers of their statutory powers. This is not the place to examine all of them, and many are of no potential relevance. The most important are to be found in sections 117(5) and 186(3). Section 117(5)(b) protects against the discharge of foul water into watercourses. It is the successor of section 17 of the Public Health Act 1875 and section 30 of the Act of 1936. Section 186(3) protects against the injurious affection without consent of any canal or watercourse or the supply, quality or fall of water in any canal or watercourse. Both provisions expressly qualify powers derived from specified provisions of the Act, which do not include section 159 but do include section 116. Conclusion I would accordingly allow the appeal to the extent of declaring that subject to section 117(5) of the Water Industry Act 1991, the Appellants are entitled to discharge into the Respondents canals from any sewer outfall which was in use on or before 1 December 1991. For the avoidance of doubt, I should make it clear that this in no way affects any binding agreement under which the parties may have regulated for themselves the use of particular outfalls. We were informed that here may be such agreements with some proprietors, but we have not been concerned with them. I would leave the precise form of the declaration to be agreed between counsel. LORD TOULSON I agree that under the Water Industry Act 1991 sewerage undertakers are impliedly empowered to continue to discharge surface water and other non pollutant water through sewers vested in them into watercourses to which they were already discharging at the time the Act came into force, but have no right to create new outfalls into canals or rivers without the agreement of the body which owns or is responsible for the canal or river. The case has assumed a complexity which I do not think is necessary. In disagreeing with the Court of Appeal, I have sympathy with the court which seems to me to have been led into a forest. The reasons for my conclusions are simple and accord essentially with those given by Lord Sumption. As to the broader power claimed by the appellants, the argument that section 159 gives to a sewerage undertaker the right to create a new public sewer by connecting pipework, laid under the powers given to it by the section, into a river or canal without the agreement of the river or canal owner or operator, is in my view untenable for the reasons given by the Court of Appeal in British Waterways Board v Severn Trent Water Ltd (summarised by Lord Sumption). The purpose of section 159 is to enable a sewerage undertaker to obtain the means of access for foul or surface water to reach wherever it proposes (lawfully) to treat or dispose of the water (such as a sewage treatment plant), and no more. To treat the section as silently empowering the undertaker to dispose of the water by discharging it onto the land of another person without their consent requires an unnatural and unwarranted reading of the section. The appellants argument for giving the section a wider meaning is based on comparison with the Public Health Acts 1875 to 1961. That argument overlooks the major change in the scheme of water legislation introduced by the Water Act 1989 (which was consolidated, with other enactments, by the 1991 Act). The 1989 Act did much more than to introduce privatisation of the water industry. Its purposes, stated in the long title, included to amend the law relating to the provision of sewers and the treatment and disposal of sewage. It provided a much more comprehensive statutory code than the previous legislation. There is no warrant for assuming that Parliament intended under the new legislative scheme that the privatised authorities should have a general right to create new outfalls, discharging water onto the property of other parties, without having to pay for the facility. On the question of the lawfulness of the continued use of public sewers established prior to the coming into force of the Act, I agree with Lord Sumption that the answer lies in section 116 of the 1991 Act, read in conjunction with sections 106(1) and 117(5) and (6). Under section 106 the owner of premises in the area of a sewerage undertaker has the right to have his drains or sewer communicate with the undertakers public sewers and has a continuing right thereby to discharge foul water and surface water from those premises. Section 116 prohibits the sewage undertaker from depriving that person of the use of the public sewer for that purpose, unless the undertaker provides alternative means of communication (which Parliament cannot realistically have supposed that the undertaker would be in a position to do instantly on the passage of the Act). Section 117(5) provides that nothing in section 116 is to be construed as authorising a sewerage undertaker to use a public sewer for the purpose of conveying foul water into any natural or artificial stream, watercourse, canal, pond or lake, without the water having been treated so as not prejudicially to affect the purity and quality of the water into which it is being discharged. Section 117(6) also requires a sewerage undertaker to carry out its functions under section 116 in such a way as not to create a nuisance. The conditions for section 116 to apply are, in the words of subsection (1), that the sewer is a public sewer which is vested in the undertaker, but I do not understand it to be disputed that the relevant sewers are public sewers as defined in section 219 of the 1991 Act: public sewer means . a sewer for the time being vested in a sewerage undertaker in its capacity as such, whether vested in that undertaker by virtue of a scheme under Schedule 2 to the Water Act 1989 or Schedule 2 to this Act or under section 179 above or otherwise . As a matter of history, it would appear that the sewers vested in the sewerage undertakers by virtue of schemes under Schedule 2 to the 1989 Act but I do not see that it is necessary to refer to the 1989 Act for any other purpose. Since section 116 of the 1991 Act expressly prohibits a sewerage undertaker from discontinuing the use of an existing public sewer vested in it, unless it creates an alternative means of disposal, it thereby impliedly (if not expressly) empowers the undertaker to continue to use such sewers, subject to the qualifications in section 117(5) and (6) that the undertaker must not cause pollution or a nuisance. For those reasons, it seems to me that the answers to the questions in this case are to be found within the sections of the 1991 Act to which I have referred. Save where necessary for the limited purpose of establishing as a fact that a sewer is a public sewer vested in a sewerage undertaker within the definition section in the 1991 Act, I see no need to go back to examine the position under the 1989 Act. There is no claim for damages for trespass during the period when the 1989 Act was in force. However, if it were necessary to do so, I would conclude that there was no trespass during that period. Section 69 of the 1989 Act provided that Schedule 8 to the Act should have effect for the purpose of transferring to sewerage undertakers the functions of water authorities relating to sewerage services and for making amendments of the enactments relating to the transferred functions. Paragraph 1 of Schedule 8 provided that references to water authorities in sections 30 and 278 of the Public Health Act 1936 were to be construed as references to sewerage undertakers. Those sections re enacted the sections in the 1875 Act which were the subject of the decision in Durrants case, as explained in para 6 of Lord Sumptions judgment. Reading those sections as amended by paragraph 1 of Schedule 8 to the 1989 Act (ie as applying to sewerage undertakers from the commencement of the 1989 Act), the conclusion is clear in my view that sewerage undertakers did not commit the tort of trespass by continued use of the public sewers which they inherited. Although that historical examination of the position under the 1989 Act is unnecessary to my conclusion about the 1991 Act, it fortifies it for this reason. If, as I have concluded, sewerage undertakers did not commit the tort of trespass between 1989 and 1991 by continued use of public sewers vested in them under schemes made under the 1989 Act, Parliament cannot be taken to have intended to change that position by the 1991 Act, which was presented to it as a consolidation Act with minor immaterial amendments explained in the Law Commissions report. Consolidation Acts have a speedy parliamentary process precisely because they are not intended to involve changes meriting detailed scrutiny. It follows also from what I have said that I do not think that it is necessary to invoke the provisions of the Interpretation Act; but if I am wrong, I would agree with Lord Neubergers analysis of its effect. LORD NEUBERGER (with whom Lord Clarke and Lord Hughes agree) This appeal raises two questions in relation to the statutory right of sewerage undertakers to discharge surface water and treated effluent from their sewers into streams and private watercourses. The first question is whether sewerage undertakers have such a right in relation to all their sewers, irrespective of when they came into use ie present and future sewers. The second question, which only arises if the answer to the first question is no, is whether sewerage undertakers have such a right in relation to any of their sewers, and, if so, whether it is those which were in use immediately before (i) the transfers effected pursuant to the Water Act 1989 (the 1989 Act) or (ii) the coming into force of the Water Industry Act 1991 (the 1991 Act). In my view, the composite answer to these questions is that sewerage undertakers have the statutory right to discharge surface water and treated effluent into streams and canals (subject to payment of compensation for any damage thereby caused), but only in respect of outfalls in existence before the coming into force of the 1991 Act. I agree with the reasons given by Lord Sumption and Lord Toulson although I would place greater weight on the assistance which can be gained from the provisions of the earlier legislation relating to public sewers and the Interpretation Act 1978 (the 1978 Act). The relevant statutory provisions The statutory provisions relating to sewerage before 1989 By section 13 of the Public Health Act 1875, all existing and future sewers within their districts were vest[ed] in local authorities. Certain rights were granted to local authorities, including, in section 16, the right to construct sewers into, through or under any lands whatsoever in their district. Duties were also imposed on local authorities, including the duty to provide and maintain sewers to drain their districts in section 15, and the duty to enable property owners and occupiers to be connected to sewers in section 21. The right to discharge from sewers was not expressly granted to local authorities by the 1875 Act. However, section 17 of the 1875 Act stated that [n]othing in the Act authorise[s] the use of sewers constructed under the Act for the purpose of conveying sewage or filthy water into any natural stream or watercourse until such sewage or filthy water is freed from all foul or noxious matter. Section 308 of the 1875 Act contained a rather generally expressed right to full compensation to anyone who suffered damage as a result of the exercise of a local authoritys statutory rights with regard to sewerage. The Public Health Act 1936 repealed the relevant provisions of the 1875 Act, and re enacted many of its provisions in very similar, if somewhat more modern, terms. The opening part of subsection (1) of section 20, the successor to section 13 of the 1875 Act, provided that any sewers vested in a local authority under the 1875 Act shall continue to be vested in them. Section 20(1)(b) of the 1936 Act stated that all sewers subsequently constructed by local authorities shall also vest in them. Sections 14, 15, 22, 34 and 278(1) of the 1936 Act were to the same effect as, respectively, sections 15, 16, 18, 21 and 308 of the 1875 Act, albeit that section 15 of the 1936 Act was considerably more detailed in its terms than section 16 of the 1875 Act. Section 30 of the 1936 Act was in very similar terms to section 17 of the 1875 Act, although it used somewhat different language, referring to foul water [having to be] so treated as not to affect prejudicially the purity and quality of the water rather than sewage or filthy water [having to be] freed from all foul or noxious matter, and it extended its reach to artificial, as well as natural, watercourses and streams, and to canals. The provisions of section 17 of the 1875 Act, supported by those of sections 15, 16, and 308, were held by the Court of Appeal in Durrant v Branksome Urban District Council [1897] 2 Ch 291 to lead to the inevitable or irresistible inference that a local authority could discharge treated effluent and surface water from its sewers, whether constructed before or after 1875, into natural streams and watercourses see at pp 302, 303 and 304 305 per Lindley, Lopes and Chitty LJJ respectively. In other words, the Court of Appeal held that the 1875 Act impliedly granted a right to discharge from that sewer, a right whose width was cut down by section 17. That right was continued by the 1936 Act, as it contained provisions which were very similar to those in the 1875 Act, and in particular section 30 and, albeit of lesser significance in this connection, sections 14, 15 and 278, whose statutory predecessors were considered by the Court of Appeal to support its conclusion in Durrant [1897] 2 Ch 291. The statutory rights and duties of local authorities in relation to sewerage became vested in water authorities pursuant to sections 14 and 15 of the Water Act 1973. Section 14(2) provided that the functions of local authorities under, inter alia, sections 15 24 and 27 31 of the 1936 Act shall be exercisable by water authorities, and that references [therein] to a local authority shall be construed as references to a water authority. Para 33 of Schedule 8 to the 1973 Act amended section 20 of the 1936 Act to make it clear that all sewers in an area were vested in the relevant water authority. The Water Act 1989 During the 1980s, as part of the drive for privatisation, it was decided that the water supply and sewerage functions of water authorities should be taken out of public ownership and vested in water undertakers and sewerage undertakers respectively. This was effected through the medium of the 1989 Act, which provided for the creation of these new undertakers in section 11. Section 4(1)(a) of the 1989 Act stated that the sewerage functions of water authorities should become the functions of the new sewerage undertakers from a day appointed by the Secretary of State, and section 11 enabled the Secretary of State or the Director General of Water Services to appoint a company as a sewerage undertaker for any area of England and Wales. Section 4(1)(b) provided for schemes under Schedule 2 for the division of the property, rights and liabilities of the water authorities to, inter alia, the sewerage undertakers. The effect of section 67 of the 1989 Act, which replaced section 14 of the 1936 Act, was to impose a duty on sewerage undertakers from the date of the transfer of the sewerage functions to drain the area for which it was responsible. Section 153 of, and Schedule 19 to, the 1989 Act empowered sewerage undertakers to lay sewers, and they effectively replaced section 15 of the 1936 Act. Section 69 of the 1989 Act stated that Schedule 8 had the effect of transferring to sewerage undertakers the functions of water authorities relating to the provision of sewerage services and for making amendments of the enactments relating to the transferred functions. By para 1 of Schedule 8, such functions included those set out in sections 22, 30 and 34 and (at least in so far as it related to surviving sections of the provisions of the 1936 Act) section 278 of the 1936 Act. However, section 20 of the 1936 Act was repealed by the 1989 Act. Para 2 of Schedule 2 to the 1989 Act was concerned with transfers by scheme, and it provided that there should be transferred to a sewerage undertaker the property, rights and liabilities of a water authority, and para 2(3) stated: The property, rights and liabilities of a water authority that shall be capable of being transferred shall include (a) property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the water authority; (b) property situated anywhere ; (c) rights and liabilities under enactments, including (i) such rights and liabilities as may arise after the transfer date by virtue of enactments amended or repealed by this Act and, in pursuance of provision contained in Schedule 26 to this Act, may be the subject of an allocation made by a scheme under this Schedule; and (ii) other rights and liabilities under enactments which are amended or repealed by this Act subject to a saving; (d) In so far as it dealt expressly with the ownership of, or equivalent rights over, existing sewers, the 1989 Act was laconic. Section 153(1) granted powers to sewerage undertakers to lay and maintain sewers, and section 153(2)(a) provided that sewers so laid should be vested in that undertaker (subject to irrelevant exceptions). However, they were not concerned with existing sewers, which were obliquely referred to in section 153(6), which stated that the provisions of section 153 were without prejudice to the vesting of anything in a company appointed to be a sewerage undertaker, in accordance with a scheme under Schedule 2 Section 70, which dealt with sewers which crossed two local authority areas, referred in subsection (1) to such sewers being vested in a water authority and set out how they were to be treated [f]or the purposes of any scheme under Schedule 2, and subsection (3) referred to a case [w]here any part of a sewer is vested in any sewerage undertaker by virtue of this section. The definition of public sewer in section 189(1) was a sewer vested in a sewerage undertaker whether . by virtue of a scheme under Schedule 2 or under section 153. On the same day as the 1989 Act came into force, 1 September 1989, various transfers came into effect, as contemplated by section 4. They were (or at least the one we were shown was) expressed in relatively general terms, so far as identifying what precisely was transferred to the new sewerage undertaker, namely the property, rights and liabilities specified in . Schedule 2. With effect from 1 September 1989, the new sewerage undertakers took over the sewerage rights and responsibilities of the previous water authorities, subject of course to such amendments as were laid down in the 1989 Act. The 1991 legislation Some two years later, the law relating to the water supply and sewage industries was comprehensively re enacted and consolidated in 1991, principally by the 1991 Act, but also by the Water Consolidation (Consequential Provisions) Act 1991 (the 1991 Consolidation Act), which received Royal Assent on the same day, 25 July 1991. The long title of the 1991 Act described its purpose as being to consolidate enactments relating to the supply of water and the provision of sewerage services, with amendments to give effect to recommendations of the Law Commission. The long title of the 1991 Consolidation Act explained that its purpose was to effect consequential amendments and repeals, and for transitional and transitory matters and savings, in connection with the consolidation of certain enactments in the Water Industry Act 1991, and to repeal certain related enactments which are spent or unnecessary. As the long title to the 1991 Act indicated, its purpose was largely to consolidate the law, but it was also to implement the recommendations of the Law Commission, which were made in a report presented in April 1991, Law Com No 198. Although there were some recommendations relating to drainage, none of them impinges on the issues raised in this appeal. Accordingly, much of the 1991 Act simply re enacted the provisions of the 1989 Act and (in so far as they related to water and sewerage services) the surviving provisions of the 1936 Act, sometimes with modifications. Such provisions included sections 158 and 159, which gave sewerage (and water) undertakers the power to lay pipes in streets and in other land respectively (replacing paragraph 1 of Schedule 19 to the 1989 Act). Section 94 imposed a duty on sewerage undertakers to operate a sewerage system so as effectually to drain their area (replacing section 67 of the 1989 Act), and section 106 required them to allow the owners or occupiers of premises to connect to the public sewer system (replacing section 34 of the 1936 Act). Section 116(1) empowered a sewerage undertaker to discontinue and prohibit the use of any public sewer, subject to providing an alternative and equally effective sewer (replacing section 22 of the 1936 Act). Section 117(5) provided that nothing in section 116 entitled a sewerage authority to discharge foul water into a natural or artificial waterway (replacing, albeit in a limited respect, section 30 of the 1936 Act). Section 179 of the 1991 Act provided that, subject to agreement to the contrary and subject to certain other exceptions, any sewer laid by an undertaker shall vest in the [sewerage] undertaker which laid it. The definition of public sewer in section 219 includes any sewer vested in [an] undertaker by virtue of a scheme under Schedule 2 to the Water Act 1989. Paragraph 4(1) of Schedule 12 to the 1991 Act effectively replaced section 278 of the 1936 Act in relation to sewerage undertakers. By Schedule 3, the 1991 Consolidation Act repealed certain statutory provisions, including section 30 of the 1936 Act. Section 2(5) of the 1991 Consolidation Act provided that those repeals were without prejudice to sections 16 and 17 of the Interpretation Act 1978. The Interpretation Act 1978 The 1978 Act lays down general rules applicable to the interpretation of statutes. Section 16(1)(c) of that Act provides that where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. The traditional view is that section 16(1)(c) (like its statutory predecessors) applies only to existing or vested rights. However, the precise nature of a vested right is somewhat elusive. The problem is very close to that thrown up by the presumption against retrospective legislation, which was illuminatingly discussed by Lord Rodger in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 186 201. At para 196, Lord Rodger said this of the cases on vested rights: It is not easy to reconcile all the decisions. This lends weight to the criticism that the reasoning in them is essentially circular: the courts have tended to attach the somewhat woolly label vested to those rights which they conclude should be protected from the effect of the new legislation. If that is indeed so, then it is perhaps only to be expected since, as Lord Mustill observed in LOffice Cherifien des Phosphates v Yamashita Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525A, the basis of any presumption in this area of the law is no more than simple fairness, which ought to be the basis of every general rule. At para 201, Lord Rodger suggested that the test could well be expressed thus: would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be so unfair that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions. The first question So far as the first question is concerned, Mr Karas QC, on behalf of United Utilities, a sewerage undertaking, relied primarily to support his case for a positive answer, on the provisions of section 159 of the 1991 Act. I would reject that case and there is nothing I can usefully add to what Lord Sumption and Lord Toulson say in paras 13 15 and 26 28 of their respective judgments. At least in relation to sewers laid after the 1991 Act came into force, United Utilities argument is not supported by the language of section 159 or any other provision of the 1991 Act. It is inconsistent with some other provisions of the 1991 Act, and it is not supported by any practical considerations (although it is fair to add that it is not undermined by any practical considerations either). The reasoning of all three members of the Court of Appeal in British Waterways Board v Severn Trent Water Ltd [2002] Ch 25, summarised in para 14 above, appears to me to be unanswerable. The second question The question whether sewerage undertakers can claim any rights in respect of any outfalls must ultimately turn on the 1991 Act, but in my view, the issue should be addressed by first identifying the water authorities rights in respect of outfalls from public sewers immediately before the 1989 Act came into force. Mr Karass argument is that it is a necessary inference from the terms of the 1991 Act that sewerage undertakers have a right to discharge from existing outfalls. A court should not be easily persuaded that a new right has been created by implication, particularly where that right (i) interferes with the private rights of third parties (in this case waterway owners), and (ii) arises out of a long and detailed statute. There is in my view a strong presumption that (i) private rights are only to be taken away by a statute by means of clear and specific words, and (ii) where a statute deals in considerable detail with the rights and obligations in a certain field, it is intended to be exhaustive particularly where the legislation is both consolidating the law and giving effect to Law Commission recommendations. Accordingly, in my judgment, the inference which we are invited to draw is, at least in principle, far more likely to be justified if sewerage undertakers had the right to discharge from existing outfalls under the 1989 Act, when their sewerage functions started, than if they did not. The rights vested in the sewerage undertakers by the 1989 Act were based on the rights vested in the water authorities, whose rights and obligations in relation to sewers and sewerage were derived from the 1936 Act, as amended. Accordingly, I start by addressing the position under the 1936 Act, and only then turn to the 1989 and 1991 Acts. For the reasons I shall give below, it appears to me that there are two alternative reasons for concluding that the new water undertakers had the right to discharge from existing outfalls under the 1989 Act, and one reason for concluding that that right continued under the 1991 Act. The position prior to the 1989 Act As explained in para 43 above, the provisions of section 17 of the 1875 Act, supported by those of sections 15, 16 and 308, were held by the Court of Appeal in Durrant [1897] 2 Ch 291 to lead to the inevitable or irresistible inference that a local authority could discharge treated effluent and surface water from its sewers (subject to payment of compensation in case of damage), and that right continued under the 1936 Act. As I see it, the effect of the reasoning in Durrant is that the inclusion of section 17 in the 1875 Act had two relevant consequences. First, it indicated clearly that Parliament intended that local authorities had the right to discharge from the sewers vested in them by section 13. Secondly, it equally clearly cut down the way in which that right could be exercised. As to the first point, section 17 did not itself grant the right: it merely enabled the courts confidently to conclude that the right was intended by Parliament to be granted to local authorities under the 1875 Act. As to the second point, it is clear from the terms of section 17 itself that that right was capable of being cut down or regulated by statute. These two points apply equally to the 1936 Act. Accordingly, as at the date the 1989 Act came into force, water companies had vested in them the right (subject to payment of compensation in case of damage) to discharge water through existing outfalls, by virtue of the continued existence of section 30 (supported by sections 14, 15 and 278) of the 1936 Act as amended by the 1973 Act. The first argument in relation to the 1989 Act It appears to me that the reasoning in Durrant compels the conclusion that the 1989 Act impliedly granted the new sewerage undertakers the right to discharge from outfalls from sewers vested in them (subject to payment of compensation in case of damage). Section 30 of the 1936 Act (the provision which precluded discharge of foul water) was not repealed by the 1989 Act; indeed, by virtue of paragraph 1 of Schedule 8 to that Act, it remained in force, save that it was amended so as to apply to sewerage undertakers. Given that it was held in Durrant [1897] 2 Ch 291 that section 17 of the 1875 Act, the statutory predecessor of section 30 of the 1936 Act, had the effect of implying a right in water authorities to discharge from their sewers into canals and streams prior to September 1989, then, in the absence of a good reason to the contrary, section 30 as amended by the 1989 Act must have had the same effect in relation to those sewers when vested in the new sewerage undertakers after August 1989. Far from there being a good reason to the contrary, there are two significant factors which support this conclusion. The first is based on the statutory provisions. As mentioned above, the Court of Appeal in Durrant [1897] 2 Ch 291 placed some reliance on other provisions of the 1875 Act. Albeit in re enacted and modified form, those provisions remained in existence after the 1989 Act was in force. Sections 15 and 16, which had been replaced by sections 14 and 15 of the 1936 Act, were in turn replaced by sections 67 and 153 of the 1989 Act, and section 308 was replaced by section 278 of the 1936 Act, which continued to apply after 1989 by virtue of paragraph 1 of Schedule 8. Secondly, the practical implications of a new sewerage undertaker having no right of discharge from existing outfalls of existing sewers from the date of the transfer under the 1989 Act are striking. Such an undertaker was, from the date of the transfer of sewerage functions to it, under statutory duties to drain its area, to permit people to connect into its sewers for the purposes of drainage, and to provide new sewers in the event of shutting off existing sewers. A sewerage undertaker could only have complied with such obligations in practice if it had a right of discharge from the existing outfalls of the sewers vested in it. Lord Sumption and Lord Toulson develop this argument more fully in paras 17 18 and 30 35 of their respective judgments, albeit in relation to the 1991 Act, but the argument is equally sound in relation to the 1989 Act. The alternative argument under the 1989 Act Were the argument based on the 1989 Acts retention and amendment of section 30 of the 1936 Act to be rejected, I would accept United Utilities alternative argument that the transfers to sewerage undertakers pursuant to the 1989 Act included the water authorities existing rights of discharge. This would be on the basis that the water authorities rights of discharge from existing outfalls under the 1936 Act (as amended by the 1973 Act) constituted property or (as I tend to think is more likely) rights, which would have been transferred as part of the water authorities property, rights and liabilities in section 4(1)(b) of the 1989 Act. It seems to me that, whether such rights were property or rights, they were vested in the water authorities, and it would be unrealistic to think that the 1989 Act could have intended that they be removed when the functions of those authorities were being transferred to other entities. In the absence of any transitional provisions, the ability to be able to discharge through existing outfalls was essential: indeed, it was an integral part of the sewerage authorities continuing functions and duties, as explained in para 66 above. It would have been so unfair, or the better but equally appropriate expression may be so absurd, if the water authorities existing rights of discharge had been removed by the 1989 Act that Parliament could not have intended it, to quote Lord Rodger in Wilson [2004] 1 AC 816, para 201. In answer to this, Mr McCracken QC for the Manchester Ship Canal Company Limited, a canal owner, relies, first, on the precise terms of paragraph 2(3) of Schedule 2 to the 1989 Act, and, secondly, on the anomalous nature of the right involved. As to the first point, he says that paragraph 2(3) restricts the breadth of the expression property, rights and liabilities, and in particular that subparagraph (c)(ii) limits the transferable rights to those under enactments which are amended or repealed by this Act subject to a saving. He points out that section 30 of the 1936 Act was amended by the 1989 Act without a saving provision. I do not accept that argument, because, in my view, paragraph 2(3) was intended to widen, not to narrow, the meaning of property, rights and liabilities, as is apparent from the phrase shall include. In any event, it is highly arguable that (i) the right involved was not in fact granted under section 17 of the 1875 Act as I have explained in para 62 above, and (ii) section 30 of the 1936 was not relevantly amended for the purpose of subparagraph (c)(ii). However, given that paragraph 2(3) is not a definition provision, it is not necessary to consider those two points. Mr McCrackens second argument is summarised in para 64 of Arden LJs judgment in the Court of Appeal, where she said that she thought that the right of discharge enjoyed by the water authorities was not within the expression property, rights and liabilities, as used in section 4 and elsewhere in the 1989 Act. She explained that this was because the implied right of discharge was not a right in the usual sense and was simply an incident of the statutory functions of the sewerage undertaker. For my part, I do not see why the fact that a right is implied or incidental prevents it from falling within the word rights in the 1989 Act, or indeed from being a vested right for the purposes of section 16(1)(c) of the 1978 Act. This view is reinforced by the fact that the precise legal characterisation of the rights of local authorities as a result of sewers being statutorily vested in them appear to be somewhat unclear see the discussion in Taylor v North West Water (1995) 70 P & CR 94, 96 110. Thus, there is, as was pointed out by Lord Russell CJ in Bradford v Mayor of Eastbourne [1896] 2 QB 205, 211, a number of cases which support his view that the vesting [under section 13 of the 1875 Act] is not a giving of the property in the sewer and in the soil but giving such ownership and such rights only as are necessary for the purpose of carrying out the duties of a local authority. Yet there can be no doubt but that those rights were regarded as vested rights which survived the repeal of section 20 of the 1936 Act, and were transferred to sewerage undertakers pursuant to the 1989 Act. The 1989 Act: conclusion Accordingly, it seems to me to follow that the sewerage undertakers had an implied right (subject to payment of compensation in case of damage) to discharge from existing outfalls from the sewers vested in them in 1989, because (i) the provisions of the 1989 Act conferred such a right on them by implication in accordance with the reasoning in Durrant or, if that is wrong, (ii) the implied right to discharge from those outfalls enjoyed just before the 1989 Act came into force was transferred by the water authorities to them. The effect of conclusion (i) is, as I see it, that the right to discharge applied to outfalls created after 1989, including those from sewers brought into use after the 1989 Act came into force, as section 30 (as amended to apply to the sewerage undertakers) continued in force, and, following the reasoning in Durrant, so did the right to discharge. The position under the 1991 legislation Section 30 of the 1936 Act (as amended by the 1973 and 1989 Acts) was repealed by the 1991 Consolidation Act (and section 278 of the 1936 Act was effectively replaced with new compensation provisions in the 1991 Act), and therefore there was no further express statutory basis, as established in Durrant [1897] 2 Ch 291, for saying that any sewerage undertakers could claim any right of discharge in respect of outfalls created after 1991. As Arden LJ rightly pointed out in para 22 of her judgment in the Court of Appeal, although section 30 of the 1936 Act, which she called the foul water proviso, was re enacted in the 1991 Act, it was only in a limited form by section 117(5) so that there was no foul water proviso applying to the pipe laying power. Accordingly, as section 30 was repealed, the sewerage undertakers cannot rely on the arguments which, in my view, justify their first argument under the 1989 Act. However, the repeals effected by the 1991 Consolidation Act were, rather unusually and arguably unnecessarily, expressly without prejudice to section 16 of the 1978 Act, which applies unless a contrary intention appears. Far from the contrary intention appearing, it seems to me clear that the factual context of the Acts of 1991, as discussed in paras 17 18 and paras 30 35 of the judgments of Lord Sumption and Lord Toulson, and more summarily discussed in paras 66 67 above, strongly supports the statutory presumption that the existing right to discharge from existing outfalls survived the repeal of section 30 (and the replacement of section 278) of the 1936 Act by the 1991 Act. Indeed, it seems to me that the notion that the 1991 Act removed the rights of discharge in relation to existing outfalls from sewers vested in the sewerage undertakings is even more unlikely than the notion that this was the effect of the 1989 Act. The 1989 Act was intended to give effect to a wholesale overhaul of the water and sewerage industries, and in particular to bring them into private ownership, and to subject them (subject to modifications to protect the public interest) to market forces. While it is impossible to accept for the practical reasons already mentioned that in 1989 private sewerage companies were to be deprived of the right to discharge from existing sewers and were to be left to negotiate what rights they could, the proposition is not fanciful, at least in principle. However, even in principle, it seems very unlikely indeed that such a deprivation could have been intended to have been effected sub silentio, without any consultation or recommendation from the Law Commission, by the 1991 legislation, and in particular by two Acts whose purposes were as described in their long titles (as set out in para 51 above). My scepticism is reinforced by the fact that it is even more unlikely that such a deprivation was intended so soon after the 1989 Act. Some concern was expressed in argument about the fact that the right of discharge (which in the light of this conclusion exists under the 1991 Act) is potentially more onerous on waterway owners, than the right when it existed under the 1936 Act. I agree with what Lord Sumption says about this in para 22 above. Quite apart from that, as explained in para 62 above, the right identified in Durrant was, as I see it, a right of discharge, which could be qualified by the provisions of the same or other legislation. I see no cause for concern if Parliament, having given a right of discharge, is free to change the terms as to conditions and compensation (subject to complying with common law and human right principles) upon which such discharge can be effected. On the contrary: such a conclusion appears to me to make good sense. Conclusion In these circumstances, it appears to me to follow that sewerage undertakers had, and therefore continue to have, a statutory right to discharge surface water and treated effluent from existing outfalls from sewers which had been vested in them by the time that the 1991 Act came into force, but not from subsequently created outfalls or outfalls from sewers which they may have laid after that date.

UK-Abs

The question at issue on this appeal is whether, under the Water Industry Act 1991, a sewerage undertaker has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents canals without the consent of their owners and, if so, whether the right extends to any sewer or only to those which were in existence in 1991 when new sewerage legislation was passed. This depends on the construction of the Water Industry Act 1991, a consolidating Act which was passed in order to tidy up the statute law relating to water and sewerage services. It consolidates with amendments the provisions of the Act of The Water Industry 1989, together with a number of other statutes concerned with water management. At the same time, the Water Consolidation (Consequential Provisions) Act 1991 repealed a number of earlier statutory provisions, including some thought to be spent and unnecessary. It is on these changes that the issues on this appeal turn. The Supreme Court unanimously allows the appeal to the extent of declaring, in accordance with the second possibility, that subject to section 117(5) of the Water Industry Act 1991, the Appellants are entitled to discharge into the Respondents canals from any sewer outfall which was in use on or before 1 December 1991. The leading judgment is given by Lord Sumption. Discharge into a private watercourse is an entry on the owners land, and as such is an unlawful trespass unless it is authorised by statute. It is common ground that no express statutory right is conferred by the Water Industry Act. The question is therefore whether it should be implied. A statutory right to commit what would otherwise be a tort may of course be implied. But since this necessarily involves an interference with the rights of others, the test has always been restrictive. The implication must be more than convenient or reasonable. It must be necessary. As a general rule, this will involve showing either that the existence of the power is necessarily implicit in the express terms of the statute, or else that the statutory purpose cannot be effectually achieved without the implication. In particular a right to commit what would otherwise be a tort may be implied if a statutory power is incapable of being exercised or a statutory duty is incapable of being performed without doing the act in question [2]. There are two bases on which a right of discharge into private watercourses might be implied into the current statutory regime. The first is that a right corresponding to the one recognised by the Court of Appeal in Durrant v Branksome Urban District Council [1897] 2 Ch 291 under earlier legislation is implied into the corresponding provision of the Water Industry Act 1991. In particular section 159 (which confers a power to lay pipes). The effect of such an implication would be to authorise discharge from future sewage outfalls as well as from those already in use when the Water Industry Act 1991 came into force. The second possibility is that the only right of discharge into private watercourses which survives under the Act of 1991 is a right of discharge from existing outfalls which were already in use on 1 December 1991 when the Act came into force [12]. The first basis must be rejected because the language and scheme of the current legislation differs significantly from that of the legislation in force at the time of Durrants Case. However, a right of discharge, limited to outfalls from sewers in existence when the Act of 1991 came into force, exists on the second basis. When the Water Industry Act 1991 (i) imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses and (ii) at the same time applied to them the statutory restrictions in section 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers. A restriction on discontinuing the use of an existing sewer until an alternative has been constructed is not consistent with an obligation to discontinue its use forthwith under the law of tort. The inescapable inference is that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived [19]. Lord Sumption rejects the suggestion that this conclusion leaves the owners of private watercourses in a worse position than under the Water Act 1989, because of the more limited provisions for compensation for damage and the more limited protections available against abuse. It does not, he considers, give rise to difficulty if a more limited right to continue discharging from existing outfalls into private watercourses is to be implied from the restrictions in section 116 on discontinuing the use of existing sewers [22]. In a concurring judgment, Lord Toulson concludes that the answers to the questions in this case are to be found within the sections of the 1991 Act. There is, in Lord Toulsons opinion, no need to go back to examine the position under the 1989 Act. There is no claim for damages for trespass during the period when the 1989 Act was in force. However, if it were necessary to do so, he would conclude that there was no trespass during that period [36]. In a further concurring judgment, Lord Neuberger identifies two questions in the appeal. The first question is whether sewerage undertakers have such a right in relation to all their sewers, irrespective of when they came into use i.e. present and future sewers. The second question, which only arises if the answer to the first question is no, is whether sewerage undertakers have such a right in relation to any of their sewers, and, if so, whether it is those which were in use immediately before (i) the transfers effected pursuant to the Water Act 1989 or (ii) the coming into force of the Water Industry Act 1991 [38]. In Lord Neubergers view the composite answer to these questions is that sewerage undertakers have the statutory right to discharge surface water and treated effluent into streams and canals (subject to payment of compensation for any damage thereby caused), but only in respect of outfalls in existence before the coming into force of the 1991 Act. He agrees with the reasons given by Lord Sumption and Lord Toulson although would place greater weight on the provisions of the earlier legislation relating to public sewers and the Interpretation Act 1978 [39].

This appeal relates to the right of the Police Service of Northern Ireland (PSNI) to retain personal information and data lawfully obtained from the appellant following his arrest on 14 October 2008 for the offence of driving with excess alcohol contrary to article 16(1)(a) of the Road Traffic (Northern Ireland) Order 1995 (the 1995 Order). On 5 November 2008 the appellant pleaded guilty to that offence at Newry Magistrates Court. He was thus a convicted person. He was fined 50 and disqualified from driving for 12 months but no immediate or suspended custodial sentence was imposed on him. He was born on 23 August 1972 and has therefore been an adult throughout the period relevant to this appeal. The facts are set out in the agreed statement of facts and issues and can be shortly stated. On 14 October 2008 at approximately 1.35 am the appellant was stopped at a police checkpoint. He was arrested and taken to a police station where he provided samples of breath which were found to contain 65 milligrams of alcohol per 100 millilitres of breath. That was 30 milligrams in excess of the permitted limit. On the same day the following information or data relating to the appellant was taken from him: (a) fingerprints pursuant to the statutory power in article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (the 1989 Order); (b) a photograph pursuant to the statutory power to do so under article 64A of the 1989 Order; and (c) a non-intimate DNA sample by buccal swab, pursuant to article 63 of the 1989 Order. For the purposes of this appeal it is not disputed that the appellants fingerprints, photograph and DNA sample were lawfully obtained by the PSNI with the consent of the appellant. I note in passing that article 61(4) of the 1989 Order permits the PSNI to take fingerprints of a person charged with a recordable offence in circumstances where he or she does not consent. Article 63(2A) of the 1989 Order permits the PSNI to take a non-intimate sample from a person detained in connection with a recordable offence in circumstances where he or she does not consent. As to photographs, by article 64A of the 1989 Order, any person lawfully detained at a police station may be photographed even without his or her consent. There is no threshold of recordable offence in relation to photographs. As noted in para 1 above, the appellant was charged with the offence of driving with excess alcohol contrary to article 16(1)(a) of the 1995 Order, which is a recordable offence by virtue of regulation 2 of the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989. He pleaded guilty to the offence on 5 November 2008 at Newry Magistrates Court and (as stated above) was fined 50 and disqualified from driving for 12 months. A DNA profile (described at paras 14 and 15 below) was subsequently taken from the DNA sample. Schedule 1 of the Road Traffic (Northern Ireland) Order 1996 provides for a maximum penalty of six months imprisonment for the offence of driving with excess alcohol, a maximum fine of 5,000, or both, together with an obligatory disqualification from driving for 12 months. Article 6 Table A of the Rehabilitation of Offenders (Northern Ireland) Order 1978 provides that a conviction for driving with excess alcohol is spent after the expiry of five years. On 15 January 2009, just over two months after the appellant pleaded guilty, his solicitor wrote to the PSNI claiming that the retention of the appellants photograph, fingerprint and DNA sample was unlawful. He requested that they be destroyed or returned to the appellant. The PSNI replied on 27 February 2009 saying that the legal consequence of the decision of the European Court of Human Rights (ECtHR) in S and Marper v United Kingdom [2008] ECHR 1169 (S and Marper) was a matter for the United Kingdom Government and that any changes to the law of the United Kingdom would be fully complied with by the PSNI. On 12 April 2010 responsibility for the DNA and fingerprint retention policy in Northern Ireland passed to the Northern Ireland administration following the devolution of policing and justice powers from Westminster. It then became a matter for the Northern Ireland Minister of Justice and the Northern Ireland Assembly as to what legislative solution was to be introduced in Northern Ireland in response to the S and Marper judgment of the Grand Chamber in Strasbourg. Issues In the agreed statement of facts and issues the parties identified two questions for determination in this appeal as follows. First, does the retention of the fingerprints, photograph, DNA sample and DNA profile disclose an interference with the appellant's right to respect for his private life within the meaning of article 8(1) of the European Convention on Human Rights (ECHR), the appellant having been convicted of a recordable offence? Second, if so, is that interference justified under article 8(2)? Those questions reflect, at least in part, the way in which the appellants case was put on an application to the Divisional Court in Northern Ireland (Higgins, Girvan and Coghlin LJJ) for judicial review of the right of the respondent to retain the material described above (which the Divisional Court described as the relevant data) for an indefinite period: [2012] NIQB 88. In two respects the certificate granted by the Divisional Court is in somewhat different terms from the agreed statement of facts and issues, as follows: THE COURT CERTIFIES that the following point of law of general public importance is involved in the decision of the court. Is the policy of the Police Service of Northern Ireland to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence in breach of article 8 of the ECHR? As can be seen, there is no reference to the DNA sample. The PSNI intends to retain the DNA sample but only until the commencement of section 9 and, with it, Schedule 2 of the Criminal Justice Act (Northern Ireland) 2013 (the 2013 Act). These provisions have yet to come into force but are expected to do so in the comparatively near future. When they do come into force, Schedule 2 of the 2013 Act provides for the insertion of a new article 63P into the 1989 Order. Article 63P(2) requires the destruction of all DNA samples as soon as a DNA profile has been taken or within six months of the taking of the DNA sample. It will not therefore be possible to retain the appellants DNA sample once section 9 and Schedule 2 of the 2013 Act come into force. In these circumstances the appeal was argued on the assumption that the appellants DNA sample will not be retained. The appeal is thus concerned with the PSNIs policy with regard (a) to the retention of a convicted persons DNA profile and fingerprints, which I will refer to as his or her biometric data, and (b) to the retention of any photograph taken of him or her by the PSNI as described below. The PSNI continues to retain and intends to retain indefinitely within its records the DNA profile, fingerprints and photograph relating to the appellant that were taken from him on 14 October 2008. The appellant says that it cannot lawfully do so. The statutory position in Northern Ireland Pending the coming into force of the 2013 Act, which will broadly bring the position in Northern Ireland into line with the current position in England and Wales, the statutory position in Northern Ireland is as it was at the time of the decision of the ECtHR in S and Marper. Article 64(lA) of the 1989 Order, as amended by the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007 (the 2007 Order) provides a general permission to the PSNI to retain fingerprints and samples after they have fulfilled the purposes for which they were taken. The use to which such fingerprints and samples may be put is, however, curtailed by article 64(lA) of the 1989 Order. The fingerprints and samples must not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came. Article 64A(4) of the 1989 Order permits photographs relating to a person photographed to be retained by the police but it can only be used for a purpose permitted by statute. Current statutory position in England and Wales These amendments to the Police and Criminal Evidence Act 1984 (PACE) were introduced by the Protection of Freedoms Act 2012 in the light of the decision of the ECtHR in S and Marper. Section 63I of PACE now provides that fingerprints and a DNA profile (derived from a DNA sample) taken from a person convicted of a recordable offence may be retained indefinitely. Section 63K provides that where (i) the person convicted is under the age of 18 years at the time of the offence, (ii) the offence is a minor recordable offence (meaning an offence which neither attracts a custodial sentence of more than five years nor is a qualifying offence as defined in section 65A), and (iii) the person has not previously been convicted of a recordable offence, the period of retention of such material may be shorter: the length of the sentence plus five years where the person concerned receives a custodial sentence of less than five years (section 63K(2)), or, if no custodial sentence was given, five years from the time when the fingerprints or DNA sample were taken, as the case may be (section 63K(4)). These provisions are subject to the person not re-offending during the relevant period: if the person is convicted of another recordable offence during the relevant period, the material may then be retained indefinitely (section 63K(5)). Where the custodial sentence is five years or more or where the offence is a qualifying offence the material may again be held indefinitely. Section 63R relates to the destruction of samples, including non- intimate samples. Section 63R(4) provides for the general principle that a sample must be destroyed as soon as a DNA profile has been taken from it and, in any event, within six months of the sample being taken. As to photographs, section 64A(4) of PACE is in the same terms as article 64A(4) of the 1989 Order. At the request of the court, a note was produced on behalf of the Secretary of State, which included an annex setting out a summary overview of the PACE retention rules. That annex is reproduced as Annex A to this judgment. Policy and Practice of the PSNI Before the decision of the ECtHR in S and Marper it was the policy and practice of the PSNI to retain the fingerprints, photographs and DNA samples of persons from whom such information or data had been lawfully taken and where there was no statutory obligation to destroy such information or data. The fact that a person was subsequently acquitted of the offence that led to the taking of a photograph, fingerprint or sample was of no relevance. After the decision in S and Marper the policy and practice of the PSNI changed in relation to those who were acquitted but remained unchanged in relation to those, like the appellant, who were subsequently convicted. So, once the 2013 Act is in force, the policy and practice in the case of the appellant will allow the PSNI to retain the DNA profile, fingerprints and photograph for any use to which they may be lawfully put. DNA Profiles The method of obtaining a DNA profile is briefly described in the case for the Secretary of State and, so far as I am aware, is not in dispute. When the PSNI takes a DNA sample from a person, it is sent to Forensic Science Northern Ireland ("FSNI"), which is an agency of the Northern Ireland Department of Justice. FSNI extract a DNA profile from the DNA sample. A DNA profile is digitised information in the form of a numerical sequence representing a very small part of the person's DNA. The DNA profile extracted by FSNI indicates a persons gender. Other than indicating the gender of the person, DNA profiles do not include any information from which conclusions could be drawn as to the person's wider characteristics, such as age, height, hair colour or propensity to develop a particular disease. FSNI upload the DNA profile onto the Northern Ireland DNA Database (the NIDNAD), together with sufficient information to identify the person to whom it relates. This information does not include information as to whether a person has been convicted of, or is under investigation for, an offence. As of June 2012, the NIDNAD included the DNA profiles of 123,044 known persons. DNA profiles uploaded on to the NIDNAD are also loaded on to the United Kingdom National DNA Database, although the retention of Northern Irish DNA profiles on the NIDNAD is governed by the law and policy applicable in Northern Ireland. The NIDNAD is managed by FSNI on behalf of the PSNI. It is held on a standalone computer that cannot be accessed from outside FSNI. Access within FSNI is restricted to a small number of FSNI staff and access is audited. In particular, police officers do not have access to the NIDNAD. Where a search is requested, it will be undertaken by the appropriate FSNI staff and the police will only be provided with details of the matching profile, if any. Requests for searches from police forces other than the PSNI are considered on a case by case basis and are in any event subject to the same controls as a request from the PSNI. FSNI will not delete a DNA profile from the NIDNAD or destroy a DNA sample (which they retain) without instructions from the PSNI. Decisions to delete profiles are subject to the oversight of the PSNI Biometric Retention/Disposal Ratification Committee. When a DNA profile is loaded to the NIDNAD (whether it relates to a known person or whether it is a crime scene profile, with which this appeal is not concerned) it is cross-checked with the profiles already on the database. It is this process, which is known as speculative searching, which gives rise to the matches that are of use in the detection of crime. The control, management and operation of the NIDNAD are overseen by the NI DNA Database Board. Fingerprints When a person is taken into custody, the PSNI takes his or her fingerprints using a system which digitally scans fingerprints and palm prints and automatically loads them on to the IDENT1 United Kingdom database, where they are automatically searched against other sets of fingerprints held on that database. If a match is found, an electronic message is sent to the terminal at the custody suite confirming the identity of the person from whom the fingerprints were taken. It is said with force that the facility to verify the identity of the person from whom fingerprints are taken is necessary to combat the risk of a person giving a false identity, which is of particular use in the United Kingdom, where, by contrast with other European countries, there is no requirement to carry an identity card. Photographs When a person is taken into custody, the PSNI takes his or her photograph using a digital camera. The photographs are then loaded on to a PSNI database known as Niche, along with the person's custody record. They form part of the custody record and are available to view when accessing the custody record. Access to the Niche database is limited to authorised PSNI personnel and is audited. The Niche database does not have the capability to match photographs, whether by way of facial recognition software or otherwise. Photographs can of course be used to verify the identity of a person in order to combat the risk of a person giving a false identity to the police. They can also be used, subject to appropriate controls, to enable witnesses to identify a person. Article 8 of the ECHR Article 8 provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. It is now rightly accepted on behalf of both the PSNI and the Secretary of State that article 8(1) is, as it is said, engaged, on the basis that the indefinite retention of a persons DNA profile, fingerprints and photograph interferes with the right to respect for private life recognised by article 8(1). However, it is of course common ground that there is no violation of article 8 if the PSNI can satisfy the court that its policy is in accordance with the law and necessary in a democratic society for one of the reasons identified in article 8(2). On the facts of this case, the questions which arise under article 8(2) are whether the retention policy is justifiable and, in particular, whether it satisfies the principle of proportionality. In this regard it is helpful to recall the four elements identified by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, para 74. Although Lord Reeds judgment was a dissenting judgment, there is no difference in principle between his formulation of the relevant principles and those stated by Lord Sumption for the majority. They are (1) whether the objective of the relevant measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. Lord Reed added that, in essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. He also noted at para 71 that an assessment of proportionality inevitably involves a value judgment at the stage at which a balance is to be struck between the importance of the objective pursued and the value of the right intruded upon. These proceedings The appellant sought leave to apply for judicial review of the decision to retain the biometric data and the photograph. By an order of Morgan J on 3 April 2009 the applicant was granted leave to apply for judicial review on the grounds set out in paras 9(c) and (d) of the Order 53 statement as follows: (c) The retention of the [data] for an indefinite period of time in the unregulated manner observed by the European court between paras 105-125 of its Judgment in S and Marper v UK (4 December 2008) is not proportionate and does not strike a fair balance between competing public and private rights. (d) A conviction for an offence of relatively minor gravity is very much the type of circumstance in which the Committee of Ministers in R(92)(1) gave a provisional view that there was no need for the taking or retention of such samples. The European court has been heavily influenced by that document and there is every reason to believe that they would continue to be influenced by that document and those observations in circumstances where they were dealing with the conviction of an individual for a minor offence in circumstances where the samples were taken not for the true purposes of investigating the offence but simply for the purpose of retaining data in connection with the individual. The orders sought were: (a) a declaration that the indefinite retention of the data was unlawful and constituted an unjustifiable interference with his right to respect for private life under article 8; and (b) an order of prohibition preventing the respondent from making any use of the relevant data. The substantive application was heard by the Divisional Court, which refused the application on 13 November 2012. Girvan LJ gave the judgment of the court. The Divisional Court was persuaded that the infringement was justified, so that article 8(2) was satisfied. The appellant says that it was wrong. The answer depends upon a number of matters: namely the correct approach under article 8(2), a consideration of the relevant statutory provisions in Northern Ireland, together with the policy of the PSNI, and an analysis of the cases decided so far, especially by the ECtHR. I have considered both the correct approach to proportionality under article 8(2) and the relevant statutory provisions in Northern Ireland, together with the policy of the PSNI. The Divisional Court considered in some detail both S and Marper in the House of Lords, reported in [2004] 1 WLR 219, and S and Marper in the ECtHR. In that litigation the challenge was to the retention of fingerprints, cellular samples and DNA profiles after proceedings against the individuals had led to acquittal or discontinuance. It will be recalled that the majority of the House of Lords, Baroness Hale dissenting, held that there was no infringement of article 8(1) and the House concluded unanimously that the retention could in any event be justified under article 8(2). The ECtHR disagreed. It held that there was a breach of article 8(1) and that the retention could not be justified as proportionate under article 8(2). It was accepted by this court in R (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21; [2011] 1 WLR 1230 that in the light of S and Marper the decision in the House of Lords could no longer be accepted as correct. The reasoning of the ECtHR is important because both parties to this appeal rely upon it. The Divisional Court distinguished it on the basis that the court was not concerned with a case of retention after conviction but only with retention after acquittal. At para 30 Girvan LJ quoted these two striking paragraphs from the judgment, paras 119 and 125: 119. the court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence for which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken and retained from a person of any age arrested in connection with a recordable offence which includes minor or non-imprisonable offences. The retention is not time limited, the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover there exist only limited possibilities for an acquitted individual to have the data removed from the Nationwide Database or the materials destroyed; in particular, there is no provision for independent review of the justification for the retention according to defined criteria including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances. 125. In conclusion the court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences as applied in the case of the present applicants, fails to strike a fair balance between competing public and private interests and that the respondent state has overstepped an acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicant's right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the court to consider the applicant's criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data. In para 37 Girvan LJ noted that the Strasbourg analysis in S and Marper proceeded along the usual course of determining whether the interference with the individuals article 8 rights was (a) in accordance with law, (b) pursued a legitimate aim and (c) was necessary in a democratic society. He added that question (c) involved the issue whether the retention was proportionate and struck a fair balance between the competing public and private interests. Girvan LJ noted in para 38 that, having regard to the limited grounds upon which leave was granted, the focus of the appellants case was on the question of necessity and proportionality. In para 39 he correctly noted that there was clearly a statutory power to retain the data and that the focus must be upon the proportionality of indefinite retention. Under Legitimate aim, the ECtHR said at para 100 that it agreed with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and, therefore, prevention of crime. It added that, while the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders. Under the heading Necessary in a democratic society the ECtHR discussed the general principles between paras 101 and 104. In summary it held that an interference will be considered necessary in a democratic society for a legitimate aim if it answers a pressing social need and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons given by the national authorities to justify it are relevant and sufficient. It is for the national authorities to make the initial assessment subject to review by the ECtHR. A margin of appreciation must be left to the competent national authorities, which varies and depends upon a number of factors. They include the nature of the right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. Where there is no consensus among member states, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. In para 103 the ECtHR stressed the importance of the protection of data to a persons enjoyment of his rights under article 8 in some detail by reference, in particular, to Recommendation No R(92)1 of the Committee of Ministers. However it concluded this part of the judgment in para 104 as follows: The interests of the data subjects and the community as a whole in protecting the personal data, including fingerprint and DNA information, may be outweighed by the legitimate interest in the prevention of crime (see article 9 of the Data Protection Convention). However, the intrinsically private character of this information calls for the court to exercise careful scrutiny of any state measure authorising its retention and use by the authorities without the consent of the person concerned. I agree with the Divisional Court that the ECtHR was not considering the position of convicted people. At para 40 Girvan LJ said that the ECtHR was at pains to point out that the only issue to be considered was whether the retention of the data obtained from persons who had been suspected but not convicted of certain criminal actions. He referred to para 106 without quoting it. It must be set in its context, which begins with para 105 in the courts consideration of the application of the principles to the facts. Paras 105 and 106 read: 105. The court finds it to be beyond dispute that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by todays European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification. The techniques of DNA analysis were acknowledged by the Council of Europe more than 15 years ago as offering advantages to the criminal-justice system (see Recommendation No R(92)1 of the Committee of Ministers, paras 43-44 above). Nor is it disputed that the member states have since that time made rapid and marked progress in using DNA information in the determination of innocence or guilt. 106. However, while it recognises the importance of such information in the detection of crime, the court must delimit the scope of its examination. The question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. The only issue to be considered by the court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under article 8 paragraph 2 of the Convention. In the following paragraphs the court nowhere suggests that the principles apply to convicted persons. In para 112 it stresses the importance of carefully balancing the potential benefits of the extensive use of modern scientific techniques, and in particular extensive DNA databases, against important private-life interests. It concludes para 112 by saying that any state claiming a pioneer role in the development of new techniques (in which it plainly included the United Kingdom) bears special responsibility for striking the right balance in this regard. Paragraphs 113 and 114 read as follows: 113. In the present case, the applicants fingerprints and cellular samples were taken and DNA profiles obtained in the context of criminal proceedings brought on suspicion of attempted robbery in the case of the first applicant and harassment of his partner in the case of the second applicant. The data were retained on the basis of legislation allowing for their indefinite retention, despite the acquittal of the former and the discontinuance of the criminal proceedings against the latter. 114. The court must consider whether the permanent retention of fingerprint and DNA data of all suspected but unconvicted people is based on relevant and sufficient reasons. Girvan LJ quoted an extract from para 114 (without referring to the number) and italicised the words all suspected but unconvicted people. In my opinion he was correct to do so. They fit with the statement in para 106 quoted above that the only issue to be considered by the court was whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under article 8(2) the Convention. There is no indication that the Strasbourg court was considering the position of those who had been convicted at all. I agree with Girvan LJs conclusion at para 42 that Strasbourg was not saying that a blanket policy of retaining the data of convicted persons would be unlawful. It stressed in para 125 (quoted above) its conclusion that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences fails to strike a fair balance between competing public and private interests and that the respondent state has overstepped an acceptable margin of appreciation in this regard. As Girvan LJ put it at the end of para 42, [t]he courts focus was solely and entirely on the issue of unconvicted persons and para 119 of the judgment [also quoted above] must be read in that context. I recognise that it does not follow from the fact that the ECtHR was only considering unconvicted persons that the system in Northern Ireland (and the United Kingdom) is justified under article 8(2). I also recognise that, save for exceptional cases, the policy of retaining DNA profiles from those convicted persons to whom it applies may be described as a blanket policy. However, the ECtHR recognised the importance of the use of DNA material in the solving of crime. It also recognised that, although the rights of the appellant and a person in his position are interfered with by the system in operation in the Northern Ireland and England and Wales (and indeed Scotland), the interference is a low level of interference. I also recognise that a relevant factor to take into account in the balance is the nature of the offence of which the person concerned is convicted. The United Kingdom has chosen recordable offences as the touchstone. Recordable offences include any offences punishable by imprisonment, together with a limited number of non-imprisonable offences. As the expression suggests, the police are obliged to keep records of convictions and offenders in relation to such offences on the Police National Computer. I can see nothing unreasonable in the conclusion that such records ought to ought to include any available DNA profiles. It is of course true that the appellant was only fined 50 and disqualified from driving for a year but driving with excess alcohol is a serious offence and can cause significant injury and damage. It may lead to up to six months imprisonment. In S and Marper the ECtHR was concerned with a scheme that involved the retention of all biometric data, including DNA samples, whereas, for the reasons explained above, the present case does not concern the retention of the sample or samples, but only the profile, which contains much less data. S and Marper was also concerned with a scheme which did not discriminate between adults and children whereas the present case is concerned with a scheme which only applies to adults. These limitations seem to me to be of real importance. It is true that a conviction for driving with excess alcohol will become spent but there is no support in S and Marper for the conclusion that, just because a conviction may become spent, the biometric data of a person who is convicted cannot be kept indefinitely. Reliance was placed on behalf of the appellant upon the reference to spent convictions in Principle 7 of the Council of Europes Committee of Ministers Recommendation No R(87)15, which was adopted on 17 September 1987 and provides: Principle 7 - Length of storage and updating of data 7.1 Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data. 7.2 Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law. As I see it, Principle 7 gives some support for the proposition that the fact that a conviction may become spent is a potentially relevant but by no means decisive factor in considering where the balance lies. Indeed it was argued before us that account should be taken of the fact that Mr Gaughrans conviction had been spent in accordance with the Rehabilitation of Offenders (Northern Ireland) Order. The Secretary of State submitted in response that the Order had no relevance, because it was concerned only with the use of past criminal convictions in legal proceedings. In my opinion it is unnecessary to resolve this question. It is not material to the application of article 8, unless it can be said that the retention of the material after the conviction has been spent is not in accordance with domestic law. That has not been argued and would in any event be an unpromising argument. The Rehabilitation of Offenders Order is not concerned with the retention of information about convicted persons, but only with the disclosure of the convictions themselves. It is right to add, first, that we are hearing an appeal from the Divisional Court which decided this case before the conviction had been spent, and secondly that, when it comes into force, the 2013 Act will provide in terms that the right to retain information will not be affected by the fact that any conviction has become spent. Taking account of all relevant factors I would hold that the balance struck by the Northern Irish authorities, and indeed in England and Wales, is proportionate and justified. It is within the margin of appreciation which the ECtHR accepts is an important factor. There is in my opinion nothing in the Strasbourg jurisprudence which leads to a different conclusion. Before us, as before the Divisional Court, the appellant relied upon cases such as Van der Velden v The Netherlands 29514/04 and W v The Netherlands 20689/08, [2009] ECHR 277. In those cases, the complaints were held to be inadmissible. They show that there are many factors which are potentially relevant to the issue of proportionality. Under Dutch law DNA profiles may be retained for 30 years where the relevant offence carries a sentence of six years or more and 20 years where it carries a sentence of less than six years. As it seems to me, it does not follow from the fact that in those cases time limits were held to be proportionate that the system in a member state in which there are no time limits must be disproportionate. It is simply one of the factors to take into account. As I see it, the benefits to the public of retaining the DNA profiles of those who are convicted are potentially very considerable and outweigh the infringement of the right of the person concerned under article 8. I would accept the submission made on behalf of the Secretary of State that the retention of the biometric data contributes to law enforcement and the investigation of offences in relation to both future and historic offences. The Secretary of State puts it thus in para 22 of her case. (1) Where a convicted person subsequently commits another offence in relation to which a crime scene profile or fingerprints is or are obtained, the fact that there is a record of his or her DNA profile or fingerprints will assist in identifying him or her as a suspect. (2) Of particular relevance to DNA profiles, where a convicted person has in the past committed a crime that remains unsolved, but a subsequent cold case review later produces a crime scene profile, the fact that there is a record of his or her DNA profile will assist in identifying him or her. A number of examples were given by the Secretary of State which it is not necessary to set out in detail here. It is also of some note that a DNA profile may establish that the person concerned did not commit a particular offence. This is a factor which was taken into account in both Van der Velden and W. In Van der Velden the ECtHR said at p 9: Secondly, it is to be noted that while the interference at issue was relatively slight, the applicant may also reap a certain benefit from the inclusion of his DNA profile in the national database in that he may thereby be rapidly eliminated from the list of persons suspected of crimes in the investigation of which material containing DNA has been found. In W the ECtHR said that it had no cause to arrive at a different conclusion from the one it had reached in earlier cases including Van der Velden and S and Marper, Where it considered that the compilation and retention of a DNA profile served the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The ECtHR added: In its Van der Velden decision the court already pointed to the substantial contribution which DNA records have made to law enforcement in recent years, and noted that while the interference at issue was relatively slight, the applicant might also reap a certain benefit from the inclusion of his DNA profile in the national database in that it allowed for a rapid elimination of the applicant as a possible suspect of a particular crime in the investigation of which material containing DNA had been found. The court finds that these considerations apply equally in the present case, where the person whose DNA profile is to be compiled and stored in the database is a minor. In S and Marper the ECtHR, when considering the margin of appreciation in the case of those who were acquitted, placed some reliance upon the fact that the United Kingdom was alone or almost alone in retaining biometric data in such cases. There is a much broader range of approaches in the case of those who have been convicted. The Secretary of State produced an annex setting out a summary of inclusions and removal criteria in other jurisdictions. It is attached to this judgment as Annex B. It shows that in such cases many countries retain biometric data for very long periods. In addition to England and Wales and Northern Ireland, Ireland and Scotland are I think the only jurisdictions which provide for indefinite retention. However, there are several states which provide for retention until death. They are Austria: five years after death or 80 years of age; Denmark: two years after death or at 80 years of age; Estonia: ten years after death; Finland: ten years after death; Lithuania: 100 years after inclusion or ten years after death; Luxembourg: ten years after death; The Netherlands: as stated above and 80 years after a conviction against minors; Romania five years after death or 60 years of age; and Slovakia: 100 years after date of birth. It seems to me that in the context of a persons rights under article 8 there is little, if any, difference between retention for an indefinite period and retention until death or effectively until death. Annex B shows that there are other formulae. They include Belgium: 30 years after inclusion; France: 40 years after the end of the sentence or after the age of 80; Hungary: 20 years after the sentence has been served; Latvia: 75 years of age; Poland: 35 years after conviction; Germany: DNA profiles are reviewed after ten years and removal depends on a court decision; Italy: 20 years after the incident but no profile can be kept for more than 40 years; and Sweden: ten years after sentence. It can thus be seen that member states have chosen many different approaches but there is, in my opinion, no principled basis upon which the system in operation in Northern Ireland can be held to be disproportionate, especially when compared with the significant number of countries which retain DNA profiles until death or effectively until death. Very few states have a process of review. The factors set out above seem to me to be strong factors in support of the conclusion that the PSNI was entitled to retain the biometric data as it did in the case of those convicted. As the ECtHR put in a different context in Animal Defenders International v United Kingdom (2013) 57 EHRR 21, para 23, the lack of consensus between states broadens the margin of appreciation to be accorded to individual states. See also eg Frett v France (2004) 38 EHRR 31, para 41 and Goodwin v United Kingdom (2002) 35 EHRR 28, para 85. While a blanket policy may be objectionable in some circumstances (see eg Hirst v United Kingdom (No 2) (2006) 42 EHRR 41, para 81), all depends upon the circumstances. It was put thus in the Animal Defenders case at paras 109 and 110: 109. It follows that the more convincing the general justifications for the general measure are, the less importance the court will attach to its impact in the particular case. 110. The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it. See also eg Clift v United Kingdom (Application No 7205/07) at para 76. In these circumstances, it appears to me that there is no basis in the ECtHR jurisprudence for the conclusion that the PSNI policy of retaining biometric data indefinitely is not justified. The policy was within the margin of appreciation identified by the ECtHR. The question then arises how the Northern Irish court should proceed. In R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2014] 3 WLR 200, Lord Neuberger put the position thus at para 75: Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to member states, it would be wrong in principle and contrary to the approach adopted in In re G, for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in In re G, the extent to which a United Kingdom court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject-matter, and the extent to which the legislature or judiciary could claim particular expertise or competence. In re G (Adoption: Unmarried Couple) is reported at [2008] UKHL 38, [2009] AC 173. Having concluded that the retention policy is within the margin of appreciation accorded by the Strasbourg court, the Northern Irish court must decide for itself whether it infringes a Convention right. The question is whether the policy is proportionate, and therefore justified, under article 8(2). Viewed from a domestic standpoint, it appears to me that the authorities in Northern Ireland were entitled to pursue such a policy on the basis that it was justified and proportionate under article 8(2), essentially for the reasons discussed above and given by the Divisional Court as summarised below. Girvan LJ set out (at para 44) 11 factors which led him (and the Divisional Court) to the conclusion that the policy of indefinite retention is not disproportionate and that the application should be refused. His 11 factors were these: (i) The building up of a database of such data from those convicted of offences provides a very useful and proven resource in the battle against crime by reason of the assistance it provides in identifying individuals. It is clear that the larger the database the greater the assistance it will provide. While a universal database would be of immense help in combatting crime, weighing the private rights of individuals against the good which would be achieved by such a universal system requires the striking of a fair balance. Experience has shown that those who have committed offences may go on to commit other offences. A state decision to draw the line at those convicted of a substantial category of offences is entirely rational and furthers the legitimate aim of countering crime so as to protect the lives and rights of others. (ii) The rights and expectations of convicted persons differ significantly from those of unconvicted persons. The striking of a balance between the public interest and the rights of a convicted or an unconvicted individual will inevitably be appreciably different. Strasbourg recognises that even in the case of some unconvicted persons retention for a period may be justifiable in the public interest. (iii) A person can only be identified by fingerprints and DNA sample either by an expert or with the use of sophisticated equipment. The material stored says nothing about the physical make up, characteristics or life of the person concerned and it represents objective identifying material which can only be relevant or of use when compared with comparative material taken from a person lawfully subjected to a requirement to provide such material for comparison. (iv) The use to which the material can be lawfully put is severely restricted by the legislation. (v) As well as being potentially inculpatory the material may be exculpatory and thus in ease of a person such as the applicant. If it is inculpatory its use assists in the detection of someone likely to have been involved in crime which is a matter of deep interest to the public. (vi) There is in place an exceptional case procedure which permits of a possibility of an application to have data removed. (vii) Any differentiation within the system between categories of convicted persons calls for administrative action and has the potential for administrative complexity. Lord Steyn described how there was the potential for interminable and invidious disputes where differentiation is operated. While he was making that point in the context of differentiation between convicted and unconvicted persons (and thus was in error according to the Strasbourg court) the point retains its force in the context of differentiation between convicted persons. Carswell LCJ pointed out in In re McBride [1997] NI 269 at 274 that the legislature wished to have as wide a cover for the database as possible in order to give the police the best chance of detecting criminal offenders. Marper requires protections for unconvicted persons and the current legislation and policy have limited the retention of data to those convicted of recordable offences. To allow further exceptions would in the view of the authorities undermine the effectiveness of the process which is designed to build up a database of those who have been involved in criminality to assist in the war against crime. Such a conclusion by the state authorities is legitimate and rational. (viii) The current policy in fact does distinguish between (a) unconvicted persons and those convicted of offences which are not recordable and (b) those convicted of offences which are recordable. This represents a policy and legislative intent which is not blanket or indiscriminate as such but one which distinguishes between cases. The choice of that differentiation is one involving the exercise of judgment by the state authorities which seeks to balance, on the one hand, the very limited impact of retention and use of such material on a person's real private life and its minimal impact on the intimate side of his life and, on the other hand, the benefit to society flowing from the creation of as effective a database as legitimately possible to help in combatting crime. The choice to retain the data of those convicted of recordable offences represents the exercise of a balanced and rational judgment by the authorities. (ix) In this case the offence committed by the applicant cannot, as the applicant asserts, be described as minor or trivial. It was an offence of a potentially dangerous antisocial nature. The criminal law has as one of its aims the protection of the lives of others and the consumption of alcohol by a driver endangers human life. Indeed the state under its operative duties under article 2 must have in place laws which protect the lives of others. The offence was a recordable offence being one in respect of which a period of imprisonment could be ordered. (x) Time limitations on the retention of data for particular categories of offences can be imposed as has occurred in some legal systems such as in The Netherlands (See W and Van der Velden). Different countries operate different policies in this field and some other countries follow practices similar to those followed in the United Kingdom. Any time restriction is inevitably somewhat arbitrary and it is difficult to point to any particular reason why one particular period as opposed to another should be chosen. To introduce time limitations for some offences simply to avoid a possible charge of disproportionality smacks of defensive policy making in a field which requires a proper balancing of the interests of the public against the consequences of criminal activity. The introduction of different time periods for different offences or for different sentences would clearly add to the administrative burden and would require changes and deletion of recorded data. This complexity would be aggravated in the case of those found guilty periodically of repeat offending in respect of minor offences. The removal of such data would give the offender no benefit other than the knowledge that his data is no longer recorded. As already noted the retention of the data represents a very minor intrusion into his private life. (xi) The retention of the data serves the added purpose of discouraging a convicted offender from re offending for the offender has the knowledge that the police have available data which could lead to his detection. The permanent retention of that data thus serves a useful long term purpose in that regard. I agree with that analysis and would dismiss the appeal. I would answer the certified question (quoted at para 8 above) in the negative. I do not think that it was suggested that, if the retention of the biometric data was lawful, the retention of the photograph was not. Annex A SUMMARY OVERVIEW OF RETENTION RULES DNA SAMPLES Arrest/charge/conviction status All DNA samples regardless of whether person convicted or not Retention rule Must be destroyed once a DNA profile has been derived from it, or after six months, whichever is sooner (s 63R) Arrest/charge/conviction status Person arrested for, charged with or convicted of non-recordable offence Person arrested for recordable offence, investigation or court proceedings ongoing Person arrested for non-qualifying recordable offence (i.e. offence not on list of mainly sexual and violent offences), not charged or convicted Person arrested for qualifying recordable offence, not charged or convicted Person charged with non-qualifying recordable offence, not convicted Person charged with qualifying recordable offence, not convicted Person given penalty notice Person under 18 convicted of non-qualifying recordable offence (and not previously convicted of a recordable offence) DNA PROFILES AND FINGERPRINTS Retention rule No power to take DNA and fingerprints so no issue of retention (s 63D) Retention until investigation and/or proceedings complete, must then be destroyed unless another power to retain applies (s 63E) Must be destroyed (may first be searched against databases to check whether any match to unsolved crimes) (s 63D) Must be destroyed (may be searched against databases first), unless police apply to the Biometrics Commissioner for retention; if Biometrics Commissioner agrees, retention for 3 years (s 63F) Must be destroyed (may be searched against databases first) (s 63D) Retention for 3 years. On expiry of that period the police may apply for a court order for retention for a further 2 years (ss 63F and 63G) Retention for 2 years (s 63L) Where not sentenced to a custodial sentence, retention for 5 years; where sentenced to a custodial sentence of less than 5 years, retention for the length of the sentence plus 5 years; where sentenced to a custodial sentence of 5 years or more, indefinite retention (s 63K) Indefinite retention (s 63I) Indefinite retention (s 63I) Retention for 2 years, extendable for a further 2 years if a further NSD made; however if the Biometrics Commissioner determines that retention is unnecessary the material must be destroyed (s 63M and PoFA s 20) Indefinite retention where an individual is convicted of a recordable offence (s 63N(3)). Otherwise must be destroyed when it has fulfilled its purpose). Person over 18 convicted of non-qualifying recordable offence Person convicted of qualifying recordable offence Material subject to a national security determination (NSD) Material given with consent Material retained with consent DNA samples, DNA profiles and fingerprints subject to the Criminal Procedure and Investigations Act 1996 and its Code of Practice (i.e. needed for disclosure or evidence in court) Annex B Retention for as long as the person consents consent must be in writing and can be withdrawn at any time (s 63O) Retention as long as CPIA or its Code apply; must be used only for the case in question and cannot be searched against databases (s 63U(5)) Summary of inclusion and removal criteria in other EU jurisdictions Derived from Santos et al, Forensic DNA databases in European countries: is size linked to performance? (2013) Life Sciences, Society and Policy, 9:12 Country Criteria for inclusion of profiles Austria Individuals suspected and/ or convicted of a dangerous assault a Belgium Suspects and individuals convicted of serious crimes (list) Denmark Estonia Finland Suspects and individuals convicted of crimes punishable by sentences of > 1 year and 6 months Suspects and convicted offenders Individuals suspected of crimes punishable with a sentence of > 6 months and offenders receiving sentences of > 3 years profiles Criteria for removal of Convicted: 5 years after death or at SO years of age if the individual has not been forensically identified in the last 5 years. Minors: removed if s/he is not forensically identified in the previous three years. Acquitted suspects have to apply for removal and/ or the authorities will decide if the acquitted suspect's profile is no longer necessary Convicted offenders 30 years after inclusion. Profiles in the criminal investigation database deleted when no longer needed. Convicted offenders 2 years after death or at 80 years of age. Suspects 10 years after acquittal. At 70 years of age, 2 years after death. Suspects and convicted offenders 10 years after death. Suspects 1 year after acquittal (on the order of a legal officer) or 10 years after death. Convicted offenders 10 years after death. France Suspects and individuals convicted of serious crimes (list) Germany Hungary Ireland Italy Lativa Lithuania Luxembourg Official suspects charged with crimes and individuals convicted of serious crimes or re-offending with other crimes Convicted offenders and individual suspected of crimes punishable with a sentence of > 5 years (or listed crimes involving lower sentences, such as drug trafficking) Suspects, convicted offenders (crimes punishable with a sentence of > 5 years or specific crimes involving lower sentences) and ex- convicts Individuals arrested, remanded in custody and convicted of premeditated crimes Suspects and convicted offenders any crime Suspects and convicted offenders any crime and those temporarily detained Individuals suspected of any crime (only by order of the court dealing with the case); convicted offenders included only if sentenced for listed crimes or by order of the solicitor or court dealing with the case The Netherlands Suspects and individuals convicted of offenses or crimes for which preventative custody is allowed, or by a judicial order Poland Suspects and convicted offenders (listed crimes) Convicted offenders 40 years after end of sentence or after individuals reach the age of 80. Suspects removed when retention is no longer considered necessary by a law official (or at the request of the party concerned) Profiles reviewed 10 years (adults), 5 years (young people) or 2 years (children) after inclusion. Removal of profiles of convicted offenders depends on a court decision. Suspects deleted after acquittal. Convicted offenders 20 after sentence has been served Profiles of suspects acquitted or not charged removed after 10 years, or 5 years in the case of minors. Convicted offenders indefinite retention. Individuals arrested and remanded in custody deleted on acquittal. Convicted offenders 20 years after the incident that led to sampling. No profile may be held for more than 40 years. Convicted offenders 75 years. Suspects 10 years after verdict, if acquitted. 100 years after inclusion or 10 years after the death of the suspect or convicted offender. Suspects after acquittal, prescription of the crime or 10 years after death. Convicted offenders 10 years Convicted offenders 30 years after sentencing if the crime is punishable with > 6 years 20 after death; 20 years if < 6 years or 12 after death. Suspects and convicted sexual offenses against minors 80 years. Retention may be extended in the event of a new conviction; Suspects DNA profiles are removed if they are not prosecuted or convicted (unless a match is found in the DNA database). Suspects deleted after acquittal. Convicted offenders after 35 years Portugal Individuals convicted of premeditated crimes with an effective prison sentence of 3 years or more, by court order Convicted offenders until criminal record annulled. Romania Suspects and convicted offenders (listed crimes) Scotland Individuals detained of any crime Slovakia Suspects and convicted offenders any crime Spain Individuals detained and those convicted of serious crimes (list) Sweden Convicted offenders receiving non- financial sentences of over 2 years Suspects removed when retention no longer considered necessary by the courts or Public Prosecution. Convicted offenders retained until aged 60 (in the event of the death of the individual, retained for a further 5 years) Suspects deletion after acquittal or extension of retention period in cases of relevant sexual or violent offences. Convicted offenders indefinite retention. Convicted offenders 100 years after the date of birth of the individual concerned. Suspects removal after acquittal. Individuals detained data deleted on prescription of crime.b Individuals convicted on date of prescription of criminal record (unless a court order states otherwise). Suspects removed after acquittal. Convicted offenders 10 years after sentence served. aIn Austria serious crimes, as defined in section 16(2) of the Sicherheitspolizeigesetz (Security Police Act), are understood to be any threat against a legal asset by, committing a premeditated crime punishable by law. In addition to the type of crime, the profile of an individual may be included when the police cite the nature of the crime or the personality of the respective individual as grounds for expecting them to reoffend (Prainsack and Kitzberger 2009). bThe period of prescription for the crime applies to individuals who are detained and for whom the judicial proceedings do not result in acquittal or conviction. LORD KERR: (dissenting) On 14 October 2008 Fergus Gaughran was driving between Crossmaglen and Camlough, County Armagh when his vehicle was stopped at a police checkpoint. As a result of a breath test taken from Mr Gaughran at the scene, it was suspected that he had been driving after having consumed more than the permissible amount of alcohol. He was arrested and taken to a police station in Newry, County Down. There he provided more samples of breath which, when analysed, were found to contain 65 milligrams of alcohol per 100 millilitres of breath. This level of alcohol exceeded the permitted limit by 30 milligrams. Mr Gaughran was charged with the offence of driving with excess alcohol. He pleaded guilty to that offence at Newry Magistrates Court on 5 November 2008 and was fined 50 and ordered to be disqualified from driving for 12 months. As well as supplying samples of breath, Mr Gaughran provided a DNA sample. His photograph and fingerprints were taken. It has been established that, despite initial claims by the appellant to the contrary, all of this was done with his consent and there is no issue as to the legal entitlement of the police to take these steps. The photographs, fingerprints and DNA sample are held on the database maintained by the Police Service of Northern Ireland (PSNI). Section 9 of and Schedule 2 to the Criminal Justice Act (Northern Ireland) 2013 make provision about the retention of samples. When they come into force a new article 63P will be inserted into the Police and Criminal Evidence (Northern Ireland) Order 1989. This will have the effect that Mr Gaughrans DNA sample will be destroyed. But already a DNA profile compiled from his sample has been created by the Forensic Science Agency in Northern Ireland (FSNI). A DNA profile consists of digitised information in the form of a numerical sequence representing a small part of the person's DNA. The DNA profile extracted by FSNI comprises 17 pairs of numbers and a marker ("XX" or "XY") which indicates gender. DNA profiles do not include any information from which conclusions about personal characteristics of an individual, such as his or her age, height, hair colour or propensity to develop a particular disease might be drawn. The purpose of the profile is to provide a means of identification of the person in respect of whom it is held. The European Court of Human Rights (ECtHR) made these observations in para 75 of S and Marper (2009) 48 EHRR 50 about the use to which DNA profiles can be put: the profiles contain substantial amounts of unique personal data. While the information contained in the profiles may be considered objective, and irrefutable in the sense submitted by the Government, their processing through automated means allows the authorities to go well beyond neutral identification. The court notes in this regard that the Government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. It also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect. DNA profiles obtained by police in Northern Ireland, such as that of Mr Gaughran, are held (and, it is intended, will remain) on the Northern Ireland DNA database. Although a profile thus created does not include information as to whether that person has been convicted of or is under investigation for an offence, it contains sufficient material to allow the person concerned to be identified and, of course, it can be used to match a DNA sample subsequently obtained. The photograph and fingerprints of Mr Gaughran have also been retained and it is intended that these will also be kept indefinitely. As of June 2012, the Northern Ireland DNA database included the DNA profiles of 123,044 known persons. DNA profiles uploaded onto the Northern Ireland system are also loaded onto the United Kingdom wide National DNA Database. The retention of Northern Irish DNA profiles on the National DNA Database is governed by the law and policy applicable in Northern Ireland. Mr Gaughran claims that the policy of PSNI to retain for an indefinite period his DNA profile, his photograph and his fingerprints is an interference with his right to respect for a private life guaranteed by article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and that that interference has not been justified on any of the grounds advanced by the respondent (the Chief Constable of PSNI) or the intervener (the Secretary of State for the Home Department). Article 8 of ECHR provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. Justification of an interference with a Convention right It is accepted by the respondent and the intervener that the appellants article 8 right has been interfered with; the single and central issue in the appeal is whether that interference has been justified. Justification of interference with a qualified Convention right such as article 8 rests on three central pillars. The interference must be in accordance with law; it must pursue a legitimate aim; and it must be necessary in a democratic society. Proportionality is a sub-set of the last of these requirements. The appellant has not argued that the retention of samples, his photograph and his fingerprints is other than in accordance with law see articles 64(1A) and 64A(4) of the Northern Ireland PACE Order of 1989. Likewise, it is not disputed that the retention of these pursues a legitimate aim. That aim was identified by ECtHR in S and Marper v United Kingdom at para 100 as the detection, and therefore, the prevention, of crime. In particular the retention of samples etc. was said to be for the broader purpose of assisting in the identification of future offenders. One can focus, therefore, on the question of whether the measure is necessary in a democratic society. In the context of this case, that means asking whether the policy is proportionate. As Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, para 45 and Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 790, para 72ff explained, this normally requires that four questions be addressed: (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? The circumstance that the measure pursues a legitimate aim does not necessarily equate to the objective of the policy being sufficiently important to justify the limitation of a fundamental right, although, in most cases, the pursuit of such an aim will provide an effective answer to the first of the mooted questions. It is, at least hypothetically, possible to conceive of a legitimate aim that a contemplated policy or a legislative provision might seek to achieve but, because the right that would thereby be infringed is so fundamental, no limitation on it, on the basis of the avowed legitimacy of the aim to be pursued, would be defensible. One need not dwell on this, perhaps somewhat esoteric, question, however, because it has not been contended by the appellant that no limitation on his article 8 right could be justified. It is accepted that the need to counteract crime is of sufficient importance to warrant some restriction of the right to respect for private life. But the actual interference, as ECtHR observed in S and Marper at para 101, must conform to the general principle of the Strasbourg jurisprudence that an interference will only be considered necessary in a democratic society if it answers a pressing social need and, in particular is proportionate to the aim pursued. Importantly, the court stated that the reasons which national authorities proffered to justify the interference must be relevant and sufficient. This is of especial significance in addressing the question whether it has been shown that there is in fact a rational connection between the breadth of the policy as it is currently framed and the objective which it is said to be designed to achieve. The two critical questions on the issue of the proportionality of the policy of indefinite retention of the appellants DNA profile, his photograph and his fingerprints are, in my opinion, whether there is a rational connection between the legislative objective and the policy and whether it goes no further than is necessary to fulfil the objective. What is the objective of the policy? It is, I believe, necessary to recognise the distinction between the legislative provisions which authorise the retention of samples etc. and the policy of using those provisions to retain them indefinitely. The justification of, on the one hand, the enactment of statutory provisions which permit retention and, on the other, the use of those provisions to devise a policy to retain without limit must be considered separately. But no distinction has been drawn between the legislation and the policy in terms of their objective. In the case of both, this has been assumed to be that which was articulated in S and Marper v United Kingdom, namely, the detection of crime and assisting in the identification of future offenders. It is of fundamental importance that it be recognised that the objective is not the creation of as large a database of the Northern Irish population as possible, in order that it should be available as a potential resource in the counteracting of crime. The objective is defined in terms of the actual detection of crime and identification of future offenders. This distinction is important because it is not difficult to hypothesise that if everyones DNA profile was held by police this might have a significant impact on the detection of future criminals. The theory is, perhaps, less obvious but still tenable in relation to photographs and fingerprints. But hypothesis should not be confused with evidence. And the question of whether the retention of DNA profiles, photographs and fingerprints of a limited class of person viz those convicted of recordable offences, as opposed to the population at large, would in fact make a substantial contribution to counteracting crime is, at best, imponderable. But before it can be said that a rational connection exists between the retention of biometric data of all convicted of recordable offences and the detection of crime and identification of future offenders one must go beyond assumption or supposition. To justify an interference, it is necessary that it be shown, at the very least, that the promoted objective will be advanced, in order to support the claim that there is a rational connection between the interference and the stated objective. Rational connection? A connection between the aim of a measure and its terms, in order to qualify as rational, must be evidence-based see para 101 of S and Marper. Mere assertion that there is such a connection will not suffice, much less will speculation or conjecture that the connection exists. The fact that the interference can be characterised as relatively slight (as ECtHR described the retention of DNA profiles and fingerprints of convicted persons in the two admissibility decisions of Van der Velden v The Netherlands 29514/05 EQ-IR and W v The Netherlands 20689-08 (2009) ECHR 277) does not diminish the need for the justification to be established positively. Slight interference may sound on the question of whether a measure can be regarded as no more intrusive than necessary. It does not supply the answer to the question whether it is rationally connected to its avowed aim. Moreover, the rational connection here must be between the objective of the detection of future criminals and the indefinite retention of the profile, fingerprints and photograph. It is not enough that retaining these items on a permanent basis might, in some vague or unspecified way, help in the detection of crime in the future. It is necessary to show that in a real, tangible sense, keeping DNA profiles, fingerprints and photographs indefinitely will assist in counteracting or detecting future crime. That is not to say, of course, that it needs to be shown that retention of the appellants particular details will assist in preventing or detecting crime in the future. But, as a minimum, it must be established that retaining forever such items from all who have been convicted of recordable crime is likely to make a positive and significant contribution to the detection of future criminal activity. I accept, of course, that it is not required of the state to show that the achievement of the aim of the measure will be the only and inexorable consequence of its implementation. As Lord Reed said in Bank Mellat (No 2), quoting Wilson J in the Canadian case of Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, 291 the inquiry into rational connection between objectives and means to attain them requires nothing more than showing that the legitimate goals of the legislature are logically furthered by the means government has chosen to adopt. As Lord Reed then put it: The words furthered by point towards a causal test: a measure is rationally connected to its objective if its implementation can reasonably be expected to contribute towards the achievement of that objective. This is the critical question on this particular aspect of the proportionality analysis. Can the indefinite retention of biometric data of all who are convicted of recordable offences be reasonably expected to contribute to the detection of crime and the identification of future offenders? It is, of course, tempting to make the assumption that the more DNA profiles etc. that the police hold, the greater will be their chances of discovering the identity of those who commit crime in the future. But there is a striking lack of hard evidence to support the claim that a blanket policy of retaining such items indefinitely is indispensable to the need to counteract crime or even that it will make a significant contribution to the detection of future crime. The usefulness of the assembly of a pool of personal data to assist with the detection of crime was rejected in S and Marper as justification for interference with the article 8 right and should also be in this case. Without proof as to the likelihood of reoffending, there is no obvious, or rational, connection between the current policy and reducing crime. The current system operates on the assumption that all persons who, at any time, commit any offence are potential suspects in any future crime. No evidence to support this has been provided. Indeed, the only evidence proffered by the respondent on this issue was that which suggested that 90% of those who were given custodial sentences reoffended within two years, regardless of the nature of the original offence. But the true significance of this particular statistic must be recognised. It involves (a) the commission of more serious offences, which attract a custodial offence; (b) more serious offenders, where the custodial option has been chosen; and (c) time-limitation, rather than indefinite duration. In fact, the respondent accepted during the hearing that there was no robust evidence base for the current policy. It seems to me clear, therefore, that a rational connection between the policy and its professed aim has not been established. Much was made in the Divisional Court of the fact that S and Marper was concerned with the retention of the data of persons who had not been convicted. But the need for a rational connection between the broad policy of indefinite retention of the DNA profiles, photographs and fingerprints of all who have been convicted of recordable offences is just as necessary in their case. The connection cannot be considered to be supplied simply by the fact of conviction. Many who have been convicted, especially of less serious recordable offences never re-offend. The rational connection between the retention of their biometric data and photographs still needs to be established. It is not to be inferred or presumed simply because they have been found guilty. Nor can the connection be presumed to exist just because the importance of the use of DNA material in the solving of crime has been recognised by ECtHR. It requires a considerable leap of faith, or perhaps more realistically, a substantial measure of conjecture, to say that simply because DNA material is useful in combatting crime in a general way the retention forever of DNA profiles of everyone convicted of a recordable offence establishes the rational connection between that particular policy and the aim the detection of crime and the identification of future offenders. In this connection, it should be remembered that recordable offences occupy a wide spectrum of criminal activity. Under the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989 they include not only all offences punishable by imprisonment but also examples of what may fairly be described as minor, not to say trivial, offences such as tampering with motor vehicles (article 173 of the Road Traffic (Northern Ireland) Order 1981: improper use of the public telecommunications system (section 43 of the Telecommunications Act 1984). To take some even more extreme examples they include blowing a horn or other noisy instrument or ringing any bell for the purpose of announcing any show or entertainment or hawking, selling, distributing or collecting any article whatsoever, or obtaining money or alms; wilfully and wantonly disturbing any inhabitant by ringing any doorbell or knocking at any door without lawful excuse, all under section 167 of the Belfast Improvement Act 1845 and being drunk in any street under section 72 of the Town Improvement (Ireland) Act 1854. These might be considered to be frivolous examples of recordable crimes which would never, in practical reality, generate the taking of biometric samples but they serve to illustrate the extremely wide potential reach of PSNIs current policy and the failure of PSNI to confront the implications of the breadth of its possible application. No more than necessary to achieve the aim? If one accepts the premise that the retention of DNA profiles, fingerprints and photographs of those convicted of crime can help in the detection and identification of future offenders, the question arises whether a more tailored approach than that of the current PSNI policy in relation to the retention of those materials, sufficient to satisfy the aim, is possible. ECtHR has consistently condemned, or, at least, has been extremely wary of, measures which interfere with a Convention right on an indefinite or comprehensive basis. Thus in Campbell v United Kingdom (1992) 15 EHRR 137 the court rejected the justification for opening and reading all correspondence between prisoners and solicitors, pointing out that letters could be opened to check for illicit enclosures without having to be read at para 48. And in Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 244, the permanent nature of an injunction granted by the Supreme Court of Ireland restraining the applicants from counselling pregnant women in Ireland on the options for travelling abroad to obtain an abortion was found to be disproportionate. The Irish Supreme court had granted an injunction, restraining the applicants from counselling or assisting pregnant women to obtain further advice on abortion. ECtHR found the injunction to be disproportionate and in breach of article 10, because of its perpetual nature and because of its sweeping application. It applied regardless of the age or health of the women who sought the applicants advice or of the reasons that the advice was sought at para 73. The question whether a measure interfering with a Convention right is no more than necessary to achieve the aim is sometimes expressed as an inquiry into whether the least intrusive means has been chosen. This has not always been the basis used by the Strasbourg court as a measure of the proportionality of a particular species of interference and it has been suggested that it is a factor to be weighed in the balance, but not insisted on in every case Arden LJ Human Rights and European Law (2015) OUP, p 60. In R (Wilson) v Wychavon District Council Richards LJ [2007] QB 801 suggested that the least restrictive means test was not an integral part of the proportionality assessment. Recent case-law from ECtHR suggests, however, that resort to the least intrusive means approach will be much more readily made in deciding whether interference with a Convention right is proportionate. In Mouvement Raelien Suisse v Switzerland (2012) 16354/06, para 75, the court observed at the conclusion of its proportionality reasoning: the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question. And in Nada v Switzerland (2013) 10593/08 , para 183, ECtHR made similar comments: The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim must be ruled out. In Bank Mellat Lord Reed, in outlining the four-fold test of proportionality followed the approach of Dickson CJ in the Canadian case of R v Oakes [1986] 1 SCR 103. It is worth recalling that Lord Reed, in articulating the third element of the test, specifically endorsed the approach that one should ask whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. Of course it is true that this approach does not require the condemnation of an interference simply on the basis that it is possible to conceive of a less intrusive interference at a theoretical level. The mooted less intrusive measure must be capable of fulfilling, and must not unacceptably compromise, the objective. As Lord Reed pointed out, a strict application of a least restrictive means test would allow only one legislative response to an objective that involved limiting a protected right. But where it is clear that the legislative objective can be properly realised by a less intrusive means than that chosen, or where it is not possible to demonstrate that the database that is created by the PSNI policy is in fact needed to achieve the objective, this is, at least, a strong indicator of its disproportionality. I suggest, therefore, that the least restrictive measure test is now well established as part of domestic law. A recent example of its application is to be found in a case decided in October 2014, R (Gibraltar Betting and Gaming Association Ltd) v Secretary of State for Culture, Media and Sport [2014] EWHC 3236 (Admin) where the High Court went to considerable lengths in paras 182-190 to analyse this test as part of its proportionality analysis under the TFEU, ultimately explicitly accepting that the least restrictive measure test is a proper part of the proportionality assessment. See also R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394. European Union law on the least restrictive means test It is beyond question that proportionality is a fundamental principle of EU law. In the Skimmed Milk Powder case Bergman v Grows-Farm [1977] ECR 1211 it was held that, in order to be lawful, an obligation had to be necessary in order to attain the objective in question. Similarly, in Commission v United Kingdom (Re UHT Milk) [1983] ECR 203, at para 236, the ECJ commented: It must be ascertained whether the machinery employed in the present case by the UK constitutes a measure which is disproportionate in relation to the objective pursued, on the ground that the same result may be achieved by the means of less restrictive measures. EU law and that of ECHR have become increasingly assimilated, not least because of the possible future accession of the EU to the Convention and the enactment of the European Charter on Human Rights. In this context, see also cases such as Baumbast v Secretary of State for the Home Department [2002] (Case No C-413/99) [2003] ICR 1347. The Court of Justice of the European Union has traditionally given the Convention special significance as a guiding principle in its case law (Anthony Arnull, The European Union and its Court of Justice (2006) pp 339-340) and therefore, while the EU approach to proportionality is not necessarily to be imported wholesale into the Convention analysis, it is clear that the prominence given to this general principle in EU law is likely to be reflected in Strasbourg jurisprudence. Canadian case-law Lord Reed in Bank Mellat (No 2), referred to the circumstance that Canadian law has long embraced the least restrictive measures principle see, in particular, Ford v Quebec [1988] 2 SCR 712 and Black v Royal College of Dental Surgeons [1990] 2 SCR 232 and the classic exposition of the test in R v Oakes above. court stated: In Libman v AG of Quebec (1997) 151 DLR (4th ed) 385, paras 415-416 the The government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be minimal, that is the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the court will not find it over broad because they can conceive of an alternative which may better tailor the objective to infringement. This approach is largely mirrored in the current case-law of this country, particularly Bank Mellat (No 2). There must be a proper inquiry into whether the measure affects the right of the individual no more than is necessary. That does not require the state to show that every conceivable alternative is unfeasible a condition of unique practicability is not demanded. But if it is clear that the measure goes beyond what the stated objective requires, it will be deemed disproportionate. Application of the principles to the present case One must return, therefore, to the question whether a more tailored approach than that of the current PSNI policy in relation to the retention of biometric materials, sufficient to satisfy the aim of detecting crime and assisting in the identification of future offenders, is possible. To that question only one answer can be given, in my opinion. Clearly, a far more nuanced, more sensibly targeted policy can be devised. At a minimum, the removal of some of the less serious offences from its ambit is warranted. But also, a system of review, whereby those affected by the policy could apply, for instance on grounds of exemplary behaviour since conviction, for removal of their data from the database would be entirely feasible. Similarly, gradation of periods of retention to reflect the seriousness of the offence involved would contribute to the goal of ensuring that the interference was no more intrusive than it required to be. In this context, article 5(e) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data should be noted. It provides that personal data undergoing automatic processing shall be preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which it is required. There is no evidence that consideration has been given to the question of whether it is necessary for the effective combatting of crime that the materials concerned in this case should be retained indefinitely. For the intervener, the Secretary of State for the Home Department, Mr Eadie QC accepted that the decision as to how long and for what offences biometric and other data should be retained called for a nuanced decision. He argued that this had been achieved by the exclusion of non-recordable offences and offences committed by children and by the fact that such material from those not convicted was no longer retained. He was unable to point to evidence, however, that the question of whether it was necessary that there be retention of all data from all convicted of recordable offences for all time had been considered. Absent such consideration and in light of the fact that it is eminently possible to conceive of measures which are less intrusive but which would conduce to the avowed aim of the policy, it is simply impossible to say that the policy in its present form is the least intrusive means of achieving its stated aim. A fair balance? The final element in the proportionality examination is whether a fair balance has been struck between the rights of the individual and the interests of the community. Although this may not be of quite the same importance as the rational connection and less intrusive means factors, it deserves consideration in its own right. The starting point must be a clear recognition of the importance of the rights of the individual. This was emphasised by ECtHR in S and Marper at para 103: The protection of personal data is of fundamental importance to a persons enjoyment of his or her right to respect for private and family life, as guaranteed by article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this article. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data was efficiently protected from misuse and abuse. The above considerations are especially valid as regards the protection of special categories of more sensitive data and more particularly of DNA information, which contains the person's genetic make-up of great importance to both the person concerned and his or her family. At para 104 the European court acknowledged that the interests of the data subjects and the community as a whole in protecting personal data could be outweighed by the legitimate interest in the prevention of crime but it emphasised that the intrinsically private character of the information called for careful scrutiny of any state measure authorising its retention and use by state authorities. Addressing the blanket and indiscriminate nature of the power of retention, the court said this at para 119: The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken - and retained - from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time limited; the material is retained indefinitely whatever the nature of seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances. While this was said in relation to those who had not been convicted of crime, much of this passage is clearly relevant to the issue under discussion here. No differentiation is made based on the gravity of the offence of which an individual was convicted; the retention is not time-limited, whatever the offence; and there is no provision for independent review of the justification for the retention of the data. The court also addressed the question of stigmatisation of individuals by the retention of data. At para 122 it said: Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accuseds innocence may be voiced after his acquittal. It Ii true that the retention of the applicants private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed. Of course, it is true that the sense of stigmatisation may be more acutely felt by those who have been acquitted of crime but that does not mean that someone such as the appellant would be free from such sentiment knowing as he does that his biometric data and photograph will forever remain on police databases. Although he has been convicted of a crime, and a serious crime at that, he is entitled to be presumed innocent of future crime notwithstanding that conviction. His sense of stigmatisation and the impact that the retention of his data on police databases must be taken into account, therefore, in an assessment of whether a fair balance has been struck between his rights and the interests of the community as a whole. As Lord Reed observed in para 71 of Bank Mellat this involves what is essentially a value judgment. Making due allowance for what has been claimed will be the contribution made to fighting crime by the indefinite retention of data from those such as the appellant, when weighed against his personal interests, my judgment is that a fair balance has not been struck between the two. I am reinforced in this view by consideration of the provisions and intended effect of the Rehabilitation of Offenders (Northern Ireland) Order 1978. By virtue of article 5 of that Order, a person who has become rehabilitated for the purposes of the Order is to be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence. Retaining the biometric data of someone who has become rehabilitated is plainly inconsistent with the requirement that he or she be treated as if they had never been convicted of the offence. Conviction of the offence is the very basis on which the data are retained. If Mr Gaughran had not been convicted, his data could not be retained. But he is being treated markedly differently from someone who has not been convicted. The Secretary of State has submitted that the sole effect of the Order is to restrict the use that may be made of past convictions in legal proceedings, eg where the subject has suppressed a spent conviction. This cannot be right. The contexts in which a rehabilitated offender is entitled to demand that he or she be treated in precisely the same way as someone who has not been convicted are not prescribed by the Order. If a rehabilitated offender is entitled, for instance, to refuse to disclose that he has not been convicted when applying for employment, why should he not be entitled to demand that his biometric data be destroyed, after the original purpose in obtaining them is no longer relevant, just as someone who has been arrested but not convicted of an offence is entitled to do? It is suggested that the fact that a conviction may become spent is no more than one of a number of factors to be taken into account in deciding whether a proper balance has been struck between the appellants rights and the interests of the community. I consider that it ranks much higher than this. The single basis on which Mr Gaughrans biometric material is retained is that he has committed a crime. If the principle of rehabilitation is to have any meaning, ex-offenders such as he cannot be defined by the fact of their former offending. The philosophy underlying the rehabilitation provisions is the restoration of the ex-offender to his or her position as a citizen without the stigma of having been a criminal. He once more shares with his fellow citizens, entitlement to be treated as if he was of good character. If the fact that his conviction is spent is relegated to the status of a single factor of no especial significance, the purpose of rehabilitation is frustrated. Rehabilitation is our criminal justice systems way of acknowledging and encouraging the potential for personal growth and change. If we continue to define ex-offenders throughout their lives on the basis of their offending we deprive them of reintegration into society on equal terms with their fellow citizens. The only reason proffered to justify the denial of that hope is the assertion that those convicted of offences may reoffend. The premise which must underlie this claim is that those convicted of recordable offences are more likely to reoffend than those who have not been. But no evidence has been presented to support that claim. Unsurprisingly, therefore, no attempt to quantify such a risk has been made. It is difficult to avoid the conclusion that the fact of conviction merely provides the pretext for the assembly and preservation of a database which the police consider might be useful at some time in the future and that it has no direct causal connection to the actual detection of crime and the prevention of future offending. In any event, for the principle of rehabilitation to have proper effect, it is necessary that, once a conviction is spent, any supposed or presumed risk be regarded as having dissipated. Offenders whose convictions are spent must be treated as any other citizen would be treated. Allowing their biometric details to be retained indefinitely is in flat contradiction of that fundamental principle. It is, of course, true that Mr Gaughrans conviction was not spent when the case was decided in the Divisional Court but that is nothing to the point. In the first place, his conviction is now spent and, more importantly, the PSNI policy proceeds on the basis that the Rehabilitation Order provisions can effectively be ignored. I do not believe that they can be and they constitute an unanswerable reason that the policy does not strike a fair balance between the rights of individuals who are entitled to the benefit of the Orders rehabilitation provisions and the interests of the community. It might be said that, when the 2013 Act comes into force, there will be an express statutory power to retain indefinitely all biometric data of those convicted of a recordable offence. If that will indeed be its effect, serious questions will arise, in my opinion, about its compatibility with article 8 of ECHR. But that is not a matter for decision in this case. The possibility of future legislation underpinning the present policy of PSNI should not deflect this court from recognising the current illegitimacy of that policy. Margin of appreciation It is, of course, the case that a margin of appreciation is available to national authorities in deciding where to strike the balance between the rights of the individual under article 8 of ECHR and the interests of the community. The use and advantage of that margin is exemplified by the consideration in S and Marper of the different standards that have been adopted by various member states of the Council of Europe. It is also referred to in the judgment of Lord Clarke and in the annexes to his judgment. For a margin of appreciation to be accorded to the choice of the member state, however, some consideration must have been given by that state to the issues at stake and a considered judgment must have been made on the options available. One cannot excuse a slack or ill-considered policy as survivable just because it can be said to be open to the member state to make a choice which is different from that of other member states. There needs to be some form of evaluation or judgment of the issues at stake. If the choice is the product of consideration and is designed to meet the particular circumstances or conditions encountered in the particular member state, that is one thing. But an ill-thought out policy which does not address the essential issues of proportionality cannot escape condemnation simply because a broad measure of discretion is available to an individual state. A margin of appreciation is accorded to a contracting state because Strasbourg acknowledges that the issue in question can be answered in a variety of Convention-compatible ways, tailored to local circumstances. But the margin of appreciation that is available to the state does not extend to its being permitted to act in a way which is not Convention compliant. If the state acts in such a way, it cannot insulate itself from challenge by recourse to the margin of appreciation principle. In Wingrove v UK (1996) 24 EHRR 1, para 58, a broad margin case, ECtHR emphasised that authorities within the state in question were in a better position than international judges to give an opinion on the exact content of these requirements with regard to the rights of others as well as on the necessity of the restriction. Domestic courts therefore have the responsibility to examine closely the proportionality of the measure without being unduly influenced by the consideration that the Strasbourg court, if conducting the same exercise, might feel constrained to give the contracting states decision a margin of appreciation. For the reasons that I have given, I have concluded that the issues which must be considered under the proportionality exercise have not been properly addressed and that, if they had been, a more restricted policy would have been the inevitable product. The margin of appreciation cannot rescue the PSNI policy from its incompatibility with the appellants article 8 right. Conclusion I would therefore allow the appellants appeal and declare that the policy of retaining indefinitely DNA profiles, fingerprints and photographs of all those convicted of recordable offences in Northern Ireland is incompatible with article 8 of ECHR. I would therefore allow the appellants appeal and declare that the policy of retaining indefinitely DNA profiles, fingerprints and photographs of all those convicted of recordable offences in Northern Ireland is incompatible with article 8 of ECHR.

UK-Abs

The Appellant was arrested for driving with excess alcohol on 14 October 2008 and pleaded guilty to that offence on 5 November 2008. He was fined 50 and disqualified from driving for 12 months. A conviction for driving with excess alcohol is spent after five years. He has been an adult throughout. When the Appellant was arrested, the Police Service of Northern Ireland (PSNI) lawfully obtained from him: (i) fingerprints; (ii) a photograph; and (iii) a non intimate DNA sample by buccal swab. The fingerprints are held on a UK wide database and the photograph is held on a PSNI database to which only authorised PSNI personnel have access. A DNA profile was taken from the DNA sample. A DNA profile is digitised information in the form of a numerical sequence representing a very small part of the persons DNA. It indicates a persons gender and provides a means of identification. The profile is held on a Forensic Science Northern Ireland database. At present, the statutory position in Northern Ireland is that the PSNI may retain fingerprints, photographs, DNA samples and DNA profiles for an indefinite period after they have fulfilled the purpose for which they were taken, but they may only be used for specified policing purposes. The Criminal Justice Act (Northern Ireland) 2013, when it comes into force, will require the PSNI to destroy all DNA samples as soon as a DNA profile has been taken or within six months of the taking of the DNA sample, and will otherwise bring the position broadly into line with the current legislation applicable in England and Wales. The PSNI intends to destroy the Appellants DNA sample when that Act comes into force. This appeal therefore does not concern the retention of the DNA sample. The PSNI changed its practice following the decision in S and Marper v United Kingdom (2009) 48 EHHR 50 (S and Marper). The European Court of Human Rights (ECtHR) held that the UKs policy of indefinite retention of individuals fingerprints, cellular samples and DNA profiles after proceedings against them had led to acquittal or discontinuance was a disproportionate interference with their right to respect for private life under article 8 of the European Convention on Human Rights (ECHR). The PSNI now retains indefinitely biometric data only of those convicted of crimes. The Appellant says that the PSNIs retention of his data breaches article 8 ECHR. The Respondent accepts that there is an interference with the Appellants right to respect for his private life under article 8(1) and the Appellant accepts that the interference is in accordance with law and pursues a legitimate aim under article 8(2). The sole question is therefore whether the interference was proportionate. The Divisional Court held that it was. The Appellant appeals to the Supreme Court. The Supreme Court dismisses the appeal by a majority of 4:1. Lord Clarke, with whom Lord Neuberger, Lady Hale and Lord Sumption agree, gives the leading judgment. Lord Kerr dissents. The majority considers that in S and Marper the ECtHR was concerned only with the position of suspected but non convicted persons, not convicted persons; its criticism of the UKs blanket and indiscriminate data retention policy should be read with this focus in mind [30 32]. He recognises that it does not follow that the practice of Northern Ireland (and the UK) in relation to convicted persons is automatically compliant with article 8 and that the policy as it applies to convicted persons could be described as a blanket policy [33]. However, the policy is in fact proportionate: The ECtHR did recognise in S and Marper the importance of the use of DNA material in the solving of crime and that the interference in question is low [33]. It is also important to note that the present scheme is concerned only with the retention of the DNA profile and applies only to adults, whereas the scheme criticised by the ECtHR in S and Marper provided for the retention of the full sample and did not distinguish between children and adults [35]. Factors such as the threshold of offence, whether retention is permitted once a conviction has been spent and whether retention is permitted indefinitely or is subject to a time limit are potentially relevant but not decisive in the proportionality analysis [34, 36 39]. The potential benefit to the public of retaining the DNA profiles of those who are convicted is considerable and outweighs the interference with the right of the individual [40]. The retention may even benefit the individual by establishing that they did not commit an offence [41]. In S and Marper the ECtHR placed some reliance on the fact that the UK was almost alone among ECHR member states in indefinitely retaining biometric data of non convicted persons. In the case of convicted persons there is a much broader range of approaches, which broadens the margin of appreciation accorded to individual states [42 44]. Adopting a blanket measure is legitimate in some circumstances and it was legitimate here [45]. The retention policy is therefore within the UKs margin of appreciation, and the court has to decide for itself whether the policy is proportionate. Essentially on the basis of the factors already discussed and for the reasons given by the Divisional Court, the majority concludes that it is and dismisses the appeal [46 49]. Lord Kerr would have allowed the appeal. He explains that the critical questions on proportionality in this case are: (i) whether there is a rational connection between the legislative objective and the policy; and (ii) whether the policy goes no further than is necessary to fulfil the objective [61]. As to (i), it is important to recognise that the objective is not the creation of as large a DNA database as possible, but the actual detection of crime and identification of future offenders. There is a striking lack of hard evidence in this case to support the assumption that all persons who commit any recordable offence are potential suspects in any future crime [62 68]. As to (ii), it is clear in Strasbourg, CJEU and domestic case law that the question is whether a less intrusive measure could have been used without unacceptably compromising the attainment of the objective [73 77]. A far more nuanced and more sensibly targeted policy could easily be devised. In those circumstances it is impossible to say that the policy in its present form is the least intrusive means of achieving its stated aim [83 85]. As to whether a fair balance has been struck, the stigmatising application of the indefinite retention policy even to those whose convictions are spent frustrates the purpose of rehabilitation: this is an issue of first importance. It should not be relegated to the status of a single factor of no especial significance [90 96]. A domestic court should not be slow to condemn an ill thought out policy which does not address the essential issues of proportionality simply because a broad measure of discretion is available to an individual state [99 101].

Indirect taxes have always posed particular problems of enforcement, which account for the wide powers of investigation and seizure conferred by statute on the Commissioners charged with their collection. The exercise of these powers has given rise to dispute ever since Johnsons Dictionary offered its famous definition of excise in 1755 (a hateful tax, levied by wretches), and its author was threatened by the Commissioners with a libel action. The powers of the Commissioners of Customs and Excise were originally contained in a large number of enactments dealing with different aspects of an exceedingly complex legal scheme. The first modern consolidation was the Customs and Excise Act 1952 (the 1952 Act). The system is currently administered by Her Majestys Commissioners of Revenue and Customs under the Customs and Excise Management Act 1979 (the 1979 Act), which re enacts much of the 1952 Act, with substantial amendments. Some significant amendments have been made to the Act by the Finance Act 2013, but these were not in force at the relevant times, and we therefore refer throughout this judgment to the Act as it stood before they were made. These two appeals are about the circumstances and the manner in which customs officers are empowered to detain goods on which duty has not been paid, or may not have been paid. The Eastenders appeal In the Eastenders appeal, customs officers entered Eastenders warehouses and inspected consignments of alcoholic goods found there. They were acting under section 118C(2) of the 1979 Act, which authorises customs officers to enter and inspect business premises which they have reasonable cause to believe are being used in connection with the supply, importation or exportation of goods chargeable with excise duty and to inspect any goods found there. Section 118C(2) was repealed by the Finance (No 3) Act 2010 and replaced by other provisions, but we refer to the Act as it stood at the material time. Under section 118B, the officers may also require the production of documents. Eastenders employees were unable to provide documentary evidence, such as purchase invoices, demonstrating that duty had been paid on the goods. Inspection of such documents as were produced indicated that duty might not have been paid. The officers decided to detain the goods pending the outcome of further enquiries into the question whether the appropriate duties had been paid: in particular, enquiries into the supply chains relating to the goods. The goods remained on Eastenders premises pending the outcome of those enquiries but were subject to a direction given under section 139(5) of the 1979 Act, in terms of which the Commissioners can direct the manner in which any thing detained under the customs and excise Acts must be dealt with pending the determination as to its forfeiture or disposal. In subsequent correspondence, the Commissioners stated that the goods had been detained under section 139, subsection (1) of which empowers the Commissioners or their officers to seize or detain any thing liable to forfeiture under the customs and excise Acts. By virtue of section 49, things liable to forfeiture include any dutiable goods imported without payment of duty. Following their enquiries, the Commissioners seized most of the detained goods and returned the remainder. All of the seized goods were subsequently condemned as forfeited, and no issue arises about those. The present appeal relates to the goods which were detained but were subsequently returned, the officers enquiries having proved inconclusive. Eastenders applied, as the owners of the goods in question, for judicial review of the decision to detain them. The judge, Sales J, found that the officers had reasonable grounds to suspect that duty had not been paid on the goods that were detained. It was also found that the detention of the goods had not exceeded a reasonable period of time. Those findings were not challenged on appeal. In these circumstances, Sales J held that the Commissioners had acted lawfully in detaining the goods, on the basis that they had the power to detain goods for a reasonable time, pending enquiries as to whether duty had been paid, where they had reasonable grounds to suspect that the goods might be liable to forfeiture. Sales J considered that that power was conferred by section 139(1) of the 1979 Act. No other possible source of the power had been suggested. The application for judicial review was therefore dismissed: [2010] EWHC 2797 (Admin); [2011] 1 WLR 488. The Court of Appeal by a majority (Elias and Davis LJJ, Mummery LJ dissenting) reversed that decision. They held that section 139(1) applied only where goods were actually liable to forfeiture, and it had not been established that the goods in question were so liable. A declaration was accordingly granted that the goods not liable to forfeiture were unlawfully detained: [2012] EWCA Civ 15; [2012] 1 WLR 2067. There was again no contention that the power to detain goods on suspicion might be derived from any source other than section 139(1). It was subsequently decided that Eastenders could not be awarded costs, by reason of section 144(2) of the 1979 Act, which provides, in substance, that where a court holds that a seizure or detention was unlawful, no award of damages or costs may be made against the Commissioners if the court is satisfied that they acted on reasonable grounds: [2012] EWCA Civ 689; [2012] 1 WLR 2912. The Commissioners appeal to this court against the first decision. Eastenders were refused permission to appeal against the second decision. The point in relation to costs has however been argued in the First Stop appeal, as we shall explain, and whatever we decide about it must necessarily apply in both appeals. The First Stop appeal In the First Stop appeal, customs officers entered a warehouse and retail premises used by First Stop. They were acting under section 112(1) of the 1979 Act, which authorises customs officers to enter the premises of revenue traders as defined in section 1 of the Act (in substance, persons who deal in goods liable to excise duty) and to search for and examine any goods or materials connected with that trade. Under section 112A, inserted by the Finance (No 3) Act 2010, that power includes the power to examine documents. At the retail premises, the officers seized a small quantity of spirits on the ground that the duty paid stamps on them were defective. They also detained a much larger quantity of alcoholic drinks, whose provenance was unclear, while enquiries were made into the question whether duty had been paid. One of the directors of First Stop was informed by an officer that the goods were being detained pending further enquiries into their duty status. Written notices were provided stating that the goods had been detained pending evidence of duty status (CEMA 1979, section 139). Most of the detained goods were subsequently seized. The remainder were returned to First Stop. Condemnation proceedings in respect of the seized goods remained pending at the time of the hearing of these appeals. First Stop were granted permission to apply for judicial review of the detention of those goods which were still detained, pending the outcome of enquiries, about four months after their initial detention. By the time the application was heard, all of those goods had been seized. The application came before Singh J after the decision of the Court of Appeal in Eastenders. The judge gave a total of three judgments on different issues which arose from the application. In the first, he held that the detention of the goods had been unlawful, since the reason given for the detention was the need for investigation, and it followed in his view from the decision of the Court of Appeal in Eastenders that goods could not lawfully be detained under section 139(1) of the 1979 Act for that purpose. That was so even if the goods might subsequently be found to be liable to forfeiture: in his view, goods could not lawfully be detained under section 139(1) for the purpose of ascertaining whether the power to detain them had been conferred by that provision: [2012] EWHC 1106 (Admin). In a second judgment, Singh J held that section 144(2) did not protect the Commissioners against an award of costs, on the basis that the reason given for detaining the goods, being unlawful, could not amount to reasonable grounds within the meaning of that provision: [2012] EWHC 2191 (Admin). In his third judgment, Singh J was concerned with the seizure notices. The question was whether a statement in the notices that no evidence of UK duty payment has been provided was a sufficient statement of the grounds for seizing the goods as liable to forfeiture. The judge held that it was: [2012] EWHC 2975 (Admin). All three judgments were appealed to the Court of Appeal. They allowed the Commissioners appeal against the first two judgments. Beatson LJ, in a judgment with which Lewison and Jackson LJJ agreed, accepted that the judges view that the power to detain under section 139(1) must not only exist, but must be exercised for the purpose intended by Parliament, gained powerful support from general principles of public law, but concluded that it was inconsistent with the judgments of the majority of the court in the first judgment in the Eastenders case. The court also considered that it followed from the first judgment in the Eastenders case that there was no duty to give reasons for the detention of goods under section 139(1). In their view, the effect of the Eastenders decision was that if the goods were in fact liable to forfeiture, detention for a reasonable time was lawful under section 139(1) irrespective of any reason that might have been given. The appeal against Singh Js second judgment, relating to section 144(2), was allowed on the ground that the judges decision was inconsistent with the decision of the Court of Appeal in its second judgment in the Eastenders case: [2013] EWCA Civ 183. First Stop appeal to this court against both decisions. The Court of Appeal upheld Singh Js third judgment, and no appeal on the adequacy of the notice of seizure is before us. It follows that in this case, as in Eastenders, we are directly concerned only with the power of detention. The statutory scheme We have referred to the provisions of the 1979 Act that were central to the judgments below, namely sections 139(1) and 144(2). Before considering the effect of these provisions, it is necessary to say something more about them, and about the broader statutory scheme of which they are part. The 1979 Act confers extensive powers on the Commissioners. These include the express power to examine goods and documents relating to goods, or to require information about them. This power is conferred by many provisions of the 1979 Act, the relevant provision depending on the location of the goods and sometimes their type. In particular, section 112(1) confers on customs officers a power to enter the premises of revenue traders, such as First Stop, and to inspect the premises and search for, examine and take account of any goods or materials belonging to or in any way connected with that trade. By virtue of section 112A, the power conferred by section 112 includes power to inspect any business documents that are on the premises. Section 118C(2) applies where an officer has reasonable cause to believe that any premises are used in connection with the supply, importation or exportation of dutiable goods and that such goods are on the premises. It confers on the officer the power, exercised in the Eastenders case, to enter and inspect the premises and inspect any goods found on them. A number of the powers conferred by the 1979 Act are expressly exercisable when the relevant officer has reasonable grounds for believing or suspecting something. Section 118C(2) is an example. There are many others. Thus under section 84, which is concerned with unlawful signals to smugglers, an officer may board a ship, aircraft or vehicle or enter a place from which he has reasonable grounds for suspecting that a signal is being or is about to be sent; under section 113, officers are empowered to break open premises where they have reasonable grounds to suspect that secret pipes or other conveyances are being used for goods subject to excise duty; under section 138, a person may be detained if there are reasonable grounds to suspect that he has committed [an] offence under the customs and excise Acts; under section 161, an officer may enter and search any place where there are reasonable grounds to suspect that property liable to forfeiture is being kept or concealed; and under sections 163 and 164 there are corresponding powers to stop and search vehicles, vessels or persons suspected of being involved in breaches of the customs and excise legislation. The 1979 Act contains many sections providing for the forfeiture of property, including property whose importation is prohibited, property in respect of which duty has been evaded, or property (such as vehicles or vessels) which have been used for the purpose of infringements of various kinds. For present purposes, the relevant power of forfeiture is conferred by section 49, which can be treated as the paradigm case. It provides, among other things, that goods chargeable upon their importation with customs or excise duty which are imported without payment of that duty shall, subject to specified exceptions, be liable to forfeiture. Section 139 of the 1979 Act contains provisions relating to the detention and seizure of goods. Section 139(1) provides: Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majestys armed forces or coastguard. It can be seen that section 139(1) confers two distinct powers on the Commissioners, a power of seizure and a power of detention. Neither power is expressly said to be exercisable on the basis of reasonable grounds for suspicion or belief. In this respect they differ from some of the other powers to which we have referred. The effect of seizure is apparent from other provisions of the 1979 Act. It is the first stage of a statutory process leading to forfeiture. The process is governed by Schedule 3, to which effect is given by section 139(6). Paragraph 1 of Schedule 3 requires the Commissioners to give notice of the seizure of any thing as liable to forfeiture, and of the grounds for it, except in cases governed by paragraph 2. The exceptional cases are broadly speaking those in which the seizure was carried out in the presence of the relevant interested party. Under paragraph 3, the owner of the goods has one month from the date of the notice (or the date of seizure in a case within paragraph 2) in which to serve a notice claiming that anything seized as liable to forfeiture is not so liable. If no notice is served within that period, then the seized goods are deemed to have been duly condemned as forfeited (paragraph 5). If, on the other hand, a notice is served, the Commissioners must take proceedings for condemnation in the High Court or a magistrates court, and if the court finds that the thing was at the time of seizure liable to forfeiture the court shall condemn it as forfeited (paragraph 6). If the court holds that the goods were not liable to forfeiture, paragraph 17 provides for the Commissioners to tender to the owner a sum representing their value. The owner may then accept the tender, in which case he shall not be entitled to maintain any action on account of the seizure, detention, sale or destruction of the thing. Or he may reject it, in which case the assumption is that such a right of action will remain available. There are no corresponding provisions relating to the power to detain goods. Indeed, until the Act was amended in 2013, it contained no provisions at all dealing with the procedure for detaining property or its consequences. There can, however, be little doubt about what detention involved, even before the amendment. Detention is a temporary assertion of control over the goods, which does not necessarily involve any seizure with a view to ultimate forfeiture. What is the purpose of detaining goods without seizing them? The obvious answer is to enable the goods to be examined, or secured pending investigations which might lead to their seizure later. This was the view of the Court of Common Pleas in Jacobsohn v Blake and Compton (1844) 6 Man. & G 919; 13 LJ CP 89, a case to which we shall return, and of the majority of the Court of Appeal in Gora v Customs and Excise Commissioners [2003] EWCA Civ 525; [2004] QB 93. In his judgment in the Eastenders case, at para 30, Sales J said this: It does not require much imagination to see that there may be many cases in which there is uncertainty when HMRC officers inspect goods whether duty has been paid on them or not, and to see that in such cases the effective and fair implementation of the relevant tax and its associated enforcement regime will require that goods are held for a period while investigations are carried out in an effort to remove that uncertainty. In general (and without seeking to level criticism against the claimants in the present cases), Parliament cannot have intended that an owner of goods should be able, just by obfuscating and creating uncertainty at the point of inspection in relation to his supply chain and whether duty has or has not been paid, to avoid the full rigour of the machinery for the enforcement of payment of taxes, including by forfeiture of goods on which duty has not been paid. We agree. We have already pointed out that neither the power of seizure nor the power of detention conferred by section 139(1) is expressly said to be exercisable on the basis of reasonable grounds for suspicion or belief. However, the reasonableness of the exercise of those powers does come into it by virtue of section 144, which provides: 144.(1) Where, in any proceedings for the condemnation of any thing seized as liable to forfeiture under the customs and excise Acts, judgment is given for the claimant, the court may, if it sees fit, certify that there were reasonable grounds for the seizure. (2) Where any proceedings, whether civil or criminal, are brought against the Commissioners, a law officer of the Crown or any person authorised by or under the Customs and Excise Acts 1979 to seize or detain any thing liable to forfeiture under the customs and excise Acts on account of the seizure or detention of any thing, and judgment is given for the plaintiff or prosecutor, then if either (a) a certificate relating to the seizure has been granted under subsection(1) above; or (b) the court is satisfied that there were reasonable grounds for seizing or detaining that thing under the customs and excise Acts, the plaintiff or prosecutor shall not be entitled to recover any damages or costs and the defendant shall not be liable to any punishment. Where an officer detains property under section 139(1) because he reasonably considers that it is liable to forfeiture, section 144(2) assumes that that he may be liable if he turns out to be wrong about that, but protects him against an order for financial relief. Liable to forfeiture The first question on these appeals concerns the condition for the exercise of the power of seizure or detention under section 139(1), that the property should be liable to forfeiture. Does this mean that it must actually be liable to forfeiture? Or is it enough that the relevant officer believed or suspected that it was liable to forfeiture? Or that he wished to investigate whether it was or not? We consider that the answer to this is straightforward. The right to seize or detain property under section 139(1) is dependent on that property actually being liable to forfeiture under one of the various forfeiture provisions of the Act. This turns on the objectively ascertained facts, and not on the beliefs or suspicions of the Commissioners or their officers, however reasonable. Our reasons are as follows: (1) Throughout the 1979 Act, the draftsman has said in terms when statutory powers may be exercised on the basis of suspicion or belief rather than objective fact. A particularly striking example is section 138, which is the power corresponding to section 139 relating to the detention of persons who are liable to be detained under the Customs and Excise Acts. The power of detention is exercisable if there are reasonable grounds to suspect that the person has committed an offence. The omission of any such language from section 139 must have been deliberate. (2) The expression liable to forfeiture is used in no less than thirty sections of the 1979 Act. It would be wearisome to go through them all to make exactly the same point, which is that they are almost all sections providing that property is liable to forfeiture in defined circumstances, or in some cases providing that it is not to be liable to forfeiture in defined circumstances when it otherwise would be. In these sections, the words can only refer to actual liability to forfeiture. In all of the other sections in which the expression is used, with the possible exception of sections 139(1) and 144(2), it is equally clear that the reference is to an actual liability to forfeiture. (3) In section 139(1) it is a precondition for both seizure and detention that the goods should be liable to forfeiture. There is no difference in the way that the precondition applies to the two measures. In relation to seizure, the expression must mean actually liable to forfeiture, since seizure puts in train the procedural provisions of Schedule 3, which is wholly concerned with the condemnation of property as forfeit. On the face of it, therefore, the expression must mean the same when applied to detention. The same point can be made about the use of the expression in relation to both seizure and detention in section 144(2). (4) More generally, if liable to forfeiture does not mean actually liable to forfeiture, it is difficult to discern what it can sensibly be thought to mean. The Commissioners submission is that it refers to goods of a kind legally capable of being forfeited. This would mean that all dutiable goods were liable to forfeiture. While that is a linguistically possible meaning of the words, it is hardly the natural one. Its adoption would have the effect of conferring on customs officers a power to detain any goods which were in law dutiable, subject to no restrictions whatever other than those arising from the general principles of public law. So far as the 1979 Act is concerned, it would not even be necessary for the Commissioners to show that there were reasonable grounds for suspicion or belief. (5) Section 144(2), as we have pointed out, assumes that where property has been detained which turns out not to be actually liable to forfeiture, the Commissioners or their officers may be held liable in an action in tort. It confers an immunity in that event from an award of damages and costs if they acted reasonably. If the Commissioners or their officers were entitled to detain goods under section 139(1) on reasonable suspicion, the situation envisaged in this provision could not arise. The action would fail on liability and no immunity from damages and costs would be required. Some difficulties This interpretation of section 139(1), although in our opinion correct, would nevertheless have troubling implications if the Commissioners and their officers had no other power to detain goods. The resultant difficulties include the following: (1) As we have explained, and as Sales J recognised in the passage which we have cited, it is obviously essential to the effective implementation of the laws governing customs and excise that customs officers should be able to detain goods so as to enable them to be examined and secured pending investigations which might lead to their subsequent seizure. Sales J at first instance and Mummery LJ in the Court of Appeal inferred from that practical necessity (i) that Parliament must have intended that customs officers should have the power to detain goods where they reasonably suspect that the goods may be liable to forfeiture and require to make further inquiries, and (ii) that Parliament must therefore have intended section 139(1) to be construed as conferring such a power. The second proposition must be rejected; but the argument in support of the first proposition remains a powerful one. (2) On the hypothesis that the only power of detention is that conferred by section 139(1), and if that provision is interpreted as we consider it must be, it follows that the detention of goods is unlawful whenever the goods are not in fact liable to forfeiture. If that is so, then the detention of goods on the basis of suspicion is unlawful in all cases where the suspicion turns out to be unfounded. In the nature of things, that will be the position in a proportion of cases, even where reasonable grounds for suspicion exist. The customs officers may then be liable in damages for their interference with rights of property unless they can bring themselves within the scope of section 144(2). Even where section 144(2) applies, it only protects the officers against financial relief. (3) A further difficulty with an approach based upon an acceptance that customs officers will behave unlawfully, but will be protected from liability by section 144(2), concerns its compatibility with EU law and the Human Rights Act 1998. Under EU law, the detention of goods by customs officers may require to be justifiable as an interference with the free movement of goods: something which would scarcely be possible if the interference was unauthorised by law, or if that law failed to comply with the EU principle of legal certainty. (4) In relation to the Human Rights Act, the detention of goods by customs officers is an interference with the peaceful enjoyment of possessions within the meaning of article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms: see for example Islamic Republic of Iran Shipping Lines v Turkey (2007) 47 EHRR 573. As such, it must be in accordance with law, and must therefore be authorised by domestic law. Furthermore, the domestic law must meet the requirement of legal certainty. If customs officers are not authorised to detain goods which are not actually liable to forfeiture, or to detain goods for the purpose of investigation into whether they are liable to forfeiture, it follows that their doing so is unlawful by virtue of the Human Rights Act as well as under the common law. (5) The proposition that the only power of detention possessed by customs officers is that conferred by section 139(1) also raises a further difficulty. As we shall explain, there was no statutory provision in respect of detention, corresponding to section 139(1), until 1952. Can it possibly have been the position, prior to 1952, that the Commissioners and their officers had no power to secure goods, where there were reasonable grounds to suspect that they were liable to forfeiture and investigations had to be carried out, other than by pre empting the outcome of such investigations by seizing the goods and setting condemnation proceedings in train, at the risk of behaving unlawfully and incurring a liability in damages? As we have explained, the contrary was the view of the Court of Common Pleas in Jacobsohn v Blake and Compton. In view of these difficulties, it appears to us to be necessary to consider the legislative background, and some relevant authorities, in greater detail. The background to the 1979 Act Statutory regimes providing for the appointment of customs officers and vesting them with powers have existed for centuries. A thoroughgoing reform of the statute book was carried out in 1825, when almost all the statutes regulating the administration of customs and excise which were then in force, going back to the reign of Richard II, were repealed by the Act 6 Geo IV c 105, and new provisions were enacted in their place by several Acts, including the Acts 6 Geo IV c 107 and c 108. A further consolidation took place in 1833, when the 1825 legislation was repealed and replaced by a number of Acts, including the Acts 3 and 4 Will IV c 52 (An Act for the General Regulation of the Customs) and c 53 (An Act for the Prevention of Smuggling). This legislation, like that of 1825, made provision for the detention of persons: see the Act 3 and 4 Will IV c 53, sections 48 53. It also made provision for the seizure of goods which were liable to forfeiture: see the Act 3 and 4 Will IV c 53, section 32, which is a predecessor of section 139(1) of the 1979 Act. Provision was also made in respect of proceedings brought by the owners of goods which had been seized. In particular, the defendant was protected from liability in damages or costs if there had been probable cause for the seizure: see the Act 3 and 4 Will IV c 53, section 102, which is a predecessor of section 144(2) of the 1979 Act. The only statutory reference to the detention of goods at that time was made in a different context. The Act 3 and 4 Will IV c 52 required importers of goods to deliver a bill of entry of the goods, containing specified information about them. Goods which were not properly described in the bill were forfeited: section 20. Where the duty payable depended on the value of the goods, that also had to be stated. Section 22 provided that if upon examination it shall appear to the officers of the customs that such goods are not valued according to the true value thereof, it shall be lawful for such officers to detain and secure such goods, and to take such goods for the use of the Crown, the importer being paid compensation based upon his own valuation. Section 133 distinguished between goods being seized as forfeited, or detained as under valued. Then as now, the legislation conferred extensive powers upon customs officers, including a plethora of powers of entry, search and examination. The 1833 legislation was in force at the time of the case of Jacobsohn v Blake and Compton (1844) 6 Man & G 919; 13 LJ CP 89, which is one of the few reported decisions in this area of the law, and the only one which contains a detailed consideration of the relevant principles. The case was brought by the owner of a consignment of cutlery against two customs officers. The officers had examined the goods when they were landed in order to determine the duty payable (the precise statutory power under which they did so is not stated in the report: there are a number of possibilities), and had then decided to detain them, because of a suspicion that they contravened a statutory prohibition on the importation of cutlery of foreign manufacture bearing the names of British manufacturers resident in the United Kingdom, and were therefore liable to forfeiture. The officers refused to release the goods until the matter had been considered by the Commissioners. After a period of about five months, the Commissioners agreed to release the goods on payment of the duty, and the goods were duly released. An action for damages was then brought, on the basis that the detention had been unlawful. There was no express statutory basis for the detention of the goods, since they were not detained as under valued. The jury was directed to return a verdict for the defendants, and that direction was upheld by the Court of Common Pleas. Tindal CJ is reported at pp 925 926 of Manning and Grangers report as stating: [T]he defendants merely took possession of the goods, in the execution of their duty as custom house officers, for the purpose of examination. When the goods were examined certain marks were found upon them, which induced the defendants to think they were prohibited; and they said they must detain them; and then, on a subsequent application on the part of the plaintiff for the delivery of the goods, the answer was that they were detained and would be prosecuted as seizures. It appears, therefore, that the defendants originally detained the goods under a real and honest doubt that they were subject to forfeiture: whether that doubt was well grounded, is not now the question. There has been no abuse of authority on their part. The goods remained, during the whole time of the examination, in the same custody in which they were, in the first instance, legally detained. The latter part of that passage is reported slightly differently in the Law Journal report at p 90: There has been no abuse of the process which the defendants had to execute, and things remain in the same position during the whole time the goods were under examination. The implication, in both reports of the judgment, is that the process of examination was not completed until the necessary enquiries had been carried out. His Lordship left open the question whether an action might have been brought if the goods had been detained for an unreasonable time. The other judgments similarly emphasized that the officers had been acting within their authority. Coltman J stated at p 926: The defendants were custom house officers acting under an authority given them by law. It was their duty to examine the goods in question, in order to ascertain to what duty they were liable, or whether or not they were subject to forfeiture. If the goods had been afterwards detained by them for a time more than reasonable for the examination, that might have been an abuse of their authority so as to render them liable in another form of action. But it appears to me there is no ground for saying they did more than detain the goods for a reasonable time, in order that the question as to the liability of the goods to forfeiture might be submitted to the proper authorities. (In relation to the second sentence in that passage, Coltman J is reported in the Law Journal report as saying that the officers were acting under an authority given them by law to examine the goods to see whether they were liable to duty, and that I think they had also a right to examine them, to see whether they were liable to forfeiture or not). Cresswell Js judgment at pp 927 928 was to the same effect: The goods were taken by the plaintiff's agent to the proper place for the examination of them by the defendants in the regular discharge of their duty as custom house officers. Upon their examination, all that the defendants did was, to detain them, till it could be ascertained whether or not they were liable to forfeiture. Here, there was no act of trespass, either actually, or impliedly from any subsequent abuse of authority. In the present appeals, it was argued on behalf of Eastenders and First Stop that the ratio of the Jacobsohn case was confined to the situation where imported goods had been taken to a customs warehouse: the officers were entitled to decline to allow the goods to leave the warehouse until the appropriate duty had been paid. So understood, it was argued, the case had no application to cases such as the present appeals, where goods which were inside the country might be liable to forfeiture. The argument that the plaintiff could not insist upon the delivery of imported goods from a customs warehouse, so long as the duty remained unpaid, was indeed one of the arguments advanced on behalf of the officers at the trial of the case, but it does not appear to have been argued on appeal, and only the judgment of Erskine J at p 927 adverts to the point: The goods were landed and taken possession of by the defendants in the discharge of their duty, for the purpose of their being examined. Upon their being partially examined there appeared to be sufficient ground for the defendants to doubt whether they were authorised to receive the duty upon them. All that the defendants did was merely to decline to receive the duty upon them. The subsequent declaration made by them was not a declaration that what they had done amounted to a seizure, but merely a statement that, the matter being under the consideration of the commissioners, the goods could not be given up to the plaintiff. Erskine Js reference to the goods being partially examined, prior to the making of enquiries of the Commissioners, is consistent with the approach adopted in the other judgments. In any event, in the light of the other judgments, the ratio of the decision cannot be said to have been based on the non payment of duty on imported goods. In a related submission, it was argued on behalf of Eastenders and First Stop that the decision in Jacobsohn was based on a technical aspect of the law of trespass: since the officers had lawful possession of the goods initially for the purpose of examination, their subsequent detention of the goods did not involve any transfer of possession, and therefore could not amount to trespass. This argument also was advanced on behalf of the officers at the trial of the case, but it was not accepted. The court recognised that possession which was initially lawful might be rendered unlawful by an abuse of the authority under which possession had been taken, following the Six Carpenters Case (1610) 8 Co Rep 146. Hence the emphasis laid in the judgments upon the absence of any abuse of authority: as Cresswell J said, there was no trespass, either actually, or impliedly from any subsequent abuse of authority. As is clear from the passages in the judgments which we have cited, the majority of the court accepted that the detention of the goods was lawful because there had been no abuse of authority on the part of the officers; and there had been no such abuse because their authority to examine the goods in order to determine the duty payable, or (by implication) whether the goods were liable to forfeiture, carried with it, by necessary implication, an authority to detain the goods for such time as was reasonably necessary in order to make that determination. Where the determination required the making of enquiries, going beyond an inspection of the goods themselves, it was lawful to detain the goods for such time as was reasonably necessary to make those enquiries. The practical importance, and good sense, of the approach adopted in the Jacobsohn case to the scope of an examination of goods can be illustrated both by the facts of that case and by the facts of the present appeals. In that case, as we have explained, the statutory prohibition was on the importation of cutlery of foreign manufacture bearing the names or marks of British manufacturers resident in the United Kingdom. Some of the cutlery in question was impressed with the words Watson, Barbican, Norton Folgate, and some with the words Daniel Lutter, extra patent silver steel. A visual examination alone could not enable the officers to know where the cutlery had been manufactured, or whether Watson and Lutter were British manufacturers resident in the United Kingdom. In the present appeals, as counsel for Eastenders submitted, the question whether beer or wine is liable to forfeiture as not duty paid will not be resolved by gazing at the goods, for whatever length of time. It will only be resolved by examining the paper trail back to the point of duty payment. As we have explained, the power of detention which was held to exist in Jacobsohn was not expressly conferred by the customs and excise legislation, but arose by necessary implication from the officers statutory power to examine goods for the purpose of determining the duty payable or whether they were liable to forfeiture. It was not conditional upon the goods being liable to forfeiture: as Tindal CJ observed, whether the officers suspicions were well grounded was not the question. It was sufficient, in order for the power of detention to be lawfully exercised, that the officers should have, in the words of Tindal CJ, a real and honest doubt that the goods were liable to forfeiture. The protection from liability in damages or costs which was conferred on customs officers where goods had been mistakenly seized as liable to forfeiture had nothing to do with such detention, and did not feature in the case: since the detention of the cutlery was impliedly authorised by statute, it could not constitute a tort. The approach adopted in the case of Jacobsohn is consistent with the approach to a statutory power of examination which was taken more recently in the case of R v Secretary of State for the Home Department, Ex p Labiche [1991] Imm AR 263, a decision of the Court of Appeal concerned with immigration. The immigration legislation gave immigration officers the power to examine any person entering the United Kingdom, and required that a person examined by an immigration officer should be given notice, granting or refusing leave to enter the United Kingdom, not later than 12 hours after the conclusion of his examination. The appellant had been given a notice refusing leave more than 12 hours after being interviewed by an immigration officer, and argued that the notice was out of time. The Court of Appeal disagreed. Fox LJ, with whom Butler Sloss LJ and Sir Roualeyn Cumming Bruce agreed, said at p 268 that the examination cannot terminate until (a) necessary inquiries by the immigration officer or the Secretary of State have been completed and (b) the immigration officer has received the directions of the Secretary of State. The approach adopted to the concept of examination in this context was the same, mutatis mutandis, as that adopted in Jacobsohn. It is also relevant to note the earlier customs case of Irving v Wilson (1791) 4 Durn & E 485. That action was brought in the Court of Kings Bench for the recovery of money had and received by customs officers. The officers had stopped a cart containing goods which required a permit, without which they were liable to forfeiture. The carrier did not have a permit, but told the officers that the goods formed part of a larger consignment, and that a permit for the entire consignment was with the remainder of the consignment, some miles behind. The officers waited some time, but the remainder of the consignment did not appear. The officers then seized the goods. When the remainder of the consignment eventually arrived, and the permit was produced, those goods also were seized. The officers then refused to restore the goods until a payment had been made by the owner. He succeeded in his action for the recovery of the payment. The significance of the case in the present context arises not from that decision, but from some of the observations made. Ashurst J noted at p 486 that the goods were not liable to seizure, but also stated at pp 486 487 that the defendants acted right in stopping the goods at first; but when the permit came up, there was no pretence to detain them. The implication appears to be that it was lawful to detain the goods while there were reasonable grounds for suspecting that they might be liable to forfeiture. Lord Kenyon CJ similarly distinguished at p 486 between the initial detention and the subsequent seizure, stating that whatever ground of probability there was for stopping the first cart, yet after the matter was cleared up, there was no pretence for making a seizure. Returning to the history of the legislation, following the 1833 consolidation a further consolidation took place in 1845, when generally similar provision was made by the Act 8 and 9 Vict c 86 and the Act 8 and 9 Vict c 87. The next consolidation, in the Customs Consolidation Act 1853, amalgamated in a single Act the provisions formerly contained in separate statutes dealing with the regulation of customs and the prevention of smuggling. It also amalgamated, in section 223, the previously separate provisions in respect of the seizure of goods liable to forfeiture, on the one hand, and the detention of suspected offenders, on the other hand. The consequence was that a reference to detention appeared for the first time in a provision dealing with the seizure of goods. Generally similar provisions were contained in the next consolidation statute, namely the Customs Consolidation Act 1876. Section 202 again dealt in a single provision with the seizure of goods liable to forfeiture and the detention of persons. The provisions dealing with legal proceedings were drafted, as previously, on the basis that claims would be brought by the owners of goods which had been seized as liable to forfeiture; and section 267, protecting officers from liability, applied only where the goods had been seized. The final consolidation prior to the 1979 Act was effected by the Customs and Excise Act 1952. Like the earlier legislation, the 1952 Act conferred on customs officers extensive powers of investigation. The Act reverted to the separate treatment of the detention of persons, in section 274, and the seizure of goods, in section 275. Section 275(1) however retained the reference to detention which had appeared in section 223 of the 1853 Act and section 202 of the 1876 Act, and provided in subsection (1) that any thing liable to forfeiture under the customs or excise Acts may be seized or detained by any officer or constable or any member of Her Majestys armed forces or coastguard. That provision is almost identical to section 139(1) of the 1979 Act. The 1952 Act also extended the scope of the protection from liability given to customs officers, by providing in section 280(2) that there should be no civil or criminal liability on account of the seizure or detention of any thing liable to forfeiture if the court were satisfied that there were reasonable grounds for seizing or detaining that thing. That provision is almost identical to section 144(2) of the 1979 Act. The effect of section 275(1) of the 1952 Act was to create an express statutory power to detain goods which were liable to forfeiture. Such a power is clearly distinct from the power to detain as part of the process of examination, and has a different purpose and different legal consequences. It was and is available only where goods are liable to forfeiture, whereas the power of detention discussed in the case of Jacobsohn is available where there are reasonable grounds for suspecting that goods are so liable. The power of detention conferred by section 275(1) of the 1952 Act, and now contained in section 139(1) of the 1979 Act, is an alternative to the seizure of the goods in question, but differs from seizure in that it is temporary in nature and does not trigger the commencement of proceedings for the condemnation of the goods. As Elias LJ suggested in the Eastenders case, there could be circumstances in which goods were considered to be liable to forfeiture but in which the Commissioners might not wish to embark at once upon a procedure leading to the condemnation of the goods, for example where the breach of the law was capable of correction. Detention under section 139(1), unlike detention for the purpose of investigation, would require, and would attract, the protection afforded by section 144(2). The important question for present purposes is whether, when Parliament created the power to detain goods liable to forfeiture, it by implication abolished the power of detention which had previously been held to arise by necessary implication from statutory powers of examination. In our view no such implication follows, for several reasons. (1) Temporally, the powers are distinct: the process of examination precedes the reaching of a conclusion whether goods are liable to forfeiture. In terms of purpose, the powers are equally distinct. The purpose for which the power to detain, as an incident of examination, may be exercised is to enable the officers to retain control over the goods temporarily until they have arrived at a conclusion as to the duty payable or as to whether the goods are liable to forfeiture. The purpose for which goods may be detained after such a conclusion has been reached is plainly different, and would appear to be as Elias LJ suggested. There is therefore no necessary implication that the enactment of a power to detain goods liable to forfeiture entailed the abrogation of the existing power to detain as part of the process of examination. (2) It is difficult to conceive why Parliament should have conferred upon the Commissioners and their officers a wider range of intrusive investigatory powers than any other public body, but should at the same time have chosen to deprive them of a means of preventing goods from being disposed of until they have completed their examination and decided whether the goods should be seized. Why depart from an approach long approved by the courts? Why, moreover, should Parliament have conferred on the Commissioners more extensive powers to detain persons (in section 138 of the 1979 Act) than to detain goods? (3) The 1952 Act was a consolidation Act with amendments. There is nothing in the report of the Committee reporting on the Bill (Report of the Committee on the Draft Customs and Excise Bill (1951), Cmd 8453), or in the notes on clauses prepared by Parliamentary counsel, included as an appendix to the report, to indicate that Parliament intended the 1952 Act to have the effect of restricting the existing powers of detention possessed by customs officers. We turn now to consider the present appeals in the light of these general observations. The Eastenders case In the Eastenders case, there is no dispute that the officers were entitled to inspect the goods in question in accordance with section 118C(2) of the 1979 Act, and to require the production of documents under section 118B. It is also not in dispute that, as Sales J found, the officers had reasonable grounds to suspect that duty had not been paid on the goods. The officers were unable to fulfil the object of the inspection, by determining whether the appropriate duties had been paid, without making further enquiries into the provenance of the goods. They detained the goods while those enquiries were made. It is not in dispute that the period during which the goods were detained did not exceed a reasonable period of time. In the present appeal, counsel for the Commissioners submitted that section 118C(2) of the 1979 Act authorised the detention of the goods until the statutory inspection had been completed, and further submitted, in the light of the Jacobsohn case, that there was, and had always been, a power to detain goods pending determination of whether or not they were liable to forfeiture. It was however their primary contention that the inspection of the goods came to an end when the goods had been visually examined, and that their subsequent detention must therefore be justified under section 139(1). For the reasons we have explained at paras 35 37, we consider that that approach is based upon an unduly narrow understanding of what may be involved in an inspection in such circumstances. As we have explained at para 23, we consider that the majority of the Court of Appeal were correct in their construction of section 139(1). They were therefore correct to hold that, since the goods were not in fact liable to forfeiture, their detention did not fall within the scope of section 139(1). It does not however follow that the officers had no power to detain the goods for the purpose of investigating their duty status. Since the officers were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that duty had not been paid, they were in our view entitled by virtue of section 118C(2) to detain the goods for a reasonable period in order to complete the enquiries necessary to make their determination. The First Stop Case In the First Stop case, there is no dispute that the officers were entitled to examine the goods in question in accordance with section 112 of the 1979 Act, and to require the production of documents under section 112A. The officers were unable to fulfil the object of the examination, by determining whether the appropriate duties had been paid, without making further enquiries into the provenance of the goods. They detained the goods while those enquiries were made. They appear to have had reasonable grounds for suspicion that duty had not been paid, and the contrary has not been argued. It has not been argued that the period during which the goods were detained exceeded a reasonable period of time. As in the Eastenders appeal, it was submitted on behalf of the Commissioners that the power of examination conferred by section 112 permitted the Commissioners to detain the goods for the purpose of their examination, and that there was a power to detain the goods pending determination of whether or not they were liable to forfeiture. These were again, however, conceived to be distinct powers, on the assumption that the examination of the goods came to an end when they had been visually inspected. It was therefore the Commissioners primary contention that the power to detain the goods after that point must have some other source, section 139(1) being the only candidate. As in the Eastenders appeal, we consider however that the examination was not completed until the necessary enquiries had been made, and that the power of examination impliedly included an ancillary power of detention for a reasonable time while those enquiries were made. Counsel for First Stop submitted that this approach to the case was not open to the Commissioners, since they had expressly referred to section 139(1) as the legal basis of the detention of the goods: see para 8 above. We are unable to accept that submission. The lawfulness of the detention of the goods depends upon whether the Commissioners possessed the power to detain them, not on whether they accurately identified the statutory source of that power. The reasons given to First Stop for the detention of the goods (pending further enquiries into their duty status), although certainly not expansive, were sufficient to enable them to exercise their rights, as indeed they did. As we have explained, section 144(2) of the 1979 Act confers a protection against liability in damages or costs. It applies where any proceedings are brought against the Commissioners, a law officer of the Crown or any person authorised by or under the [1979 Act] to seize or detain any thing liable to forfeiture under the customs and excise Acts on account of the seizure or detention of any thing, and judgment is given for the plaintiff or prosecutor. In the circumstances of the Eastenders and First Stop cases, judgment should not have been given for the claimants: on a proper understanding, the detention of their goods had been lawful, and their applications for judicial review should therefore have been dismissed. Section 144(2) was therefore not applicable. The court should have exercised its ordinary discretion in relation to the costs of the proceedings. It is unnecessary to decide whether, in any event, section 144(2) applies where goods are detained otherwise than under section 139(1). It follows that the points that were raised by First Stop (and which Eastenders also sought to raise) in relation to the compatibility of section 144(2) with Convention rights do not arise. It also follows, however, that the decisions on costs in both cases were made on a mistaken basis. No court has been addressed on the issue of costs in these cases on the basis that the court possessed its ordinary discretion. In the circumstances, it is appropriate that the decisions on costs should be set aside and the matter re considered by this court on the proper basis. Disposition For these reasons, we would allow the Commissioners appeal in the Eastenders case, and dismiss the first of the appeals brought by First Stop. The appeal in relation to costs should be allowed. The decision of the Court of Appeal in relation to costs in the Eastenders case should also be set aside. The parties should be invited to make submissions on the issue of costs in this court and the courts below.

UK-Abs

These appeals concern the question whether customs officers have the power to detain goods which they reasonably suspect may be liable to forfeiture. In Eastenders, customs officers entered Eastenders premises and inspected consignments of alcoholic goods. Eastenders' employees were unable to provide documentary evidence that duty had been paid on the goods. The officers decided to detain the goods pending the outcome of further enquiries. The Commissioners subsequently stated that the goods had been detained under section 139 of the Customs and Excise Management Act 1979, which empowers customs officers to seize or detain "anything liable to forfeiture under the customs and excise Acts." [3 4] Eastenders applied for judicial review of the decision to detain those goods that were subsequently returned when the officers' enquiries proved inconclusive. Mr Justice Sales dismissed the application, holding that, where the Commissioners had reasonable grounds to suspect that goods might be liable to forfeiture, they had the power under section 139(1) to detain them for a reasonable time while they made enquiries. The Court of Appeal reversed that decision, holding that section 139(1) applied only where goods were actually liable to forfeiture. [5 7]. The Commissioners appeal to the Supreme Court. In First Stop, customs officers detained alcoholic goods at First Stop's premises, on suspicion that duty had not been paid, while enquiries were made. Written notices were provided stating that the goods had been detained "pending evidence of duty status (CEMA 1979, section 139)". Most of them were subsequently seized and the remainder returned to First Stop [8]. First Stop successfully applied for judicial review of the decision to detain the goods. Mr Justice Singh held that the detention was unlawful as the reason given for it was the need for investigation. The Court of Appeals judgment in Eastenders meant that goods could not lawfully be detained under section 139(1) for that purpose. However, the Court of Appeal disagreed with his interpretation, and decided that the effect of Eastenders was that if goods were in fact "liable to forfeiture", detention for a reasonable time was lawful under section 139(1) irrespective of the reason given for it [9 12]. Mr Justice Singh also held that the Commissioners were not protected from an order for costs by section 144(2) of the 1979 Act (which applies where officers had reasonable grounds for detaining goods) as the reason they gave for detaining the goods was unlawful. The Court of Appeal held that this was inconsistent with Eastenders. First Stop appeal against both decisions [12]. In a judgment delivered by Lord Sumption and Lord Reed, the court unanimously allows the Commissioners' appeal in Eastenders, dismisses First Stop's first appeal and allows its second appeal. The right to seize or detain property under section 139(1) is dependent on the property actually being liable to forfeiture. This turns on objectively ascertained facts; not on beliefs or suspicions, however reasonable. This is apparent when one looks at section 139(1) in the context of other provisions in the Act. For example, other powers are expressly stated to be exercisable on the basis of suspicion or belief [23], whereas the section 139(1) power is not. However, this interpretation would have troubling implications were there no other power to detain goods. It is essential in practice that customs officers should be able to secure goods where, following an examination, it is necessary to carry out further enquiries investigations that might lead to their seizure. If there were no other power of detention, then detention on the basis of suspicion would be unlawful in all cases where the suspicion turned out to be unfounded, and this would be problematic in terms of compliance with EU law and Convention standards on legal certainty [24]. In neither case however had it been argued that the power to detain could have a source other than section 139(1). But customs officers have long had a statutory power to examine goods in order to determine the duty payable or whether the goods are liable to forfeiture. Prior to the enactment in the Customs and Excise Act 1952 of the power to detain goods liable to forfeiture, the courts interpreted customs officers' statutory powers of examination as including, by necessary implication, an authority to detain goods on reasonable suspicion for such time as was reasonably necessary in order to make enquiries allowing officers to make their determination [26 35]. When enacting the 1952 Act, Parliament did not impliedly abolish that power of detention, which is not conditional upon the goods being liable to forfeiture [37; 52]. In Eastenders, the officers were entitled to detain the goods for a reasonable period in order to complete their enquiries; they were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that they had not been [49]. In First Stop, the officers' examination was not completed until the necessary enquiries had been made, and the power of examination impliedly included an ancillary power of detention for a reasonable time while these enquiries were undertaken [50 51]. Detention in both cases was therefore lawful. The section 144(2) costs protection did not apply as both judicial review applications ought to have been dismissed. The parties are invited to make submissions on costs on the basis that the court possessed its ordinary costs discretion [52 55].

The United Kingdom has had a uniquely difficult relationship with Iran for at least a century and a half. British control of the countrys natural resources in the late nineteenth century and the first half of the twentieth, a succession of British orchestrated coups, and two extended British military occupations have combined to leave an enduring imprint on political sentiment. The passage of time heals many things, but in an ancient and distinctive national culture like Irans, injured pride can subsist for generations. In recent years, the participation of the United Kingdom in international sanctions against Iran and a number of violent incidents have revived old suspicions at a time when negotiations with Iran about middle eastern issues, nuclear non proliferation and human rights have assumed considerable importance for British interests and global security. This is the background against which the Home Secretary, on the advice of the Foreign Office, decided that it was not conducive to the public good to allow Mrs Maryam Rajavi to enter the United Kingdom. Mrs Rajavi is described in the agreed Statement of Facts as a dissident Iranian politician, resident in Paris. Between 1985 and 1993, she was the co chair and then the Secretary General of Majahedin e Khalq (MeK), otherwise known as the Peoples Mojahedin Organisation of Iran. MeK is a political organisation founded in 1963 by opponents of Shah Mohammed Reza Pahlavi, which participated in the Iranian revolution of 1979 but subsequently fell out with the regime led by Ayatollah Khomeini. From the 1970s until 2001, MeK supported terrorist violence inside Iran, including bomb attacks and assassinations. It supported Iraq in its eight year war with Iran between 1981 and 1989, when its fighters fought alongside Iraqi forces against those of Iran. For at least part of this period, Mrs Rajavi was also deputy commander of the armed forces of the opposition National Liberation Army. The evidence is that while no longer holding any formal office in MeK, she remains its de facto leader. Since 1993, she has also been the President elect of the National Council of Resistance of Iran, a political organisation opposed to the current government of the country. Mrs Rajavi has visited the United Kingdom on four occasions, in 1985, 1990, 1991 and 1996. But in 1997, the then Secretary of State excluded her from the United Kingdom on the ground that her presence there would not be conducive to the public good for reasons of foreign policy and in the light of the need to take a firm stance against terrorism. That exclusion has been reviewed at regular intervals, but has remained in force ever since. Section 3 of the Terrorism Act 2000 provides for the proscription of organisations concerned in terrorism. Between 2001 and 2008, MeK was a proscribed organisation in the United Kingdom for the purposes of the Act, and in a number of other jurisdictions under corresponding legislation. Its proscription was revoked in the United Kingdom on 30 November 2007 by the Proscribed Organisations Appeals Commission (POAC). The Commission found that while MeK had been actively engaged in terrorism until June 2001, this had no longer been true since that date. The organisation was subsequently de proscribed in the European Union (January 2009), the United States (September 2012) and Canada (December 2012). It is common ground that it is now a wholly non violent organisation and Mrs Rajavis own democratic credentials are not in dispute. She lives in France and is not excluded from any European country other than the United Kingdom. She engages regularly with parliamentarians in the European Parliament and a number of European national legislatures. On 5 December 2010, Lord Carlile of Berriew QC, on behalf of himself and two other members of the House of Lords, asked for a meeting with the current Home Secretary to discuss the possibility of Mrs Rajavis exclusion being lifted to enable her to address meetings in the Palace of Westminster on democracy, human rights and other policy issues relating to Iran. The request was accompanied by written representations. The Home Secretary sought the advice of the Foreign Office, where Lord Carliles request was personally considered by the Foreign Secretary and the Parliamentary Under Secretary of State with the support of officials. On 1 February 2011, the Home Secretary responded to Lord Carliles request for a meeting. She wrote that she had reconsidered Mrs Rajavis case, taking into account the views of the Foreign Office and other government departments, as well as his representations, but had concluded that her admission to the United Kingdom was not conducive to the public good. She wrote: The exclusion of Mrs Rajavi in 1997 pre dates, and was not linked to, the proscription of the Peoples Mojahedin Organisation of Iran (PMOI). The de proscription of this organisation therefore has no direct bearing on whether or not Mrs Rajavi's exclusion should be maintained, which involves wider considerations. The power to exclude is a serious one and I do not take such decisions lightly. In taking such decisions I must ensure that I am acting reasonably, proportionately and consistently and that there is a rational connection between the exclusion and the legitimate aim being pursued. No other reasons were given at this stage. On 12 April 2011, Mishcon de Reya, acting for a cross party group of MPs and peers, wrote a letter before action, making further representations, and criticising the decision on the ground that it contravened their clients rights under articles 9 and 10 of the European Convention on Human Rights. They asked for the decision to be reconsidered. In the absence of a satisfactory response, they said that their clients would apply for judicial review. The Treasury Solicitor responded on the Secretary of States behalf on 13 May 2011. The main points made were that articles 9 and 10 of the Convention were not engaged, because there were other means by which parliamentarians could communicate with Mrs Rajavi. In particular they could set up a video link or meet her personally in France. If, however, articles 9 and 10 were engaged, there was still no contravention because while the Secretary of State was not prepared to go into her reasons in detail, she had concluded that any right arising under those articles was outweighed by other factors rendering it appropriate to maintain her exclusion decision. By the time that the Treasury Solicitors letter was written, sixteen cross party members of the House of Commons and the House of Lords had applied on 3 May 2011 for judicial review to challenge the Secretary of States decision. Mrs Rajavi herself was added as a claimant in September 2011. In October 2011, after considering their application and the evidence in support of it, the Secretary of State made a second, fully reasoned decision, which was communicated to the claimants solicitors by a letter from the UK Border Agency dated 10 October. Her reason, in summary, was the significant damaging impact on UK interests in relation to Iran it is assessed that lifting the extant exclusion would bring about, and the consequences that may have for the lives and interests of others. Although the Secretary of State maintained her view that there was no interference with the claimants article 9 rights, she did not on this occasion dispute that article 10 was engaged. What was said was that the availability of alternative methods of communication with Mrs Rajavi meant that any interference with the claimants article 10 rights was limited, and that the decision was proportionate to it. The Secretary of States reasons have been subjected by the claimants to detailed criticism. I therefore propose to set them out substantially in full: Whilst it is accepted that the MeK was de proscribed by the UK in 2008 on the basis that it could not reasonably be believed to have continued to be concerned in terrorism since June 2001, the organisations historical activities and Mrs Rajavis past role in them as de facto leader cannot be ignored. It is widely recognised that the MeK was actively concerned in terrorist activities between the 1970s and 2001. Acts committed by the MeK during this period include attacks on western interests. It is against this background that Mrs Rajavi was excluded from the UK in 1997, following her move to Iraq from where she had urged the MeK to liberate Iran, at a time when the MeK had continued to mount terrorist attacks there. The MeKs history of terrorist violence until June 2001 and involvement in the Iran/Iraq war, where it was fighting with Iraqi forces against Iran, continues to resonate today. It has resulted in there being little support for the group among the general population in Iran, including anti regime organisations, demonstrators and oppositionists, The FCO does not agree with Lord Carliles own assessment that Mrs Rajavi leads the movement for democratic change in Iran (para 22 of his witness statement). It assesses that the MeK is not a credible opposition group in Iran. The well known Iranian opposition, the Green Movement, for example, has publically distanced itself from any involvement in it. The UK has diplomatic relations with Iran. There is a British Embassy in Tehran and an Iranian Embassy in London. The UK has a strong interest in working with Iran on major policy issues including nuclear counter proliferation, wider issues in the Middle East and human rights. Cooperation between both countries on issues of mutual importance also include reciprocal visa services (both diplomatic and public), consular services and cultural/educational exchanges. However, UK interests are affected by difficulties in UK Iran bilateral relations. The Iranian regime perceives that negative intent lies behind the UK Governments actions and statements. Any attempt at positive engagement by the UK is also viewed with scepticism. Anti UK rhetoric by the Iranian authorities is frequent and both the President and the Iranian Parliament are particularly vocal in expressing their condemnation of the UK on a range of matters. This includes the perception that the UK is supportive of anti Iranian extremist activities, including the sort historically carried out by the MeK. The 2008 de proscription of the MeK led to serious political protests from the Iranian authorities and demonstrations outside the British Embassy in Tehran, particularly as the MeK remains proscribed in Iran. The Iranian authorities believe that the de proscription of the MeK in the UK was politically motivated, notwithstanding attempts to explain otherwise. Similarly, the lifting of Mrs Rajavi's exclusion would also be seen by the Iranians as a deliberate political move against Iran, and, it is assessed, would have a wide ranging negative impact on UK interests and day to day relations, as well as on the major policy areas such as nuclear counter proliferation, human rights and wider issues in the Middle East. It may also result in accusations, however unjustified, of double standards in respect of the condemnation of terrorism. Any deterioration in relations would also be likely to impact on FCO efforts to replace their Ambassador to Tehran and an Iranian Ambassador in London. In short, it is assessed that lifting the exclusion would cause significant damage to the UKs interests in relation to Iran and the UK's ability to engage with Iran on wider and crucial objectives. Whilst Mrs Rajavi is able to travel to other European Countries (in particular by virtue of the fact that she is resident in France), the particular nature of the UK Iran bilateral relationship is such that a particularly strong reaction is expected if her exclusion is lifted. The presence of a British Embassy in Tehran means that staff there are particularly vulnerable to anti Western sentiment in general and anti UK sentiment in particular. There is substantial concern that if bilateral relations were to deteriorate as a consequence of the lifting of the exclusion order, there could be reprisals that put British nationals at risk and make further consular cooperation even more problematic. Historically, the Iranian Regime has actively targeted the British Embassy and staff members in Tehran. Even when tensions periodically ease, UK based staff members access to Iranian officials and information from the authorities has been difficult. Demonstrations outside the Embassy have included damage to property, invasion of compounds and restriction of staff movement due to the fears for personal safety. There have also been cases where British nationals have been held in detention for long periods, often on spurious charges and sometimes without consular access being granted. As Iran moves into a period of electoral activity once again, the Iranian regime is likely to direct accusations at the UK should there be any instability and a ramping up of rhetoric may also provoke an uncontrolled public reaction. When weighed against the serious potential effects of lifting the exclusion on the UK's interests in relation to Iran, the Secretary of State has concluded that the damage to the public interest significantly outweighs any interference with Mrs Rajavis ability to express her views as President elect of the NCRI and with the Parliamentarians ability to meet her in person in London, particularly in view of the fact that Mrs Rajavi has many alternative means at her disposal for achieving these aims (e.g. meeting in France or a third country, or contact by video link or other media). While it is argued by the claimants that there is an urgent need to discuss the future of Camp Ashraf with her, the Secretary of State does not consider that the desire of the original claimants to meet with Mrs Rajavi in London (as opposed to elsewhere, or by other media) is of itself of such importance that the future of Camp Ashraf will be materially affected if the exclusion is not lifted. That issue is considered ultimately to be for the sovereign government of Iraq and the leadership of Camp Ashraf to resolve; while debate about its future is acknowledged to be of value, there are acceptable means by which that debate can be continued even absent Mrs Rajavis physical presence in the United Kingdom. In light of all the available evidence, the Secretary of State has decided that Mrs Rajavis exclusion from the UK must be maintained, is justified on foreign policy grounds and is proportionate to any limited interference with either her right of freedom of expression, or that of the Parliamentarians. On 21 November 2011, Britain, together with the United States and Canada, strengthened financial sanctions against Iran on account of the nuclear proliferation issue. On 29 November, a previously planned demonstration was held outside the Embassy to mark the first anniversary of the assassination of a nuclear scientist (for which Britain, the United States and Israel were blamed). In the course of the demonstration para militaries invaded the Embassy compound and a residential compound of the Embassy. For six hours the compounds were sacked with the acquiescence of the police. All British diplomatic staff were thereafter withdrawn for their own safety and the Iranian Embassy in London was closed on the orders of the Foreign Secretary. Diplomatic relations were maintained, but at the lowest possible level. In the light of these events, the Secretary of State made a third decision in January 2012, in which she maintained the exclusion of Mrs Rajavi, adding further reasons to those that she had previously given. The essential paragraphs of the letter conveying this decision are as follows: The lifting of Mrs Rajavis exclusion would be interpreted in Iran by both the regime and the people as a demonstration of UK support for what continues to be perceived as a terrorist organisation hostile to Iran (the MeK remains an illegal organisation in Iran). Iran continues to regard Mrs Rajavi as the leader of a terrorist organisation and often cites the POAC judgment, which removed the MeK from the UK's list of proscribed organisations, as evidence of UK support for terrorism. The complicity of the Iranian regime in the invasion of both UK diplomatic compounds in Tehran on 29 November 2011 clearly demonstrated that the UK is the prime target in Iran for anti western sentiment in the absence of US and Israeli embassies (a view which would be supported by almost any impartial academic or commentator). Following the events of 29 November 2011, the lifting of Mrs Rajavis exclusion from the UK could also be perceived by Iran as a purposeful political response to the 29 November attack on our Embassy, increasing the likelihood of an adverse Iranian response. The case for exclusion is not based purely on foreign policy grounds but also on grounds of UK security, especially the safety of HMG staff in Iran (there remain over one hundred local employees in Iran), the protection of UK assets that remain in Iran, and the security of UK personnel in the region. The assessment of risk has increased since the 29 November attack as Iran has demonstrated that it is prepared to sanction actions that breach international law. The Iranian regime would seek to respond to the lifting of the exclusion either by targeting our interests in Tehran, putting our local staff at risk, and/or the potential shift of risk to British interests and properties outside Iran which could now bear the brunt of any retaliatory action against the UK, both within and outside the region. Having carefully considered all the available evidence, the Secretary of State has decided that the decision of 25 August 2011 to maintain Mrs Rajavis exclusion from the UK must be maintained and defended as it is justified on grounds including concerns about the welfare of British personnel and interests overseas and is proportionate to any limited interference with either her own or the relevant Parliamentarians human rights or right to freedom of expression. The letters conveying the Secretary of States second and third decisions were supported by witness statements of Mr Ken OFlaherty, an official in the Middle East and North African Directorate of the Foreign Office responsible for diplomatic relations with Iran. Mr OFlahertys evidence sets out the facts recited in the Secretary of States decision letters in somewhat greater detail, and evidently reflects the advice of the Foreign Office on which her decisions were based. The following are among the points which he makes: (1) The United Kingdoms relations with Iran are described by Mr OFlaherty as fragile yet imperative. Historically, the United Kingdom has had a more difficult relationship with Iran than other countries have, which still affect the way that it is perceived there. Statements hostile to the United Kingdom are frequently made by prominent public figures in Iran in the Iranian Parliament and elsewhere. The United States and Israel are also the subject of particularly hostile rhetoric, but of these three states the United Kingdom is the only one which maintains an Embassy in Tehran. Consequently, the British Embassy has for some years been the principal target for anti western feeling in Tehran. Conditions there are difficult. Access by British diplomats to Iranian officials has been limited even at the best of times. The ramping up of rhetoric is liable to aggravate the situation at any time, provoking uncontrolled local reactions. Locally engaged staff have been harassed and detained. Some have been bullied into leaving their employment. Acid bombs have been thrown into the Embassy compound. (2) Although the United Kingdom recognises that MeK is no longer a terrorist organisation, this is not accepted in Iran, where it remains an illegal organisation. Moreover, quite apart from its current activities (or perceived activities), MeKs past support for terrorism in Iran and its armed assistance to Irans principal regional enemy in a major war remain a significant factor in political sentiment there. The de proscription order of 2008 was regarded in Iran as unjustified and politically motivated and provoked serious political protests from the Iranian authorities and demonstrations outside the Tehran Embassy. More recently, in November 2011, the Iranian Parliament voted to expel the newly arrived British ambassador to Iran (Dominick Chilcott) citing Britains historic hostility to Iran and its support for terrorism, a reference to the de proscription of MeK. There are outstanding requests by the government of Iran for assistance against alleged MeK terrorist plots. MeK is an authoritarian and hierarchical organisation and the personality of Mrs Rajavi and her husband have a symbolic significance in Iran greater than that of any other member of its leadership. The lifting of the exclusion order would be perceived in Iran as a hostile political act. (3) The United Kingdom has a strong interest in working with Iran on major policy issues, in spite of the difficulties. These issues include nuclear counter proliferation, wider issues in the Middle East and human rights. In particular, the United Kingdom is a prominent member of the group of western countries negotiating with Iran about nuclear proliferation. In addition to these issues, there are significant consular issues in a country where British nationals are viewed with suspicion and have been arrested and detained, often for long periods on spurious charges. There is a concern that if bilateral relations were to deteriorate, British nationals would be at risk of reprisals. (4) Even after the downgrading of diplomatic relations since the riots of November 2011, there are about 100 locally engaged members of staff still employed there. They, together with British property in Iran, are at risk of violence in the event of retaliatory action against the United Kingdom following a further deterioration of relations. There is also concern about the safety of British nationals outside Iran following threats to promote terrorism in the west in response to perceived western hostility. These developments have led to an increase in the assessed levels of risk at a delicate stage of the bilateral relationship between the United Kingdom and Iran. (5) The Foreign Office assesses that allowing Mrs Rajavi entry to the United Kingdom would have a significant damaging impact on the relations between the United Kingdom and Iran which would therefore harm our wider and crucial objectives concerning Iran (such as on the nuclear issue). In particular, it would damage existing United Kingdom interests in relation to Iran and endanger the security, wellbeing and properties of British officials overseas. The United Kingdom might be prepared to accept a greater measure of risk as the price of supporting a viable opposition group in Iran, but its assessment is that MeK has little support within Iran and that its significance has been overstated by the claimants. 11. The issue The claimants challenge to the Secretary of States decision in these proceedings is based entirely on article 10 of the Convention, which protects freedom of expression. It is now common ground that article 10 is engaged. The Secretary of State submits that the interference with the claimants article 10 rights is justified as a proportionate response to the threat to national security, public safety and the rights of others which would be posed by a hostile reaction from the Iranian government and other forces in Iran. In the courts below, the claimants case was that the Secretary of States decision was disproportionate. It failed to give due weight to the significance of the right of free speech protected by article 10 and the stringency of the test for justifying any interference with it, and it overstated the likelihood and gravity of any hostile reaction on the part of the government of Iran. These contentions have been rejected both by the Divisional Court (Burnton LJ and Underhill J) and by the Court of Appeal (Arden, Patten and McCombe LJJ.). They have been substantially repeated in this court, but Lord Pannick QC, who appears for the claimants, has also advanced for the first time a threshold objection of a more radical kind. He submits that the Secretary of States reasons were legally irrelevant. This, he suggests, is because she was not entitled to have regard at all to the potential reaction of a foreign state which did not share the values embodied in the Convention, and had no respect for the right of free speech or other democratic values. Article 10 of the Convention 12. Article 10 provides: Article 10 Freedom of expression 13. 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. It is well established in the jurisprudence of the European Court of Human Rights that the more important the right, the more difficult it will be to justify any interference with it. For this purpose, freedom of expression has always been treated as one of the core rights protected by the Convention. It constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individuals self fulfilment: Srek v Turkey (1999) 7 BHRC 339, at para 57. The exceptions in article 10(2) must therefore be construed strictly and the need of any restrictions must be established convincingly: ibid. In this respect, the jurisprudence of the Strasbourg court is substantially at one with the common law as it had developed for many years before the Convention received the force of law in the United Kingdom: see Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at pp 283 284 (Lord Goff); Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 550 551 (Lord Keith); R v Secretary of State, Ex p Simms [2000] 2 AC 115, 125 (Lord Steyn); R v Shayler [2003] 1 AC 247, at para 21 (Lord Bingham) The claimants threshold argument: legal irrelevance 14. A person has no right to enter the United Kingdom unless he or she is an EU citizen. Under paragraph 320(6) of the Immigration Rules, if the Secretary of State has personally directed that a particular persons exclusion from the United Kingdom is conducive to the public good, that person will be refused entry clearance or leave to enter. In Secretary of State for the Home Department v Rehman [2003] 1 AC 153 at para 8, Lord Slynn of Hadley observed that the expression conducive to the public good was not expressly defined or limited, and that the matter was plainly in the first instance and primarily one for the discretion of the Secretary of State. The question is one of judgment, informed by fact. 15. When the question arises whether a persons presence or activities in the United Kingdom is conducive to the public good, it is self evident that its potential consequences are a relevant consideration. Indeed, they will usually be the only relevant consideration. A threat to British persons or interests is one potential consequence which in an age of widespread international lawlessness, some of it state sponsored, is unfortunately more common than it used to be. The existence and gravity of the threat is a question of fact. It cannot rationally be regarded as any less relevant to the public good because it emanates from a foreign state as opposed to some other actor, or because that state does not share our values, or because the threat is to do things which would be unlawful by our laws or improper by our standards, or indeed by theirs. The difficulty about the claimants first submission is that it involves treating as legally irrelevant something which is plainly factually relevant to a question which is ultimately one of fact. Moreover, if the proposition be accepted, it must logically apply however serious the consequences and however likely they are to occur, unless perhaps it was so serious as to permit a derogation under article 15 (war or other public emergency threatening the life of the nation). In R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2009] AC 756 the House of Lords rejected a very similar argument, which had been adopted by the Divisional Court, to the effect that it was contrary to the rule of law for a prosecutor to discontinue a criminal investigation in response to threats from a foreign state to suspend intelligence co operation, even in circumstances where that was judged to be liable to expose persons in the United Kingdom to terrorist attack. A prosecutors decision whether to investigate or prosecute an alleged crime is a species of executive decision with which the courts have always been particularly reluctant to interfere, as Lord Bingham of Cornhill pointed out at paras 30 31. But the question at issue was broader than that. The reason for the decision was that the House did not accept that even so fundamental a value as the rule of law could give rise to an absolute rule, as opposed to a weighing of the relevant considerations either way. The point is encapsulated in the statement of Lord Bingham at para 38: The objection to the principle formulated by the Divisional Court is that it distracts attention from what, applying well settled principles of public law, was the right question: whether, in deciding that the public interest in pursuing an 16. important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted to him by Parliament. 17. Lord Pannick QC acknowledged most of this. He accepted, for example, that in principle the Secretary of State could lawfully exclude a person in a case like R (Farrakhan) v Secretary of State for the Home Department [2002] QB 1391, where the leader of a religious, social and political group was excluded because his presence would present a significant threat to community relations; or R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546, where a Muslim public speaker was excluded on the ground that he was associated with an organisation which supported terrorism. There has been a number of other cases in which persons holding controversial views have been excluded because it was undesirable in the interests of public order to allow them a platform in the United Kingdom. Lord Pannick suggested that these cases were different, because the Secretary of State herself regarded the visitors views as unacceptable and inconsistent with our collective values of tolerance and inclusiveness. By comparison, in the present case the Secretary of State has no objection to Mrs Rajavis values or opinions. I regard this distinction as contrary to principle. It suggests that the Secretary of States views about the visitors opinions or their consistency with our collective values might make all the difference to the question whether a restriction on freedom of expression is justifiable. But article 10 does not only protect the transmission of information and ideas which accord with the views of the Secretary of State or with her perception of the existing values of our society. It is a truism that freedom of speech is not worth much unless it extends to opinions with which others disagree. The question whether the visitors presence or activities in the United Kingdom is conducive to the public good must depend on its effects, and not on whether his or her opinions command general or ministerial assent. Dr Naik was excluded because the Secretary of State considered that he was liable unlawfully to promote terrorism, and to express views which were divisive and potentially damaging to community relations (see para 11). As Carnwath LJ put it at para 66, the rationale of the ban lies solely in the effect of his words. I therefore reject the claimants threshold argument. 18. Proportionality: the test 19. In Bank Mellat v Her Majestys Treasury (no. 2) [2014] AC 700, this court considered the test of proportionality in a context with some analogies to the present one. The court was divided on the application of the test to the facts, the principal judgments being my own for the majority and the dissenting judgment of Lord Reed. However, Lord Reed and I were agreed about what the test was. At para 20, I summarised the effect of the authorities as follows: the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them. 20. As Lord Reed observed at paras 69 and 70, the intensity [of review] that is to say, the degree of weight or respect given to the assessment of the primary decision maker depends on the context. This means both the legal context (the nature of the right asserted), and the factual context (the subject matter of the decision impugned). Not all rights protected by the Convention are of equal weight. Not all subjects call for the same degree of respect for the judgment of the executive. But, as both the majority and the minority recognised, no review, however intense, can entitle the court to substitute its own decision for that of the constitutional decision maker: see my own judgment at para 21 and Lord Reeds at para 71. 21. Bank Mellat, like the present case, arose out of a government decision in the conduct of foreign policy. The majority and the minority were agreed that the judgment of the executive was in principle entitled to considerable weight. In the majority judgment, the point is put in this way at para 21: None of this means that the court is to take over the function of the decision maker, least of all in a case like this one. As Maurice Kay LJ observed in the Court of Appeal, this case lies in the area of foreign policy and national security which would once have been regarded as unsuitable for judicial scrutiny. The measures have been opened up to judicial scrutiny by the express terms of the Act because they may engage the rights of designated persons or others under the European Convention on Human Rights. Even so, any assessment of the rationality and proportionality of a Schedule 7 direction must recognise that the nature of the issue requires the Treasury to be allowed a large margin of judgment. It is difficult to think of a public interest as important as nuclear non proliferation. The potential consequences of nuclear proliferation are quite serious enough to justify a precautionary approach. In addition, the question whether some measure is apt to limit the risk posed for the national interest by nuclear proliferation in a foreign country, depends on an experienced judgment of the international implications of a wide range of information, some of which may be secret. This is pre eminently a matter for the executive. For my part, I wholly endorse the view of Lord Reed JSC that the making of government and legislative policy cannot be turned into a judicial process. 22. As a tool for assessing the practice by which the courts accord greater weight to the executives judgment in some cases than in others, the whole concept of deference has been subjected to powerful academic criticism: see, notably, TSR Allan, Human Rights and Judicial Review: a Critique of Due Deference [2006] CLJ 671; J. Jowell, Judicial Deference: Servility, Civility or Institutional Capacity? [2003] PL 592. At least part of the difficulty arises from the word, with its overtones of cringing abstention in the face of superior status. In some circumstances, deference is no more than a recognition that a court of review does not usurp the function of the decision maker, even when Convention rights are engaged. Beyond that elementary principle, the assignment of weight to the decision makers judgment has nothing to do with deference in the ordinary sense of the term. It has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject matter. Both sources were considered in detail in Secretary of State for the Home Department v Rehman [2003] 1 AC 153. Rehman was a statutory appeal from a decision of the Secretary of State ordering Mr Rehman to be deported from the United Kingdom on the ground that his presence there was not conducive to the public good because of his association with an organisation which supported terrorism in the Indian subcontinent. The decision is authority for the proposition (which had been rejected by the Special Immigration Appeals Commission) that the activities of a person may adversely affect the national security of the United Kingdom if they are directed against the overthrow or destabilisation of a foreign government if that foreign government is likely to take reprisals against the United Kingdom which affect the security of the United Kingdom or of its nationals: see para 2 (Lord Slynn). The importance of the decision for present purposes lies in its analysis of the relationship between the courts and the executive on such an issue. This is to be found mainly in the speech of Lord Hoffmann (with which Lord Clyde and Lord Hutton agreed). 23. Lord Hoffmann dealt with the separation of powers at paras 50 54 of his speech. He started by pointing out (para 50) that while the question what is meant by national security is a question of law, the question whether something would be damaging to national security was a question not of law but of judgment and policy. 50. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive. 53. Accordingly it seems to me that the Commission is not entitled to differ from the opinion of the Secretary of State on the question of whether, for example, the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security. Mr Kadri rightly said that one man's terrorist was another man's freedom fighter. The decision as to whether support for a particular movement in a foreign country would be prejudicial to our national security may involve delicate questions of foreign policy. And, as I shall later explain, I agree with the Court of Appeal that it is artificial to try to segregate national security from foreign policy. They are all within the competence of responsible ministers and not the courts. The Commission was intended to act judicially and not, as the European Court recognised in Chahal v United Kingdom 23 EHRR 413, 468, para 127, to substitute its own opinion for that of the decision maker on questions of pure expediency. 54. This does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to defeat the purpose for which the Commission was set up: see the Commissions decision. It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive The Commission serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executives opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commissions ability to differ from the Home Secretary's evaluation may be limited, as I shall explain, by considerations inherent in an appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly, the Commission may reject the Home Secretary's opinion on the ground that it was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative. 24. Lord Hoffmann dealt with the evidential issue at paras 57 58 under the heading Limitations of the appellate process: First, the Commission is not the primary decision maker. Not only is the decision entrusted to the Home Secretary but he also has the advantage of a wide range of advice from people with day to day involvement in security matters which the Commission, despite its specialist membership, cannot match. Secondly, as I have just been saying, the question at issue in this case does not involve a yes or no answer as to whether it is more likely than not that someone has done something but an evaluation of risk. In such questions an appellate body traditionally allows a considerable margin to the primary decision maker. Even if the appellate body prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained. Such restraint may not be necessary in relation to every issue which the Commission has to decide. As I have mentioned, the approach to whether the rights of an appellant under article 3 are likely to be infringed may be very different. But I think it is required in relation to the question of whether a deportation is in the interests of national security I emphasise that the need for restraint is not based upon any limit to the Commissions appellate jurisdiction. The amplitude of that jurisdiction is emphasised by the express power to reverse the exercise of a discretion. The need for restraint flows from a common sense recognition of the nature of the issue and the differences in the decision making processes and responsibilities of the Home Secretary and the Commission. 25. Returning to both themes in a postscript written a month after the attack on the Twin Towers in New York, Lord Hoffmann observed at para 62 that these events are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. I have cited Lord Hoffmanns speech at length because it is the fullest and most authoritative analysis of the question, and because it distinguishes the two distinct sources of the courts traditional reticence in this area which are often elided. The principles themselves were certainly not new in 2001 when Lord Hoffmann articulated them: see Chandler v Director of Public Prosecutions [1964] AC 763, 798 (Lord Radcliffe); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398 (Lord Fraser), 26. 411 (Lord Diplock); R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Pirbhai (1985) 107 ILR 462; R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Ferhut Butt (1999) 116 ILR 607. Nor are they outdated now: R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2003] UKHRR 76 at para 106(iii) (Lord Phillips); R (Campaign for Nuclear Disarmament) v Prime Minister [2003] 3 LRC 335; A v Secretary of State for the Home Department [2005] 2 AC 68 at para 29 (Lord Bingham); R v Jones [2007] 1 AC 136 at para 30 (Lord Bingham); R (Gentle) v Prime Minister [2008] AC 1356 at para 8(2) (Lord Bingham). 27. The more difficult question, which is critical to the outcome of this appeal, is how far these principles fall to be modified in cases which (unlike Rehman) are founded on the complainants Convention rights or other fundamental rights recognised at common law. The answer to this question must depend on the reason why the court is being invited to respect the autonomy of an executive decision. 28. The first possibility is that it is being invited to respect the separation of powers and the special constitutional function of the executive. The Human Rights Act 1998 did not abrogate the constitutional distribution of powers between the organs of the state which the courts had recognised for many years before it was passed. The case law of the Strasbourg court is not insensitive to questions of democratic accountability, even though their significance will vary from case to case. Even in the context of Convention rights, there remain areas which although not immune from scrutiny require a qualified respect for the constitutional functions of decision makers who are democratically accountable. Examples are decisions involving policy choices (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at paras 75 76); broad questions of economic and social policy (Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at para 70); or issues involving the allocation of finite resources (Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 at para 41 (Brooke LJ)). 29. However, traditional notions of the constitutional distribution of powers have unquestionably been modified by the Human Rights Act 1998. In the first place, any arguable allegation that a persons Convention rights have been infringed is necessarily justiciable. Section 6 of the Act requires public authorities, including the courts, to give effect to those rights. Secondly, the jurisprudence of the European Court of Human Rights calls for a standard of review of the proportionality of the decisions of public authorities which is not only formal and procedural but to some extent substantive. As Lord Bingham put it in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, at para 29: the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act. It follows, as he went on to point out, that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493 , para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 , paras 2528, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 6267. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 , para 51. 30. So far, therefore, as the traditional treatment of foreign policy or national security decisions depends on the non justiciability of the Crowns prerogative to conduct the United Kingdoms foreign relations or of measures taken in the interests of national security, it cannot apply in cases where a scrutiny of such decisions is necessary in order to adjudicate on a complaint that Convention rights have been infringed. In these fields of law, nothing which is relevant can be a forbidden area (Lord Phillips phrase in Abbasi), although complaints about the substance as opposed to the application of British foreign policy may well be met by the response that it is not relevant: R (Gentle) v Prime Minister [2008] AC 1356 at paras 24 25 (Lord Hope). In describing what the courts do not or should not do, judges of great distinction have sometimes referred to merits review. I should prefer to avoid the expression, because it has never been sufficiently clear what kind of inquiries a merits review embraces. But whatever it embraces, I would accept that when it comes to reviewing the compatibility of executive decisions with the Convention, there can be no absolute constitutional bar to any inquiry which is both relevant and necessary to enable the court to adjudicate. 31. None of this means that in human rights cases a court of review is entitled to substitute its own decision for that of the constitutional decision maker. However intense or exacting the standard of review in cases where Convention rights are engaged, it stops short of transferring the effective decision making power to the courts. As Lord Bingham observed in Corner House, at para 41: The issue in these proceedings is not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make. Nor, as a general rule, does the jurisprudence of the Strasbourg court require that administrative decisions should be subject to an appeal on the merits, as opposed to judicial review of the lawfulness of the decision making process, especially when the decision under review is substantially based on what have been loosely called grounds of expediency or is made by a body with specialised experience or expertise: see Zumtobel v Austria (1993) 17 EHRR 116, para 32 (article 6); Bryan v United Kingdom (1995) 21 EHRR 342, para 44, 47; Chahal v United Kingdom (1996) 23 EHRR 413, para 127. However, the obligation of the courts to adjudicate on alleged infringements of Convention rights does mean that the traditional reticence of the courts about examining the basis for executive decisions in certain areas of policy can no longer be justified on constitutional grounds. 32. Rather different considerations apply where the question is not what is the constitutional role of the court but what evidential weight is to be placed on the executives judgment, a question on which the human rights dimension is relevant but less significant. It does not follow from the courts constitutional competence to adjudicate on an alleged infringement of human rights that it must be regarded as factually competent to disagree with the decision maker in every case or that it should decline to recognise its own institutional limitations. In the first place, although the Human Rights Act requires the courts to treat as relevant many questions which would previously have been immune from scrutiny, including on occasions the international implications of an executive decision, they remain questions of fact. The executives assessment of the implications of the facts is not conclusive, but may be entitled to great weight, depending on the nature of the decision and the expertise and sources of information of the decision maker or those who advise her. Secondly, rationality is a minimum condition of proportionality, but is not the whole test. Nonetheless, there are cases where the rationality of a decision is the only criterion which is capable of judicial assessment. This is particularly likely to be true of predictive and other judgmental assessments, especially those of a political nature. Such cases often involve a judgment or prediction of a kind whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically. Thirdly, where the justification for a decision depends upon a judgment about the future impact of alternative courses of action, there is not necessarily a single right answer. There may be a range of judgments which could be made with equal propriety, in which case the law is satisfied if the judgment under review lies within that range. A case like the present one is perhaps the archetypal example. Fourthly, although a recognition of the relative institutional competence of the executive and the courts in this field is a pragmatic judgment and not a constitutional limitation, it is consistent with the democratic values which are at the heart of the Convention, because it reflects an expectation that in a democracy a person charged with making assessments of this kind should be politically responsible for them. Ministers are politically responsible for the consequences of their decision. Judges are not. These considerations are particularly important in the context of decisions about national security on which, as Lord Hoffmann pointed out in Rehman, the cost of failure can be high. It is pre eminently an area in which the responsibility for a judgment that proves to be wrong should go hand in hand with political removability. 33. All of these points were made by Lord Bingham of Cornhill, two years after Rehman, in A v Secretary of State for the Home Department [2005] 2 AC 68, para 29, in the context of the right of derogation conferred by article 15(1) of the Convention in cases of public emergency threatening the life of the nation: Thirdly, I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen. It would have been irresponsible not to err, if at all, on the side of safety. As will become apparent, I do not accept the full breadth of the Attorney General's argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called relative institutional competence. The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. The present question seems to me to be very much at the political end of the spectrum: see Secretary of State for the Home Department v Rehman [2003] I AC 153, para 62, per Lord Hoffmann. I think that there was much wisdom in the observations of Laws LJ, delivering the judgment of the Court of Appeal in R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2008] QB 289, paras 146 148: Reasonableness and proportionality are not formal legal standards. They are substantive virtues, upon which, it may be thought, lawyers do not have the only voice: nor necessarily the wisest. Accordingly, the ascertainment of the weight to be given to the primary decision maker's view (very often that of central government) can be elusive and problematic The courts have a special responsibility in the field of human rights. It arises in part from the impetus of the Human Rights Act 1998, in part from the common laws jealousy in seeing that intrusive state power is always strictly justified. The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arises in part from considerations of competence, in part from the constitutional imperative of electoral accountability The court's role is to see that the Government strictly complies with all formal requirements, and rationally considers the matters it has to confront. Here, because of the subject matter, the law accords to the executive an especially broad margin of discretion. Or, as he has more recently observed in upholding the proportionality of an interference with article 10 rights on the ground on national security in R (Miranda) v Secretary of State for the Home Department (Liberty intervening) [2014] 1 WLR 3140, para 40, where a court of review considers whether the relevant decision strikes a fair balance between the competing interests engaged, there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case. A very similar principle has been applied for many years to the review of Commission decisions by the Court of Justice of the European Union. It is essentially the same point as Lord Reed made in Bank Mellat, at para 93, when he observed that even in the context of the enforcement of Convention rights, the relevant decision may be based on an evaluation of complex facts, or considerations (for example, of economic or social policy, or national security) which are contestable and may be controversial. In such situations, the court has to allow room for the exercise of judgment by the executive and legislative branches of government, which bear democratic responsibility for these decisions. The making of government and legislative policy cannot be turned into a judicial process. 34. Various expressions have been used in the case law to describe the quality of the judicial scrutiny called for when considering the proportionality of an interference with a Convention right: heightened, anxious, exacting, and so on. These expressions are necessarily imprecise because their practical effect will depend on the context. In particular, it will depend on the significance of the right, the degree to which it is interfered with, and the range of factors capable of justifying that interference, which may vary from none at all (article 3) to very wide ranging considerations indeed (article 8). But the legal principle is clear enough. The court must test the adequacy of the factual basis claimed for the decision: is it sufficiently robust having regard to the interference with Convention rights which is involved? It must consider whether the professed objective can be said to be necessary, in the sense that it reflects a pressing social need. It must review the rationality of the supposed connection between the objective and the means employed: is it capable of contributing systematically to the desired objective, or its impact on the objective arbitrary? The court must consider whether some less onerous alternative would have been available without unreasonably impairing the objective. The court is the ultimate arbiter of the appropriate balance between two incommensurate values: the Convention rights engaged and the interests of the community relied upon to justify interfering with it. But the court is not usually concerned with remaking the decision makers assessment of the evidence if it was an assessment reasonably open to her. Nor, on a matter dependent on a judgment capable of yielding more than one answer, is the court concerned with remaking the judgment of the decision maker about the relative advantages and disadvantages of the course selected, or of pure policy choices (eg do we wish to engage with Iran at all?). The court does not make the substantive decision in place of the executive. On all of these matters, in determining what weight to give to the evidence, the court is entitled to attach special weight to the judgments and assessments of a primary decision maker with special institutional competence. Application to the present case 35. It is right to start by recording those points which are agreed or unchallenged. First, it is common ground that article 10 is engaged. This is because a refusal of permission to enter a country which is substantially based on a desire to prevent a person expressing or others from receiving her views is an interference with their article 10 rights and hers: Cox v Turkey (2010) 55 EHRR 347, paras 27 28, 43. Secondly, the good faith of the Secretary of State and the Foreign Office are accepted. We may proceed, therefore, on the footing that the decision was genuinely made for the reasons given, and not for some undisclosed or collateral reason. Third, there is no dispute about the primary facts, as Lord Pannick QC confirmed at the outset of the hearing. In relation to the second and third points, it should be noted that no application was made to cross examine Mr OFlaherty and that the Secretary of States evidence has now been accepted by both the Divisional Court and the Court of Appeal. 37. 36. Next comes a point which, although not formally conceded, was hardly challenged and on which in my view the position is clear. The Secretary of States case is that Mrs Rajavis admission to the United Kingdom for the purpose of discussions with Parliamentarians would pose an appreciable risk of (i) reprisals, either instigated by the Iranian government or resulting from an uncontrolled public reaction, against persons for whose safety Britain is responsible such as locally engaged staff of the British Embassy in Tehran and British nationals inside and outside Iran; (ii) damage to British property still in Iran, and (iii) a significant impairment of the United Kingdoms ability to engage diplomatically with Iran on important issues, including nuclear non proliferation, the Middle East and human rights. If Mrs Rajavis admission to the United Kingdom would really pose an appreciable risk of provoking these consequences, then I think it clear that the interference with the claimants article 10 rights is capable of being justified in the interests of national security, public safety and the protection of the rights of others. Nor was this really disputed by Lord Pannick QC. It has been said that there is little scope under article 10.2 of the Convention for restrictions on political speech or on debate on questions of public interest: Wingrove v United Kingdom (1996) 24 EHRR 1, para 58; Srek v Turkey (1999) 7 BHRC 339, para 60. At the same time, the Strasbourg Court has recognised, in recent years with growing emphasis, that article 10 rights are qualified rights. An important milestone was the decision of the Grand Chamber in Stoll v Switzerland (2007) 47 EHRR 1270, acknowledging a legitimate interest on the part of the state in punishing an unauthorised disclosure by the press of tendentiously selected parts of a confidential diplomatic memorandum which admittedly dealt with matters of substantial public interest. The Grand Chamber observed that article 10.2 does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern: para 102. In particular, the Court has always recognised the potential for considerations of national security or public order to justify proportionate restrictions on political speech or public debate, as it did in its observations in Srek itself at paras 60 61. If a persons presence or conduct in the United Kingdom threatened to provoke violence within the United Kingdom, or to export it from the United Kingdom to other countries, there could hardly be any argument about this. This is an unusual case in that the damage to national security or public order which is apprehended would originate from the response of persons outside the United Kingdom, but it is difficult to see why that consideration should itself make any difference to the principle. 38. To say that something is capable of justifying a restriction of freedom of expression does not of course mean that it necessarily justifies this particular restriction, but it unquestionably narrows the field of inquiry. Given that no one has challenged the facts or the bona fides of the Secretary of States decision, and that no one has argued that the consequences feared by the Secretary of State are not grave enough to justify her decision if her fears are realistic, there are only three bases on which the court might in theory quash the decision made in this case. It might conclude (i) that the Secretary of States had attached insufficient importance to the value of freedom of expression generally, or understated its importance in this case; or (ii) that the Foreign Offices assessment on which the decision was based overstated the risks of damage to national security, public order or the rights of others; or (iii) that the Secretary of State objective could reasonably have been achieved by some lesser measure. The claimants take all three points. Point (i): Underrating the value of freedom of expression 39. The Home Secretary has said in her decision letters that she recognised and took into account the value of informed political debate in the United Kingdom. There is no basis for concluding that she underrated the importance of freedom of expression in general. The real point made against her by the claimants is that she underrated the significance of the restrictions on freedom of expression associated with her own decision in this case. 40. The argument gains some traction from the fact that in her decision letter of May 2011 she denied that article 10 was engaged at all, because of the existence of other methods by which the Parliamentary claimants could communicate with Mrs Rajavi which did not involve her entering the United Kingdom. This was a bad point, but it was effectively abandoned in her subsequent decision letters. They acknowledged that the claimants article 10 rights were or might be engaged notwithstanding the availability of other modes of communication. But they relied upon the same matters as limiting the extent of her interference with those rights and asserted that any right arising from that article was outweighed by other considerations. Lord Pannick QC criticised this approach as tending to understate the extent of the interference with freedom of expression. But I think that his criticisms are unsound. There are degrees of interference with even so important a right as freedom of expression. The degree of interference involved necessarily has a significant impact on ones assessment of its proportionality. Relevant factors include the degree of control asserted by the state over the dissemination of the relevant information or opinion, the methods by which it exercises that control and whether the freedom of the press is curtailed. At one extreme there is a case like Srek which involved the total suppression of a particular point of view, enforced with criminal sanctions including imprisonment. At the other are cases where the measure impugned restricted only the method by which the opinion or information was conveyed. Absent unusually compelling considerations of public order, 41. 42. it is difficult to think of any circumstances in which the first extreme would be consistent with article 10. But short of that, the position is more nuanced and less susceptible to absolute positions. In Appleby v United Kingdom (2003) 37 EHRR 783, a local campaigning group was prevented from distributing leaflets against a planning proposal at the entrance to a shopping mall in Washington New Town known as the Galleries. The Strasbourg court rejected the argument that this prohibition contravened the Convention, because the partial character of the interference meant that there had been no failure by the state to observe its positive obligation to protect the dissemination of information and ideas. The court observed, at para 48: 48. In the present case, the restriction on the applicants ability to communicate their views was limited to the entrance areas and passageways of the Galleries. It did not prevent them from obtaining individual permission from businesses within the Galleries (the manager of a hypermarket granted permission for a stand within his store on one occasion) or from distributing their leaflets on the public access paths into the area. It also remained open to them to campaign in the old town centre and to employ alternative means, such as calling door to door or seeking exposure in the local press, radio and television. The applicants did not deny that these other methods were available to them. Their argument, essentially, was that the easiest and most effective method of reaching people was to use the Galleries, as shown by the local authoritys own information campaign (see para 21 above). The Court does not consider however that the applicants can claim that they were as a result of the refusal of the private company, Postel, effectively prevented from communicating their views to their fellow citizens 49. Balancing therefore the rights in issue and having regard to the nature and scope of the restriction in this case, the Court does not find that the Government failed in any positive obligation to protect the applicants freedom of expression. In Mouvement Ralien Suisse v Switzerland (2012) 56 EHRR 482, the complainant, an organisation dedicated to promoting communication with extra terrestrial beings, was prevented by a local authority from advertising on billboards. The local authority disapproved of their message on the ground that it was liable to encourage child abuse and other evils. The 43. organisation, however, had other ways of getting its message across which were not under the local authoritys control. The restriction was held to be proportionate. At para 75, the Grand Chamber said: Like the Government, it finds that a distinction must be drawn between the aim of the association and the means that it uses to achieve that aim. Accordingly, in the present case it might perhaps have been disproportionate to ban the association itself or its website on the basis of the above mentioned factors To limit the scope of the impugned restriction to the display of posters in public places was thus a way of ensuring the minimum impairment of the applicant associations rights. The Court reiterates in this connection that the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question In view of the fact that the applicant association is able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter boxes, the impugned measure cannot be said to be disproportionate. In case these examples may seem too Lilliputian in one case or too eccentric in the other to give rise to large conclusions of principle, Animal Defenders International v United Kingdom (2013) 57 EHRR 607, another Grand Chamber decision, raised issues filling a larger canvass. The complaint was that Animal Defenders International was prevented by law from taking paid advertising time on television to disseminate its views on animal rights, an issue which the court acknowledged to be of general public interest. The court held that the restriction was compatible with article 10, and treated as relevant the fact that, although television advertisement was the most effective mode of communication, it was not the only one. At para 124, the court said: The Court notes, in this respect, the other media which remain open to the present applicant and it recalls that access to alternative media is key to the proportionality of a restriction on access to other potentially useful media In particular, it remains open to the applicant NGO to participate in radio or TV discussion programmes of a political nature (ie broadcasts other than paid advertisements). It can also advertise on radio and television on a non political matter if it sets up a charitable arm to do so and it has not been demonstrated that the costs of this are prohibitive. Importantly, the applicant has full access for its advertisement to non broadcasting media including the 44. print media, the internet (including social media), as well as to demonstrations, posters and flyers. Even if it has not been shown that the internet, with its social media, is more influential than the broadcast media in the respondent State (para 119 above), those new media remain powerful communication tools which can be of significant assistance to the applicant NGO in achieving its own objectives. In the Court of Appeal in the present case, Arden LJ remarked (para 57) that the interference with article 10 rights in this case was in effect a denial of the right. This seems to me to be too extreme a view. I do not doubt that a face to face meeting between the Parliamentarians and Mrs Rajavi is the most effective way of conducting their discussions. I would accept that the proposed venue (the Palace of Westminster) and the proposed attenders (members of the two Houses of Parliament) both add symbolic value to an occasion intended to promote democratic values, although it may equally be said to enhance any perception on the part of the Iranians that she is being officially endorsed by the organs of the British state. But Mrs Rajavi has not been denied the right to express her views. Nor have English Parliamentarians or anyone else been denied the right to receive them. Putting the matter at its highest, the Secretary of States decision deprives them of the use of one method and one location for their exchanges. It may be that the decision rules out the best method and the best venue for the purpose. For that reason it would be wrong to suggest that such a restriction is trivial. It is not. Nor did the Secretary of State say that it was. The restriction is fairly described in her reasons as limited. But the force of the point does not lie in the choice of adjectives. It lies in the Secretary of States view that the particular restrictions of freedom of expression involved in her decision, in whatever language described, were outweighed by the risk to the safety of British persons and property and Embassy staff. That was a question to which she plainly did address herself. Point (ii): Overstating the risks 45. The claimants take issue at a number of points with the assessment of the risks by the Foreign Office on which the Secretary of State has relied. None of their criticisms seem to me to meet the gravamen of the Secretary of States case. Moreover, many of them were undermined six months after these proceedings were launched when the sack of the British Embassy in Tehran tended to bear out some of the worst fears of the Foreign Office. The points can be dealt with quite shortly, since it is neither necessary nor in my view possible for a court to reach a definitive conclusion of its own: (2) (1) The claimants say that the Iranian government has not reacted adversely to other European countries which have allowed Mrs Rajavi to engage without restriction with Parliamentarians and communicate her message on their soil. All of these countries have embassies in Tehran, including Switzerland which represents the interests there of the United States, regarded as Irans principal international antagonist. The difficulty about this argument is that it fails to address the main point made in the Secretary of States reasons and the evidence of Mr OFlaherty, namely the long standing and highly unusual character of Britains relationship with Iran over a very long period. The Secretary of States view derives considerable support from the fact that although the EU also had extensive sanctions in place against Iran in 2011 only the British Embassy was attacked. No other European country was targeted. It is said that there was no adverse reaction in Iran to Mrs Rajavis earlier visits to the United Kingdom, before her exclusion in 1997; nor (apart from minor demonstrations) to the de proscription of MeK by the United Kingdom in 2008 and by other countries thereafter. Mr OFlahertys answer is that the factors involved have varied over the years in the course of what has generally been an unstable and deteriorating bilateral relationship, with the result that the position before 1997 is not a guide to the gravity of the threat now. Mrs Rajavis last visit to the United Kingdom occurred seventeen years ago. The de proscription of MeK is more recent, but the claimants argument on this appears to be contrary to the evidence. There were demonstrations outside the Embassy after the decision to de proscribe MeK. The fact that they were not violent is of limited relevance given the propensity of mob action to get out of control. De proscription was certainly regarded as a political act and provoked a high level of official and public rhetoric directed against the United Kingdom, much of which was specifically based on the accusation that the United Kingdom was supporting terrorism. It is said that the Iranians are unlikely to try to acquire nuclear weapons because of the admission of Mrs Rajavi to the United Kingdom. This is not disputed, but it is hardly the right question. It is notorious that negotiations with Iran about nuclear non proliferation have been prolonged and difficult. It is self evident that their success is a matter of great importance to global security. It seems equally obvious that a perception of foreign hostility and an antagonistic relationship between Iran and one of the principal countries involved in the negotiations can only hinder their progress. (3) (4) The claimants have argued that since the United Kingdom was prepared to impose economic sanctions on Iran regardless of the consequences for the safety of its nationals and Embassy personnel, no plausible case can be founded on the comparatively minor offence that would be given to the Iranian regime by admitting Mrs Rajavi. I do not find this convincing. In the first place, the United Kingdoms sanctions were imposed under the auspices of the United Nations and the European Union in the context of a general international move against Iran provoked by its perceived desire to acquire nuclear weapons. Secondly, the value of sanctions as a diplomatic tool was considered to be great enough to warrant the risks. The Foreign Offices assessment is that by comparison concessions to Mrs Rajavi would have very little value having regard to her limited influence in Iran. (5) There have been no overt threats to British persons or interests or to Embassy staff if Mrs Rajavi is admitted. This is correct, but there is a difference of view between the parties about whether an overt advance threat would be expected. 46. The claimants contention that the Secretary of State has overstated the risks associated with the admission of Mrs Rajavi to the United Kingdom is outwardly unimpressive, especially in the aftermath of the events of November 2011. But in my opinion it fails for a more fundamental reason. The future is a foreign country, as L P Hartley almost said. They do things differently there. Predicting the likely consequences of a step which the evidence suggests will be viewed in Iran as a hostile act, cannot be a purely analytical exercise. Nor can it turn simply on extrapolation from what did or did not happen in the past. There is a large element of educated impression involved. The decision calls for an experienced judgment of the climate of opinion in Iran, both inside and outside that countrys public institutions. The exercise is made more difficult by the intense political emotions engaged in Iran, combined with a large element of irrationality and the involvement of potentially violent mobs. The consequences of a failure to engage with this complex and unstable society are sufficiently serious to warrant a precautionary approach. It is the proper function of a professional diplomatic service to assess these matters as best they can. It follows that the only reasonable course which the Home Secretary could have taken once Mrs Rajavis position was raised with her by Lord Carlile, was to draw on the expertise of the Foreign Office, as she did. Having received what was on the face of it a reasoned professional assessment of the consequences of admitting Mrs Rajavi, it is difficult to see how she could rationally have rejected it. This court is no better and arguably worse off in that respect than she was. We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take. Point (iii): less intrusive alternatives 47. Since the problem arises from the prospective presence of Mrs Rajavi in the United Kingdom it is difficult to see what lesser measure than her exclusion would meet the case. The only alternative suggested by the claimants is for the Secretary of State to explain to the Iranian government that she is bound by the Human Rights Act and by the decisions of an independent judiciary. A similar argument was advanced without success about Saudi Arabia in R (Corner House Research and another) v Director of the Serious Fraud Office (JUSTICE intervening) [2009] AC 756, see para 40. In my opinion, it is equally unrealistic in this case. In the first place, the evidence is that there have been attempts in the past to persuade the Iranian government of these things, which have got nowhere. Secondly, states commonly deal with each other as unitary entities. The impact on them of the United Kingdoms decisions is unlikely to be influenced by the question which organ of the United Kingdom state was its originator. Thirdly, there is no reason to suppose that Iran in particular would be susceptible to such explanations. They treated the judicial decision to de proscribe MeK as a political decision in defiance of the facts. Lord Kerrs Judgment 48. I have naturally reflected further on these issues in the light of the judgment of Lord Kerr, which strongly expresses the opposite view. Lord Kerr considers that while respect is required for the executives assessment of the consequences of admitting Mrs Rajavi for national security, public safety and the rights of others, it is for the court to assess the weight to be attached to the Convention right to freedom of expression. In principle that is right, but it does not take matters any further in a case like this one, where the decision maker has to weigh the one against the other. It cannot therefore be enough to assess the weight to be attached to freedom of expression on its own, unless perhaps the court is to say that the weight to be attached to freedom of expression is so great that as a matter of law nothing can prevail against it. I do not understand that to be Lord Kerrs position. Nor would it be consistent with either the language of article 10 or the jurisprudence of the Strasbourg court, both of which emphasise that freedom of expression is not an absolute right but may be outweighed by other legitimate public interests. 49. This gives rise to what is surely the central issue on this appeal. How is the court to determine where the balance lies if (i) it has no means of independently assessing the seriousness of the risks or the gravity of the consequences were they to materialise, and (ii) the Secretary of State is not shown to have committed any error of principle in her own assessment of them. For that is indeed the position in which the court finds itself. We are not in point of law bound to accept the factual assessment of the Foreign Office about the impact on our relations with Iran of admitting Mrs Rajavi to the United Kingdom. But if we reject it we must have a proper basis for doing so. In this case, there is none. There is no challenge to the primary facts. We have absolutely no evidential basis and no expertise with which to substitute our assessment of the risks to national security, public safety and the rights of others for that of the Foreign Office. We have only the material and the expertise to assess whether the Home Secretary has set about her task rationally, by reference to relevant matters and on the correct legal principle. Beyond that, in a case like this one, we would be substituting our own decision for that of the constitutional decision maker without any proper ground for rejecting what she had done. All the recent jurisprudence of this court has rejected that as an inappropriate exercise for a court of review, even where Convention rights are engaged. Yet that appears to be where Lord Kerrs analysis leads. We do not ask whether the Secretary of States view is tenable, he says (para 158), but whether it is right. Notwithstanding the respect which in earlier parts of his judgment Lord Kerr has acknowledged is due to the executives assessment of questions of national security, this is in fact nothing less than a transfer to the courts of the constitutional function of the Home Secretary, in circumstances where the court is wholly incapable of performing it. In the end, however, Lord Kerr puts forward no reason for rejecting the Home Secretarys assessment of the risks to national security, public safety or the rights of others on the evidence. He makes two rather different points. 51. The first is that the predictive character of the judgment of the Home Secretary and the Foreign Office, combined with the volatility of the Iranian government and people, makes the executives assessment inherently unreliable and therefore substantially diminishes its weight. I would accept that these factors inject into the situation a larger than usual element of uncertainty. This necessarily calls for a high degree of care, and if the evidence had been challenged in the High Court that would no doubt have 50. been one element of the challenge. But I would not accept that any of this diminishes the weight to be attached to the executives assessment. It is inherent in the precautionary approach which is generally required in dealing with potential threats to national security and public safety that decisions must be based on inherently uncertain assessments of the future. In view of the importance of the objective, I am not prepared to say the very nature of the judgments required to achieve it should diminish their significance in the eyes of a court. 52. Lord Kerrs second point is a more fundamental one, namely that the risk of an adverse reaction by the Iranians to the admission of Mrs Rajavi should be entitled to limited weight, not because such a reaction is insufficiently probable or harmful, but because it would be unreasoning and unreasonable, anti democratic and contrary to the standards and values of this country for the Iranians to behave in that way. That may be so. However, the question is not whether an adverse reaction by the Iranians would be legitimate in our terms, but whether it would be sufficiently likely and dangerous to the interests referred to in article 10.2. This is an essentially factual judgment, on which the only pertinent material before us is the expert assessment of the Foreign Office. In the nature of things, many of the public interests listed in article 10.2 of the Convention as being capable of justifying restrictions on freedom of expression will arise from threats which can fairly be described as unreasoning, unreasonable, anti democratic and contrary to the values underlying the Convention. Terrorism and other acts of political violence are unreasoning, unreasonable, anti democratic and contrary to the values of this country. It is an unfortunate truth, but one that we must face, that in the modern world the great majority of threats to our national security, public safety and the rights of others do come from people who are unreasoning, unreasonable and anti democratic and reject the values of this country. But it has never previously been suggested that the threat of violence by third parties should only be entitled to substantial weight in executive decisions so far as they emanate from people who share our values. On the contrary, the courts have consistently treated them as relevant and weighty, as they plainly are. The Secretary of State is concerned with the actual consequences of Mrs Rajavis admission, not with the democratic credentials of those responsible for bringing them about. This was the precise issue decided in Corner House, where the error of the Divisional Court which led to its being overruled in the House of Lords was that it required the decision maker to ignore or downplay real risks to national security where they originated from people acting for motives which were contrary to the values of this country. Lord Kerr suggests (para 161) that no fundamental right was at stake in Corner House. With respect, that is not right. The rights that were at stake were identified by Lord Bingham (at para 23) by reference to the judgment of the Divisional Court. They were on the one hand the rule of law and on the other hand the duty of the state under article 2 of the Convention to protect human life against (among other things) terrorist threats. These are among the most fundamental values of our society. Conclusion 53. In my opinion, on the undisputed facts before the Secretary of State, it has not been shown that she was guilty of any error of principle. On the points which were critical to their decision, it has not been shown that the Divisional Court or the Court of Appeal were guilty of any error of principle. I can see no factual or legal justification for this court to take a different view. I would therefore dismiss this appeal. LORD NEUBERGER: 54. In my view, this appeal should be dismissed. Although I agree with a great deal of what he says, my reasons are perhaps more limited than those given by Lord Sumption, and I will therefore express them in my own words. The nature of the issue 55. The issue on this appeal arises out of a decision of the Home Secretary to refuse to admit Mrs Rajavi into this country because the Foreign Secretary believes that it would risk harming the diplomatic and economic interests of the United Kingdom, and the safety of some people for whom it has a degree of responsibility. The issue is the extent to which the court can override the decision on the ground that it curtails Mrs Rajavis ability to engage in political discussions with members of the United Kingdom legislature. 56. The issue requires one to focus on the boundary and overlap between the respective roles of the executive and of the judiciary. That aspect of our constitutional settlement has gained increasing significance with the growth of judicial review over the past fifty years, and that significance has accelerated since 2000 with the coming into force of the Human Rights Act 1998. Judicial review protects citizens against inappropriate use of the executives powers, and, as those powers have increased in most areas since the 1960s, so has the number of judicial review applications. The 1998 Act for the first time formally introduced fundamental rights into the domestic law of the United Kingdom, and the exercise of executive powers often affects those rights, which include the right engaged in this case, freedom of expression. 57. The courts accordingly are now frequently called on to review, and, where appropriate, to overturn, decisions of the executive, whether government ministers, local authorities, or other administrative bodies as can be seen from perusing the law reports. Judges should always be vigilant and fearless in carrying out their duty to ensure that individuals legal rights are not infringed by the executive. But judges must also bear in mind that any decision of the executive has to be accorded respect in general because the executive is the primary decision maker, and in particular where the decision is based on an assessment which the executive is peculiarly well equipped to make and the judiciary is not. However, I agree with what Lord Kerr says in paras 137 and 147, namely that, whatever the issue, once a Convention right is affected by a decision of the executive, the court has a duty to decide for itself whether the decision strikes a fair balance between the rights of an individual or individuals and the interests of the community as a whole. 58. The specific issue raised on this appeal arises from concerns about how the Iranian government is likely to react to a particular decision of the United Kingdom government, and whether the reaction could endanger the safety of individuals for whom our government has some responsibility, or could harm this countrys economic or international political interests. These are plainly matters which are entrusted under our constitutional settlement to the executive, and in particular to the Foreign Secretary, who, with the experience and sources of information available to his department internally and externally, is, almost literally, infinitely more qualified to form an authoritative opinion on such issues than a domestic judge, however distinguished and experienced he or she may be. 59. The Home Secretary, whose decision is being challenged, has consulted the Foreign Secretary, and she states that, as a result, she has decided not to admit Mrs Rajavi into this country, because it would have a significant damaging impact on United Kingdom interests in relation to Iran and on the lives and interests of others. The possible adverse Iranian response is said to include targeting our interests in Iran and risk to British interests and properties outside Iran, and the decision is described as resting not purely on foreign policy grounds but also on grounds of United Kingdom security, especially the safety of over one hundred local employees in Iran, and the security of United Kingdom personnel in the region. 60. These concerns are more fully described by Lord Sumption in paras 7 9 and by Lord Kerr in paras 122 128 of their respective judgments. They are recorded in letters sent on behalf of the Home Secretary, conveying the decision not to admit Mrs Rajavi, and they are further explained in two statements prepared for the purpose of these proceedings by Mr OFlaherty, a senior official in the Foreign Office responsible for diplomatic relations with Iran. 61. The ground upon which it is said that the decision is unlawful is that the concern on which it is based represents an insufficient justification for interfering with the article 10 rights of Mrs Rajavi and of those many Members of Parliament and Peers who wish to meet her in London in order to discuss the important issue of Iranian democracy. There is no doubt that, if it stands, the decision will impede such discussions; nor is there any doubt that such discussions are at the top of the hierarchy of free speech, as they constitute political communications. 62. There are, I think, three separate submissions contained in the argument of Lord Pannick QC, who seeks to impugn the Home Secretarys decision. The first is that the grounds of objection to Mrs Rajavis admission to the United Kingdom raised by the Home Secretary could not, as a matter of law, defeat an article 10 right. The second submission is that, even if they could, the basis of the decision is flawed because the Home Secretary wrongly considered that article 10 was not engaged. The third submission is that, even if the basis of the decision is not so flawed, the grounds for it are insufficiently strong to justify refusing to give effect to the article 10 rights involved ie that the reasons for refusing Mrs Rajavi admission into the United Kingdom are disproportionate bearing in mind that article 10 is engaged. Discussion of the appellants case 63. I would reject the first submission, which was raised for the first time in this Court. Where a person needs her permission to enter the United Kingdom, the Home Secretary is entitled, indeed in some circumstances she might be said to be obliged, to refuse entry if such a refusal would be conducive to the public good under rule 320 of the Immigration Rules. It is accepted that, if the Home Secretary was rationally concerned that a persons presence in the United Kingdom would damage the national interest within the jurisdiction, entry could be refused because of such concerns. I find it impossible to accept that the same decision could not be made if the Home Secretary was concerned that a persons presence in the United Kingdom would damage the national interest abroad. Neither logic nor the language 64. 65. of the rule justify such a distinction. It is regrettable that the concerns in this case are based on the risk of what may appear to the great majority of people in this country to be an inappropriate and unjustifiable reaction on the part of a foreign government (and possibly others). However, government ministers and judges cannot disregard facts, particularly when it comes to making or reviewing decisions based on the public good. I would also reject the second submission. Although the Home Secretary appears initially to have considered that article 10 was not engaged (understandably, if wrongly, because the discussions with Mrs Rajavi could take place, albeit not with all the parties face to face in this country), it is pretty clear that she accepted that it was engaged by the time she made her final decision. If the second submission had been a good one, then, rather than deciding the question ourselves, I would have concluded that the question of Mrs Rajavis admission into the United Kingdom should be remitted to the Home Secretary. For the reasons I have given for rejecting the third submission, it would, in my view, be inappropriate for us to determine for ourselves whether Mrs Rajavi should be admitted into the United Kingdom. I turn then to Lord Pannicks third submission. He rightly did not contend that the Home Secretarys decision was disproportionate on the grounds that the concerns she invoked were not genuinely held by her or the Foreign Secretary. There are no proper grounds upon which we could conclude that the concerns expressed by the Foreign Secretary and his officials are not genuine: they are concerns which a domestic court is not in a position to challenge or doubt. If Mr OFlaherty had been cross examined, and the High Court had been satisfied that the factual basis for those concerns did not exist or was flawed in some other way, it might be different. So, too, if it had been argued that the concerns were irrational. But, rightly, that argument was not advanced either. 66. However, the appellants evidence carries an undertone of a suggestion that the concerns were unjustified. For instance, it is said that Mrs Rajavi has visited the United Kingdom on four occasions between 1985 and 1996, that she moves round the rest of Europe freely, and that she lives in France. However, as Lord Sumption explains, Mr OFlahertys evidence is that the relationship between Iran and the United Kingdom has long been particularly sensitive, international relations with Iran generally are particularly fraught at the moment, and there have been unfortunate incidents in the past. Accordingly, there are reasons for rejecting the scepticism which some people might feel as to whether the concerns expressed by the Secretaries of State were justified. 67. Having said that, it remains the case that, where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision. That was made clear by all members of the appellate committee in Belfast City Council v Miss Behavin Ltd [2007] 1 WLR 1420, paras 13, 24, 31, 44 and 97, applying R (SB) v Governors of Denbigh High School [2007] 1 AC 100. More recently, the point was illuminatingly discussed by Lord Reed in Bank Mellat v Her Majestys Treasury (No 2) [2014] AC 700, paras 68 76. As Lord Reed made clear at para 71, while proportionality is ultimately a matter for the court, it does not entitle [domestic] courts simply to substitute their own assessment for that of the decision maker, and he went on to say that the degree of restraint practised by [domestic] courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend upon the context, and will in part reflect national traditions and institutional culture. The same point was made by Lord Sumption in a passage he quotes on this appeal in para 21. It is also right to bear in mind Lord Binghams remarks in para 29 of A v Secretary of State for the Home Department [2005] 2 AC 68, and Lord Reeds remarks in para 93 of Bank Mellat (No 2), quoted by Lord Sumption in para 33. 68. Accordingly, even where, as here, the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive. The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality. 69. Applying those principles to this case, it appears to me clear that the Home Secretarys decision to refuse to admit Mrs Rajavi into the UK is one with which the courts should not interfere, despite the engagement of article 10. Although that conclusion means that I would uphold the decisions of the courts below, it is right to add that I agree with Lord Kerr when he says at paras 136 137 that the Court of Appeal were wrong to confine themselves to the question whether the decision maker had approached the matter 70. 71. rationally, lawfully and in a procedurally correct manner (per Arden LJ at [2013] EWCA Civ 199, para 93). Such an approach has been traditionally adopted in domestic judicial review cases, whereas in cases involving Convention rights, the appropriate approach is that summarised in paras 67 68 above. However, it is fair to say that, in practice in a case such as this, for the reasons given in paras 70 73 below, the difference in the two approaches may rarely produce different results. It is, I would have thought, self evident that a decision based on the possibility of an adverse reaction of a foreign government, and consequential risk of damage to the United Kingdoms diplomatic and economic interests, and to the well being of United Kingdom citizens and employees abroad, is very much at that end of the spectrum where a court should be extremely diffident about differing from a ministerial decision, at least where the only challenge is based on proportionality. Just as it is normally impossible for a judge to challenge the existence of such risks, once they are believed by the Foreign Secretary to exist, so it would normally be impossible for a judge to form a view as to how likely such risks are to eventuate and how serious the consequences would be. That view is also consistent with what Lord Reed called our national traditions and institutional culture, as is evidenced by the cases cited by Lord Sumption in paras 22 26 above, especially those decided after the Human Rights Act came into force. I appreciate that, as Lord Clarke suggests, some people might wonder whether, or even suspect that, the Foreign Secretarys concerns about the repercussions of permitting Mrs Rajavi to enter the United Kingdom are exaggerated, or that the risk of his concerns being realised was slight. That is an opinion which any citizen is entitled to hold and express, but, like Lord Clarke, I do not consider that it is an opinion on which a court would be entitled to act in this case. As I have mentioned, a Judge has neither the experience nor the knowledge to make such a finding, save in exceptional circumstances, and I do not consider that it would be open to us to hold that this was such an exceptional case without the justification having been established through cross examination of Mr OFlaherty. And, even if the likelihood is small, the risk of grave harm exists, and it is primarily for the executive to assess the extent of such a risk and to decide what to do about it. 72. Accordingly, treating this as a balancing exercise, there is, on the one side, a real risk of possible, conceivably substantial, harm to (i) the United Kingdoms diplomatic interests, (ii) the UKs economic interests, and (iii) individuals for whom the United Kingdom has a degree of responsibility. In terms of institutional competence, it is very much the function of the executive, and not the judiciary, to assess the existence and the extent of such risks, and there is insufficient evidence to justify a court forming a different view of the risks. For that reason alone, I consider that it would require an exceptionally heavy weight on the other side of the balance before a court could satisfactorily carry out its own balancing exercise in this case and come to a different conclusion from that of the Home Secretary. 73. When one turns to the other side of the balance, it is perfectly true that the importance of freedom of expression is fundamental in a modern democratic society, and that political free speech is particularly precious. This is clear from the judicial observations cited by Lord Kerr in his judgment at paras 162 165. However, as article 10 provides, it is not an unqualified freedom, in that it may be subject to various formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for various purposes, including the interests of national security, territorial integrity or public safety. While the Home Secretarys decision in this case results in curbing freedom of speech, the decision itself is a perfectly orthodox exercise of her power to refuse a person entry into the United Kingdom on the grounds of the national interest, and to that extent this is an unusual case. 74. Furthermore, although the effect of the decision would be to impede political discussions with Mrs Rajavi, those discussions would not by any means be prevented: they could be conducted by videolink or (less convincingly bearing in mind the numbers involved) by the Parliamentarians visiting Mrs Rajavi in France. In addition, the decision not to admit Mrs Rajavi into this country was taken at the highest possible level, both at the Home Office and at the Foreign Office, namely by the relevant Secretary of State. It is also worth mentioning (although it is not a decisive point) that, as those objecting to the decision are members of the House of Commons and the House of Lords, it would, at least on the face of it, be relatively easy for the decision to be challenged in Parliament. The contrary view 75. As I understand it, Lord Kerrs contrary conclusion is based on the proposition that, because it is ultimately for the court to decide what weight to attach to the Convention right and where the proportionality balance comes down, we can and should allow this appeal, essentially for two reasons. The first is that there is a large element of uncertainty as to whether or not any of the consequences of admitting Mrs Rajavi, as feared by the Foreign Secretary and summarised in paras 59 60 above, would actually occur. I agree that the feared outcome is uncertain, but I do not consider that that factor takes matters any further, essentially for the reasons given in paras 70 74 above. The very fact that the feared outcome is uncertain appears to me, if anything, to emphasise why a court is not in a position to challenge the conclusion reached by the Home Secretary. The Foreign Office is the best equipped organ of the State to assess the likely reactions of a volatile foreign government and people, and while it would be an overstatement to say that a domestic court is the worst, it is something of an understatement to say that it is less well equipped to make such an assessment than the Foreign Office. 77. 76. Lord Kerrs second point is rather different, and does not appear to involve rejecting or discounting the opinion of the Home Secretary or the Foreign Secretary as to the risk of the harm summarised in paras 6 7 occurring. Rather it rests on the notion that the weight to be given to the anticipated reaction of the Iranian authorities should be significantly discounted, because, as he puts it, that reaction would be rooted in profoundly anti democratic beliefs, antithetical to the standards and values of this country and its parliamentary system in order to significantly restrict one of the fundamental freedoms that has been a cornerstone of our democracy, namely freedom of speech see his para 170. I have no doubt that many people in this country would enthusiastically agree with the sentiment implicit in those observations, but, essentially for the reasons mentioned in para 63 above, I do not accept that they represent an appropriate basis for allowing this appeal. While it may be unwise to be categoric, I find it very hard to envisage any circumstances where a judges decision to quash an executive decision to restrict a Convention right because its exercise might endanger the national interest, could turn on an assessment of the motives of the person responsible for the danger to the national interest. For instance, I cannot accept that, when considering whether anti terrorist legislation was incompatible with the Convention in so far as it restrained citizens human rights, a judge could take into account the fact that the legislation was motivated by the need to avoid risks to national security from actions by people motivated by unreasonable, violent and anti democratic motives. The issue in this case concerns the nature, likelihood and impact of the reaction of the Iranian authorities and people to the admission of Mrs Rajavi into this country, not the legitimacy or defensibility of the reasons for that reaction. 78. This case involves a decision of the executive arm of Government, and, while the executive arm has to obey the law, it has to act in accordance with the harsh practical realities to protect the public interest. It cannot be seriously disputed that members of the executive are therefore entitled, indeed often obliged, to take into account factors which a court, other than when considering the lawfulness of an executive or other third party decision, could normally not properly take into account. A good example can be found in A v Secretary for the Home Department [2005] UKHL 71, [2006] 2 AC 221, in which it was held that a court could never receive evidence obtained by torture; at paras 132 133, Lord Rodger of Earlsferry said that, unlike a judge, a Government minister could properly receive and act on information irrespective of how it had been obtained. It is right to add that, although I disagree with Lord Kerrs conclusion and his reasons for it, I largely agree with what he says in his paras 147 152, as I do with what Lord Sumption and Lady Hale say in their respective judgments. I express myself as largely agreeing with those passages, not so much because there is any specific statement with which I take issue, but because, as Lady Hale says, there are differences between us in terms of nuance. I should, however, perhaps deal with two points on which they are not agreed in those passages. 79. 80. First, there is the question discussed in Lord Kerrs para 158 and Lord Sumptions para 49. Lord Kerr suggests that the court has to decide whether the Secretary of States decision in this case was right rather than tenable, a proposition with which Lord Sumption disagrees. I find neither adjective entirely apt. I agree with Lord Kerr to the extent that the decision is for the court, but Lord Sumption is surely right to the extent that, unless it can be shown to be based on wrong facts or law, not genuinely held, or irrational, the nature of the decision in this case is such that the court would require strong reasons before it could properly substitute its own decision for that of the Secretary of State. 81. The second issue concerns the applicability of the reasoning of the House of Lords in R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2009] AC 756 to this case (cf Lord Kerrs para 161 and Lord Sumptions para 52). While I accept that the decision has features which could enable it to be distinguished in this case as explained by Lady Hale at para 85, I consider that allowing this appeal would be difficult to reconcile with the reasoning in Corner House. In particular, one of the two grounds advanced by Lord Kerr for allowing this appeal would seem to me to imply that Corner House must have been wrongly decided. Lord Kerrs approach appears to involve the notion that the courts should not allow the executive to take into account risks or threats when they are activated by undemocratic or unreasonable motives; if that were right, then the Director of the SFO should surely not have been permitted to take into account the threats which, the House of Lords decided, he was entitled to take into account in that case. Conclusion 82. For the reasons which I have given, I consider that it is not open to a court on the facts of this case to conclude that the decision of the Home Secretary to refuse entry to Mrs Rajavi was unlawful. Accordingly, I would dismiss this appeal. LADY HALE: 83. This has been a very troublesome case. It has become clear that its principal importance lies, not in the result at which we arrive (although that is not unimportant), but in the way in which we describe the role of the court in arriving at it. Fortunately, we have reached a large measure of agreement, although careful readers will undoubtedly detect nuanced differences between us. It is for that reason that I wish to make my own position as plain as I can. 84. The first and most important point is that this is not a judicial review of the lawfulness of the decision of the Secretary of State that the admission of Mrs Rajavi to this country would not be conducive to the public good. Yet the Court of Appeal confined their consideration to the usual grounds for judicial review of administrative action that is, illegality, unfair process and unreasonableness or irrationality. Nor is this a statutory appeal against a decision to deport her from this country for the same reason, as was the case in Secretary of State for the Home Department v Rehman [2003] 1 AC 153. Such cases also raise difficult questions about the respective roles of the executive and the courts where questions of national security are engaged. But they are not the same issues as those raised by this case. 85. Nor, with the greatest respect, is the decision in R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2009] AC 756 directly in point. That was not a human rights case. It was a traditional judicial review of the decision of the Director not to proceed with an investigation into allegations that BAE Systems had been guilty of the offence of bribing a foreign official. The courts have always been very reluctant to hold that a decision of the prosecuting authorities, whether to prosecute or to decline to prosecute, can be set aside on traditional judicial review grounds. The case was concerned with the rule of law, which is one of the two fundamental principles of our constitution; and the justification advanced for discontinuing the investigation included the risk to life if co operation between our security services and those of another country were to be withdrawn. But there was no allegation on either side that a United Kingdom public authority had acted, or proposed to act, in a way which was inconsistent with the Convention rights of any person within the jurisdiction of the United Kingdom. 86. This case is just such a claim. Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority, such as the Secretary of State, to act in a way which is incompatible with a convention right. This means that even if the act is lawful in other terms it may be rendered unlawful if the effect is incompatible with a convention right. Section 7(1) provides that a victim of such an unlawful act may bring proceedings in the appropriate court or tribunal. Section 8(1) provides that in respect of an act which the court finds unlawful, the court may grant such relief or remedy, or make such other orders, within its powers as it considers just and appropriate. By section 6(3)(a), the court itself is a public authority and may therefore not act in a way which is incompatible with a convention right. 87. This all means that, although the decision in question is, by definition, one which the Secretary of State (or other statutory decision maker) was legally entitled to make, so that in that sense she is the primary decision maker, the court has to decide whether that decision is incompatible with a convention right. She is in the same position as a police officer, using his statutory or common law powers of arrest. He is the primary decision maker. But the court has to form a judgment as to whether or not a convention right has been violated. I agree with Lord Sumption that it is not helpful to ask whether or not this process involves merits review. We have moved on from that question now. 88. This is not to say that the wise observations of distinguished judges in cases such as Rehman and Corner House, as to the respective competence of courts and the executive to make some of the judgments involved, are irrelevant. Far from it. They help us in our approach to some at least of the questions which we have to answer. We have to accept that there are some judgments which the primary decision makers are better qualified to make than are the courts. We do not simply frank those judgments, but we accord them great respect. As Lord Bingham explained in A v Secretary of State for the Home Department [2005] 2 AC 68, para 29, when considering whether, shortly after the atrocities of 11 September 2001, there was a public emergency threating the life of the nation: I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen. 89. To form its judgment, the court has to go through an orderly process of decision making, answering a series of questions with which we are now all thoroughly familiar. Some questions are much easier for a court to answer than others, but the answer to each is relevant to the overall judgment that has to be made. (1) Is there a Convention right involved here? 90. No one doubts that article 10.1 of the Convention is involved: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. This covers the right of Mrs Rajavi and of the Parliamentarians both to receive and to impart information and ideas without state interference. And they have this right regardless of frontiers. 91. These are hugely important rights. Freedom of speech, and particularly political speech, is the foundation of any democracy. Without it, how can the electorate know whom to elect and how can the Parliamentarians know how to make up their minds on the difficult issues they have to confront? How can they decide whether or not to support the Government in the actions it wishes to take? This is all the more important, the larger the issues at stake. There are few, if any, issues larger and more rapidly changing than the political and military situation in the Middle East at present. Parliament is considering whether to support air strikes in Iraq as I write. Parliamentarians who have to make these momentous decisions should be as well informed as they can be. They should be sensitive to all sides of a delicate and complex argument. The position of Iran is a vital, and rapidly changing, component in the Middle East situation. 92. Furthermore, this is an unusual case, in that the Government takes no objection to what Mrs Rajavi is likely to say or the views which she is likely to express. The right is there to protect unpopular or offensive views just as much as it is to protect popular or inoffensive views, but this is not such as case, and the justification for interference may be different as a result. 93. This case is also unusual in that the claimants are senior and distinguished Parliamentarians, many of whom have experience which is directly relevant to the questions at issue here. Indeed, they are much better qualified to assess the weight of the Governments objections to Mrs Rajavi coming to address them than are we. But the very distinction of the people who wish to meet her, and of the place where they wish to meet, gives to the meeting a public and a symbolic importance which it would not otherwise have. (2) Has the right been limited or interfered with? 94. The Secretary of State originally argued that there was no interference with the article 10 right by refusing Mrs Rajavi permission to come here to meet the Parliamentarians. They could always go to Paris to meet her. Or they could exchange views by audio or video conferencing methods (which these days are so effective that they are regularly used in court proceedings). But it was soon accepted that to prevent them from meeting face to face in the Houses of Parliament is indeed an interference with their rights. It would be much harder for the numbers of Parliamentarians who wish to meet Mrs Rajavi to do so in any other way. There is also the important symbolic value of a meeting in the Houses of Parliament. On the other hand, it must also be accepted that, as there are other ways in which the Parliamentarians could communicate with Mrs Rajavi, the interference is not as serious as it would be if they were banned from all forms of communication with her. (3) Was the limitation or interference prescribed by law? 95. Mrs Rajavi has no right to enter this country. The Secretary of State undoubtedly has the power to prevent her coming here, if her presence would not be conducive to the public good. This does make a difference, because the power of the state to prevent people meeting, exchanging views and saying what they like in this country is much, much more limited. If Mrs Rajavi were already here, it is unlikely that there would be any power to prevent her meeting the Parliamentarians and exchanging views with them, no matter how damaging the very fact of the meeting, let alone what was said there, might be to our fragile relations with Iran. Immigration control must be exercised consistently with the convention rights, but at least it means that the means used to limit those rights are prescribed by law. (4) Was it in pursuit of one of the legitimate aims permitted by the Convention in relation to the right in question? 96. Article 10.2 describes the permitted limitations: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. The claimants do not suggest that the aims of the interference do not fall within those permitted by article 10.2. They could fall within national security, public safety or the protection of the rights of others. But this is not national security as many would understand it. It is not suggested that Iran would attack the United Kingdom, or incite terrorist actions against the United Kingdom, or withhold co operation with our security services, thus putting British lives at risk (as was the case in Corner House). This is not an existential threat to the life of the nation. Rather, it is a threat to the foreign policy our Government wishes to pursue. Two things are said (and, as the Administrative Court concluded, plausibly said): first, that it would be perceived by the Iranians as a hostile act, thus damaging our fragile but imperative relations with them; and secondly, that there would be a risk to the safety of locally engaged embassy staff and our remaining property and assets there, a risk which had become all the more plausible following the attack on our Embassy in November 2011, after we had cut off all financial ties with Iran. Knowing that the Strasbourg court generally takes a generous view of the concept, I am prepared to accept that the first risk comes within the ambit of national security and that (in the case of our local staff) the second comes within the protection of the rights of others. 97. That raises two further questions. The first is one of fact. How real are these risks? What is the evidence upon which they are based? What would the damage amount to? Lord Clarke is extremely sceptical about them and I can well understand why. It would, no doubt, have been open to the claimants to have challenged the factual basis for the Governments views before the Administrative Court. They could have asked that Mr OFlaherty be cross examined and subjected those views to searching examination. But they did not. Perhaps they were advised that little good would come of it. There are some factual questions upon which we may have to take the Governments word for it. They cannot always reveal the sources of their information. Qualitative assessments such as this are not readily challenged. So we must accept that those risks do indeed exist, although we have precious little information upon which to assess either their likelihood or their gravity. The second issue is one of evaluation. How important are those risks when weighed against the interference? That comes in at the next stage of the analysis. (5) Was it necessary in a democratic society? 98. This is what we now call proportionality. In this country, we have broken this down into four sub questions, recently articulated by Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, at para 45, and repeated in substantively identical terms by Lord Sumption and Lord Reed in Bank Mellat v Her Majestys Treasury (No 2) [2014] AC 700, at paras 20 and 74. In reality, however, there is a considerable overlap between the four questions. Provided that (i), (ii) and (iii) are answered in the affirmative, the real question is (iv), which can be encapsulated as do the ends justify the means? I have no doubt that it is for the court to make the proportionality assessment; but I have equally no doubt that on some parts of that assessment the court should be very slow indeed to disagree with the assessment made by the Government. (i) Is the objective sufficiently important to justify limiting a fundamental right? 99. This entails a qualitative judgment which the Government is much better qualified to make than is the court. This is not to say that the court will always take the Governments word for it on this or any of the proportionality questions. We did not do so, for example, in Aguilar Quila. But foreign policy and national security are the Governments business some would say the first business of any Government. They have access to sources of information which cannot be put before any court. They have advisers whose job it is to assess what is likely to happen in the future and how serious that will be. They are accountable to Parliament if they get it wrong. These, in brief, are the reasons given in all the cases why courts should be slow to differ from the Governments assessment of the importance of the objectives pursued in a national security context. 100. This case has two unusual features bearing on this question in different directions. First, many of the claimants are themselves peculiarly well qualified to assess the importance of the Governments objectives. They have been in relevant positions in Government or, in the case of Lord Carlile, has served as the Governments independent reviewer of the operation of our anti terrorism legislation. Second, they are all (apart from Mrs Rajavi herself), senior Parliamentarians. This means that they are among those who can hold the Government to account in Parliament for the judgments it makes. 101. At this threshold stage, however, whatever doubts I might have about the real strength of the Governments fears, I cannot say that preserving our relations with Iran is not even capable of justifying some limitation on freedom of speech. (ii) Are the measures which have been designed to meet it rationally connected to it? 102. Clearly, they are. The risks are said to stem from letting Mrs Rajavi come here to address a group of Parliamentarians in the Houses of Parliament. Preventing her from doing so is the rational way of avoiding the risks. (iii) Are they no more than are necessary to accomplish it? 103. Once again, clearly they are. In this case, this is a circular question. The risks stemming from allowing her to come here to address the Parliamentarians can only be prevented by refusing her permission to do so. (iv) Do they strike a fair balance between the rights of the individual and the interests of the community? 104. This, as always, is the nub of the proportionality question. It involves weighing or balancing values which many may think cannot be weighed against one another. Some will think that our foreign policy interests in the Middle East are so important, not only to the safety and security of this country but to the safety and security of the whole wide world, that nothing should be allowed to put them at risk. Some may think that freedom of political expression, especially where such serious and controversial issues are involved, is such a vital feature of any democracy that only the most weighty of reasons should suffice to justify any interference with it. 105. I agree that, difficult though this is, it is ultimately a task for the court, but a court which is properly humble about its own capacities. If the court is satisfied that the Government has struck the balance in the wrong place, then the court must say so. But I also agree that courts must be very slow to interfere with that balance in a case such as this. The court has a particular expertise in assessing the importance of fundamental rights and protecting individuals against the over mighty power of the state or the majority. The Government has much greater expertise in assessing risks to national security or the safety of people for whom we are responsible. But the Government in a democracy such as ours should be at least as mindful of the need to strike the necessary balance between individual rights and the common good as are the courts; and if it does not protect those rights, it is accountable to Parliament in a way which we are not. I may be (like Nellie) a cockeyed optimist, but I believe that our Government does, on the whole, try to act within the law (there was a time when every senior civil servant carried a copy of guidance entitled The Judge Over Your Shoulder); that law now requires the Government to respect human rights, and so it must try to do so. There are occasions when they get it wrong, and we must say so if they do, but we should certainly not assume that they have. 106. This case is particularly difficult, and perhaps unusual. Not only is neither side of the balance particularly weighty, but many of the features cut both ways. I agree entirely with Lord Kerr that it is for us to assess the importance of the right, and we all agree about the particular importance of freedom of political speech, especially on issues such as this. But there are many other ways in which the Parliamentarians could learn from Mrs Rajavi and exchange views with her. She is not being prevented from making her views known, however unpopular those views are with the Iranian authorities. The Parliamentarians are not being prevented from discussing the issues with her. They do not need her to come to Parliament in the way that, for example, all sides of the political debate on the recent referendum had to be put before the voting public. They want her to come, not only for practical, but also for symbolic reasons. 107. On the other hand, the claimed risks to our national interests are also not of the most weighty. The Government has been prepared to take much greater risks in our relations with Iran than it would be taking if it were to allow Mrs Rajavi to come here. They have judged the foreign policy objectives pursued to be more important than the risks. What is at stake here is, it must be admitted, comparatively small beer compared to what is at stake in sanctions aimed at combatting nuclear proliferation. But like everything else, that cuts both ways. The Governments view is that Mrs Rajavi is not an important figure in the Iranian opposition. There is little to be gained from exchanging views with her and something to be lost. 108. I was for a while troubled by the thought that the risks feared by the Government could not begin to justify interfering with the Parliamentarians rights to exchange views with Mrs Rajavi were she already here. There are many important foreign opposition figures whom we have proudly welcomed to these shores and given a platform for their views. Only if they commit criminal offences here can they be prevented. This must often be extremely irritating, to put it mildly, to foreign governments with whom we wish to remain on friendly terms. Why should it make a difference that Mrs Rajavi is not here and has no right to be? In the end, I have concluded that it does make a difference, not only because the law allows the Government to prevent her coming here, but also because of the symbolic importance which both she and the Parliamentarians, on the one hand, and the Iranian authorities, on the other hand, would attach to the lifting of the ban. Conclusion 109. In the end, I have reluctantly concluded that the risks anticipated by the Government, which we must accept are real, are, in the unusual circumstances of this case, sufficient to justify the interference with Mrs Rajavis and, more importantly, the Parliamentarians rights. No one can doubt the huge importance of what is going on in the Middle East to the national security of this country and of the whole world. Recent events have served to emphasise that our relations with Iran are not only fragile but also imperative. I cannot conclude that the Parliamentarians right to meet Mrs Rajavi face to face in the Houses of Parliament is sufficiently important to put that relationship at risk. They have the unique advantage that the Government can and must answer to Parliament for what the claimants see as an affront to their rights as Parliamentarians. 110. The three decisions under attack in these proceedings were made on 1 February 2011, 10 October 2011, and 24 January 2012. The witness statements of Mr OFlaherty were made on the same days as the second two decisions. The Administrative Court made its decision on 16 March 2012. It is now November 2014. A great deal has happened in the Middle East since then. We do not know how, if at all, the Foreign Office and Security Service assessments of the balance of risk and advantage would be different today. But I am conscious that we are looking in 2014 at the compatibility with the convention rights of a decision taken in 2011. We have, I hope, gone some way towards clarifying the principles. It can be taken again in the light of the up to date situation. LORD CLARKE: 111. I would very much have liked to be able to agree with Lord Kerr and have allowed the appeal. This is because I am extremely sceptical about the reasons given on behalf of the Secretary of State for refusing to permit Mrs Maryam Rajavi to visit the United Kingdom in order to meet a number of members of Parliament and to discuss democracy and human rights in Iran. However, I have reached the conclusion that there is no basis upon which the court could properly allow the appeal and that the appeal should be dismissed, essentially for the reasons given by Lord Neuberger. 112. My reason for being unable to agree with Lord Kerr are essentially these. Like him (at para 133), I agree with the assessment of the Secretary of State that Mrs Rajavis admission to this country would be (or would have been) regarded by the Iranian government as a hostile act and, again like him, I find it impossible to disagree with Stanley Burnton LJs assessment that it was entirely feasible that, given the record of the Iranian government, retaliation in the form of action against Iranian employees or against United Kingdom citizens might ensue. In para 135 Lord Kerr poses this question. Put simply, if the executives assessment of the risk must be accepted, what is the courts role in judging whether such a risk, and the consequences of its materialising, are sufficient to justify the interference with the particular Convention right? It appears to me that, on the facts of this case, once those conclusions are accepted, it is very difficult for the court to reject the Secretary of States view on proportionality. It was indeed at this first stage that I had some doubts. In particular I was unsure whether it was right to accept the evidence of Mr OFlaherty upon which the findings were based. It seemed to me that there was scope for investigation of the question whether the Home Office were still influenced by their previous view that PMOI was a terrorist organisation, given that the Secretary of State had refused to reverse the proscription of PMOI, had resisted an appeal to POAC against that refusal and, when the appeal succeeded, had subsequently appealed to the Court of Appeal, which unanimously dismissed the appeal: see the description by Lord Kerr at para 119. 113. 114. However, as Lord Neuberger and Lord Sumption observe, no attempt was made to cross examine Mr OFlaherty and, as Lord Neuberger says at para 65, not only were the concerns expressed by the Secretary of State and the Foreign Secretary (and their officials) genuine, but they were concerns which a domestic court is not, as a matter of fact, in a position to doubt, at any rate in the absence of evidence to the contrary. 115. The basis upon which Lord Kerr has reached the conclusion that the appeal should be allowed depends upon his analysis of proportionality. He accepts in para 150 that on the question of the assessment of the risks of admission to the United Kingdom and their consequences, very considerable respect for the executive decision is called for, albeit short of genuflection. The position, he says at para 154, is different on the question whether the importance to be attached to the rights of the appellants (and indeed of Mrs Rajavi) to freedom of expression under article 10 of the European Convention on Human Rights was one on which the court should defer to the decision of the respondent. I agree with his conclusion in para 154 that it is for the court to reach its own conclusion on the importance to be attached to such a right on the facts of a particular case. As Lord Neuberger says at para 57, once a Convention right is affected by a decision of the executive, the court has a duty to decide for itself whether the decision strikes a fair balance between the rights of an individual or individuals and the interest of the community as a whole. In these circumstances I agree with Lord Kerrs conclusion at para 158 that the question is whether the decision of the Secretary of State was right. 116. I recognise the importance of Mrs Rajavis rights under article 10. However, in his discussion on striking the balance Lord Kerr asks in para 169 whether unreasoning and unreasoned views should count significantly in support of a claimed justification for interference with that right and whether the Iranian reaction (even if correctly anticipated) should be allowed to exert significant influence over a decision to restrict the guaranteed rights of parliamentarians. He relies too in para 172 on the profoundly anti democratic beliefs of Iran. However, I agree with Lord Neuberger (at his para 81) that the idea that the courts should not allow the executive to take account of risks which are activated by undemocratic or unreasonable motives is unsound. It is surely the duty of the executive to take account of the fact of such risks to personnel or property regardless of the motives of the perpetrators. I am unable to agree with Lord Kerr that it is relevant to take account of the perversity, irrationality or lack of justification of the likely conduct on the part of Iranians in Iran. The executive is rightly concerned with the actual risks. 117. As I see it, the question is how the balance should be struck between the importance of the exercise of the rights of Mrs Rajavi and the parliamentarians to freedom of speech and the risks to British interests in Iran as identified by Lord Sumption in paras 7 9 and Lord Kerr in paras 122 124. Given that no attempt was made to cross examine the witnesses or to challenge their veracity or reliability, while I recognise that questions of proportionality are ultimately questions for the court, the evidence here does not establish the case that the decision of the Secretary of State was disproportionate. In these circumstances, albeit with some reluctance, I would dismiss the appeal. LORD KERR: Introduction 118. Maryam Rajavi is a dissident Iranian politician. She lives in Paris. She has been invited by a number of members of the United Kingdom Parliament to come to meet them in the Palace of Westminster and to speak to them on the subject of democracy and human rights in Iran. In a letter from the appellants solicitors of 12 April 2011 the following claims (which have not been disputed by the respondent) were made about Mrs Rajavis abilities and status and about the organisations with which she is associated: Mrs Rajavi is the leader of the National Council of Resistance of Iran (NCRI). The NCRI acts as a parliament in exile for Iran and aims to establish a democratic secular and coalition government in Iran committed to the rule of law and respect for human rights. Until her exclusion from the United Kingdom in 1997 Mrs Rajavi was a visitor to the United Kingdom where she participated in the political and religious discourse in connection with Iran. She continues to contribute to this discourse elsewhere in the European Union. It is clear that the current regime in Iran object to her views Mrs Rajavi is an eminent and highly respected dissident Iranian politician. She is an expert on the status of women in Iran, the threats posed by the Iranian regime's brand of Islamic fundamentalism, the regime's export of fundamentalism and sponsorship of terrorism, its interference in the affairs of Middle Eastern nations (including the malign role played by the regime in Iraq, Afghanistan, Lebanon, Palestine, as well as North Africa) and pursuit of nuclear weapons. Since 1993, she has been the elected leader of the NCRI. As a woman and as a Muslim, she provides an important counterpoint to the religious and political beliefs expressed on behalf of the present regime in Iran. Despite the threat to her from that regime, she has continued to represent those who seek democracy, freedom of religion and respect for human rights in Iran. Although the People's Mojahedin Organization of Iran (PMOI), a constituent member of the NCRI, believes in Islam (albeit that it advocates a secular state with separation of church and state), the NCRI contains many other members of different faiths and none. 120. Mrs Rajavi has visited the United Kingdom on four occasions, in 1985, 1990, 1991, and 1996. She was excluded from the United Kingdom in 1997. The reason given by the then Home Secretary was that her presence in this country would not be conducive to the public good for reasons of foreign policy and in light of the need to take a firm stance against terrorism. 121. On 5 December 2010 Lord Carlile of Berriew QC wrote to the Secretary of State for the Home Department asking that she agree to meet him and others to discuss the possibility of Mrs Rajavi visiting the United Kingdom. On 1 February 2011 the Home Secretary replied. In her letter she said that she had decided to maintain the exclusion of Mrs Rajavi from the United Kingdom. Beyond saying that she did not consider that Mrs Rajavis presence would be conducive to the public good, the Home Secretary did not give reasons for her decision. She pointed out, however, that the exclusion in 1997 had preceded and was unconnected to the proscription of PMOI. Mrs Rajavis exclusion involved wider considerations. 122. After proceedings for judicial review were issued, the United Kingdom Border Agency (UKBA), on behalf of the Secretary of State, wrote on 10 October 2011 to the appellants solicitors. The letter stated that the Secretary of State had concluded that maintaining Mrs Rajavi's exclusion was justified as her presence in the United Kingdom would not be conducive to the public good due to the significant damaging impact on United Kingdom interests in relation to Iran it is assessed that lifting the extant exclusion would bring about, and the consequences that may have for the lives and interests of others. That claim was elaborated on in a series of statements that can be broadly summarised as follows: (i) Notwithstanding MeKs having been deproscribed in 2008, the organisations historical activities and Mrs Rajavis role in them as its de facto leader could not be ignored; its terrorist violence until June 2001 continued to resonate. Moreover, there was little support for MeK in Iran; it was not a credible opposition group. (ii) The United Kingdom has a strong interest in working with Iran on major policy issues such as nuclear counter proliferation and United Kingdom interests are affected by difficulties in United Kingdom Iran bilateral relations. The United Kingdom is frequently condemned by public figures in Iran, for, among other things, its perceived support of extremist anti Iranian activities, such as were historically carried on by MeK. When that organisation was deproscribed there were serious political protests from the Iranian authorities and demonstrations outside the British Embassy in Tehran. (iii) The lifting of Mrs Rajavis exclusion would be seen as a deliberate political move against Iran, just as the deproscribing of MeK was, despite attempts by British officials to explain that it was not. Although Mrs Rajavi is able to travel to other European countries, the particular nature of the United Kingdom Iran bilateral relationship is such that a particularly strong reaction is expected if her exclusion was lifted. Reprisals might occur which would put British nationals at risk and consular co operation, already difficult, could become more problematic. (iv) Damage to the public interest significantly outweighs any interference with Mrs Rajavis ability to express her views, not least because she has many alternative means of achieving this. The parliamentarians could visit France or a meeting could be held by video link. 123. The reasons for maintaining Mrs Rajavis exclusion from the United Kingdom were also dealt with in two witness statements by Ken OFlaherty, a senior civil servant in the Foreign and Commonwealth Office (FCO). In the first of these he repeated many of the reasons outlined in the UKBAs letter of 10 October 2011. He said that, despite the difficulties in United Kingdom Iran relations, there were some areas in which the United Kingdom continued to work with Iran on a day to day basis. It was the FCOs opinion that a decision by the Home Secretary to lift Mrs Rajavis exclusion would have a significantly damaging effect on relations between the two countries and that this would harm the United Kingdoms wider and crucial objectives. 124. On the basis of the Iranian reaction to the de proscription of MeK in 2008 (which Iranian authorities continued to believe was politically motivated) Mr OFlaherty considered that the lifting of the exclusion on Mrs Rajavi would be regarded as a deliberate political move against Iran. What he described as the fragile yet imperative nature of relations between Iran and the United Kingdom meant that any move by this country that could be perceived as appeasement of MeK was likely to have a wide ranging negative impact on day to day relations, as well as an impact on the major policy areas and United Kingdom interests that require negotiations with Iran. In short, Mr OFlaherty considered that a decision to lift Mrs Rajavis exclusion would provoke a negative reaction from the Iranian regime, affecting United Kingdom interests in an already strained atmosphere and that it might trigger threats to United Kingdom personnel, property and activities in Iran. 125. A further decision letter was issued by the UKBA on 24 January 2012. In this letter it was stated that the Home Secretary had had regard to further evidence provided by the appellants, particularly the support for Mrs Rajavi expressed in some 180 statements, mainly from members of both Houses of Parliament. She had decided, however, that the exclusion of Mrs Rajavi had to be maintained for a number of reasons. These included that the lifting of the exclusion would be regarded as a demonstration of support for MeK which continued to be perceived by Iran as a terrorist organisation; that Iran continued to treat the removal of MeK from the list of proscribed organisations as evidence of United Kingdom support for terrorism; that the Iranian authorities had been complicit in the invasion of United Kingdom diplomatic compounds in Tehran in November 2011 and this demonstrated that the United Kingdom was the prime target for anti Western sentiment, particularly because neither the USA nor Israel had embassies there; and that lifting Mrs Rajavis exclusion could be seen as a political response to the attack on the British Embassy and this would increase the risk of an adverse Iranian response which might involve a threat to United Kingdom government staff in Iran and United Kingdom assets in that country. 126. In his second witness statement Mr OFlaherty said that the Foreign Secretary and the Parliamentary Under Secretary of State, Alistair Burt, whose responsibilities included the Middle East, had both personally considered the question of the continued exclusion of Mrs Rajavi. Both had recommended to the Home Secretary that the exclusion should be maintained. The decision to maintain the exclusion order was also taken by the Home Secretary personally. 127. Mr OFlaherty went on to describe the then current situation in Iran in the following passages of his statement: 4. As the Court no doubt will be aware, United Kingdom diplomatic relations with Iran have deteriorated significantly since my last witness statement. On 27 November, the Majles (Iranian Parliament) voted to expel our newly arrived Ambassador, Dominick Chilcott, citing both the United Kingdom's history of hostile policies towards Iran including its support for terrorism (ie the United Kingdom's deproscription of the MeK) and the announcement on 21 November 2011 that together with a strengthening of sanctions against Iran by Canada and the US, the United Kingdom would sever all financial ties with Iran. 5. The following week, on the afternoon of 29 November 2011, a planned demonstration outside the British Embassy Tehran to mark the first anniversary of the assassination of an Iranian nuclear scientist (for which the United Kingdom is blamed by Iran together with the US and Israel), resulted in approximately two hundred regime backed Basijj paramilitaries invading both our diplomatic compounds, including our residential compound to the north of Tehran. They set light to the Embassy building and ransacked and looted all our properties in an attack that went on for nearly six hours, with Police acquiescence. All British diplomatic staff left Iran shortly after this incident for their own safety and given the Iranian authorities' failure to protect the safety of our staff and diplomatic property, the Foreign Secretary ordered that the Iranian Embassy in London be closed and all Iranian diplomats were told to leave the United Kingdom within 48 hours. Diplomatic relations were reduced at this point to the lowest possible level, short of severing them completely. 128. The risks attendant on Mrs Rajavi being permitted to come to this country were described by Mr OFlaherty in para 6 of his second witness statement. He considered that, although the British Embassy in Tehran had closed down, the security of locally engaged staff would be imperilled. Remaining British Embassy property and assets would be in jeopardy. There was also a potential risk to British interests outside Iran. British property in the Middle East could become targets of retaliatory action against the United Kingdom. The proceedings 129. The appellants are Mrs Rajavi and a cross party group of parliamentarians, led by Lord Carlile of Berriew QC, a Liberal Democrat member of the House of Lords. The parliamentarians wish to meet Mrs Rajavi in the Palace of Westminster in order to discuss the future of Iran, particularly in relation to the establishment of democracy and human rights in that country. They claim that there has been an unjustified interference with their rights under article 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). 130. The appellants contend that a face to face meeting between them is vital to the success of their proposed discussions. In support of that claim, they have provided a statement from Mr Alejo Vidal Quadras, a vice president of the European Parliament. On the status and standing of Mrs Rajavi he said that she represents the rights of the oppressed in Iran, from women and students to ethnic and religious minorities. He considered that her modern and progressive interpretation of Islam was an important and necessary example to others. He found her to be a true believer in gender equality and freedom of thought and religion, and he considered that she was committed to the rule of law. She was, in Mr Vidal Quadras estimation, a very responsible leader. He emphasised the importance of meeting Mrs Rajavi in the flesh, citing the experience of members of the European Parliament who had had direct meetings with her. This had allowed them and their advisers to question Mrs Rajavi and spend time with her, addressing a range of sensitive issues. This, he suggested, would not have been possible through long distance communication means. 131. Before the Divisional Court (R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2012] EWHC 617 (Admin) Stanley Burnton LJ and Underhill J) the Secretary of State accepted that there had been interference with the appellants rights under article 10 of ECHR but she suggested that this was minor in nature since it was feasible for Members of Parliament to visit France or other countries to speak to Mrs Rajavi or a video link conference could be held. Either of these, it was claimed, would be a suitable alternative to a face to face meeting. That argument was rejected by the Divisional Court, Stanley Burnton LJ observing at para 27 of his judgment that there was no suitable room in the Palace of Westminster to accommodate all who wished to be present at the proposed meeting. That consideration, taken together with the greater impact that a face to face meeting would have and the symbolic importance of such a meeting, persuaded the Divisional Court not to accept the respondents claim on this issue. 132. The Divisional Court accepted that where the right of free expression interfered with was that of parliamentarians, particularly strong justification for the interference was required both under ECHR and at common law para 28 of the Divisional Courts judgment. But the court considered that, because the executive had assessed that there was the possibility of unwelcome action by a foreign government, the decision of the Secretary of State could not be gainsaid by the court paras 34 and 35. 133. Stanley Burnton LJ questioned some aspects of the Secretary of States apprehensions. For instance, he found it difficult to accept that the Iranian governments decision whether or not to develop atomic weapons would be influenced by lifting the exclusion on Mrs Rajavi. He had no such difficulty, however, in agreeing with the assessment that her admission to this country would be regarded by the Iranian government as a hostile act. (Nor, may I say, do I doubt that such a reaction might occur). Stanley Burnton LJ went further. He said that it was entirely feasible that, given the record of the Iranian government, retaliation in the form of action against Iranian employees or against United Kingdom citizens might ensue. (Again, I find it impossible to disagree with this assessment). Two observations about this must be made, however. As I shall discuss below, the recent history of relations between the United Kingdom and Iran is characterised, above all, by the unpredictability of the reaction of Iranian authorities and those whom they encourage to engage in attacks on employees or property of the United Kingdom. The second observation is that such risks, even if they materialise, do not of themselves provide irrefutable justification for the interference with the appellants article 10 rights. 134. The Divisional Court considered that this case closely resembled that of R (Corner House Research) v Direction of Serious Fraud Office (JUSTICE intervening) [2008] UKHL 60 [2009] 1 AC 756. It was acknowledged that in the Corner House case there was an express threat of action by a foreign government whereas here there is only fear of such action. But Stanley Burnton LJ felt that no material distinction could be drawn between the two situations. In both cases, he said, the assessment by the executive, which could not be gainsaid by the court, of the possibility of unwelcome action was the critical factor. He relied particularly on the passage from the speech of Lord Bingham in Corner House where he cited with approval the statement in Matalulu v Director of Public Prosecutions [2003] 4 LRC 712 to the effect that the polycentric character of official decision making in matters involving policy and public interest considerations were not susceptible of judicial review because it was not within the constitutional function [or] the practical competence of the courts to assess their merits. 135. The Divisional Courts reliance on Corner House and Matalulu prompts consideration of two important matters which will be dealt with later in this judgment. The first is whether, when coming to assess the proportionality of interference with an article 10 right, it is relevant that the apprehended inimical action by a foreign state is threatened or merely assumed. The second, and more important, issue is how the executives assessment of the level and importance of the risk should affect the courts consideration of whether this justifies the particular form of interference. Put simply, if the executives assessment of the risk must be accepted, what is the courts role in judging whether such a risk, and the consequences of its materialising, are sufficient to justify the interference with the particular Convention right? 136. The Divisional Courts decision was appealed to the Court of Appeal (R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2013] EWCA Civ 199 Arden, Patten and McCombe LJJ). The principal judgment was delivered by Arden LJ. She held that, in the context of national security and foreign policy, the question whether the interference with the appellants rights was no more than necessary to achieve the Secretary of States objectives was to be answered by a review of her decisions on the basis of their rationality, legality and procedural [propriety], not by the substitution by the court of its own judgment on the merits para 7 (iii). At para 72 of her judgment Arden LJ said: once the court is satisfied that the decision was within the range of decisions that could properly be made, proportionality does not require it to go on and be satisfied that the decision is correct. And at para 93 Arden LJ said that the court does not second guess the merits of the substantive decision maker in the field of foreign policy and security but looks to see whether the decision maker had approached the matter rationally, lawfully and in a procedurally correct manner. 137. For reasons that I will give in more detail later, I consider that this was a wrong approach. Shortly stated, the courts role in deciding whether there has been an unjustified interference with a Convention right is to answer the four questions which are said to usually arise see R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621 at para 45 per Lord Wilson: (a) is the objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? In dealing particularly with the latter two of these questions, the court must indeed exercise its own judgment. Of course, it may defer to the Secretary of States assessment of the risks involved and of the consequences, should the risks materialise. But that does not relieve the court of the duty to confront frankly the stark questions whether, given those risks and consequences, it (as opposed to the decision maker) has been persuaded that the measures are no more than is required to achieve the stated object and that a fair balance has been struck. The arguments 138. Lord Pannick QC for the appellants presented two main grounds of challenge to the Secretary of States decision. Firstly he claimed that her anticipation of adverse consequences to British interests if Mrs Rajavi was permitted to come to this country could not constitute a legal justification for interference with the appellants article 10 rights. Such an interference must be founded on standards that are in conformity with democratic values. A restriction of the appellants Convention rights which depended on surrender in the face of anticipated illegal activity wholly undermined the right to freedom of expression. To restrict the right to free speech because of the fear of repressive action was to negate the very values that article 10 was designed to uphold. Society must not abandon its values in the face of threats of a violent reaction, unless conditions warranted a derogation under article 15 of ECHR. To allow anticipated illegal activity by a country that had no respect for the right to free speech or other democratic values to interfere with the appellants rights contravened the very purpose of the Human Rights Act 1998 by allowing a foreign country which did not share the values of ECHR to determine the 1998 Acts application in this country. 139. Interference with a Convention right because of threats or fear of reprisal by a foreign power could only be justified, Lord Pannick argued, in circumstances where a derogation under article 15 of ECHR was warranted. This provides in para 1: In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 140. Lord Pannicks second argument was that, even if it was lawful for the Secretary of State to have regard to the feared reaction from another country, a decision to interfere with freedom of expression in relation to political speech could only be regarded as proportionate in the most extreme circumstances. Such circumstances were not present in this instance. 141. For the Secretary of State Mr Eadie QC emphasised that the decision not to lift the exclusion on Mrs Rajavi was taken by the Home Secretary personally and that the advice proffered by the Foreign and Commonwealth Office had been considered personally by the Foreign Secretary and the Under secretary of State. All of the factors that went up to making the decision were dependent on judgment, as was the final decision itself. This was therefore pre eminently a case where the courts should be slow to interfere with the governments decision. The evaluation of risks was something to be carried out by the experts, namely, the politicians and their advisers. 142. On the first of Lord Pannicks arguments, Mr Eadie submitted that, for it to be viable, it had to prevail in all circumstances. Thus, irrespective of how dire the threat represented by the anticipated reaction of the foreign power, the government of the United Kingdom was powerless to respond to it by restricting a Convention right if what was expected to occur was the product of repression or a failure to subscribe to Convention values. Carried to its logical conclusion, the appellants argument meant that paramount importance had to be given to the nature of the action of the foreign state rather than the risk of the consequences of failing to respond to it. This, Mr Eadie submitted, could not be correct. 143. On the appellants second argument, the respondent submitted that there was no single, indisputably correct answer to the question whether a restriction on the appellants rights was required in order to safeguard national interests. But the risks to local staff and British interests were undeniable. The British Embassy in Tehran had been targeted above all other nations represented in Tehran before the departure of British Embassy staff in November 2011. Lifting the exclusion would be viewed as highly provocative and possibly construed as a further response to the attack on the British Embassy. As the Divisional Court had held, the prospect of the lifting of the exclusion on Mrs Rajavi being regarded as a hostile act was incontestable. The judgment that to permit her to come to the United Kingdom would damage existing United Kingdom interests in relation to Iran and endanger the security, wellbeing and properties of British officials overseas could not be gainsaid. The decision of the Secretary of State could not be considered disproportionate, therefore. Discussion (i) The need to protect democratic values 144. Despite its initial appeal, the appellants first ground of challenge, that interference with article 10 rights can never be justified on the basis of apprehension of action which is out of accord with Convention standards, cannot be accepted. In advancing that argument, Lord Pannick had relied particularly on the decision of ECtHR in United Communist Party of Turkey v Turkey (1998) 26 EHRR 121. At para 45 the court said: Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is necessary in a democratic society. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from democratic society. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it. 145. Lord Pannick suggested that this betokened the courts view that the only interference which could be countenanced was that which was actuated by and rooted in democratic values. This, he said, ties the basis for the interference to the democratic values which the Convention right enshrines. I am satisfied that this is not the correct construction of the courts judgment. What the court was saying was that only such interference as was necessary to defend democratic society was eligible as justification. Thus, intrusion on a Convention right which did not seek to promote democratic values would not qualify. But that does not mean that the occasion for the decision to interfere (in order to protect those values) must also spring from the same values. Put simply, if it is necessary that, in order to protect the democratic values of our society from the repressive actions of a regime which has no regard for those values, there should be interference with a Convention right, that is justified. The emphasis must be on the values to be protected, not on the circumstances that prompt the need for protection. If the values which require protection are those which can be recognised as democratic and worthy of legitimate protection, it is of no consequence that the need to protect them stems from actions which are undemocratic or repressive. 146. My view on this argument is reinforced by consideration of the very limited and exceptional circumstances in which the state could defend the national interest by use of the power of derogation under article 15 of ECHR. This can only arise where there is a public emergency threatening the life of the nation. On the appellants first argument, dire and immediate threat to the very democratic values that the Convention is designed to uphold, but which fell short of the high threshold of article 15, could not be guarded against by way of interference with individual Convention rights if the threat emanated from an undemocratic and repressive regime. That could not be correct. (ii) Proportionality 147. In Bank Mellat v HM Treasury (No 2) [2014] AC 700, paras 68 76 Lord Reed provided an admirable review of the history, development and, in the case law of the Court of Justice of the European Union and ECtHR, the current contours of the principle of proportionality. As he pointed out in para 70, an inherent feature of the Convention is the search for a fair balance between the demands of the general interests of the community and the requirements of the protection of the individuals fundamental rights. The striking of that vital balance is influenced by the importance of the objective pursued and the value of the right that has been interfered with para 71. While in Convention case law proportionality is, as Lord Reed put it, indissolubly linked to the principle of the margin of appreciation, this does not apply at the national level where the degree of restraint practised by courts in applying the principle of proportionality and the extent to which they will respect the judgment of the primary decision maker depends on the context. 148. Not only is the proportionality principle dependent on context, in the national setting it is applied in a structured way. Building on the formulation suggested by Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 and drawing also on the decision of Dickson CJ in R v Oakes [1986] 1 SCR 103, the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167 described four stages through which the proportionality exercise should pass. These were endorsed in Aguilar Quila, as earlier mentioned. The four stage process was derived from Dickson CJs judgment in Oakes and was outlined by Lord Reed in Bank Mellat in para 74 as follows: The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. 149. Obviously, some factors may be relevant in more than one of the four stages described but it is important to maintain separate consideration of each of them. In particular it is essential to recognise the clear difference between the existence of a sufficiently important objective to justify the decision to limit the right (the first stage) and the need for the objective to be sufficiently important to outweigh the interests of those whose rights have been interfered with. Lord Reed dealt with this in para 76 of his judgment in Bank Mellat: In relation to the fourth criterion, there is a meaningful distinction to be drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four). 150. In following the structured approach to the question of whether the Home Secretarys decision was proportionate, it is, I believe, essential to keep the two separate aspects of Mrs Rajavis exclusion clearly in mind. On the question of an assessment of the risks of her being admitted to the United Kingdom and the consequences which might flow from them, very considerable respect for the executive decision is called for, although, as Lord Neuberger has said, this cannot be simply franked by the courts. Although we must accord the Secretary of States view on this issue due deference, we are not required to genuflect in its presence. But on the question of the importance of the right which has been infringed, the courts do not defer to the executive in assessing the value of that right. On that issue, the word of the Secretary of State cannot hold sway. Of course, her views are worthy of careful consideration but they are not necessarily indeed they cannot be if the system is functioning properly the final word. The whole purpose of having the court assess the proportionality of the measure is to allow an independent judgment to be applied to the prominence to be given to the Convention right which is engaged. 151. On the matter of the judgment to be made on how foreign relations would be affected by allowing Mrs Rajavi to come to this country, the courts should therefore be prepared to give considerable, if not uncritical, respect to what the Home Secretary has said. As Lord Bingham said in A v Secretary of State for the Home Department [2005] 2 AC 68 at para 29, it is the function of political and not judicial bodies to resolve political questions. Interpretation of historical events and assessment of their impact on relations between countries are not the concern of the courts. 152. Whether executive action transgresses a Convention right, however, and, if it does, the importance to be attached to the right interfered with are emphatically matters on which courts are constitutionally suited to make judgments. The courts competence to make those judgments is secondary, however, to the consideration that the current constitutional order, in the form of the Human Rights Act 1998, requires courts to make those very judgments. And, although it is trite to say it, one must always remember that they make those judgments on the command of Parliament. The importance given by government to the impact that a particular outcome may have on foreign relations should give courts pause and, undoubtedly, they should be appropriately reticent about questioning the validity of a decision taken on grounds which a government minister considers to be in the national interest. But this should not operate as an inhibition on the discharge of the courts proper constitutional function. If there has been an interference with Convention rights (and in this case there certainly has been), courts are there to examine whether that interference is justified. That examination must focus on the proffered reasons of the decision maker but the inquiry necessarily extends beyond that. The courts, charged with the solemn duty by Parliament of deciding whether the political reasons that have actuated the decision to interfere with the particular Convention right justify the interference, have a clear obligation to have proper regard to the importance of the right which has been interfered with. That exercise requires the courts not only to examine the reasons given for the interference but also to decide for themselves whether that interference is justified. 153. It is superficially attractive to say that because the Home Secretary has, albeit not initially, recognised the symbolic importance of a meeting between parliamentarians and Mrs Rajavi taking place in the Palace of Westminster, she has paid sufficient attention to the appellants article 10 rights and that her decision to maintain the exclusion is beyond interference by the courts. On this basis, it is suggested that there is no warrant for concluding that the Secretary of State has underrated the significance of the restrictions on freedom of expression in this case. On that account, (the argument goes) the court has no business in substituting its view for that of the Home Secretary that the restriction was proportionate. This approach proceeds on the premise that the court is not engaged in what Lord Sumption has described as a merits review and, moreover, that the court is entitled (or required) to attach special weight to the judgments and assessments of those with special institutional competence. 154. All of this is unexceptionable so far as the Secretary of States assessment of the possible political consequences of lifting Mrs Rajavis exclusion is concerned. But the appropriate reticence in relation to that issue should not be assumed to give rise to a similar need for restraint in the matter of deciding the weight to be attached to the right of the appellants to hold the meeting that they wish to have with Mrs Rajavi at Westminster. In none of the cases referred to by Lord Sumption on this issue: Appleby v United Kingdom (2003) 37 EHRR 783; Mouvement Ralien Suisse v Switzerland (2012) 56 EHRR 482; and Animal Defenders International v United Kingdom (2013) 57 EHRR 607 did the Strasbourg court suggest that the question of the importance to be attached to the right was one on which it should defer to the decision of the respondent. On the contrary, it is clear that the court in each of those cases reached its own independent view as to the significance of the interference and, consequently, whether the interference was justified. True it may therefore be that the Secretary of State addressed herself to the question whether the restrictions on the appellants freedom of expression were outweighed by the risk to the safety of British persons, property and Embassy staff, but that is not the point. It is for the court to decide whether these considerations have that offsetting effect. 155. Even if one accepts without reservation the Home Secretarys assessment of the risks and the nature of the hostile reaction in Iran to Mrs Rajavi being permitted to visit the United Kingdom, the question remains whether the apprehension that those risks may materialise justifies the interference with the article 10 rights of the appellants. That is a question that the court must confront and it may not answer merely by saying that the Home Secretary has made her assessment. The court, having accorded appropriate respect to the Home Secretarys assessment of the risk, must then weigh that in the balance against the importance to be attached to the right which her decision interferes with. It would be, in my view, a fundamental error to attach special weight to the judgments and assessments of those with special institutional competence when it comes to evaluating the importance of the appellants article 10 right. The Home Secretary has special institutional competence in the matter of an assessment of the risk to British interests if Mrs Rajavi is permitted to come to the United Kingdom. She has no such competence in the matter of assessing the importance of the article 10 right. To conflate the two elements of the exercise is plainly wrong. 156. It is also plainly wrong to suppose that, because the Home Secretary enjoys particular expertise in assessing the risk to British interests, this places an inhibition on the courts performance of the balancing exercise. The first factor is one on which the Home Secretary can claim expertise and knowledge which put her in a better position than the court to make a judgment; it follows that the court must either accept that judgment or accord it considerable weight. But that is not an end of the courts role and function. On the second part of the balancing exercise, the court is entirely competent and duty bound to reach its own independent judgment. 157. Put simply, it is perfectly feasible for courts to accord considerable respect to the political reasons underlying a particular ministerial decision but to conclude that that decision has a disproportionate effect on the Convention rights at stake. Such a conclusion should not be portrayed as government by the courts. It is simply an instance of the courts looking at the basis on which intrusion on a persons Convention right has been sought to be justified, examining and assessing the nature of the right and finding that, given the importance of that right in the particular circumstances of the case, justification for the interference has not been established. 158. Ultimately, therefore, it is not a question of whether the Secretary of State has been shown to be guilty of an error of principle. We do not ask whether the Secretary of States view is tenable; we ask whether it is right. Right, that is, by the standards that have been set for us by the Human Rights Act. Taking account, albeit with a suitably critical appraisal, of the Secretary of States view as to the consequences of lifting the exclusion on Mrs Rajavi, the question is whether the interference with the appellants right, notwithstanding those consequences, is justified. 159. What it comes to is this. By enacting the Human Rights Act, the government has chosen to subject decisions which any public authority, including the executive or an individual minister, takes, involving interference with citizens Convention rights, to the courts independent review. In submitting to that review, the government is entitled to say to the courts, respect our reasons for deciding why such interference is required. It is not entitled to say, however, you must accept our view as to the importance of the right that has been interfered with. 160. The decisions in Matalulu and Corner House must be seen in this light. In the Corner House case, the decision of the Director of the Serious Fraud Office to discontinue a criminal investigation was challenged on the basis that it had been terminated because of, among other things, a threat by Saudi authorities to withdraw from existing bilateral counter terrorism co operation arrangements with the United Kingdom. In para 30 et seq of his speech, Lord Bingham of Cornhill explained why it was only in highly exceptional cases that the court will review the decisions of independent prosecutors and investigators: 31 The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend. Secondly, the courts have recognised (as it was described in the cited passage from Matalulu v Director of Public Prosecutions) the polycentric character of official decision making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits. Thirdly, the powers are conferred in very broad and unprescriptive terms. 161. The decision under challenge in Corner House was quite different in a number of significant respects from that of the Home Secretary in the present case. In the first place, although the power to exclude rests solely with the Secretary of State, where its exercise conflicts with a Convention right, review of her decision is clearly contemplated. Secondly, for the reasons already given, the courts are competent to assess the value of the right that has been interfered with and are expressly charged with the duty to make a decision as to the proportionality of the interference. Thirdly, unlike the present case, no fundamental right was at stake in the Directors decision in the Corner House case. Finally, while the polycentric dimension of the Home Secretarys decision may have been present in her evaluation of the risks that would be incurred by the admission of Mrs Rajavi to the United Kingdom, the same cannot be said about consideration of the value of the article 10 right. The value to be placed on that right does not require the inexpressible or undefinable experience and expertise of ministers or their advisers. 162. I cannot therefore agree with the view of Stanley Burnton LJ that the citation from Matalulu is as applicable to the present case as it was in Corner House. He considered that the present case concerned fears or apprehensions, based on assessments or judgments made with the wide experience and expertise and information available, in particular to the Foreign and Commonwealth Office, which the Court is not in a position to gainsay para 35. The present case does indeed involve those matters but it goes well beyond them. It also critically involves striking a balance between those concerns and the interference with the important right of freedom of expression. The importance of the right 163. Article 10 of ECHR provides: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 164. Freedom of expression is a fundamental Convention right. Its importance was recognised in R v Secretary of State for the Home Department Ex p Simms and another [2000] 2 AC 115, particularly in the speech of Lord Steyn, who at 126E/F said: Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), the best test of truth is the power of the thought to get itself accepted in the competition of the market: Abrams v United States (1919) 250 US 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed (1996), pp 1078 1086. 165. This sentiment has received frequent and enthusiastic endorsement in Strasbourg. In Srek v Turkey (1999) 7 BHRC 339, a decision of the Grand Chamber, the court said at para 57: (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self fulfilment. Subject to article 10.2, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. As set forth in article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. (ii) The adjective 'necessary', within the meaning of article 10.2, implies the existence of a 'pressing social need'. 166. Freedom of political speech is given a particular premium. At para 60 of its judgment in Srek the Grand Chamber said: In assessing the necessity of the interference in the light of the principles set out above (see paras 57 58), the court recalls that there is little scope under article 10.2 of the convention for restrictions on political speech or on debate on questions of public interest (see Wingrove v United Kingdom (1996) 1 BHRC 509 at 526 (para 58)) 167. The Strasbourg court has recognised the special importance of the right of politicians to freedom of expression. In Castells v Spain (1992) 14 EHRR 445, 476, at para 42 the court said: The Court recalls that the freedom of expression, enshrined in article 10.1, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. Subject to article 10.2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society. While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition Member of Parliament, like the applicant, call for the closest scrutiny on the part of the Court. 168. Apart from Mrs Rajavi, the appellants in this case comprise a cross party group of eminent politicians, many of them former holders of senior government posts. It is clear by their commitment to this case that they regard the lifting of the exclusion on Mrs Rajavi as a matter of supreme importance to free speech and freedom of expression in this country. That factor, in my view, makes this case one where only the most compelling and pressing circumstances would justify a restriction on the article 10 right. The position is enhanced by the consideration that Mrs Rajavi stands for values which this country has cherished and championed, some of them for centuries. To deny her the opportunity to express views and advance causes in this country that all right thinking members of our society fervently support is a very significant step indeed. Striking the balance 169. The strongly held views of a number of eminent politicians that it is vital that Mrs Rajavi be permitted to visit the United Kingdom is a significant factor which must weigh heavily against a finding that the interference with the article 10 right is justified. On the other hand, the circumstance that her visit here might be regarded by Iran as a hostile act is obviously a matter of significant concern as is the anticipated retaliation against Iranian employees and United Kingdom citizens and property. These are rightly to be regarded as solid countervailing factors. But in as much as the chances of those risks materialising cannot be discounted, so also the chances of their not coming to pass must not be overlooked. It seems to me, therefore, that the fact that this is a prediction of likely action rather than, as in the case of Corner House, an explicit threat, must be taken into account. 170. Lord Sumption has suggested that any attempt by the Secretary of State to explain to the Iranian government that she is bound by the Human Rights Act and by the decisions of an independent judiciary would not avail. He has said that the impact on the Iranian authorities of the United Kingdoms decisions is unlikely to be influenced by the question of which organ of the state was its originator. He has pointed out that they treated the judicial decision to de proscribe MeK as a political decision in defiance of the facts and that it is not to be supposed that they would alter their stance on account of the Secretary of States resolute resistance of the appellants claim in this case. 171. All of this may be true. But, if it is true, one must not lose sight of the fact that these are unreasoning and unreasonable views. While they may, indeed must, be taken into account by the Secretary of State, the weight to be accorded to them cannot be completely divorced from recognition of their perversity. The history of the Iranian governments reaction in the past may carry a portent of how it would react in the future. But when one comes to the question of how much this should influence the judgment of the Secretary of State, the circumstance that such views are irrational and unjustified should not be left out of account, particularly when this involves a restriction of the guaranteed rights of parliamentarians in this country. 172. Moreover, the fact that the anticipated reaction of the Iranian authorities, if indeed it materialises, would be rooted in profoundly anti democratic beliefs; would be antithetical to the standards and values of this country and its parliamentary system; and would significantly restrict one of the fundamental freedoms that has been a cornerstone of our democracy must weigh heavily against sanctioning such a drastic interference with the appellants article 10 rights. While, therefore, the Secretary of State should have regard to the possibility of an adverse reaction by Iran, she must give due recognition to the fact that, if that anticipated response leads to the continued exclusion of Mrs Rajavi, this would be at the expense of one of the most fundamental rights of our Parliamentary democracy. 173. In paras 75 and 76 of his judgment Lord Neuberger refers to what he describes as two points that I have made as to why the appeal should be allowed. In the first place, I should make it clear that these points are not to be taken as alternatives. It is their combined effect which has led me to the view that I have reached. True it is that the Executive is in a better position than the court to make a judgment on the likely reactions of a volatile foreign government and people. But the fact that those reactions are, as recent history unquestionably shows, highly unpredictable should not be left out of account by a court tasked with the duty of deciding whether this particular instance of governments interference with this Convention right is proportionate. The government is entitled to say, we are better placed than the court to make an assessment of what is likely to happen politically; but the court is entitled, indeed required, to observe, that is so, but what is likely to happen is inherently difficult to predict and, on that account, the weight which we attach to your judgment must be adjusted accordingly. 174. Lord Neuberger has suggested that my second point is that the weight to be given to the anticipated reaction of the Iranian authorities should be significantly discounted because this is the product of undemocratic beliefs etc. It is possible to characterise my discussion of this issue as discounting the Secretary of States view about the anticipated Iranian reaction. I prefer to consider the matter more comprehensively. It is one thing to countenance a significant interference with a Convention right when the basis for that interference is the anticipated reaction of a democratic regime. It is quite another when what is apprehended is a wholly anti democratic reaction. It is not simply a question of discounting the Secretary of States view about the reaction of Iran, therefore. This is a factor which should also be taken into account in relation to the significance of the article 10 rights of the appellants. Conclusion 175. The courts of this country have been given momentous obligations by the Human Rights Act, none more so than the duty to decide whether interferences with Convention rights are justified. Parliament has decided that decisions of all public authorities, including government itself, should be subject to that form of independent review. 176. In conducting the review of government decisions, courts must, of course, be keenly alive to the expertise and experience that ministers and public servants have by reason of their involvement in affairs of state, an involvement that courts cannot possibly replicate. But if the power and the duty to conduct fearless, independent review of the justification for interference with Convention rights is to mean anything, close, dispassionate and independent examination of the reasons for interfering with those rights must take place. Convincing reasons for the interference must be provided convincing, that is, to the court that is required to examine and assess them. 177. Taking Mr OFlahertys statements at face value, it is unclear what specific consequences would flow from a decision to allow Mrs Rajavi to come to the United Kingdom. It is revealing that most of what is feared is already happening or has occurred in the past. Generalities such as that contained in Mr OFlahertys first statement, that ramping up of rhetoric may provoke an uncontrolled public reaction really do not provide any tangible evidence that the admission of Mrs Rajavi to the United Kingdom carries a particular risk. 178. Moreover, the inherent unpredictability of such events as have occurred in the past makes any forecast of what might or might not happen in the future extremely difficult. The circumstances of the sacking of the British Embassy in 2011, for instance, demonstrate the problem associated with making this type of prediction. Such events could well occur whether or not Mrs Rajavi is allowed to come to the United Kingdom. Mr OFlahertys first statement vividly illustrates this. In 2009 some of the United Kingdoms locally engaged staff were arrested and accused of involvement in the unrest which followed disputed Presidential elections in Iran. This was something which was, presumably, entirely unforeseen. The throwing of acid bombs into one of the British compounds, shortly before Mr OFlahertys first statement was made on 10 October 2011, appears to have been an entirely random attack, unprovoked by any action on the part of British authorities. According to Mr OFlaherty, even when tensions in the bilateral relationship ease, United Kingdom based staff members have problems with access to Iranian authorities. 179. All of this paints a picture of unpredictability and arbitrariness. Any assessment of the risk of adverse consequences must therefore be of a general, non specific nature. While this court must have due regard to the assessment that Mr OFlaherty has made of the risk (and to the judgment that the Home Secretary has made based on that assessment), it must not lose sight of the fact that the risks cannot be explicitly identified nor can they be precisely defined. They are a loosely expressed agglomeration of possible outcomes. 180. By contrast, the interference with the appellants article 10 right is direct and immediate. Article 10 rights are, in any context, of especial significance but the critical importance of free speech in this case should not be underestimated. Our Parliament is the sovereign part of our constitution. Its laws prevail over everything else. The courts accord greater deference to the decisions of Parliament than to those of any other body. When a distinguished group of Parliamentarians wishes, in the interests of democracy, to conduct a face to face exchange with someone whose views they consider to be of critical importance, only evidence of the most compelling kind will be sufficient to deny them their right to do so. This court has a bounden duty to uphold that right unless convinced of the inescapable need to interfere with it. I have not been brought to that point of conviction. I would therefore allow the appeal and quash the decision to maintain the exclusion of Mrs Rajavi from the United Kingdom. 119. On 29 March 2001 PMOI became one of the proscribed organisations listed in Schedule 2 to the Terrorism Act 2000. On 30 November 2007, the Proscribed Organisations Appeals Commission (POAC) allowed an appeal brought by Lord Alton of Liverpool and a number of other peers and Members of Parliament against the Secretary of States refusal to reverse the proscription of PMOI. POAC ordered the Home Secretary to lay before Parliament an Order removing PMOI from the list of proscribed organisations in Schedule 2. It found that, although PMOI had been actively involved in terrorism until June 2001, from that date onwards there had been a significant change in the organisations activities and it could no longer be said to be involved in terrorism as defined in section 3 of the 2000 Act. POACs decision was unanimously upheld by the Court of Appeal. PMOI has subsequently been de proscribed in the European Union (January 2009), in the United States of America (September 2012) and Canada (December 2012).

UK-Abs

Mrs Maryam Rajavi is a dissident Iranian politician, resident in Paris. She has close links with Iranian opposition organisations, including Mujahedin e Khalq, which was formerly a proscribed terrorist organisation but is now non violent. In 1997, the Home Secretary excluded Mrs Rajavi from the UK on the ground that her presence would not be conducive to the public good for reasons of foreign policy and in light of the need to take a firm stance against terrorism. That exclusion remains in force. In December 2010, Lord Carlile of Berriew, together with two other members of the House of Lords, asked the Home Secretary for a meeting to discuss lifting the exclusion to enable Mrs Rajavi to address meetings in the Palace of Westminster. The Home Secretary sought the advice of the Foreign Office. She replied in February 2011 stating that she had concluded that Mrs Rajavis admission to the UK would not be conducive to the public good. A further letter of May 2011, written in response to a letter before action from Lord Carlile and other members of the House of Lords, claimed that Articles 9 and 10 of the European Convention on Human Rights were not engaged but that the decision was in any event justified and proportionate. Lord Carlile and other members of the House of Lords launched judicial review proceedings in May 2011, arguing that the decision contravened their freedom of belief and expression rights under Articles 9 and 10. Mrs Rajavi herself later joined as a claimant. The Home Secretary issued second and third decisions in October 2011 and January 2012, supported by evidence from a Foreign Office official, stating that lifting the exclusion would cause significant damage to the UKs interests in relation to Iran and place British people and property in Iran and the region at risk. It is now common ground that Article 10 is engaged in relation to both Mrs Rajavi and the members of the House of Lords. But was the Home Secretarys decision justified and proportionate? Both the judge and the Court of Appeal held that it was. The claimants appealed to the Supreme Court. The Supreme Court dismisses the appeal by a majority of 4 1 (Lord Kerr dissenting). Lord Sumption delivers the leading judgment. The other three majority judgments give similar reasons, but with differences of nuance. Threshold argument The claimants argued that the Home Secretarys reasons were legally irrelevant, because they depended on the potential reaction of a foreign state which did not share the values embodied in the Convention. The Supreme Court unanimously rejects this argument. Irans reaction is plainly factually relevant to the decision, and the correct emphasis is on the democratic values to be protected, not the circumstances prompting the need for protection [14 18, 63, 144 146]. Was the Home Secretarys decision justified and proportionate? A predictive judgment of the executive about the likely reaction of a foreign country to a decision of the United Kingdom government is ordinarily entitled to a large measure of respect from the courts both (i) because the constitutional separation of powers assigns such judgments to the executive, and (ii) because the executive has greater institutional competence in this area by virtue of its greater specialised experience and the wider range of advice available to it. Where qualified rights under the Human Rights Convention are engaged, such as the Article 10 rights at issue in this case, the court must decide for itself whether they have been interfered with and if so whether the interference is justifiable. In this case, per Lord Sumption, the executives decision is rational, there are no grounds to challenge the good faith or the evidential base of the decision, and the Secretary of State had committed no error of principle, nor had she underrated the value of Article 10 rights or overstated the risk [19 47, 51]; per Lord Neuberger, the Home Secretarys decision was proportionate and the Article 10 rights did not outweigh the risks she had identified [70 74]; per Lady Hale, on the basis of evidence now some years old, it had not been shown that the article 10 right claimed was sufficiently important to put at risk the UKs fragile but imperative relationship with Iran [98 109]; and per Lord Clarke, there was no evidence before the court permitting it to doubt the strength of the Home Secretarys reasons [111 117]. Accordingly, although the Court of Appeal was wrong to approach the issue on the usual domestic judicial review grounds, the appeal should be dismissed. Lord Kerr would have allowed the appeal. The courts will accord respect to the executives assessment of the risks and consequences of Mrs Rajavis being admitted to the UK, though it is not required to frank that decision. However, it is for the court to assess the importance of the right infringed. The court is both competent and constitutionally required to make such an assessment and it would be an error to attach special weight to the Home Secretarys view on this point [150 162]. In this case, only the most compelling and pressing circumstances would justify a restriction on the right. The Home Secretary identifies solid countervailing factors, but the court should take into account the fact that these matters are unpredictable and that any retaliation would be perverse and rooted in anti democratic beliefs. The risks cannot be precisely identified but the interference with the Article 10 right is direct and immediate [163 180].

Between 01.00 and 07.00 on 11 May 2009, Mr Renford Braganza, Chief Engineer on BPs oil tanker the British Unity, then in the mid North Atlantic, disappeared. No one knows for certain what happened to him. But his employers formed the opinion that the most likely explanation for his disappearance was that he had committed suicide by throwing himself overboard. This would mean that his widow was not entitled to the death benefits provided for in his contract of employment. Clause 7.6.3 of that contract provided relevantly as follows: For the avoidance of doubt compensation for death, accidental injury or illness shall not be payable if, in the opinion of the Company or its insurers, the death, accidental injury or illness resulted from amongst other things, the Officers wilful act, default or misconduct whether at sea or ashore . (emphasis supplied) It is not the task of this or any other court determining a claim under such a contract to decide what actually happened to Mr Braganza. The task of the court is to decide whether his employer was entitled to form the opinion which it did. The issue of general principle in this appeal, therefore, is the test to be applied by the court in deciding that question. The facts Mr Braganza was an able and well qualified Chief Engineer. Like all the crew of the MV British Unity, he was an Indian national. He was a Roman Catholic and married with two children. In July 2008, the family had moved from India to Toronto in Canada and he had taken extended leave for this purpose. After returning to work with BP, he joined the British Unity in Gibraltar in February 2009. The vessels main engine had broken down in August 2008 and been repaired but the damaged cylinder liners had not been replaced. This major work was done in April 2009 in Ferrol, Spain. Shortly after leaving Ferrol, the cooling water jacket of one of the cylinders began to leak. The vessel then proceeded via Falmouth to Brofjorden in Sweden, where a cargo of unleaded gasoline was loaded and also two spare cooling water jackets, which were stored in an alleyway on the main deck, close to a hatch providing access to the engine room below. After sailing from Brofjorden, Mr Braganza received an email on 5 May 2009 from an engineering superintendent asking him to carry out a scavenge inspection/ring inspection of the engine in about six days time and suggesting that it would be prudent to replace the cooling water jacket at the same time as the engine was stopped for that purpose. Mr Braganza replied that he would do the inspection in about six days time and try to carry out the jacket replacement at the earliest opportunity. To do this, it would first be necessary to lower the cooling water jacket through the hatch into the engine room below. Ms Belinda Bucknall QC, for Mrs Braganza, stresses the highly weather sensitive nature of the cooling water jacket exchange. (Indeed, Mr Williamson, the engineering superintendent who had supervised the major works in Ferrol had intended to telephone Mr Braganza on the morning of 11 May to suggest that he think about the operation because obviously the lifting of a one and half tonne cylinder head in any sort of swell would be risky.) The main engine would have to be shut down for several hours, leaving the vessel at the mercy of wind and wave. The vessel was originally bound for Jebel Ali in the United Arab Emirates, but on 7 May, while in the middle of the Bay of Biscay, it was ordered to proceed to New York instead. It therefore altered course and headed across the Atlantic. On 9 May, the weather worsened during the day and the log recorded at 20.00 a rough sea and high swell and shipping water on deck. On 10 May the weather began to improve. At 19.00, the Master, the Chief Officer, Mr Braganza and the second engineer met to discuss the plans for the next day. These included lowering liner jacket to engine room from main deck and M/E scavenge inspection and liner jacket renewal. It was agreed that the Master and Chief Officer would check the weather in the morning. At about 23.30 that same night, the Master and Mr Braganza met for about an hour. They discussed the weather conditions for the next day, with the assistance of a weather routing report which the Master had sent to Mr Braganzas computer. During the meeting, Mr Braganza emailed an engineering superintendent to report that he intended to stop the main engines the next day and do a scavenge inspection and that, weather permitting, he would like to change the liner jacket at the same time. He was advised to go ahead if weather and schedule permits. The Master left Mr Braganzas cabin at about 00.30 on 11 May. That was the last anyone saw of the Chief Engineer. At 01.00 he sent a routine email to the second engineer. At 07.00 it was noticed that his cabin door was open, as it habitually was unless he was sleeping. His bed looked as if it had been slept in. He did not breakfast as usual in the officers mess. The Chief Officer carried out a risk assessment around 08.00 and the Master agreed that the job could be carried out. The Judge concluded that it was unlikely that there was no pitching or rolling but that it was not such as to make the planned operations unsafe. Lowering the cooling water jackets into the engine room began shortly after 08.00 and was safely completed by about 09.30. Mr Braganza was not there. Soon afterwards, the Master announced that he was missing. A search was made on board but he was not found. The vessel was turned around and a search and rescue operation conducted but he was not found. The cooling water jacket replacement was postponed until some days later. On arrival in New York, an investigation was carried out on behalf of the Isle of Man where the British Unity was registered. The ships crew were interviewed under caution. Its conclusion was that Mr Braganza was lost overboard, presumed drowned, but no finding was made as to the reason for this. BP then set up its own inquiry, in accordance with its own procedures, to investigate the relevant circumstances leading up to the loss of Mr Braganza, identify if possible the root causes of the incident and identify any changes required to the BP Shipping Safety Management System. The five person team took about four months to make their extensive inquiries. Their eventual report was dated 17 September 2009. It considered five possible scenarios. The team were able to discount three explanations hiding or being hidden on board, collection by another vessel and fall from vessel due to horseplay, altercation or foul play. That left an accidental fall from the vessel, which could not be discounted, and suicide. Under the heading suicide, the team made six bullet points which led them to consider that suicide was a possibility. There was much criticism of each of these points in the courts below and the conclusions of each are briefly summarised below: (1) Mr Braganzas behaviour was reported to be notably different on this voyage than on previous voyages: (a) he was quiet and withdrawn, (b) there were no clean officers uniforms in his cabin, and (c) his attention to detail in record keeping had slipped. The judge rejected (a) and (b) but found (c) justified. The Court of Appeal found all three justified. (2) The shoes and sandals he usually wore on board were found in his cabin after his disappearance. The judge found it difficult to see how this could be probative of suicide as he could have worn his work boots. The Court of Appeal agreed with him but thought it unimportant. (3) Several e mail messages received from his immediate family . suggest [he] had some family and/or financial difficulties that were causing him concern. The judge set out the emails from Mrs Braganza in some detail, including one on the 27 March, where she wrote I really cannot figure out what has shaken you out so much that you seem to be so afraid of life (see also paras 73 and 74 of Lord Neubergers judgment). They certainly suggest that he was worried about something. The team did not interview Mrs Braganza about her communications with her husband during the voyage and what these might mean, but the judge concluded that this was not unfair, because she could have provided an explanation as soon as she got their report. The Court of Appeal considered that the team was undoubtedly correct on this point (para 30). (4) He was not aware, before joining the ship, of its status and reputation and was reported to be unhappy about this. The judge accepted that this was correct. (5) He considered himself eligible for the 2008 bonus which had been paid to him, but the employer had later advised him that it would be withdrawn. The judge thought that this could not be a cogent reason for inferring suicide. The Court of Appeal held (as we shall see) that this was not a necessary approach for the team to adopt. (6) There were indications that the watertight door from the accommodation block that opens onto the upper deck on the starboard side may have been opened during the hours of darkness on the morning of 11 May. No member of the crew reported opening this door. The judge rejected this point, as there was no evidence that the door had been opened during the hours of darkness and the bosun could have left it secured on only one dog when he went on deck at the start of the working day. The Court of Appeal considered this an extremely small point (para 33). The teams report went through several drafts. The first version did not mention suicide. After exchanges with BP Legal, the final version concluded that Having regard for all the evidence the investigation team considers the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life. The judge rejected the suggestion that there had been a fundamental shift between the first and final versions. The team had always felt that suicide was the most likely explanation. However, they could not rule out that he had gone on deck for a work related reason and that his fall had been accidental. The judge commented that What can perhaps be said is that the teams initial reluctance to identify suicide as . the likely cause of death suggests that such a conclusion was not clearly proven in the minds of the team (para 88). The report was produced by and for BP Shipping Limited, who owned and managed the vessel. It was then forwarded to Mr Sullivan, General Manager of BP Maritime Services (Singapore) Pte Ltd, a Singapore Company which provides management services to the shipping company and employed the officers on board the vessel. Mr Sullivan made no further enquiries of his own. On the basis of the teams report, he concluded that there had been wilful default within the meaning of Clause 7.6.3 of the contract of employment and thus that death in service benefits were not payable to Mrs Braganza. BP Legal informed her solicitors of this on 13 November 2009. Mrs Braganza brought a claim in contract against the employer for death benefits amounting to US$230,265. She also brought a claim in tort under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 for damages quantified as US$1,325,945, alleging that the death was caused by negligence on the part of both the shipping company and the employer. BP produced a supplemental report in answer to the claims (see paras 83 to 85 of Lord Neubergers judgment). Mr Sullivan maintained his decision. The action was tried over 8 days in 2012 before Teare J, sitting as a judge of the Admiralty Court: [2012] EWHC 1423 (Comm). Teare J was unable to make a finding as to the cause of Mr Braganzas death (para 60): there was a real possibility, but it was not more likely than not, that he had fallen overboard (para 57); but the evidence was not sufficiently cogent to warrant a finding of suicide on the balance of probabilities (para 58). He rejected the claim in tort on the ground that there had been no breach of duty in deciding to carry out the two operations that day (para 64) and that, even if there had been a breach of duty, it had not caused the death (para 65). Mrs Braganza has not appealed against that conclusion. Teare J upheld the contractual claim. It was common ground between the parties that the opinion formed by the employer had to be reasonable (para 76). This meant reasonable in the sense in which that expression is used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. [1948] 1 KB 223, which had been applied to the exercise of a contractual discretion (by a P & I Club) in The Vainqueur Jos [1979] 1 Lloyds Rep 557 (para 91). As Clause 7.6.3 was in the nature of an exception or exclusion clause, the burden of proving that the opinion was a reasonable one lay with the employer (para 93). The investigation team did not direct themselves that before making a finding of suicide there should be cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide (para 94). They, and therefore Mr Sullivan, failed to take into account the real possibility that Mr Braganza had gone out on deck in order to check the weather to see whether it was safe to carry out the planned work (para 96). They had stated in the first draft of their report that they could not find any work related reason for him to be outside during this time. His interest in the weather furnished such a reason and they should have taken it into account (para 97). This mattered because they had concluded that an accidental fall could not be discounted (para 98). Thus they were not properly directed in law and failed to take into account a relevant matter when forming their opinion (para 99). BP had conceded that if the opinion was not reasonable, the contractual claim should succeed (rather than the matter be sent back to them for reconsideration) (para 93). Having reached that conclusion, nevertheless Teare J very properly went on to consider the reasons advanced against the teams conclusion and formed the views outlined in para 9 above on the six bullet points. The employer appealed: [2013] EWCA Civ 230. Longmore LJ (with whom Rimer and Tomlinson LJJ agreed) thought it not entirely clear whether the judge had considered that the failure of the team, and Mr Sullivan, to direct themselves as to the need for cogent evidence before making a finding of suicide was in itself enough to render their opinions unreasonable (para 9). But, as Mocatta J had pointed out in The Vainqueur Jos, at 577, it would be a mistake to expect [of a lay body] the same expert, professional and almost microscopic investigation of the problems, both factual and legal, that is demanded of a suit in a Court of Law (para 13). It could not be the law that a non lawyer such as Mr Sullivan had to give himself directions before forming his opinion (para 14). It would be impossible for him to give himself such a direction without taking legal advice of a kind which cannot have been contemplated by the requirements of the death benefit clause (para 20). As to the failure to appreciate that there might be work related reasons for Mr Braganza to go on deck, that failure could not make the employers opinion unreasonable in the absence of a mechanism explaining how he could accidentally fall overboard (para 22). Thus Longmore LJ was unable to agree with either of Teare Js reasons for saying that the opinion was unreasonable (para 23). He therefore went on to consider and reject the wider ranging attack mounted upon the six bullet points (see para 9 above). The conclusion of suicide was a reasonable one in all the circumstances (para 34). The principles This case raises two inter linked questions of principle, one general and one particular. The particular issue is the proper approach of a contractual fact finder who is considering whether a person may have committed suicide. Does the fact finder have to bear in mind the need for cogent evidence before forming the opinion that a person has committed suicide? The general issue is what it means to say that the decision of a contractual fact finder must be a reasonable one. There are many statements in the reported cases to the effect that the principles are well settled and well understood, but this case illustrates that all is not as clear or as well understood as it might be. Contractual terms in which one party to the contract is given the power to exercise a discretion, or to form an opinion as to relevant facts, are extremely common. It is not for the courts to re write the parties bargain for them, still less to substitute themselves for the contractually agreed decision maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest. That conflict is heightened where there is a significant imbalance of power between the contracting parties as there often will be in an employment contract. The courts have therefore sought to ensure that such contractual powers are not abused. They have done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision making power is given. There is an obvious parallel between cases where a contract assigns a decision making function to one of the parties and cases where a statute (or the royal prerogative) assigns a decision making function to a public authority. In neither case is the court the primary decision maker. The primary decision maker is the contracting party or the public authority. It is right, therefore, that the standard of review generally adopted by the courts to the decisions of a contracting party should be no more demanding than the standard of review adopted in the judicial review of administrative action. The question is whether it should be any less demanding. The decided cases reveal an understandable reluctance to adopt the fully developed rigour of the principles of judicial review of administrative action in a contractual context. But at the same time they have struggled to articulate precisely what the difference might be. In Abu Dhabi National Tanker Co v Product Star Shipping Ltd (The Product Star) (No 2) [1993] 1 Lloyds Rep 397, 404, after contrasting the position in judicial review, Leggatt LJ explained that: The essential question is always whether the relevant power has been abused. Where A and B contract with each other to confer a discretion upon A, that does not render B subject to As uninhibited whim. In my judgment, the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provisions of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably. That was in the context of a ship owners decision as to whether a port to which a vessel was directed was dangerous. In Paragon Finance plc v Nash [2001] EWCA Civ 1466, [2002] 1 WLR 685, the court had to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage. Dyson LJ had no difficulty in holding (at paras 32 to 36) that it was necessary, in order to give effect to the reasonable expectations of the parties, to imply a term that the power would not be exercised dishonestly, for an improper purpose, capriciously or arbitrarily. He went on to discuss whether there should also be a term that the power would not be exercised unreasonably. He concluded that there had been a somewhat reluctant extension of the implied term to include unreasonableness that is analogous to Wednesbury unreasonableness (paras 37 to 42). These authorities, together with Ludgate Insurance Co Ltd v Citibank NA [1998] Lloyds Rep IR 221, 239 240, and Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] EWCA Civ 1047, [2001] 2 All ER (Comm) 299, at paras 64, 67, 73, are helpfully summarised by Rix LJ in Socimer International Bank Ltd v Standard Bank London Ltd [2008] EWCA Civ 116, [2008] Bus LR 1304. In his conclusion, at para 66, he substitutes the more modern term irrationality for unreasonableness: It is plain from these authorities that a decision makers discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused. Reasonableness and unreasonableness are also concepts deployed in this context, but only in a sense analogous to Wednesbury unreasonableness, not in the sense in which that expression is used when speaking of the duty to take reasonable care, or when otherwise deploying entirely objective criteria: as for instance when there might be an implication of a term requiring the fixing of a reasonable price, or a reasonable time. In the latter class of case, the concept of reasonableness is intended to be entirely mutual and thus guided by objective criteria. Laws LJ in the course of argument put the matter accurately, if I may respectfully agree, when he said that pursuant to the Wednesbury rationality test, the decision remains that of the decision maker, whereas on entirely objective criteria of reasonableness the decision maker becomes the court itself. The same point was made (albeit in a completely different context, and so obiter) by Lord Sumption in Hayes v Willoughby [2013] UKSC 17, [2013] 1 WLR 935, at para 14: Rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a persons thoughts or intentions. A test of rationality, by comparison, applies a minimum objective standard to the relevant persons mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse. (emphasis added) This is an obvious echo of the classic definition given by Lord Diplock when summarising the grounds of judicial review in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410: By irrationality I mean what can by now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. The problem with this formulation, which is highlighted in this case, is that it is not a precise rendition of the test of the reasonableness of an administrative decision which was adopted by Lord Greene MR in Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233 234. His test has two limbs: The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. The first limb focusses on the decision making process whether the right matters have been taken into account in reaching the decision. The second focusses upon its outcome whether even though the right things have been taken into account, the result is so outrageous that no reasonable decision maker could have reached it. The latter is often used as a shorthand for the Wednesbury principle, but without necessarily excluding the former. The parties in this case disagree as to whether the term to be implied into this contract includes both limbs. Mrs Braganza argues that the employer must keep within the four corners of the matters which they ought to consider, while the employer argues that its decision may only be impugned if it is a decision which no reasonable employer could have reached. Mrs Braganza can pray in aid the approach of Mocatta J in The Vainqueur Jos. He held that the common law principles applicable to the exercise of a contractual discretion include fairness, reasonableness, bona fides and absence of misdirection in law (p 574). He later quoted (p 575), without reservation, Lord Greenes summary of the public law concept of reasonableness. There is nothing on Mocatta Js judgment to suggest that only the second of those elements is applicable to the exercise of a contractual discretion. He did (at 574) contrast the contractual principles with the principles applicable to the exercise of a statutory discretion by Ministers of the Crown, but on the basis that, in addition, the Ministers decision had to be consistent with the objects and other provisions of the statute in question, citing Laker Airways Ltd v Department of Trade [1977] QB 643. On that point, on the other hand, in Hayes v Willoughby, just before the passage quoted in para 23 above, Lord Sumption stated that rationality has in recent years played an increasingly significant role in the law relating to contractual discretions, where the laws object is also to limit the decision maker to some relevant contractual purpose: [2013] 1 WLR 935, para 14. This is consistent with his earlier observations in British Telecommunications Plc v Telefnica O2 UK Ltd [2014] UKSC 42, [2014] Bus LR 765, at para 37: As a general rule, the scope of a contractual discretion will depend on the nature of the discretion and the construction of the language conferring it. But it is well established that in the absence of very clear language to the contrary, a contractual discretion must be exercised in good faith and not arbitrarily or capriciously [citing Abu Dhabi, Gan, and Paragon, above]. This will normally mean that it must be exercised consistently with its contractual purpose [citing Ludgate Insurance, above and Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459 (Lord Steyn), 461 (Lord Cooke of Thorndon)]. There are signs, therefore, that the contractual implied term is drawing closer and closer to the principles applicable in judicial review. The contractual cases do not in terms discuss whether both limbs of the Wednesbury test apply. However, in Gan Insurance, where the issue was the limits, if any, to the reinsurers power to withhold approval to the insureds agreement to settle a claim, Mance LJ first commented that what was proscribed was unreasonableness in the sense of conduct or a decision to which no reasonable person having the relevant discretion could have subscribed (para 64); but he concluded that any withholding of approval by reinsurers should take place in good faith after consideration of and on the basis of the facts giving rise to the particular claim and not with reference to considerations wholly extraneous to the subject matter of the particular reinsurance . (para 67). If it is part of a rational decision making process to exclude extraneous considerations, it is in my view also part of a rational decision making process to take into account those considerations which are obviously relevant to the decision in question. It is of the essence of Wednesbury reasonableness (or GCHQ rationality) review to consider the rationality of the decision making process rather than to concentrate upon the outcome. Concentrating on the outcome runs the risk that the court will substitute its own decision for that of the primary decision maker. It is clear, however, that unless the court can imply a term that the outcome be objectively reasonable for example, a reasonable price or a reasonable term the court will only imply a term that the decision making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose. For my part, I would include both limbs of the Wednesbury formulation in the rationality test. Indeed, I understand Lord Neuberger (at para 103 of his judgment) and I to be agreed as to the nature of the test. But whatever term may be implied will depend upon the terms and the context of the particular contract involved. I would add to that Mocatta Js observation in The Vainqueur Jos, that it would be a mistake to expect [of a lay body] the same expert, professional and almost microscopic investigation of the problems, both factual and legal, that is demanded of a suit in a court of law (577). Nor would some slight misdirection matter, at least if it were clear that, had the legal position been properly appreciated, the decision would have been the same. It may very well be that the same high standards of decision making ought not to be expected of most contractual decision makers as are expected of the modern state. However, it is unnecessary to reach a final conclusion on the precise extent to which an implied contractual term may differ from the principles applicable to judicial review of administrative action. Given that the question may arise in so many different contractual contexts, it may well be that no precise answer can be given. The particular context of this case is an employment contract, which, as Lord Hodge explains, is of a different character from an ordinary commercial contract. Any decision making function entrusted to the employer has to be exercised in accordance with the implied obligation of trust and confidence. This must be borne in mind in considering how the contractual decision maker should approach the question of whether a person has committed suicide. Teare J directed himself, in relation to his own decision as to the cause of Mr Braganzas disappearance, that before a finding of suicide is made there must be evidence of sufficient cogency commensurate with or proportionate to the seriousness of the finding (para 46), citing the observation of Watkins LJ in R v West London Coroner, Ex p Gray [1988] QB 467, 477 478, that suicide is still a drastic action which often leaves in its wake serious social, economic and other consequences. He also directed himself, following the House of Lords decision in The Popi M [1985] 1 WLR 948, 955 956, that, where two improbable causes are suggested, he was not bound to make a finding one way or another. I agree with Lord Neuberger, at para 100 of his judgment, that it is also perfectly proper for the employer to conclude that he or she is unable to form an opinion as to the cause of death. But the question is how he or she should go about making a positive finding of suicide. Longmore LJ pointed out that the direction based on Gray might itself be said to be a little outdated since the decisions in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and In re B (Children) (Care Proceedings: Standard of Proof) [2009] AC 11, which have emphasised that in civil cases there is only one standard of proof, viz. the balance of probabilities (para 15). Those cases make it clear that there is not a sliding scale of probability to be applied, commensurate with the seriousness of the subject matter or the consequences of the decision. The only question is whether something is more likely than not to have happened. Lord Hoffmann put it thus in In re B at para 15: There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. Some things are inherently a great deal less likely than others. The more unlikely something is, the more cogent must be the evidence required to persuade the decision maker that it has indeed happened. As Lord Nicholls explained in In re H, at 586, When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities. Thus, for example, most parents do not sexually abuse their children. Cogent evidence is therefore required to establish that sexual abuse is more likely than not to have happened. But once it is clear that such abuse has happened, the threshold of incredulity has been surmounted, and the question of who was responsible can be answered on the balance of probabilities. Hence it is not the seriousness of the consequences of a finding of suicide which demands that there be cogent evidence to support it, but its inherent improbability. However, Longmore LJ also took the view that the employer did not have to approach the matter in this way. I respectfully disagree. The employer is entrusted with making a decision which has serious consequences for the family of a deceased employee. It deprives them of what would otherwise be a contractual right. There is no reason why the employer should not approach that decision in the same way that any other decision maker should do. On the contrary, in view of the special nature of the employment relationship, there is every reason why they should do so. Employers can reasonably be expected to inform themselves of the principles which are relevant to the decisions which they have to make. Employment law is complicated and demanding in many legal systems, but employers are expected to know it. They can also reasonably be expected to know how they should approach making the important decisions which they are required or empowered to make under the terms of the employment contract. In my view, a decision that an employee has committed suicide is not a rational or reasonable decision, in the terms discussed above, unless the employer has had it clearly in mind that suicide is such an improbability that cogent evidence is required to form the positive opinion that it has taken place. The employer now accepts that it is for him to show that the decision which it reached was a reasonable decision in the sense which is required by the contract. Application to the facts In my view, Mr Sullivan should not simply have accepted the view of the investigation team that suicide was the most likely explanation for Mr Braganzas disappearance. The team had been conducting their investigation for purposes which were different from the purpose of his decision. Their purpose was to see whether BPs systems could be improved. They could and did make recommendations about the steps to be taken to support officers who might be experiencing financial or emotional problems. Those recommendations were equally valid and sensible whether or not Mr Braganza had in fact committed suicide. 40. Although I would not have phrased the correct approach exactly as Teare J phrased it, in my view he was right to conclude (para 95) that the investigation teams report and conclusion could not be regarded as sufficiently cogent evidence to justify Mr Sullivan, and hence BP, in forming the positive opinion that he had committed suicide. No one suggests that his decision was arbitrary, capricious or perverse, but in my view it was unreasonable in the Wednesbury sense, having been formed without taking relevant matters into account. 43. I would therefore allow this appeal, with the result that Mrs Braganzas claim in contract (for the comparatively modest sum of US$230,265, albeit with interest) succeeds. I agree with Lady Hale that this appeal should be allowed. LORD HODGE: (with whom Lord Kerr agrees) 44. 45. For the sake of brevity I do not set out again the facts which Lady Hale and Lord Neuberger have summarised at paras 1 to 16 and 66 to 96 respectively. For the sake of simplicity I refer to the two BP companies involved in this appeal as BP without drawing distinctions between them, except in the next paragraph in which I identify Mr Braganzas employer. 46. Mr Renford Braganzas contract of employment entitled him to compensation in the form of a death in service benefit if he died in the employment of BP Maritime Services (Singapore) Pte Ltd, the second defendants (Clause 7.3.1). Any sum payable as compensation was to be paid to his nominated beneficiary, in this case his widow, the claimant and appellant. That entitlement was subject to Clause 7.6.3 which provided (so far as material) compensation for death shall not be payable if, in the opinion of the Company or its insurers, the death resulted from amongst other things, the Officers wilful act, default or misconduct 47. BP denied Mrs Braganza the compensation because it was of the opinion that Mr Braganza had committed suicide. That opinion, which Mr Sullivan reached on behalf of BP, was based on a report of the investigation team and his subsequent confirmation of his decision was based on the second report of that team after Mrs Braganza challenged the decision. As Lady Hale has shown in para 9, the teams conclusion that suicide was the most likely explanation for Mr Braganzas disappearance was based on six points which it set out as bullet points in its report. 48. The task which the investigation team and Mr Sullivan faced was, as Lord Neuberger says, to decide how an unlikely event, which undoubtedly occurred, was actually caused. As a result of the detailed investigations there were only two realistic possibilities: accident or suicide. 49. I am struck by the paucity and the insubstantial nature of the evidence from which BP inferred that Mr Braganza committed suicide. While the six points must be considered in aggregate, the only ones which seem to me to be capable of bearing any weight are (a) his lack of timely record keeping on his last voyage, (b) the evidence in Mrs Braganzas emails of his financial worries since his family had settled in Canada and (c) his concerns about the state of repair of his ship and the workload which fell on him as chief engineer as a result. Evidence of some moodiness during the voyage and irritation over the refusal of a bonus added little to the picture. I agree with Lady Hales description of the six points on which the investigation team relied as straws in the wind: para 40. Unsurprisingly, the team could not rule out the possibility that Mr Braganza had gone on deck for some work related reason and that he had fallen into the sea by accident. 50. Against the conclusion which BP reached is the inherent improbability of suicide. Mr Braganza had no history of depression or mental disorder. There was no evidence that he had spoken to anyone about suicide. On 13 February 2009, before commencing his last voyage, he had undergone a medical examination and was pronounced physically and psychologically fit. His colleagues who saw him in the 36 hours before his disappearance expressed no concerns about his appearance or behaviour. The ships master, who was the last person to see him alive, also had no concerns about his demeanour at 0030 hours when they discussed the arrangements for the planned inspection and repairs which were scheduled for the following morning. Mr Braganza left no suicide note or message that indicated any intention to kill himself. Further, he and his wife were devout Roman Catholics, for whom suicide is a mortal sin. 51. Accordingly, I readily understand Teare Js conclusion, in the part of his judgment in which he considered Mrs Braganzas claim in tort, that the evidence before the court was not sufficiently cogent to warrant a finding of suicide on the balance of probabilities. But the issue in this case is not what a court would decide if determining the matter at first instance. As Teare J recognised later in his judgment when he addressed Mrs Braganzas claim in contract, the decision maker was BP. The principal issue is: when is the court entitled to intervene in the exercise of a contractual discretion?. 52. As Lady Hale has shown (paras 18 31), the court is not entitled to substitute its own view of what is a reasonable decision for that of the person who is charged with making the decision; it conducts a rationality review. In Clark v Nomura International Plc [2000] IRLR 766, a case concerning an employees entitlement to a discretionary bonus, Burton J stated (at para 40): the right test is one of irrationality or perversity (of which caprice or capriciousness would be a good example) ie that no reasonable employer would have exercised his discretion in this way. 53. Like Lady Hale, with whom Lord Neuberger agrees on this matter (para 103), I think that it is difficult to treat as rational the product of a process of reasoning if that process is flawed by the taking into consideration of an irrelevant matter or the failure to consider a relevant matter. While the courts have not as yet spoken with one voice, I agree that, in reviewing at least some contractual discretionary decisions, the court should address both limbs of Lord Greenes test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233 234. In my view it is clearly appropriate to do so in contracts of employment which have specialties that do not normally exist in commercial contracts. In Johnson v Unisys Ltd [2003] 1 AC 518 (at para 20) Lord Steyn stated: It is no longer right to equate a contract of employment with commercial contracts. One possible way of describing a contract of employment in modern terms is as a relational contract. 54. Similarly, in Keen v Commerzbank AG [2007] ICR 623, Mummery LJ stated (at para 43): Employment is a personal relationship. Its dynamics differ significantly from those of business deals and of state treatment of its citizens. In general there is an implied mutual duty of trust and confidence between employer and employee. Thus it is the duty on the part of an employer to preserve the trust and confidence which an employee should have in him. This affects, or should affect, the way in which an employer normally treats his employee. It would not be correct to treat that duty on the employer as flying off at the moment of the employees death so as to free the employer from the constraints of that duty when it determines whether the nominated beneficiary is entitled to the contractual death in service benefit. While the duty as an inherent feature of the relationship of employer and employee does not survive the ending of the relationship, such as by dismissal or the expiry of a contractual period of employment, the death in service compensation was part of his contractual benefits, to which his nominated beneficiary was entitled unless BP were satisfied that the death was the result of his wilful act. For the employer to behave otherwise than in accordance with that duty would be to betray the trust of the deceased employee. 55. The personal relationship which employment involves may justify a more intense scrutiny of the employers decision making process than would be appropriate in some commercial contracts. 57. 56. The scope for such scrutiny differs according to the nature of the decision which an employer makes. In this case Clause 7 gave the employee a prima facie entitlement to the death benefit unless BP could satisfy itself of a factual circumstance which excluded the benefit. The nature of the exercise which BP had to undertake in deciding the cause of death was very different from the assessment of whether an employee was entitled to a discretionary bonus, which is an exercise that involves a qualitative judgement of the employees performance. In cases such as Clark v Nomura International Plc, Keen v Commerzbank AG and Horkulak v Cantor Fitzgerald International [2005] ICR 402 the courts have reviewed contractual decisions on the grant of performance related bonuses where there were no specific criteria of performance or established formulae for calculating a bonus. In such cases the employee is entitled to a bona fide and rational exercise by the employer of its discretion. The courts are charged with enforcing that entitlement but there is little scope for intensive scrutiny of the decision making process. The courts are in a much better position to review the good faith and rationality of the decision making process where the issue is whether or not a state of fact existed, such as whether an employees wilful act caused his death. The decision of the employer is not a judicial determination and the court cannot expect judicial reasoning. But I see no reason why an employers decision making should be subject to scrutiny that is any less intense than that which the court applies to the decision of a public authority which is charged with making a finding of fact. A large company such as BP is in a position to support its officials with legal and other advisory services and should be able to face such scrutiny. 58. The investigation team and Mr Sullivan appear not to have considered the real possibility of accident if Mr Braganza had a work related reason to be on deck after dawn, namely to check the weather conditions which would affect the planned replacement of the cooling water jacket, and had acted carelessly while standing at or even on the deck railings. While there was evidence that Mr Braganza was generally very conscious of safety, people do unexpected things and unforeseen accidents occur; accidents are often difficult to predict, as Teare J stated at para 56. 59. The focus of the teams second report was on responding to Mrs Braganzas suggestion that her husband might have been washed overboard or slipped while inspecting engine spares on the deck and fallen over or between the railings as a result of the rolling of the ship. The team found no evidence in support of such an accident. The weather conditions did not support such hypotheses. The railings were in good repair and adequate to prevent someone falling on the deck and sliding overboard. Those railings would also protect someone from falling overboard unless they acted carelessly. But if Mr Braganza had behaved carelessly at the railings, there would in all probability have been no evidence of the cause of his fall which could be set against the exiguous evidence pointing to suicide. 60. Given the improbability of suicide in this case, I agree with Lady Hale (para 36 above) there had to be cogent evidence to overcome that improbability. Not only do I not see that evidence but also I do not detect any consideration of both the possibility of Mr Braganza having acted carelessly while at the railings and that there would in all probability be no evidence of such behaviour. On those bases the appeal succeeds. 61. There is a further point. I do not rely on it in reaching my decision because it was not argued in this appeal and it may merit further argument in a suitable case. I think that the employers obligation of trust and confidence may provide a further reason for requiring cogent evidence. A finding that an employee has committed suicide carries a stigma for the spouse of the deceased employee. Teare J in his judgment (at para 46) cited Watkins LJ in R v West London Coroner, Ex p Gray [1988] QB 467 (at pp 477 478) where he stated that suicide is a drastic action which often leaves in its wake serious social, economic and other consequences. I accept that there is no logical or necessary connection between seriousness and probability In re B (Children) [2009] AC 11, Lady Hale at para 72. In many cases the court or a lay decision maker may have to decide on very thin evidence whether an event occurred on a balance of probability. But it may not be appropriate to do so in every context. Because employment is a relational contract, an employer may require cogent evidence before it makes a finding that has such consequences for an employee or his family, including the loss of the death in service benefit. I am inclined to think that it is consistent with the duty of trust and confidence that where, as here, the evidence is exiguous, the employer should ask itself whether there was evidence of sufficient quality to justify the finding, and when there is no cogent evidence, it should refrain from making a positive finding as to the cause of death. Unlike a judge in civil disputes or in family justice cases, an employer can sit on the fence; it does not have to find a cause of death if one is not clear. 63. 62. Whether or not the obligation of trust and confidence imposes this constraint on an employer, I am satisfied that there was not sufficient evidence of suicide in this case to outweigh its inherent improbability and Teare J was justified in so finding. Absent cogent evidence to support it, Mr Sullivan and thus BP should not have made a finding of suicide. I do not question the good faith of the investigation team, who carried out a thorough investigation under a different remit, or of Mr Sullivan, who made the positive finding on behalf of BP. Nor do I think that BP acted unfairly in the manner it carried out the task. But, like Lady Hale and Teare J, I do not think that the report of the investigation team gave Mr Sullivan the evidential basis for forming the positive opinion that Mr Braganza had committed suicide. I would therefore allow the appeal. 64. LORD NEUBERGER: (with whom Lord Wilson agrees) (dissenting) 65. The ultimate issue on this appeal is whether Niloufer Braganza, the widow of Renford Braganza, is disentitled from obtaining a death in service payment from his employer (whom I will refer to as BP) following his death at sea, on the ground that his death was caused by suicide. In agreement with the Court of Appeal, and respectfully differing from the majority of the court and from Teare J, I consider that Mrs Braganza is disentitled from obtaining the benefit in question. The basic facts 66. In order to explain my reasons for reaching this conclusion, I will set out the significant facts as I see them, although I am conscious that this means a degree of overlap with Lady Hales judgment. Mr Braganza had been employed by BP since 2004 as Chief Engineer. His terms of employment were set out in a contract, of which only parts of clause 7 (Clause 7) are relevant for present purposes. The effect of clause 7.3 was that, in the event of his death whilst in the employment of [BP], Mr Braganzas nominated beneficiary (in this case Mrs Braganza, the claimant in these proceedings) would be entitled to compensation equal to three times [his] annual salary. However, this entitlement was subject to certain exceptions. One of those exceptions was set out in clause 7.6.3 which stipulated that no such compensation would be payable if, inter alia, in the opinion of [BP] or its insurers, the death resulted from [his] wilful act, default or misconduct whether at sea or ashore . 67. On 9 February 2009, Mr Braganza joined the MV British Unity, a 183 metre long, 46,803 mt deadweight oil tanker, at Gibraltar. Unusually, and contrary to standard practice, he was not given a briefing, and in particular he was not told that the vessel needed substantial repairs. Major work was carried out while the vessel was in Ferrol, Spain between 18 and 22 April 2009, an operation for which Mr Braganza was responsible, albeit under supervision. After leaving Ferrol, further problems came to light and the vessel berthed in Falmouth for work and then went on to Brofjorden in Sweden for further work. The vessel was then loaded with unleaded gasoline, and set sail for Jebel Ali, but was then ordered to divert to New York. On 11 May 2009, Mr Braganza was lost overboard when the vessel was in the mid North Atlantic, en route for New York, between 01.00 (when he sent an email) and 07.00 (when his cabin was seen to be empty). The relevant background facts 68. Mr Braganza was an able and experienced engineer, a staunch Roman Catholic and a strong family man, with a wife and two children, and he telephoned his family when he was at sea every two or three days. He had been found to be physically and psychologically fit when examined in February 2009. 69. During the 36 or so hours before his disappearance, Mr Braganza was described as normal by those who saw him. On the evening of 9 May 2009, he was the caller in a game of bingo played by a number of the crew members, and, according to the Chief Officer, he made the party a lot of fun. He had discussions for around ninety minutes on 10 May with the Master and the second engineer about the replacement of a cooling water jacket (CWJ) which cooled one of the six cylinders of the vessels diesel engine, which involved the engines being turned off and which required reasonably clement weather. Mr Braganza thought that this needed doing, and it was agreed that it would be carried out next day, weather permitting. After meeting crew members and watching a comedy film with them, he discussed the proposed operation and the likely weather conditions in his cabin with the Master at about 23.30 for rather over an hour. At 23.24, while the Master was with him, he emailed an engineering superintendent about the proposed operation, which was approved in an email nine minutes later [i]f weather and schedule permits. Before the Master left his cabin, Mr Braganza checked the Indian Premier League cricket results on his computer. At 01.00 on 11 May, Mr Braganza emailed the second engineer concerning entries in the log book. He was not seen alive again. 70. While he was Chief Engineer on the MV British Unity, Mr Braganza was described by some of those on board as being withdrawn and staring into space, in contrast with his happy character noted on previous voyages although he was, as mentioned, in good humour on 9 May. During the carrying out of the works at Ferrol in April, Mr Braganzas skills did not impress the BP superintendent, who told him how he might improve them. 71. On 24 March 2009, Mr Braganza was advised by the Captain of the British Unity that he had been awarded a bonus of $1688, but on 18 April, the Master was told to deduct this sum from Mr Braganzas salary as he had had a break in service in 2008, which disentitled him from having a bonus. This was communicated on the same day to Mr Braganza, who immediately challenged the deduction, but his challenge was rejected by BP on 7 May. 72. As Chief Engineer, Mr Braganza was responsible for writing up the daily orders he gave his staff in the Chief Engineers Order Book. The last entry which he made was on 18 April 2009, when the vessel was still at berth, and when he was not under any obligation to make any entries. However, from 22 April 2009, when the vessel left Ferrol, he was obliged to make such entries, but he made none at any time thereafter. It is also appropriate to refer to emails which were sent to Mr Braganza by his wife after he had joined the British Unity. According to the evidence of Mrs Braganza to Teare J, Mr Braganza was worried about the cost of living in Toronto, where he had moved with his family from India in July 2008. The two had had telephone discussions on 13, 14 and 15 February, and in an email on the last of those dates, his wife had emailed Mr Braganza saying that she thank[ed] God for what we have and what the last seven months have done to us, and encouraging him to make a decision to let go of anything that is holding you down. Again according to the evidence of Mrs Braganza, Mr Braganza was also concerned about the amount of work that needed to be done to the vessel, and on 17 February, his wife emailed him saying please do not break your head about getting this opportunity on Unity. Just relax, 73. think this is like any other ship. So please do not stress yourself thinking of unnecessary stuff. However, it appears that Mr Braganza continued to worry about money and the repairs. 74. On 27 March, in what strikes me as a particularly relevant email, Mrs Braganza asked her husband not to worry, saying that everything will work out just fine and that I really cannot figure out what has shaken you out so much that you seem to be so afraid of life, adding If we keep crying over spilt milk we will not be able to go on with life. And, on 6 May, she emailed him, begging him to be happy for whatever we have and expressing concern that In Toronto you seem[ed] sad and Now on the ship too you do not seem happy. She also said that you are thinking too much about the future and that is eating you. She added that she wished he could share [her] enthusiasm, asking what are you frightened about?. The Reports commissioned by BP 75. After Mr Braganza had disappeared, BP appointed a five person investigation team (the team), pursuant to its Group Defined Practice, which applies to any fatality on board a vessel. The team consisted of a Vice President in the Engineering, Refining and Logistics Technology department, a Health Safety Security and Environment Manager, a Marine Incident Investigator, a Marine Standards Superintendent, and a Fleet Offshore Marine Services Superintendent. 76. The members of the team boarded the vessel on 18 May 2009 when it arrived in New York, and carried out an investigation, and produced their detailed Fatal Incident Report (the First Report) on 17 September 2009. According to the uncontradicted evidence, the First Report had been produced after carrying out careful inspections, interviewing 54 witnesses, and looking at hundreds of documents. 77. The terms of reference were set out at the start of the First Report. They were to investigate the relevant circumstances leading up to the loss of Mr Braganza, to identify if possible the root causes of the incident, [a]s a result [to] identify any changes or improvements in BPs safety systems, and to identify any common factors with another incident on a different vessel. The First Report then set out some other formal information. 78. The First Report then summarised its conclusions. After referring to the teams in depth investigation, the summary stated that the team could not conclude for certain the root cause of the incident. Then, after ruling out certain other possibilities, the Findings concluded by saying that the team considers the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life. The First Report then set out certain recommendations for the future. 79. The First Report next recited the history leading up to the tragic death of Mr Braganza in some detail, including the need for the vessels repairs, the experience of Mr Braganza, and such details of the incident as the team could identify, including the response to his disappearance from the vessel. The First Report then explained the investigatory steps which the team had taken, including interviewing those on board, interviewing other people who might have relevant information, photographing and logging documents, inspecting the vessel, collecting other relevant information and analysing all data. The First Report went on to consider and reject the possibilities of Hiding on board, Collec[tion] by a 3rd party vessel or Fall from vessel due to horseplay, altercation or foul play. 80. The First Report then addressed Accidental fall from vessel, and while the team found [n]o evidence of sub standard or unsafe structures, they considered that slipping overboard cannot be discounted although there was no evidence to support it. The report then considered the possibility of suicide, and mentioned the matters referred to in paras 69 74 above, namely Mr Braganzas withdrawn character, his concerns about his finances, his worry about the vessels poor repair, the emails from his wife, the criticism he received at Ferrol, and the withdrawal of his bonus. The First Report then stated that, although Mr Braganzas state of mind cannot be known, it was possible that he jumped overboard. Under the heading of Findings, the First Report then repeated the conclusions contained at the start, including this: the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life. 81. Mr Sullivan, BPs General Manager, was appointed by BP to address the cause of Mr Braganzas death for the purpose of clause 7. He considered the First Report and accepted the conclusion reached by the team. Accordingly, he decided that the death in service benefits under clause 7.3 were not payable to Mrs Braganza, and this was duly communicated to her. 82. Mrs Braganza then challenged the teams rejection of the possibility that Mr Braganzas death was caused by an accident, on the basis that, for the purpose of seeing whether the CWJ could be replaced, he could well have gone on deck to see the state of the weather and fallen overboard. Accordingly, Mrs Braganza contended that the right conclusion was that her late husband had died as a result of an accident. She provided a statement to the team, which then reconsidered the matter. On 12 July 2011, the team produced a Supplemental Report (the Second Report) in which they adhered to their conclusion. 83. The Second Report referred to many of the findings of the First Report. It also observed that the state of the weather during the night of the 10 May and the morning of the 11 May was ever improving and could be considered good weather mid Atlantic, which rendered it improbable that Mr Braganza had been washed overboard or had fallen on deck due to a roll. It stated that, as a senior and respected Chief Engineer, and reported as being very safety conscious by his ship mates, Mr Braganza is highly unlikely to have ventured out on deck during the hours of darkness and certainly not without informing the officer of the watch on the bridge. The Second Report went on to point out that there would have been no reason for his checking on the weather, because that assessment would in any event be carried out from the bridge by the Master and/or the [Chief Officer] who was responsible for the task. The report also said that the safety standards on board impressed those of the team visiting a BP ship for the first time. A little later, the team stated that it would be extremely unlikely that a person could trip, slip or fall in such a manner so as to fall overboard while carrying out normal shipboard duties and in the weather conditions which were known to prevail at that time. The Second Report also stated that the team were not aware of any previous cases within BP where weather conditions or rolling of the vessel had caused anyone to go overboard accidentally (emphasis in the original). The report also stated that the team had considered the statement of Mrs Braganza dated May 2011 and that the contents do not affect the teams conclusions. 84. The Second Report went on to say that the team considered that the scenario of C/E Braganza going outside to check on equipment during the night or early morning and suffering a fall that took him over the side of the vessel, [to have been] unlikely in the extreme. The report then turned to the possibility of suicide and repeated the points which gave some support for that notion, which were summarised in these terms: there seemed a lot of independent and reported (although circumstantial) evidence indicating a depressed state of mind combined with personal problems. The lack of a suicide note, it said, cannot be taken as a firm indication that suicide was not the cause of his disappearance. 85. The Second Report therefore explained that the team assess[ed] suicide as the most likely scenario, although equally the investigation team cannot firmly conclude what happened to C/E Braganza on the night of the incident (emphasis in the original). The team also explained that they did not reach this conclusion [sc that Mr Braganza committed suicide] on the basis of exclusion ie because we could not find any other cause as being likely or possible. They added that there was no single piece of evidence on which [the team] concluded suicide, and that it was very much a collection of a number of issues and the general feeling based on this evidence that C/E Braganza intended to take his own life. 86. Following Mrs Braganzas contentions and the provision of the Second Report, Mr Sullivan reconsidered his opinion in the light of those contentions and that report, and remained of the view that Mr Braganzas death resulted from suicide. As he explained in the subsequent court proceedings, he took the view that there was a reasonable basis on which to conclude that deliberate suicide was the most likely scenario, which was a conclusion reached on the basis that there was positive evidence that made deliberate suicide the most probable cause of death. He also said that he did not arrive at this conclusion by a process of elimination. The decisions in the courts below 87. Mrs Braganza issued proceedings against BP claiming (i) damages under the Fatal Accidents Act 1976 on the ground that BP was in breach of its duty of care to Mr Braganza (the first claim), and (ii) that BPs opinion as to the cause of Mr Braganzas death, based as it was on the First and Second Reports (the Reports) was flawed and ought to be declared invalid (the second claim). The trial lasted eight days before Teare J, who heard a number of witnesses primarily directed to the first claim. Having heard argument, he gave a reserved judgment in favour of BP on the first claim and in favour of Mrs Braganza on the second claim [2012] EWHC 1423 (Comm). The judgment included some detailed findings of fact and conclusions in relation to Mr Braganzas death, because of the first claim, namely that under the 1976 Act. In paras 54 and 57 of his judgment, the judge concluded that, while there was a real possibility that Mr Braganza went out on deck to assess the weather himself, he was not persuaded that it is probable that he did so, and he concluded that while there was a real, not a fanciful, possibility that Mr Braganza fell overboard, it was not probable that he did so. In para 58, the judge said that there was also a real, not a fanciful, possibility that he committed suicide. 88. 89. The judge therefore concluded that Mrs Braganzas claim under the 1976 Act failed, as the onus was on her to show that her husbands death was accidental para 61. Although it was not necessary to do so, the judge went on in paras 64 65 to hold that, even if she had succeeded in establishing an accident, Mrs Braganzas claim under the 1976 Act would have failed on the additional grounds that she had failed to prove breach of duty by BP or causation. 90. The judge then turned to the second claim, namely Mrs Braganzas challenge to BPs opinion under clause 7.6.3 that Mr Braganza committed suicide, and concluded that Mr Sullivan had not properly directed himself before forming the opinion that Mr Braganza had committed suicide. In particular, in para 94, Teare J said that the team: did not direct itself that before making a finding of suicide there should be cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide. This is understandable in circumstances where the purpose of its investigation focussed upon whether there were any BP systems had failed and to make recommendations to improve BPs systems. [T]he teams remit did not include considering whether the Claimant should receive any death in service benefit pursuant to Mr Braganza's contract of employment. However, the findings of the team were adopted by Mr Sullivan when forming BPs opinion for the purposes of clause 7.6.3 of the contract of employment. There is no evidence that he directed himself that before forming the opinion that Mr Braganza committed suicide there should be cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide. It is unlikely that he did. This was required because the consequence of forming that opinion was that Mr Braganzas widow would be deprived of the death benefits under her husband's contract of employment. Fairness required that BP and in particular Mr Sullivan should have been properly directed in that regard. 91. Teare J expanded on this in paras 96 97 in these terms: The Investigation Team, and hence Mr. Sullivan, failed to take into account the real possibility that Mr. Braganza went out onto deck in order to check the weather to see whether it was safe to carry out the planned work. The existence of a real possibility that Mr. Braganza went out on deck to check the weather is, in my judgment, a relevant matter to take into account when considering whether suicide has been shown to [be] more likely than not. The [teams] report strongly suggests that this was not taken into account. 92. The judge then went on to reject various other criticisms of the Reports, namely the lack of any psychiatric expertise (irrelevant as BP did not suggest that Mr Braganza suffered from a psychiatric illness), lack of engineering expertise (irrelevant to the issues which the team had to decide), and the fact that the team divided up to hear evidence (there was no requirement that they heard all the evidence together). The judge also considered and accepted some of Mrs Braganzas criticisms about the findings made by the team (and the more important examples are given by Lady Hale in para 9(1), (2) and (6) above), but he did not base his decision in favour of Mrs Braganza on these criticisms (para 120). 93. One further criticism raised on behalf of Mrs Braganza before the judge against the opinion formed by Mr Sullivan is worth mentioning, namely that neither the team nor Mr Sullivan had interviewed Mrs Braganza. The Judge thought that in principle fairness did require her to be interviewed, although he accepted Mr Sullivans explanation that he did not want to intrude unnecessarily into the familys grief. However, given that Mrs Braganza had the opportunity to comment on the First Report and did not offer any comment in relation to the matters the team relied on to justify its finding of suicide, the Judge rejected her case on this point. In these circumstances, the Judge effectively set aside the opinion of Mr Sullivan on behalf of BP that Mr Braganza had committed suicide, and determined that Mrs Braganza was entitled to the death in service benefit under clause 7.3, and gave judgment in her favour in the sum of $230,265 with interest. 94. 95. BP appealed against the judgment, and the Court of Appeal, for reasons given in a judgment given by Longmore LJ, with which Rimer and Tomlinson LJJ agreed, allowed its appeal [2013] EWCA Civ 230. Longmore LJ disagreed with the notion that Mr Sullivan (or the team) should have directed himself (or themselves) that there should be cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide, on the ground that it was unreasonable to expect him (or them) to take such an approach (paras 19 20). Longmore LJ then went to explain that that was not necessarily the end of the matter, as [t]he relevant opinion still has to be reasonable. However, he disagreed with Teare Js view that the team did not take into account the fact that Mr Braganza might have had legitimate (non suicidal) reasons for being on deck. Longmore LJ also said that, even if the team had failed to take that possibility into account, it would not render its conclusion unreasonable, given the absence of a mechanism explaining how he could accidentally fall overboard para 22. 96. The Court of Appeal also considered the various minor items of evidence relied on by the team and referred to in para 92 above. They considered that the Judge had adopted too rigid a test in relation to some of those matters, but as the Judge had not relied on them to justify his conclusion, that aspect took matters no further. The three lines of attack raised on behalf of Mrs Braganza 97. Miss Belinda Bucknall QC, on behalf of Mrs Braganza, raised three lines of argument in support of her contention that this court should set aside the order of the Court of Appeal and restore Teare Js order. First, she contended that the Court of Appeal did not appear to have appreciated that it should not have interfered with the Judges conclusion, given that he was the trial judge, who had heard the witnesses and reached a fact sensitive conclusion. In my view, that contention is not well founded, because it confuses the judges role when he was deciding what in para 87 above I have called the first claim, namely whether BP had been in breach of duty, with his role when considering the second claim, namely whether BPs opinion under clause 7.6.3, based on the two Reports, should be set aside. When ruling on the first claim, the Judge was indeed the primary finder of fact, and it would only be if he had gone seriously wrong (eg if he had come to a conclusion which no reasonable judge could have come to, or made a demonstrable error such as ignoring a significant relevant piece of evidence) on a factual issue that an appeal court could properly have reversed his conclusion. However, the position on the second claim was entirely different: far from being the primary finder of fact, Teare J was carrying out a reviewing function of the two Reports, prepared by the team, and it was the team, or more precisely Mr Sullivan (who relied on the two Reports in forming his opinion), not the Judge, who represented the primary finder of fact. 98. Miss Bucknalls second line of attack was based on a number of alleged errors in the two Reports, which are briefly referred to in para 92 above. Although I agree with some of them, I do not accept all the criticisms which were accepted by the Judge. However, it is unnecessary to discuss this aspect further, as I agree with the Judge and the Court of Appeal that the mistakes could not possibly justify challenging the conclusion reached in the two Reports. It appears to me to be fanciful to think that, if all of them had been pointed out to the team and corrected, it could conceivably have resulted in the team reaching any different conclusion from that which they did. Just as minor errors in a full and careful judgment do not justify interfering with a judgment, so it is with minor errors in a report which may have legal effect. To hold otherwise would be wrong in principle, and it would serve to encourage unmeritorious appeals and to discourage full, considered and informative reports and judgments. Of course, different considerations apply where the error of fact might well have affected the outcome. 99. The third line of attack raised by Miss Bucknall was very similar to the Judges reasoning for rejecting Mr Sullivans reliance on the two reports as set out in para 94 of his judgment, namely that the basis for determining that Mr Braganza committed suicide was too flimsy to justify such a conclusion, at least by Mr Sullivan. That argument merits much fuller consideration, but, before turning to consider it, it is convenient to address the appropriate approach which the court should take to a contention such as that raised by Mrs Braganzas second claim. The proper approach to Mr Sullivans opinion 100. In some circumstances, it may be that the cause of an officers death is very difficult to determine. In such a case, the exercise envisaged in clause 7.6.3 does not require the person charged with carrying out the enquiry to form an opinion. It is perfectly proper for that person to conclude that he or she is unable to form an opinion as to the cause of the death in question. Clause 7.6.3 provides for an exception to BPs liability to pay compensation under clause 7.3, and if it is impossible for the person who is charged with forming an opinion under clause 7.6.3 to come to a conclusion, then BP must pay the compensation. 101. A second point, which requires a little more exegesis, arises from the fact that the person who is given the primary duty of determining the cause of death under clause 7.6.3 is BP or its insurers (and for present purposes one can ignore the reference to the insurers). If a provision such as clause 7.6.3 does not specify how the issue is to be determined, it would be for a judge to decide it as the primary fact finder. Save where for some reason BP cannot or refuses to consider the cause of death, the courts only have a role to play once BP forms an opinion on the issue and an interested party seeks to challenge the opinion as happened in this case. 102. There was some discussion as to the standard which the court should expect of the decision maker or opinion former in such circumstances. That question was fully considered by Rix LJ in Socimer International Bank Ltd v Standard Bank Ltd [2008] EWCA Civ 116, paras 60 66. He began by describing the issue as arising When a contract allocates only to one party a power to make decisions under the contract which may have an effect on both parties, and, after considering a number of previous authorities, he concluded: [A] decision makers discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused. Reasonableness and unreasonableness are also concepts deployed in this context, but only in a sense analogous to Wednesbury unreasonableness, not in the sense in which that expression is used when speaking of the duty to take reasonable care, or when otherwise deploying entirely objective criteria: as for instance when there might be an implication of a term requiring the fixing of a reasonable price, or a reasonable time. Lord Justice Laws in the course of argument put the matter accurately when he said that pursuant to the Wednesbury rationality test, the decision remains that of the decision maker, whereas on entirely objective criteria of reasonableness the decision maker becomes the court itself. 103. Like Lady Hale, I consider that there is considerable force in the notion that this approach is, and at any rate should be, the same as the approach which domestic courts adopt to a decision of the executive, as described in the judicial observations which she quotes in paras 23 and 24 above (as indeed is reflected by the reference to the Wednesbury decision in the passage I have quoted from Rix LJ). I do not think that there is any inconsistency of approach between Lady Hale and Lord Hodge or myself in this connection. 104. However, a third point I should mention does concern a point of difference between us. It is best expressed by reference to Lord Hodges statement that contracts of employment have specialties that do not normally exist in commercial contracts, which he discusses in para 54 57. It appears to me questionable whether the special implied mutual duty of trust and confidence survived the death of Mr Braganza, but I accept that there is a powerful case for contending that it did, at least for present purposes. However, I do not think it necessary to decide the point, because I fail to see how it assists Mrs Braganzas case. Once it is accepted that BP had to carry out the investigation with honesty, good faith, and genuineness and had to avoid arbitrariness, capriciousness, perversity and irrationality, I do not see what trust and confidence add. I find it difficult to accept that trust and confidence would require more than what in a normal commercial context would be expected, either of BP when carrying out the investigation, or of the court when scrutinising the investigation and its results. Either the investigation was properly carried out or it was not, either there was enough evidence to justify the conclusion reached by Mr Sullivan or there was not, and either the reasoning which led to the conclusion was defensible or it was not. Accordingly, as I see it, the duty of trust and confidence is simply irrelevant to deciding that question. 105. A fourth point is also worth mentioning. A court considering a decision such as that reached in this case by the team or by Mr Sullivan should bear in mind the fact that it is performing a reviewing function, and, as I have already mentioned, not an originating fact finding function. The courts approach should therefore be similar to that of an appellate court reviewing a trial judges decision. In this case, the team, and then Mr Sullivan on behalf of BP, were entrusted with forming a view on a point of fact, namely how Mr Braganza died. As Lord Hoffmann pointed out in Biogen Inc v Medeva PLC [1997] RPC 1, 45, albeit in connection with a trial judges decision, this is a kind of jury question and should be treated with appropriate respect by an appellate court. And that is, in my view, at least as true where the parties have agreed by whom the issue should be determined. 106. Lord Hoffmann then explained that [t]he need for appellate caution in reversing the trial judges evaluation of the facts is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. He continued: [the judges] expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance of which time and language do not permit exact expression, but which may play an important part in the judges overall valuation. I would add that (i) it cannot be right to expect a higher standard from non lawyer decision makers than from a judge, and (ii) the respect to be shown to the decision makers determination may often be greater when it is that of a person or people with relevant expertise or experience than when it is that of a judge. Was the opinion that Mr Braganza committed suicide unreasonable? 107. One would have to be unusually stony hearted not to hope that a way could be found to ensure that, having suffered the terrible blow of losing her husband, Mrs Braganza could be spared the additional blows of an inquiry concluding that he had killed himself and the deprivation of a death in service benefit. However, it is the most fundamental duty of a judge to apply the law, even if it sometimes leads to hard consequences in the circumstances of a particular case. 108. In my view, the position in this case is, in summary, as follows. As the First Report made clear (see para 77 above), BP appointed a team of experienced people from different disciplines specifically to form a view as to how Mr Braganza had died, the team carried out what appears to have been a very thorough investigation (see para 78 above), and produced a full and meticulous report in which they expressed themselves in moderate and considered terms, and in which they concluded that, while Mr Braganza could have suffered an accident, that was very unlikely, and that the probable cause of his death was suicide (see paras 79 81 above). They then carefully reconsidered that conclusion following a request from Mrs Braganza, and, sadly for her, confirmed it in a further carefully considered report (paras 83 85 above). When Mr Sullivan was instructed by BP to consider the cause of Mr Braganzas death for the purpose of clause 7, it was entirely reasonable for him, in the light of that background to consider the First Report and adopt its conclusions, and, when the First Report was challenged, to readdress the matter and to consider the Second Report and adopt its conclusions. 109. However, it is said that Mr Sullivans opinion is flawed because of a combination of factors. When analysed, it appears to me that those factors may be summarised as follows: a) It was inappropriate for Mr Sullivan simply to rely on the Reports, as they were prepared for a different purpose; b) A finding that a person committed suicide amounts to an inherently improbable, serious or damaging conclusion which required more cogent evidence than was available; c) Mr Braganza exhibited no signs that he was depressed or had suicidal intentions during the 24 or 36 hours prior to his death; d) The consequence of Mr Sullivan concluding that Mr Braganzas death was caused by suicide was so severe, namely, the loss of a death in service benefit, that it was not justified on the evidence; e) Mr Sullivan ought at least have directed himself as to the inherent unlikelihood of Mr Braganza having committed suicide; f) The team, and therefore Mr Sullivan, failed to take into account the fact that Mr Braganza had good reason to go on deck in the early morning; g) Mr Sullivans failure to ask Mrs Braganza about the emails impugned his opinion. I shall take those arguments in turn. 110. As to argument (a), it was, in my view, neither unreasonable nor inappropriate for Mr Sullivan, when forming his opinion for the purposes of clause 7.3, to adopt the conclusion reached in a carefully considered report prepared by a group, such as the team, on behalf of BP. I am unpersuaded by the argument that the team was concerned with a different issue from Mr Sullivan. The team was specifically instructed to investigate the relevant circumstances and root causes of Mr Braganzas disappearance, and they clearly could only conclude that it was suicide if that was, in their view, the likely cause, ie on the balance of probabilities, after fairly considering all the evidence. Precisely the same applies to the forming of Mr Sullivans opinion as to the cause of Mr Braganzas death. Further, the fact that the team was investigating the issue for a purpose different from Mr Sullivan is nothing to the point. Even if one assumes (which I do not accept) that the sole purpose of the team was to make recommendations as to what steps should be taken by BP to improve safety on board their vessels, it was still essential for them to assess, if they could, just how Mr Braganza had died. 111. If the team had concluded in their report that Mr Braganza had fallen overboard as a result of an accident or that it was impossible to say how Mr Braganza had died, it could not seriously be suggested that Mr Sullivan could not have adopted that conclusion. Indeed, to many people, it would have been a little surprising if, in the absence of new facts not known to the team or plain error on the part of the team, Mr Sullivan had reached a different view from that taken by the team. Of course, Mr Sullivan was not entitled unthinkingly to adopt the view of the team: he had to form his own opinion. However, once he was satisfied that the team had conducted a very thorough investigation, and had carefully considered all the evidence and had reached a conclusion with which he considered that he agreed, it would in my view be little short of absurd to hold that he was nonetheless obliged in law to carry out his own separate investigation. 112. As to argument (b) in para 109, support for the proposition that the more serious the allegation, the more cogent the evidence required to prove it can be found in the opinion of Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. At p 586, he said the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence. However, that point also can only be taken so far, as Lord Hoffmann and Baroness Hale each said in In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, paras 1 15 and 64 70 respectively. As Baroness Hale pointed out in para 72, there is no logical or necessary connection between seriousness and probability. She then said that serious allegations are [not] made in a vacuum, and went on to give examples of statements which might seem intrinsically unlikely if made without a particular context, but appear quite likely if made in the context of certain assumed facts. In the end, the decision maker has to come to a conclusion on the particular facts of the case. 113. The point is also apparent from the opinion of Lord Carswell (with whom the other members of the committee agreed) in In re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33, [2008] 1 WLR 1499. At para 29, he said, in connection with the serious finding in civil family proceedings that an adult had been guilty of very serious sexual assaults on young girls, [t]he panel had to be satisfied on the balance of probabilities that he was, but it did not follow that specially cogent evidence was required. In reaching that decision, the House of Lords accepted the appellant panels argument identified at para 22 that the court below was wrong to say that the flexible approach to the civil standard of proof required more cogent evidence than would be conventionally required and that a more compelling quality of evidence was needed. 114. In the present case, it seems to me clear that there was a combination of reasons which can fairly be said to be sufficiently cogent to justify Mr Sullivans opinion, based on the two Reports, that Mr Braganza had taken the unusual and tragic course of committing suicide. First, this is a case where it is clear that Mr Braganza died at sea, and the only two plausible possible causes (as the Judge and the team both considered) were accident or suicide. So this is not a case where the issue is whether an unlikely event occurred: the issue is how an unlikely event, which undoubtedly occurred, was actually caused. 115. Secondly, when one turns to consider that issue, it is clear that there were various factors which either concerned, or could well have concerned, Mr Braganza. In particular, the emails from his wife strongly suggest that he was depressed about his financial affairs and that he was oppressed by the vessels state of repair (paras 73 and 74 above). Furthermore, he could well have been upset by the withdrawal of his bonus (especially if he had money problems) (para 71), and by the criticism of his supervision of the works at Ferrol (para 70). It does seem pretty clear from the emails from his wife that, to a significant degree, he let at least some of these matters cause him serious concern. Although there was evidence that he was on good form in the 36 hours immediately before his disappearance, there were a number of comments about his uncharacteristically moody state for most of the three weeks he was on board the British Unity see paras 69 and 70 above. And there is the curious fact that he did not make entries as he should have done in the Order Book see para 72 above. 116. Thirdly, the only serious alternative to suicide, as both the Judge and the team separately concluded, was an accident, and for the reasons summarised in paras 80 and 83 84 above, that would seem to have been very unlikely. The weather was relatively calm, Mr Braganza was very safety conscious, he was unlikely to have gone on deck without warning someone, he had no reason to go on deck, the vessel was very well protected, and nobody in the BP fleet had ever fallen overboard from this class of vessel. On the teams analysis, it was, at least in my view, plainly open to them, and therefore to Mr Sullivan, to conclude that suicide was more likely than an accident. 117. Of course, as already mentioned, it was open to the team to conclude (as the Judge did) that it was not possible to reach a conclusion as to how Mr Braganza had died. However, that is not at all the same thing as saying that this was the only conclusion that the team could have reached. If the team or Mr Sullivan had proceeded on the basis that they were bound to come to a conclusion as to how Mr Braganza had died, or if they had arrived at their conclusion by a process of simply eliminating all other possible causes, they would have been guilty of an error of law which would, I think, have vitiated the conclusion which the team reached. However, that is not how they approached the issue: on the contrary see paras 85 and 86 above. 118. Argument (c) in para 109 above is that there was no evidence of depression or suicidal behaviour in the day or two before Mr Braganzas disappearance. In the first place, there was evidence to support the possibility of suicide as already discussed. Quite apart from that, we do not, alas, need expert evidence to tell us that many suicides occur out of the blue so far as loving relatives are concerned. The very fact that some suicides occur at all is attributable to the fact that there are no signs that it will happen. Of course, a number of suicides are preceded by aberrant behaviour or warnings, but I am quite unpersuaded that the absence of any such matters is of much significance. 119. As to argument (d), namely the consequence of Mr Sullivans forming the opinion that the Mr Braganza killed himself was so great that the decision making process was flawed, of course, cogent evidence was needed: it always is. And, as The House of Lords has emphasised in a number of different cases, apart from the criminal standard of proof, there is but one standard of proof, namely on the balance of probabilities, ie more likely than not see what Lord Nicholls said in In re H [1996] AC 563, 586, affirmed and explained by Lord Hoffmann and Lady Hale in In re B, [2009] AC 11, paras 13 and 68 70 respectively, and applied by Lord Carswell in In re D [2008] 1 WLR 1499, para 28. 120. I accept that it may be right to take into account the seriousness of the consequences of a particular finding when deciding whether the evidence justified it, but, as Lord Carswell explained in In re D, para 28, [t]he seriousness of consequences is another facet of the [the seriousness of the allegation]. In other words, in this case it is illogical to suggest that, because Mr Sullivans opinion, unlike the decision of the team, would result in Mrs Braganza not receiving the death in service benefit, he should have been more reluctant than the team to conclude that Mr Braganza had committed suicide. The only relevance that the non receipt of the benefit could have had to Mr Sullivans opinion would be that, because the benefit would be lost if Mr Braganza committed suicide, it could be said to render it less likely that he would have done so. However, that applies equally to the teams decision. 121. As to the argument (e) in para 109 above, I do not think that it would be appropriate to hold it against either the team or Mr Sullivan that they did not expressly say that it is inherently unlikely that a person would commit suicide. There was evidence that could support the notion that Mr Braganza was in an unhappy state emotionally, and the only alternative to suicide was an accident, which the team rejected as very unlikely indeed. Particularly in those circumstances, it would, in my view, involve setting an unrealistically, and therefore an undesirably, high standard on investigators or writers of reports, whose investigations and reports are intended to have legal effect, to hold that the investigator or writer had to mention in terms that suicide was inherently unlikely. 122. Even if the Reports had been judgments, I very much doubt that they could have been fairly criticised for failing expressly to say that suicide is an inherently unlikely act. However, even if that is wrong, any such criticism is impossible to sustain in connection with the Reports. As Mocatta J said in The Vainqueur Jose [1979] 1 Lloyds Rep 557, 577: Where, as here, the success or failure of a claim depends upon the exercise of a discretion by a lay body, it would be a mistake to expect the same expert, professional and almost microscopic investigation of the problems, both factual and legal, that is demanded of a suit in a Court of law. 123. So far as argument (f) in para 109 is concerned, Miss Bucknall, in the course of her submissions, emphasised on a number of occasions that Mr Braganza could have gone on deck in daylight to check the weather. This echoes the Judges observation in para 96 of his judgment that the team and hence Mr. Sullivan, failed to take into account the real possibility that Mr Braganza went out onto deck in order to check the weather to see whether it was safe to carry out the planned work. However, the simple answer to that contention is that (i) in the First Report, the team simply thought that an accident was very unlikely for the reasons they gave, even if Mr Braganza had gone on deck, and (ii) in the Second Report, the team reconsidered the possibility of an accident and rejected it as very unlikely, because (a) Mr Braganza would probably not have checked the weather, (b) if he had gone on deck to do so he would have told the officer of the watch, and (c) perhaps most importantly, because the possibility of his falling overboard by accident was very unlikely indeed see paras 80 and 83 84 above. 124. Nor would I accept that argument (f) in para 109 above provides a good reason for doubting Mr Sullivans opinion, namely that he did not ask Mrs Braganza about the emails before forming his opinion. If, as the Judge found, the team was entitled to assume that Mrs Braganza had had the opportunity to make representations about the emails to them once she got the First Report, then Mr Sullivan was equally entitled to make that assumption. Indeed, she was free to make any points which she wanted, and apparently did so in her note of May 2009, which was referred to in the Second Report (para 83 above). Mr Sullivan knew that she had complained about the First Report, as it was her complaint which resulted in the Second Report, and, having read the Second Report, he knew that she had been free to make any point she wanted to the team. 125. In any event, although Mr Sullivan referred in his witness statement to the fact that he had not thought it appropriate to approach Mrs Braganza about the emails, he was not cross examined about this. It is therefore difficult to see how he could be criticised on this ground. Quite apart from this, Mrs Braganza gave evidence before Teare J that her husband was not happy because their money was running out, [t]hey had sold everything, that life [was] tough in Toronto, and that Mr Braganza was frightened: para 17. Although the Judge rejected BPs case that this evidence understated Mrs Braganzas degree of concern, it does not seem to me that such evidence would have undermined a conclusion that he had killed himself: it confirms what is plain from the emails. 126. In my view, in the light of the discussion in paras 107 125 above, it is not fairly open to a court to decide that the conclusion reached by the team in the First and Second Reports, and therefore the opinion formed by Mr Sullivan, fell foul of the test laid down by Rix LJ in the passage cited in para 102 above. In my view, neither the conclusion reached by the team nor the consequential opinion formed by Mr Sullivan can be characterised as arbitrar[y], capricious , pervers[e] [or] irrational , to use Rix LJs words. The two Reports are, as I have indicated, impressive both in the extent of the investigations on which they were based and the care with which they were compiled, and the conclusion they reached was carefully and rationally explained, and Mr Sullivan cannot be criticised for relying on them. Conclusion 127. I would accordingly dismiss this appeal. Mr Sullivans task was quite different. He had to consider whether he was in a position to make a positive finding that Mr Braganza had committed suicide. He should have asked himself whether the evidence was sufficiently cogent to overcome the inherent improbability of such a thing. In my view that can be expected of any employer making a decision under a provision such as this. But it could certainly be expected of BP, which clearly had access to in house legal expertise to guide it in the decision making process. In this case, there were no positive indications of suicide. There was no suicide note, no evidence of suicidal thoughts (apart perhaps from his wifes reference six weeks earlier to his seeming so afraid of life), no evidence of over whelming personal or financial pressures of the sort which would be likely to lead a mature professional man to take his own life, no evidence of psychiatric problems or a depressive personality. The bullet points are at most straws in the wind. The two most significant are the emails and the record keeping deficiencies. The cogency of the emails from Mrs Braganza is much diminished by the failure to ask her about them. The teams failure to do so is completely understandable, given the task which had been set for them. But the employers failure to do so is much less understandable. Nor do the record keeping deficiencies appear to have been explored in any depth. 41. Against those straws in the wind is the evidence that Mr Braganzas behaviour had appeared entirely normal to the Master and the other officers with whom he was in contact the night before. There was also a good deal of evidence of his concern about the weather, which would have constituted a good work related reason for him to go on deck that morning. A further relevant factor which ought to have been in the mind of this employer is that Mr Braganza was a Roman Catholic. There are cultures in which suicide is an acceptable, even an honourable, solution to certain problems or dilemmas. But his was not one of them. For him, suicide was a mortal sin. This increases its inherent improbability in his case and the corresponding need for cogent evidence to support a positive finding.

UK-Abs

Mr Renford Braganza disappeared between 1am and 7am on 11 May 2009 while working as the Chief Engineer on an oil tanker in the mid North Atlantic managed by the respondents (collectively BP). BP formed the opinion that the most likely explanation for his disappearance was that he had committed suicide by throwing himself overboard. As a result his widow was not entitled to death benefits under his contract of employment, which provided that compensation would not be payable if in the opinion of the Company or its insurers, the deathresulted fromthe Officers wilful act, default or misconduct. The question arising in this appeal is the proper test for the court to apply when deciding whether BP was entitled to reach the opinion it did. BP set up its own inquiry team into Mr Braganzas disappearance, to examine whether its systems could be improved, and it reported on 17 September 2009. The report identified six factors supportive of suicide and concluded that the most likely scenario was that Mr Braganza had jumped overboard deliberately. The report was forwarded to Mr Sullivan, the General Manager of the BP company which employed the officers on board the vessel. Mr Sullivan made no further inquiries of his own and on the basis of the report concluded that there had been wilful default within the meaning of Mr Braganzas employment contract so that death in service benefits were not payable to his widow. Mrs Braganza brought a claim in contract against BP for death benefits and damages for negligence under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. In the High Court the judge was unable to make a finding as to the cause of Mr Braganzas death on the evidence. He upheld the contractual claim, finding that the opinion formed by BP was not reasonable because Mr Sullivan did not direct himself that cogent evidence commensurate with the seriousness of a finding of suicide was necessary and he had failed to take into account the real possibility that Mr Braganza had suffered an accident. The judge rejected the claim for negligence and Mrs Braganza did not appeal against this. BPs appeal in relation to the contractual claim was allowed by the Court of Appeal, which held that the employer did not have to approach the matter the way required by the judge, and that the conclusion of suicide was a reasonable one for BP to reach in all the circumstances. The Supreme Court by a majority of 3 to 2 allows Mrs Braganzas appeal. In the majority, Lady Hale gives the lead judgment and Lord Hodge gives a concurring judgment. Lord Kerr agrees with Lady Hale and Lord Hodge. Lord Neuberger gives a dissenting judgment, with which Lord Wilson agrees. The appeal raises two inter linked questions of principle: (i) the meaning of the general requirement that the decision of a contractual fact finder must be a reasonable one and (ii) the proper approach of a contractual fact finder who is considering whether a person may have committed suicide [17]. The court is not the primary decision maker but will seek to ensure that where there is a conflict of interest for the party charged with making a decision under the contract (which is heightened where there is a significant imbalance of power between the contracting parties), such contractual powers are not abused. The standard of review of contractual decisions is akin to that adopted for judicial review of administrative action [19]. That test involves two limbs: the first focusing on the decision making process and the second focused on its outcome [24]. The court will imply a term into the contract that the decision making process be lawful and rational in the public law sense, ie that the decision is made rationally, in good faith and consistently with its contractual purpose [30], but much depends on the context of the particular contract involved. This case involved an employment contract which has an implied obligation of trust and confidence, in accordance with which any fact finding function entrusted to the employer concerning whether a person has committed suicide must be exercised [32]. It would have been open to BP to conclude that it was unable to form an opinion as to the cause of Mr Braganzas death but instead it made a positive finding of suicide and the question was what was required for this conclusion [33]. As to this, it is not the consequences of a finding of suicide which demands that there be cogent evidence to support it but its inherent improbability [35]. A decision that an employee has committed suicide is not a rational or reasonable decision unless the employer has had it clearly in mind that suicide is such an improbability that cogent evidence is required to form a positive opinion that it has taken place [36]. On the facts of this case, Mr Sullivan should not simply have accepted the view of the inquiry, which was conducted for a different purpose, that suicide was the most likely explanation for Mr Braganzas disappearance. In order to make a positive finding of suicide he had to direct himself that cogent evidence was required sufficient to overcome its inherent improbability [39]. In this case there were no positive indications of suicide and the six factors relied on in the report were straws in the wind [40]. They should have been set against the evidence of his normal behaviour immediately before his disappearance, his concern about the weather and the fact that he was a Roman Catholic, which increased the inherent improbability of suicide in his case [41]. The lack of evidence supporting the hypothesis of an accident was still consistent with Mr Braganza having sustained an accident through carelessness [59]. Thus the judge had been right to find that the decision was unreasonable in the public law sense of having been formed without taking relevant matters into account [42, 63]. Lord Neuberger agrees with the majority that where a contract allocates power to a party to make decisions which have an effect on both parties the court should review the decision in the same way as it reviews administrative decisions [103]. BP had to carry out the investigation with honesty, good faith and genuineness, and avoid arbitrariness, capriciousness, perversity and irrationality. The courts approach when reviewing this decision should be similar to that of an appellate court reviewing a trial judges decision. In the present case, Lord Neuberger would have held that there was a combination of reasons which could fairly be said to be sufficiently cogent to justify the finding that Mr Braganza had taken the unusual and tragic course of committing suicide [114 125].

This is the judgment of the court. The appellant, Mr Zoumbas, challenges a decision by the Secretary of State for the Home Department dated 4 October 2011 that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He challenged the Secretary of States decision for the manner in which she dealt with the best interests of his children in the light of the decision of this court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. He was unsuccessful in his judicial review application before both the Lord Ordinary, Lady Clark of Calton, and an Extra Division of the Inner House of the Court of Session. The judicial review application and this appeal are concerned only with the fifth of the questions which Lord Bingham of Cornhill set out in para 17 of his speech in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. That is, in this case, whether the interference with the family life of Mr Zoumbas family unit by his removal to the Republic of Congo was proportionate to the legitimate public end which the Secretary of State sought to achieve. Before this court Mr Zoumbas made his challenge in three parts. First, he submitted that the Secretary of State had erred by failing to have regard to the interests of his children as a primary consideration in the proportionality assessment under article 8 of the European Convention on Human Rights (ECHR). This entailed, he submitted, a breach of the Secretary of States duty under section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act), which required her to make arrangements for ensuring that her functions in relation to immigration were discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. He suggested that this amounted to punishing the children for their parents poor immigration history. Secondly, he criticised the Secretary of States findings in relation to the best interests of the children. He asserted that (i) she had failed to make clear findings, (ii) it was irrational to conclude that the childrens best interests would be served by their removal to the Republic of Congo, (iii) she had failed to carry out a careful examination of their best interests, and (iv) the findings assumed that he and his wife would be returned to the Congo. Thirdly, in a submission which depended on the success of either or both of the first and second submissions, he argued that the Secretary of State had erred in concluding under paragraph 353 of the Immigration Rules that further representations made by him did not have a realistic prospect of success before an immigration judge. The facts Mr Zoumbas and his wife have an unedifying immigration history. They are citizens of the Republic of Congo. He entered the United Kingdom illegally on 27 May 2001 using a French passport that did not belong to him. He claimed asylum and was granted temporary admission. The woman who became his wife entered the United Kingdom on 30 July 2002 using a forged French passport. She also claimed asylum. Their claims for asylum were refused and her appeal was dismissed. On 7 November 2003 they married. Mrs Zoumbas initiated an appeal under article 8 ECHR, which was refused. Mr Zoumbas appeal against the refusal of his asylum claim was also refused. Their eldest child, Angemarcel Massengo Fleury, was born on 27 April 2004. On 8 April 2005 Mr Zoumbas was considered for the family indefinite leave to remain exercise but was found not to be eligible. In October 2005 Mrs Zoumbas and Angemarcel were detained and removed to the Republic of Congo. That same month, Mr Zoumbas failed to report to the immigration authorities and was treated as an absconder. For several months the authorities did not know his whereabouts. On 31 March 2006 Mrs Zoumbas and Angemarcel returned to the United Kingdom illegally using passports and a residence permit that did not belong to them. Mrs Zoumbas claimed asylum again and named her husband and Angemarcel as dependents in her claim. In about August 2006 Mr Zoumbas started to report to the immigration authorities again. On 25 May 2006 the Secretary of State refused Mrs Zoumbas asylum claim. She appealed but her appeal was dismissed on 24 July 2006. She was granted a statutory review of her appeal but on 3 July 2007 the First tier Tribunal refused her appeal after a reconsideration hearing. On 3 February 2007 Mrs Zoumbas gave birth to a daughter, Rosangel Shekma Massengo Fleury, and on 14 April 2011 she gave birth to another daughter, Shaun Keziah Massengo Fleury. Mr and Mrs Zoumbas did not have permission to work. They received state benefits because Mr Zoumbas claimed that he was destitute. But between September 2008 and April 2010 credits of 27,693.75 from unidentified sources were paid into bank accounts of Mrs Zoumbas and of the older two children. On 22 June 2010 Mr Zoumbas submitted further representations in which he asserted that there had been a change of circumstances because he, his wife and his children had been in the United Kingdom for several years and had established a family and private life which should be respected under article 8 ECHR. Documents which accompanied his representations showed that the eldest child, Angemarcel, was at primary school, that Mrs Zoumbas was attending college, and that they were members of a church, all in Glasgow. By letter dated 4 October 2011 the Secretary of State intimated to Mr Zoumbas her decision that his representations did not qualify him for asylum or humanitarian protection and that he did not merit a grant of limited leave to enter or remain in the United Kingdom. She also held that his submissions would not amount to a fresh claim under paragraph 353 of the Immigration Rules because they did not create a realistic prospect of success before an immigration judge. Mr Zoumbas has challenged that decision in his application for judicial review. The legal framework In their written case counsel for Mr Zoumbas set out legal principles which were relevant in this case and which they derived from three decisions of this court, namely ZH (Tanzania) (above), H v Lord Advocate 2012 SC (UKSC) 308 and H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338. Those principles are not in doubt and Ms Drummond on behalf of the Secretary of State did not challenge them. We paraphrase them as follows: (1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR; In making that assessment, the best interests of a child must be a (2) primary consideration, although not always the only primary consideration; and the childs best interests do not of themselves have the status of the paramount consideration; (3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) It is important to have a clear idea of a childs circumstances and of what is in a childs best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and (7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent. These principles arise from the United Kingdoms international obligations under the United Nations Convention on the Rights of the Child, and in particular article 3.1 which provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. That general principle of international law has influenced the way in which the Strasbourg court has interpreted the ECHR: Neulinger v Switzerland (2010) 28 BHRC 706, para 131. Mr Lindsay for Mr Zoumbas also founded on a statement in the judgment of Lord Kerr of Tonaghmore in ZH (Tanzania) at para 46 in support of the proposition that what is determined to be in a childs best interests should customarily dictate the outcome of cases and that it will require considerations of substantial moment to permit a different result. In our view, it is important to note that Lord Kerrs formulation spoke of dictating the outcome of cases such as the present and that in ZH (Tanzania) the court was dealing with children who were British citizens. In that case the children by virtue of their nationality had significant benefits, including a right of abode and rights to future education and healthcare in this country, which the children in this case, as citizens of the Republic of Congo, do not. The benefits of British citizenship are an important factor in assessing whether it is reasonable to expect a child with such citizenship to live in another country. Moreover in H(H) Lord Kerr explained (at para 145) that what he was seeking to say was that no factor should be given greater weight than the interests of a child. See the third principle above. We would seek to add to the seven principles the following comments. First, the decision maker is required to assess the proportionality of the interference with private and family life in the particular circumstances in which the decision is made. The evaluative exercise in assessing the proportionality of a measure under article 8 ECHR excludes any hard edged or bright line rule to be applied to the generality of cases: EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159, per Lord Bingham at para 12. Secondly, as Lord Mance pointed out in H(H) (at para 98) the decision maker must evaluate the childs best interests and in some cases they may point only marginally in one, rather than another, direction. Thirdly, as the case of H(H) shows in the context of extradition, there may be circumstances in which the weight of another primary consideration can tip the balance and make the interference proportionate even where it has very severe consequences for children. In that case an Italian prosecutor issued a European arrest warrant seeking the surrender of a person who had earlier broken his bail conditions by leaving Italy and ultimately seeking safe haven in the United Kingdom and had been convicted of very serious crimes. This court held that the treaty obligations of the United Kingdom to extradite him prevailed over his childrens best interests. The third principle in para 10 above is subject to the first and second qualifications and may, depending on the circumstances, be subject to the third. But in our view, it is not likely that a court would reach in the context of an immigration decision what Lord Wilson described in H(H) (at para 172) as the firm if bleak conclusion in that case, which separated young children from their parents. The decision letter In the letter of 4 October 2011, Ms G Dickin, the official acting on behalf of the Secretary of State, summarised Mr Zoumbas submissions and listed the documents which he had produced in its support. She considered the first four questions which Lord Bingham set out in R (Razgar) at para 17. She held that Mr Zoumbas had established a private life and a family life in the United Kingdom and that his removal would interfere with his private and family life. It was implicit in her discussion that article 8 ECHR was engaged. She then concluded that the interference would be in accordance with the law and in pursuit of the legitimate aim of maintaining effective immigration control. She introduced the consideration of the proportionality of the interference with the words: Below is a consideration of why any interference is proportionate to the permissible aim. She then referred to the familys unlawful residence and the fact that Mr Zoumbas and his wife had established their family life in the full knowledge that they both had no legal right to reside in the United Kingdom and could be removed at any time. She summarised the appalling immigration history of Mr and Mrs Zoumbas and the familys receipt of state benefits while receiving the unidentified credits which I have mentioned. She considered in turn the proportionality of the interference with Mr Zoumbas private and family life before discussing the article 8 rights of any family members who were not party to the proceedings in accordance with the guidance which the House of Lords gave in Beoku Betts v Secretary of State for the Home Department [2009] AC 115. She concluded that there was no evidence of family ties in the United Kingdom other than Mr Zoumbas wife and children who would be removed to the Congo with him, thus preserving his family life. She then addressed the Secretary of States obligation under section 55 of the 2009 Act to carry out her functions in a way which has regard to the need to safeguard and promote the welfare of children in the United Kingdom. She made it clear that the interests of the three children had been taken into account in the assessment of the proportionality of the interference with private and family life. She stated: Full consideration has been given to the best interests of your three children, which is a primary consideration in the evaluation of the proportionality of a decision to remove a family. It is noted that you have not provided any information which pertains specifically to the best interests of your three children. A new immigration judge would conclude that although health care and education in Congo may not be of the same standard as in the United Kingdom, the childrens best interests will be to remain with their parents and raised in their own culture. Furthermore, if you return together there is no reason to believe that relocation to Congo would have a particularly detrimental effect on your children. She concluded that the balance of the competing interests was in favour of the familys removal (a) because of the need to maintain effective immigration control, (b) because they had built up a family life in the United Kingdom when their residence was precarious, and (c) because the immigration history involved findings of fabricated asylum claims, deception, fraud and absconding. Discussion of the challenges We are satisfied that there is no substance in the first of Mr Zoumbas challenges which we have summarised in para 3 above. It rests on a mistaken construction of the Secretary of States letter. There has been no failure to consider the best interests of Mr and Mrs Zoumbas children in the article 8 proportionality exercise. Mr Lindsay accepted that the status of the well being of the children as a primary consideration did not require the Secretary of State in every case to consider the childrens best interests first and then to address other considerations which might outweigh those interests. There is nothing to bar the official who acts for the Secretary of State from considering the various issues, including the proportionality exercise under article 8 ECHR before drafting the decision letter. The official set out the Secretary of States conclusion before explaining the reasons for that conclusion. It is important to read the decision letter as a whole and to analyse the substance of the decision. It is a misreading of the letter to assert, as Mr Lindsay did, that the Secretary of State had made a decision on proportionality before addressing the well being of the children. The consideration of the childrens best interests was, as the letter stated (para 17 above), a primary consideration in the proportionality exercise. Mr Lindsay submitted in his written case that this appeal raised an issue of general public importance because the structure of the decision letter was one which the Secretary of State frequently used. Ms Drummond understandably submitted in her written case that there was no issue of general public importance. Be that as it may, the appeal demonstrates a misunderstanding of the effect of the decision in ZH (Tanzania) which can usefully be corrected. If officials in the Home Department who draft such decision letters are using a template to give structure to the articulation of their decisions, we see nothing wrong with a template that provides for the statement of the Secretary of States conclusion to be followed by her reasoning. What is important, as Lord Mance said in H(H) at para 98, is that the interests of the children must be at the forefront of the decision makers mind. In this context the fourth, fifth and sixth principles which we have listed in para 10 above are relevant. That leads us to consider the second of Mr Lindsays challenges. We are not persuaded that there is any lack of clarity in the Secretary of States findings on the childrens best interests or any indication that there had not been a careful examination of those interests. The decision letter sets out the Secretary of States conclusions briefly. But that does not give rise in this case to any inference that there has not been careful consideration. The substance of Mr Lindsays complaint was that the Secretary of State either had not considered or had failed to record her findings on matters which were disclosed in the documents lodged in support of Mr Zoumbas claim. Those matters were (a) that the children were born in the United Kingdom, (b) that they were English speakers and saw themselves as British, (c) that they had integrated well into the community in Glasgow, (d) that the eldest child was doing well at school, and (e) that two of the three children had never been to the Congo. In our view, the Secretary of State does not have to record and deal with every piece of evidence in her decision letter. The decision maker was clearly aware that the children were born in the United Kingdom as it is recorded on the fourth page of the decision letter. The letter also recorded that the children were aged seven years, four years, and five months respectively and referred to the evidence that the eldest child was at primary school. The decision maker would also have been aware from the narrative of the familys immigration history that two of the children had not been to the Republic of Congo. There is no irrationality in the conclusion that it was in the childrens best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country. They were part of a close knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred into United Kingdom society would have been predominantly in the context of that family unit. Most significantly, the decision maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well being. We agree with Lady Dorrians succinct summary of the position in para 18 of the Inner Houses opinion. Finally, we see no substance in the criticism that the assessment of the childrens best interests was flawed because it assumed that their parents would be removed to the Republic of Congo. It must be recalled that the decision maker began by stating the conclusion and then set out the reasoning. It was legitimate for the decision maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well being altered that provisional balance. When one has regard to the age of the children, the nature and extent of their integration into United Kingdom society, the close family unit in which they lived and their Congolese citizenship, the matters on which Mr Lindsay relied did not create such a strong case for the children that their interest in remaining in the United Kingdom could have outweighed the considerations on which the decision maker relied in striking the balance in the proportionality exercise (paras 17 and 18 above). The assessment of the childrens best interests must be read in the context of the decision letter as a whole. As we have not upheld either of the first or second challenges, the third challenge cannot succeed. We therefore dismiss the appeal. the content of any template for decision letters. But we venture the view that challenges, such as this one, would be less likely if her advisers were to express the test in the way in which it was expressed in ZH (Tanzania) and to expand the explanation of the separate consideration that was given to the interests of the children. It is of course the task of the Secretary of State and not this court to decide

UK-Abs

Delivering the Courts judgment, Lord Hodge sets out seven principles relevant in the case [10], which counsel for Mr Zoumbas had enumerated. He notes that Lord Kerrs formulation spoke of dictating the outcome of cases such as ZH, and in that case the Court was dealing with British citizens, unlike the children in this case. The benefits of British citizenship are an important factor in assessing whether it is reasonable to expect a child with such citizenship to live in another country. Moreover, Lord Kerr had explained that what he was seeking to say was that no factor should be given greater weight than the interests of a child [12]. Further, the decision maker is required to assess the proportionality of the interference in the particular circumstances in which the decision is made an evaluative exercise that excludes any hard edged or bright line general rule [13]. In this case, the Secretary of State accepted that Mr Zoumbas had established a private life and a family life in the UK. She then concluded that the interference would be in accordance with the law and in pursuit of the legitimate aim of maintaining effective immigration control [14], having referred to the familys unlawful residence, the fact that family life had been established in the full knowledge that they had no right to reside in the UK and could be removed at any time, and the couples appalling immigration history and the unidentified bank credits [15]. Family life would be preserved as the whole family would be removed with Mr Zoumbas [16]. The first part of Mr Zoumbas challenge rests on a mistaken construction of the decision letter. It had been accepted that the status of the well being the children as a primary consideration did not mean that it had in every case to be considered first with other possible countervailing issues considered thereafter. It is important to read the letter as a whole and to analyse the substance of the decision [19]. There is nothing wrong with the Secretary of States use of a template letter in which her conclusion is followed by her reasoning what is important is that the best interests of the children are at the forefront of the decision makers mind [21]. That the conclusions on best interests are set out briefly does not mean they were not considered carefully, and the Secretary of State does not need to record and deal with every piece of evidence in her letter [22 23]. The Court suggests that challenges such as the present would be less likely if her advisers were to express the test in the way it was expressed in ZH (Tanzania), and to expand the explanation of the separate consideration given to the interests of the children [28]. As for the second part of the challenge, it would be possible to conclude, other things being equal, that it would be in the childrens best interests to stay in the UK. But other things are not equal, including that the children are not British citizens [24]. The Court rejected the criticism that the assessment of best interests was flawed because it assumed that the parents would be removed. It was legitimate for the decision maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well being altered that provisional balance [25]. The third part of the challenge cannot succeed, the first two parts having failed [26].

The specific issue raised by this appeal is whether East Sussex County Council (the County Council) was wrong in law to decide to register an area of just over 6 hectares (or 15 acres) known as West Beach at Newhaven (the Beach) as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised by the appeal are, potentially at least, far more wide ranging. Those points are (i) the nature of the publics rights over coastal beaches, (ii) whether byelaws can give rise to an implied consent to the public to use land, and (iii) the interrelationship of the statutory law relating to village greens and other duties imposed by statute. The factual background Newhaven is a port town on the mouth of the River Ouse in East Sussex, and its harbour (the Harbour) has existed since the mid sixteenth century, after a storm blocked the original mouth of the River Ouse, some three miles to the east. Since at least 1731, the operation of the Harbour has been subject to legislation. The Newhaven Harbour and Ouse Lower Navigation Act 1847 (the 1847 Newhaven Act) repealed the earlier legislation, and established harbour trustees (the trustees), to whom it gave powers to maintain and support the harbour and associated works. Section 49 of the 1847 Newhaven Act is in these terms: [T]he Trustees shall maintain, and support the said harbour of Newhaven, and the piers, groynes, sluices, wharfs, mooring berths, and other works connected therewith, and also maintain and support the open navigation of the River Ouse between Newhaven Bridge and Lewes Bridge The Newhaven Harbour and Ouse Lower Navigation Act 1863 (the 1863 Newhaven Act) gave the trustees powers to construct and maintain and support the Harbour and associated works. The Newhaven Harbour Improvement Act 1878 (the 1878 Newhaven Act) established the Newhaven Harbour Company to which were transferred the rights, powers and duties of the trustees. Under section 57 of the 1878 Newhaven Act it is provided that: the Company may hire or purchase and use any dredging machine for the purpose of deepening and cleansing the harbour Section 2 of the 1878 Newhaven Act applied to the port section 33 of the Harbours, Docks and Piers Clauses Act 1847 (the 1847 Clauses Act), which provides that: Upon payment of the rates made payable by this and the special Act, and subject to the other provisions thereof, the harbour, dock and pier shall be open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers. By virtue of the Southern Railway Act 1926, the Harbour Company was vested in the Southern Railway Company. Pursuant to the Transport Act 1947, the Southern Railway Company was nationalised, and the Harbour was vested in the British Transport Commission. As a result of subsequent statutory and contractual arrangements, the Harbour subsequently vested in British Railways Board (1962), Sealink (UK) Limited (1979), Sea Containers Limited (1984), and, most recently, in 1991, Newhaven Port and Properties Limited (NPP), pursuant to the Sealink (Transfer of Newhaven Harbour) Harbour Revision Order 1991 (SI 1991/1257) (the 1991 Newhaven Order). Paras 10 and 11 of the 1991 Newhaven Order provide: 10 (1) The Company, subject to obtaining the necessary rights in or over land, may execute, place, maintain and operate in and over the transferred harbour such works and equipments as are required for or in connection with the exercise by it of any of its functions and may alter, renew or extend any works so constructed or placed. 11 (1) The Company may deepen, widen, dredge, scour and improve the bed and foreshore of the transferred harbour and may blast any rock within the transferred harbour or in such approaches. The Beach is part of the operational land of the Harbour, which is currently owned and operated by NPP, and is subject to statutory provisions and byelaws. The extent of the Harbour area includes (i) a substantial breakwater and lighthouse, seawall and the Beach which form the west of the entry into the port, (ii) a pier, a much longer (and naturally created) shingle beach which form the east of that entry, (iii) the mouth of the River Ouse and the next thousand metres or so of the river, and (iv) land running either side of the river, which includes (v) a car park, marina and fishing berth to the west, and (vi) two quays, a ferry dock, a cool store, a harbour railway station, and harbour offices to the east. NPPs current strategic plan for development of the port is contained in its Masterplan (2012). The Beach owes its origin to the fact that, in 1883, pursuant to the powers granted by the 1863 Newhaven Act, the substantial breakwater was constructed to form the western boundary of the Harbour. The breakwater extends just over 700 metres out to sea. After the construction of the breakwater, accretion of sand occurred along the eastern side of the breakwater, and that accretion has resulted in the Beach. To the north, the Beach is bounded by a harbour wall. On top of the harbour wall is an area of hard standing and a car park, which is now owned and operated by NPP. There are physically two means of access to the Beach: first, by steps leading down from the top of the wall, and, secondly, by another set of steps leading down from the top of the breakwater. The Beach is substantially covered by the sea for periods of time either side of high tide. Inevitably, as the tide ebbs and flows, the amount of the land uncovered varies, and the amount of the land uncovered at low tide and the period for which the whole of the Beach is covered with water varies between spring (high) and neap (low) tides. On average, the Beach is wholly covered by water for 42% of the time and for the remaining 58% of the time it is uncovered to some extent, but it is entirely uncovered by water only for a few minutes at a time. The steps leading down to the Beach from the top of the harbour wall were accessible in practice by members of the public from shortly after the end of the Second World War (during which time it was closed) until it was fenced off by NPP in April 2006. Thereafter, access by the public was no longer possible, because access from the steps leading from the top of the breakwater had been closed off before 2006. The making of byelaws relating to Newhaven Harbour Section 58 of the 1878 Newhaven Act conferred on the Harbour Company the power to make byelaws which were to be approved and published in the manner prescribed by the 1847 Clauses Act. Section 83 of the 1847 Clauses Act gives to the undertakers in whom a harbour is vested the power to make byelaws as they shall think fit for various purposes, including [f]or regulating the use of the harbour, dock, or pier. Section 84 provides for criminal sanctions at the suit of the undertaker for breach of such byelaws. Section 85 of the 1847 Clauses Act states that the byelaws should not come into operation until the same be confirmed as required by that Act. Sections 86 and 87 of that Act are concerned with advertising and providing copies of the byelaws before confirmation. Provisions relating to the publication and display of such byelaws were contained in sections 88 and 89 of the 1847 Clauses Act: 88. The said byelaws when confirmed shall be published in the prescribed manner, and when no manner of publication is prescribed they shall be printed; and the clerk to the undertakers shall deliver a printed copy thereof to every person applying for the same, without charge, and a copy thereof shall be painted or placed on boards, and put up in some conspicuous part of the office of the undertakers, and also on some conspicuous part of the harbour, dock, or pier, and such boards, with the byelaws thereon, shall be renewed from time to time, as occasion shall require, and shall be open to inspection without fee or reward 89. All byelaws made and confirmed according to the provisions of this and the special Act, when so published and put up, shall be binding upon and be observed by all parties, and shall be sufficient to justify all persons acting under the same. Section 89 was repealed by the Statute Law (Repeals) Act 1993. Section 90 of the 1847 Clauses Act provides that [t]he Production of a written or printed Copy of the Bye laws appropriately authenticated shall be evidence of the Existence and due making of such Bye Laws, and with respect to the Proof of the Publication of any such Bye Laws it shall be sufficient to prove that a Board containing a Copy thereof was put up and continued in manner by this Act directed . In February 1931, the Southern Railway Company made byelaws for the Regulation of Newhaven Harbour (the Byelaws), which were confirmed by the Minister of Transport the following month. The following Byelaws are germane to the present appeal: No person shall enter or remain on the quays of the harbour unless he has lawful business thereon, or has received permission from the Harbour Master to do so; and every person entering or who shall have entered on such quays, shall, whenever required so to do by any duly authorised servant of the Company, truly inform him of the business in respect of which such person claims to be entitled to be thereon. Any person committing a breach of this byelaw may be forthwith removed from the quays and be excluded therefrom 52. No person shall, without the consent of the Harbour Master, enter or remain within any part of the piers or quays which may, under a reasonable direction of the Harbour Master, be enclosed by chains, or by a barrier. 68. No person, without the permission of the Harbour Master, shall fish in the harbour; and no person shall bathe in that part of the harbour which lies between Horse Shoe Sluice and an imaginary line drawn from the East Pier Lighthouse and the Breakwater Lighthouse. 70. No person shall engage in or play any sport or game so as to obstruct or impede the use of the harbour, or any part thereof, or any person thereon; nor (except in case of necessity or emergency) shall any person, without the consent of the Harbour Master, wilfully do any act thereon, which may cause danger or risk of danger to any other person. 71. No person shall bring any dog within the harbour, or permit it to be within the harbour, unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control. As regards publication and enforcement of the Byelaws, according to the Inspector who wrote the reports referred to in para 19 below, there were no byelaw signs in place during the relevant twenty year period that would have indicated to users of the Beach that their use was regulated by byelaws. She also concluded that there was no evidence of active enforcement of the Byelaws during that period; and that there was no other suggestion of any other overt act on the part of the landowner during that period to demonstrate that he was granting an implied permission for local inhabitants to use the Beach. The Commons Act 2006 Town and village greens have been protected by statute since at least 1857. However, the currently applicable legislation is to be found in the Commons Act 2006, and in particular in section 15 of that Act, which replaced the preceding governing legislation, which was contained in the Commons Registration Act 1965. Section 15(1) of the 2006 Act provides that Any person may apply to the commons registration authority to register land to which this Part applies as a town or village green in a case where subsection (2), (3) or (4) applies. Subsections (2), (3) and (4) each refer to cases where: (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years. Subsection (2) only applies where this use was continuing at the date of the application; subsection (3) only applies where the use had ceased after section 15 commenced, provided that the application was made within two years of such cesser; and subsection (4) only applies where the land ceased to be so used before section 15 commenced, provided (i) the application is made within five years of the cesser and (ii) an inconsistent planning permission has not been granted and implemented. It is, of course, subsection (4) which is relied on in this case. By section 61 of the 2006 Act, it is provided that land includes land covered by water. It was argued below on behalf of NPP that a tidal beach cannot be a town or village green within the meaning of the 2006 Act. A speaker of ordinary English might well think that there is very considerable force in that argument. However, substantially for the reasons given by Ouseley J in the High Court and by Richards LJ in the Court of Appeal, the argument must be rejected see at [2012] EWHC 647 (Admin), [2014] QB 186, paras 11 39 and [2013] EWCA Civ 276, [2014] QB 186, paras 31 42. In summary, the argument is inconsistent with the reasoning of the majority of the House of Lords in Oxfordshire County Council v Oxford City Council [2006] UKHL 25, [2006] 2 AC 674, a case on the 1965 Act (as amended in 2000), which, for the purposes of the point at issue was identically worded to the 2006 Act see per Lord Hoffmann, Lord Rodger and Lord Walker respectively at paras 39, 115 and 128. It might have been appropriate for this Court to reconsider the Oxfordshire case were it not for the fact that it was decided while Parliament was considering the Bill which became the 2006 Act, and Lord Hoffmann, Lord Rodger and Lord Walker each expressly observed (in the paragraphs just mentioned) that, if Parliament was unhappy with the decision, the Bill could be amended appropriately, and it was not. Implied Parliamentary approval of a courts decision should not be lightly inferred, but in the present case, we thought it inappropriate to grant permission to appeal on this issue. The application to register On 18 December 2008 Newhaven Town Council (the Town Council) applied to the County Council, as the statutory registration authority, to register the Beach as a town or village green. The application was supported by evidence that the Beach had been used by a significant number of local inhabitants as of right and for a period of at least 20 years down to April 2006. NPP objected to the proposal, and the County Council appointed an Inspector, Ruth Stockley, a barrister experienced in this area of the law, to hold a public inquiry. The inquiry was held between 6 and 8 July 2010, following which Ms Stockley produced a report dated 6 October 2010 and an addendum report dated 14 December 2010, recommending that the Beach be registered as a town or village green. Ms Stockleys two reports were very full and clear. Importantly, she concluded that members of the public, and, crucially residents of the locality, had used the Beach for well over 80 years as a place to play, sunbathe, swim from, picnic and the like (save during much of the First and Second World War periods, when the port area, including the Beach, were inaccessible). On 22 December 2010, the two reports and recommendation were put before the County Councils Commons and Village Green Registration Panel (the Panel), together with an officers recommendation that the County Council accept the application and register the land as a town or village green. The Panel resolved to accept the application to register the Beach, but the actual registration awaits the outcome of these proceedings. NPP then applied to the High Court for judicial review of the decision to register the Beach as a town or village green. The application came before Ouseley J who, in a comprehensive and carefully considered judgment, rejected a number of arguments raised by NPP, but granted their application on one ground, namely that it was reasonably foreseeable that the registration of the Beach would conflict with the statutory functions for which the Beach was held by NPP, namely as part of Newhaven Harbour [2012] EWHC 647 (Admin) [2014] QB 186. The County Council and the Town Council appealed that decision to the Court of Appeal, who, in the course of their impressive judgments, unanimously disagreed with the Judges reason for granting the application [2013] EWCA 276, [2014] QB 186. Accordingly, the majority of the Court of Appeal (Richards and McFarlane LJJ) allowed the appeal. Lewison LJ would have dismissed the appeal on the ground that the use of the Beach by members of the public, and therefore by inhabitants of the locality, up to 2006 had not been as of right, but by implied licence, for two different reasons, namely (i) because members of the public had enjoyed an implied licence to use coastal beaches in the UK for recreational and associated purposes, and/or (ii) by virtue of the provisions of the byelaws governing the Harbour area. The issues on this appeal The provisions of section 15 of the 2006 Act only enable land to be registered as a town or village green if it has been used for recreational and similar purposes by inhabitants of the locality for more than twenty years as of right. As was explained most recently by this Court in R (Barkas) v North Yorkshire County Council [2014] UKSC 31, [2014] 2 WLR 1360, paras 14 19 and 58 68, that expression, perhaps somewhat confusingly, is to be contrasted with by right, and generally connotes user without any right, whether derived from custom and usage, statute, prescription or express or implied permission of the owner. Accordingly, where the inhabitants of the locality have indulged in sports and pastimes on the land in question with the licence of the owner for at least part of the relevant twenty year period, section 15 will not apply. Three issues arise on this appeal. The first is whether the fact that the Beach is part of the foreshore defeats the contention that the user by local inhabitants for sports and pastimes can have been as of right, on the ground that the public had an implied licence to use the foreshore for such purposes and the implied right was never revoked in the case of the Beach. The second issue is whether, if that is not right, the public none the less had an implied licence to use the Beach, as part of the Harbour, in the light of the Byelaws. The third issue is whether, in any event, section 15 of the 2006 Act cannot be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function to which the land was to be put. We will take these three issues in turn. Public rights over the foreshore: the arguments The foreshore around England and Wales, by which is meant the area between the high water and low water mark, is owned by the Crown, although it is open to the Crown to alienate it, either permanently by conveying or transferring it, or temporarily by granting leases over it see eg Halsburys Laws (4th ed 1998 reissue) vol 12(1), para 242. During the course of argument, we were informed that the Crown retained ownership and possession of more than half the foreshore around England and Wales. Most of the foreshore which the Crown no longer owns was at some point conveyed or transferred away. But to describe the Beach in this case as having been alienated in this way may be slightly misleading, as the Beach only came into existence as a beach in 1883 in the circumstances described in para 9 above. However, that does not impinge on NPPs argument, which is that there is a rebuttable presumption that the public use of the foreshore is by permission of the owner of the Beach that is, the Crown or its successors in title. This proposition was rejected by Ouseley J at first instance and by the majority of the Court of Appeal, Richards and McFarlane LJJ. However, it was accepted by Lewison LJ. The state of the law relating to public rights over the foreshore of England and Wales is more controversial than one might have expected. It appears clear that there is, at least normally, a public right of navigation and of fishing in the sea and rights ancillary to it Halsbury op cit, para 243. However, the question in this case is the existence and nature of any further or greater rights, and in particular the right to use the foreshore for the purpose of bathing and the sort of familiar activities which people indulge in on a beach at least in good weather. At least where there is no express permission from the owner of the foreshore, there are in principle at least three possible conclusions in relation to the issue of the publics right to use the foreshore for bathing, by which we mean using the foreshore as access to the sea at low tide, or bathing in the sea over the foreshore at high tide (or a combination of the two), plus associated recreational activities. The first is that members of the public have, as a matter of general law and irrespective of the wishes of the owner of the foreshore, the right to use the foreshore for the purpose of bathing, as a matter of general common law. The second possibility is that the owner of the foreshore is presumed to permit members of the public to use of the foreshore for the purpose of bathing, unless and until the owner communicates a revocation of its implied permission. The third possibility is that members of the public have no right to use the foreshore for bathing, in which case they are trespassers. NPP would succeed on the first issue on this appeal if the first or second of these possibilities is correct. If local inhabitants (a subset of members of the public) had been using the Beach because they were entitled to do so as a matter of common law (the first possibility), or because they had an implied permission to do so (the second possibility), then, in so far as they were inhabitants of the locality, they would not have been doing so as of right, but by right. On the other hand, if the third possibility is correct, NPP would fail because the user by local inhabitants would have been as trespassers, and therefore as of right, at least subject to the other two issues on this appeal. So far as the relevant cases on the issue are concerned, none is binding on this Court, but they tend to be against the first possibility and somewhat unclear as between the second and third possibilities. Presumably for that reason, Mr George QC, on behalf of NPP, does not argue for the first possibility and takes his stand on the second possibility. Public rights over the foreshore: the authorities The leading, and it may be said the only, reported case where the topic of the rights of members of the public to bathe on the foreshore has been considered in any detail is Blundell v Catterall (1821) 5 B & Ald 268. In that case, the defendant used the beach between the high water mark and the low water mark of the River Mersey at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who wished to swim in the sea). The plaintiff, as Lord of the Manor of Great Crosby and owner of the beach in question, sought an injunction to restrain this use. The defendant argued that all members of the public had the right to use a beach for the purpose of gaining access to, and bathing in, the sea. The Court of Kings Bench, Best J dissenting, decided that, unless such a right could be established by usage and custom, there was no common law right for all the Kings subjects to bathe in the sea and to pass over the seashore for that purpose. The leading judgment has long been regarded as that of Holroyd J who gave the extent of the rights of the public over the seashore impressively full and detailed consideration, although Abbott CJ and Bayley J also delivered full judgments, as did the dissenting Best J. Best J in effect followed the view expressed in Bractons De Legibus et Consuetudinibus Angliae, where it is written Naturali vero iure communia sunt omnium haec: aqua profluens, aer et mare et litora mare, quasi mari accessoria. Nemo igitur ad litus maris accedere prohibetur (By natural law these are common to all: running water, air, the sea, and the shores of the sea, as though accessories of the sea. No one therefore is forbidden access to the seashore). However, Holroyd J considered that this represented the civilian law, but not the common law. Essentially, as we see it, the reasoning of the majority can be justified by reference to the well established common law proposition that rights over land can normally only be obtained by grant, custom and usage, or prescription. Custom and usage required a long period of use for the specified purpose, and prescription could (at any rate until 1832) normally only be invoked if it could be shown that the use had continued since time immemorial which, at least normally, meant 1189. Bathing in the sea, unlike fishing and navigation, was a comparatively recent popular activity, which seems to have started as such around the middle of the 18th century. Although Strutt in Sports and Pastimes of the People of England (1802) refers to swimming as an exercise of great antiquity, the first recorded instance of people bathing in the sea for pleasure, according to NPP in this case, was in Scarborough in 1732 (Crane, Coast: Our Island Story: A Journey of Discovery Around Britain's Coastline, 2010, p 218). Accordingly, bathing could rarely be a right obtained by custom and usage or (at least until the Prescription Act 1832, which introduced the twenty year and forty year rules) by prescription. The decision in Blundell was not concerned with the second possibility canvassed in para 29 above, namely whether there was, or could be taken to be, some sort of tacit licence on the part of the owner of the sea shore permitting members of the public to use it for bathing, recreations and pastimes. The point could not have arisen in that case, because it would not have availed the defendant, as any such licence would have been revoked by the plaintiffs objection to the defendants use of the beach. None the less, there are observations in the judgments in Blundell, which appear to imply that the right to use the foreshore for bathing or for access to the sea for bathing could be acquired by prescription. For instance, at p 301, albeit in a passage whose clarity is not assisted by a double negative, Holroyd J said nor, if [the present claim] were [supported by custom or usage], would it follow that it was such a common law right as might not, by prescription at least, be otherwise appropriated. It seems to us that that observation carries with it the implication that a member of the public would be trespassing on the foreshore if he used it for that purpose, as otherwise they could not raise a claim by prescription. However, it would not be safe to make much of what is little more than a throw away obiter observation. Further, in what may be seen as a hint at the possibility of an implied licence at p 300, Holroyd J said this: Where the soil remains the King's, and where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right, it is not to be supposed that an unnecessary and injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriae. This provides some apparent assistance to NPPs argument that there is an implied licence from the owner of a beach to use it for purposes which do not interfere with the interests of the owner. However, it would be wrong to place much weight on it, as, once again, it was not really relevant to the issue which the court had to decide, and it is not clear quite what the legal characterisation of the owners indulgence Holroyd J had in mind. In Mace v Philcox (1864) 15 CB (NS) 600, Williams J appears to have treated Blundell as a decision limited to the presence or use of bathing machines. In the same case, Erle CJ was apparently unenthusiastic about the majority view in Blundell, saying I am desirous of guarding my judgment so as not to restrict the valuable usage or right of Her Majestys subjects to resort to the sea shore for bathing purposes, although he followed the majority view. So did Cozens Hardy J in Llandudno Urban District Council v Woods [1899] 2 Ch 705, albeit without any expressed lack of enthusiasm. However, it could be said that he demonstrated a degree of restraint by refusing an injunction to restrain the activity in question (preaching on the foreshore) although concluding, in accordance with the reasoning in Blundell, that it was a trespass. In Brinckman v Matley [1904] 2 Ch 313, 317, Buckley J, after referring to the fact that it had been applied in two first instance decisions of Mace and Llandudno, followed the judgment of Holroyd J in Blundell, and proceeded on the basis that members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea for bathing. In the Court of Appeal in Brinckman, Vaughan Williams LJ said at p 322 that the majority view in Blundell, even if technically obiter, has been recognised ever since by the whole of the profession as an accurate and binding statement of the law. Accordingly, he concluded, I do not think that we ought now, after the lapse of eighty years, to upset the law thus settled. Romer and Cozens Hardy LJJ took the same view see at pp 326 and 327. 41. Shortly after this, Buckley J in Behrens v Richards [1905] 2 Ch 614 refused an injunction sought by the owner of land leading to the foreshore against fishermen who used the land to gain access to the foreshore, although he held 42. that the fishermen had established no public right of way by long user. Buckley J said this at pp 619 620: I cite again, as I did in Brinckman v Matley, Bowen LJs words in Blount v Layard [1891] 2 Ch 681n, 691n, that nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood, and that, however continuous, however lengthy, the indulgence may have been, a jury ought to be warned against extracting out of it an inference unfavourable to the person who has granted the indulgence. In permitting persons to stray along the cliff edge or wander down the cliff face or stroll along the foreshore the owner of the land was permitting that which was no injury to him and whose refusal would have been a churlish and unreasonable act on his part. From such a user nothing, I think, is to be inferred. This observation may give some support for the notion of an implied licence, the second possibility identified in para 29 above, but it refers to the use of land as a public means of access to the foreshore, not to the use of the foreshore itself. In Alfred F Beckett Ltd v Lyons [1967] Ch 449, the Court of Appeal declined to hold that gatherers of coal on the foreshore for personal use were trespassers. Coal gathering by local inhabitants went back to 1895, and, if they had been trespassers, the coal gathering would have been carried on as of right for more than 20 years. However, as it was held that there was no trespass, no prescriptive right could have been obtained. The judgments therefore provide support for the second possibility referred to in para 29 above, and in particular there are dicta which support the notion that the use of the seashore for purposes other than fishing and navigation would be pursuant to an implied licence from the owner of the foreshore. Thus, Harman LJ observed at p 469A that it was notorious that in many and indeed most places the use of the foreshore by the public for purposes of recreation and bathing is tolerated, and at 472F that The practice may be sufficiently explained by tolerance of the foreshore owner, who would have been churlish indeed if he had stopped a poor man climbing up the cliff with a bag of small coals picked up on the shore to nourish his evening fire. Accordingly, at p 474A, he held that there was no prescribed right to collect coal from the beach as toleration is a sufficient explanation. Russell LJ, who said pithily at p 476A that the only reasonable conclusion is mere tolerance of the 43. unimportant, and Winn LJ, who referred at p 485G to collecting coal as being a practice which had been long permitted took the same view. In passing, it is worth noting that Harman and Winn LJJ considered that a fluctuating group of people (such as local inhabitants) could not claim the right to gather coal by prescription see at pp 474B D and 479C D respectively. Harman LJ based his reasoning on the fact that the right would be a profit a prendre. However, Winn LJ quoted from a judgment of Farwell J in Attorney General v Antrobus [1905] 2 Ch 188, 198 which suggested that an easement could not be obtained for recreational purposes. However, that may not be right in the light of In re Ellenborough Park [1956] Ch 131. Having said that, it is questionable whether, under common law as opposed to statute, a right to use the foreshore for bathing could be claimed by a fluctuating group of people such as the inhabitants of a neighbourhood or locality, as opposed to each owner of an alleged dominant property establishing a prescriptive easement arising from more than 20 years of such use as of right by that owner and/or his predecessors. 44. While the reasoning in Beckett provides some support for the second possibility identified in para 29 above, it has a number of features which render it at least arguably of limited assistance. First, it was not concerned with the right to bathe. Secondly, as is clear from what was said at pp 465A D and 469B D, the right to gather coal was treated as acknowledged in two deeds of grant from the Crown. Thirdly, it appears to have been accepted that the public rights over the foreshore were limited as held in Blundell, but the point was left open at least by Winn LJ at p 486C. Fourthly, the Court in Beckett proceeded on the basis that Jones v Bates [1938] 2 All ER 237 was correct, ie that the subjective belief of the person claiming a prescriptive right was relevant, indeed often determinative, on the question whether he had been acting as of right, which is wrong see R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 358H, per Lord Hoffmann. 45. Furthermore, in Mills v Silver [1991] Ch 271, 279G 280B, Dillon LJ pertinently observed in relation to the reasoning in Beckett that if there is an established principle of law that no prescriptive right can be acquired if the user by the dominant owner of the servient tenement has been tolerated without objection by the servient owner, it would be fundamentally inconsistent with the whole notion of acquisition of rights by prescription. This passage was cited with approval in Sunningwell at p 358F, in R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889, paras 5 6 and 79 82, and in Barkas at para 28. Public rights over the foreshore: discussion 46. The choice between the three possibilities identified in para 29 raises an issue which is both difficult and important. The importance of conclusively deciding the nature and extent of the publics rights over the foreshore of England and Wales is self evident. The difficulty arises because each of the three possibilities gives rise to problems. 47. There is a great deal to be said for the third possibility, namely that the public have no rights to use the foreshore for bathing, on the basis that their rights are limited to access for navigation and fishing, given the reasoning in, and long standing nature of, the majority judgments in in Blundell. The reasoning speaks for itself, and the judgments have generally been followed by judges and have been assumed to be correct. However, the decision is not binding on this Court, the dissenting judgment of Best J is not without force, and, as was reportedly stated on behalf of the unsuccessful appellant in Brinckman at p 320: The decision in Blundell v Catterall has been disapproved by text writers, eg, Hall on the Seashore, 2nd ed, pp 156 et seq. The same view is taken in Phears Rights of Water, pp 44 et seq, Stuart Moore on the Foreshore, pp 833 et seq. Quite apart from this, it can be said that the second (implied licence) possibility mentioned in para 29 above is somewhat artificial and was only developed because it was assumed that the majority view in Blundell represented the law. Further, the law of Scotland appears consistent, or at least more consistent, with Best Js dissenting view see Officers of State v Smith (1846) 8 D 711, 719 per the Lord Justice Clerk. Having said that, it would be a strong thing to depart from the majority view in Blundell, given that it has been treated as being the law for nearly 200 years. 48. The second possibility, namely a rebuttable presumption of a licence, has some support in the cases (see paras 41 43 above), but it may well be based on somewhat shaky legal foundations (see paras 44 45 above). It would also be rather curious, as it would mean that the position with regard to the foreshore is the opposite of the position with regard to almost all other land: a permission for the public to use is to be assumed for the foreshore, but not for any other land. There are some possible reasons for treating the foreshore in a special way for present purposes, as Lewison LJ mentioned in para 128 of the Court of Appeal judgment, but, Mr Sauvain QC, for the County Council argues with some force that they do not seem to be overwhelmingly powerful. Further, if the rebuttable presumption of permission applied to the foreshore, it would either also apply to any part of a beach above high water mark, or one would have what may be a rather odd dichotomy between the foreshore and the upper part of many beaches. 50. 49. As to the first possibility, the notion that members of the public have the right to use the foreshore for bathing would, as mentioned, align the law of England and Wales with that of Scotland, and it may well accord with the views and expectations of many non lawyers. However, it might risk upsetting the effect of decisions and actions based on the not unreasonable assumption that the majority view in Blundell represented the law. And it may give rise to other problems for owners of the foreshore. It would also give rise to the arguable dichotomy mentioned at the end of para 48 above. In all these circumstances, it seems to us that, unless it is necessary to do so for the purpose of determining this appeal (and it is not for the reasons which appear later in this judgment), this court ought not to determine the first issue, that is which of the three possibilities set out in para 29 above is correct. The issue is one of wide ranging importance, and we would be uncomfortable about determining it in circumstances where it was common ground that the first possibility could be ruled out. However, given that the point has been raised and argued, and as it may well arise in another case (whether under the 2006 Act or otherwise), we considered that it would be worthwhile identifying the issue as well as referring to the arguments and problems as they appear to us at this stage. Since writing this, we have had the opportunity of reading in draft the judgment of Lord Carnwath, which gives further food for thought on this interesting issue. 51. Accordingly, we proceed on the assumption that the majority of the Court of Appeal and Ouseley J were correct, and that, at least so far as the general common law is concerned, and subject to the other two more specific issues to which we now turn, members of the public, and therefore inhabitants of the locality, used the Beach for bathing as of right and not by right. The Byelaws: introductory 52. NPPs argument is that the effect of the Byelaws was to amount to a licence or permission to members of the public to use the Beach for leisure activities. If that argument is correct, then NPPs appeal must succeed, as the use of the Beach by inhabitants of the neighbourhood, as members of the public, would not have been as of right. 53. NPPs argument on this issue raises two points. The first is whether the Byelaws, if they had been, or should be treated as having been, properly communicated, would have amounted to a licence or permission sufficient to defeat the public use of the Beach as having been as of right. The second point is whether the Byelaws were, or should be treated as having been, sufficiently communicated to members of the public during the twenty years preceding 2006 when the Beach was used for bathing by members of the public. NPP contends that the answer to both points is in the affirmative, the County Council contends that both points should be answered no, and the Town Council agrees with NPP on the first point and with the Council on the second. While the Court of Appeal were unanimously in agreement with NPP on the first point, only Lewison LJ agreed with them on the second point. We will consider each of the two points in turn. The Byelaws: did they give rise to a licence as a matter of interpretation? 54. It appears to be common ground that a byelaw can, as a matter of principle permit an activity which would otherwise be unlawful, and we think that this is right. As suggested in Halsburys Laws (5th ed, 2009) vol 69, para 553, the classic definition of a byelaw was given by Lord Russell of Killowen CJ in Kruse v Johnson [1898] 2 QB 91, 96: A by law, of the class we are here considering, I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the by law, they would be free to do or not do as they pleased. Further, it involves this consequence that, if validly made, it has the force of law within the sphere of its legitimate operation. 55. The reference to ordering something to be done or not to be done carries with it an ability permitting something to be done: if an entity has the power to forbid or require, it must also have the power to permit that which it can forbid. However, in agreement with Richards LJ at para 72 in the Court of Appeal, we would accept that mere silence or inaction on the part of the entity cannot amount to permitting. In the same way as silence and inactivity on the part of a private landowner cannot, without more, amount to consent (save, arguably, as discussed in cases such as those mentioned in paras 44 45 above), so would the absence of any express or implied prohibition in the byelaws, without more, not amount to an implied licence. 56. Of course, it may be that the statutory powers pursuant to which particular byelaws are made are expressed in terms which lead to the conclusion that the byelaws made thereunder cannot or are not intended to extend to permitting activities or certain activities, in which event the byelaws would either have to be construed so that they did not have that effect or they would be ultra vires. However, there is no question of such an argument being applicable in this case, in the light of the wide words of section 83 of the 1847 Clauses Act (quoted in para 12 above). Indeed, it is worth bearing in mind that the 1847 Clauses Act stipulates that it is to be the relevant undertaking which makes the Byelaws, and the undertaking is the entity which owns the harbour. In other words, the Byelaws are made and enforced by the owner of the land concerned, which plainly supports the notion that they can properly involve the grant of rights over the land. 57. Accordingly, the question which arises is whether, on their true construction, the Byelaws permitted members of the public to use the Beach for leisure activities. NPP cannot point to a Byelaw which expressly permits such activities in terms and therefore one is in the realm of implied permission. It is not part of the County Councils case, as we understand it, that byelaws could not grant a licence by implication. This is unsurprising: once it is accepted that byelaws can grant a licence, it is hard to justify the argument that they can only grant a licence expressly. Of course, the usual principles apply to implications: they are only justified when they are necessary or obvious. 58. A prohibition can be expressed in such a way as to imply a permission. For instance, it is hard to argue against the proposition that a byelaw which states that dogs must be kept on a lead in a public park implies a permission to bring dogs into the park, provided that they are kept on a lead. It is at least as a matter of pure linguistic logic, possible to interpret the byelaw as solely meaning that, if (and only if) specific permission is obtained from the park authority by a person to bring a dog into the park, then the byelaw will apply. However, any reasonable reader of the byelaw would not consider that it had such a limited meaning. In other words, as with any question of interpretation, a strictly logical linguistic analysis of the words concerned cannot prevail over a contextual assessment of what they would naturally convey to an ordinary and reasonable speaker of English. 59. Thus, Byelaw 71, which forbids the bringing of a dog into the Harbour unless it is securely fastened by a suitable chain or cord, or is otherwise under proper and sufficient control, would appear to a normal person speaking ordinary English to imply that dogs could be brought into the area of Newhaven Harbour, provided that they are appropriately fastened or under control, and are not precluded by any other Byelaw. We do not consider that this point is undermined if the Harbour Master had forbidden dogs to be brought into certain parts of the Harbour area, or even the Harbour generally. The fact that a property owner voluntarily gives a general permission to the public (or to an individual or group of individuals) to do an act does not prevent him from subsequently revoking or cutting down that permission. 60. The central question for present purposes is whether the Byelaws, and in particular Byelaws 68 and 70, imply that members of the public have the right to use the Beach for recreational activities associated with beaches. The argument advanced by NPP, and accepted by the Court of Appeal, is that (i) the prohibition of bathing in the area identified in the second part of Byelaw 68 and (ii) the prohibition on sports and games which impede the use of the harbour in Byelaw 70, imply that bathing can take place elsewhere in the Harbour and that associated recreational activities can also take place provided that they do not impede the use of the Harbour. In our view, particularly when one remembers that the Byelaws are made and enforced by and on behalf of the owner and operator of the Harbour, this argument is correct. A normal speaker of English reading the Byelaws would assume that he or she was permitted to bathe or play provided the activity did not fall foul of the restrictions in the two Byelaws (and in any other Byelaws). This conclusion is also supported by the reference to the consent of the Harbour Master in the first part of Byelaw 68 and the second half of Byelaw 70: if the activities referred to in the latter Byelaw (ie including an activity which endangers others) are permitted if the Harbour Masters consent is obtained, that reinforces the view that generally harmless activities such as bathing and playing are permitted, at least in principle. The conclusion is further reinforced by the fact that, at the time the Byelaws were made, members of the public had been and were using the Beach freely for the purpose of bathing and recreation. 61. 62. As Lord Sumption pointed out in argument, this conclusion is also supported by Byelaws 51 and 52. Those Byelaws would serve to cut down the areas within the Harbour in which bathing and recreations could take place (without the Harbour Masters permission), as they exclude people who simply want to bathe or play from the quays or from the piers in so far as they are enclosed by chains ie from the operational parts of the Harbour. In the first place, those two Byelaws suggest that any other person who does not have lawful business in the Harbour would be entitled to go onto other parts of the Harbour area unless precluded by another Byelaw (or any other law). Secondly, they undermine any argument which might otherwise be raised that the implied licence raised by NPP would go too far. In addition, they both contain reference to the Harbour Masters permission, which, as already mentioned, provides some further support for NPPs case. In these circumstances, the only factor which can stand in the way of NPPs succeeding in its argument that the use of the Beach by members of the public 63. was by right as a result of the Byelaws, is the fact that the Byelaws were not brought to the attention of the public, the issue to which we now turn. The Byelaws: did they have to be brought to the publics attention? 64. A preliminary point which is raised in this connection is the argument that the Byelaws were only valid or effective so long as a copy thereof was painted or placed on boards, and put up in some conspicuous part of the office of the undertakers, and also on some conspicuous part of the harbour, dock, or pier, pursuant to section 88 of the 1847 Clauses Act. The Court of Appeal rightly rejected that contention. As Lewison LJ said in para 133 in the Court of Appeal, it seems highly improbable that Parliament can have intended that the byelaws for harbours enabled by the 1847 Clauses Act should not apply if, for instance, the boards displaying them had been destroyed or washed away by a storm, or even pulled down by vandals. 65. Section 85 of the 1847 Clauses Act also supports this conclusion as, although expressed in the negative, it indicates that the byelaws become effective once they are confirmed, and publication and display clearly are intended to follow confirmation, as is clear from the opening part of section 88. Further, section 89 of the 1847 Clauses Act, now repealed, at most only imposed the initial display of the byelaws as a precondition to their efficacy; if it had had that effect, then the strong implication was that the continuing display of the byelaws was not a prerequisite to their continuing efficacy. In fact, as Lady Hale pointed out in argument, section 89 very probably took matters no further, given the grounds given for its repeal by the Law Commission pursuant to whose recommendation it was repealed. The Commission described it as an unnecessary [provision] confirming the binding effect of byelaws which reflected 19th century doubts as to the legal effect of subordinate legislation and would never be enacted in modern legislation see Statute Law Revision 14th Report (1993), Law Com 211, p 175. As Mr Laurence QC, for the Town Council, puts it, section 89 was repealed because it was and always had been unnecessary. 66. Nor is this conclusion called into question by section 90 of the 1847 Clauses Act. In so far as that section implies that it would be necessary to establish that the byelaws were exhibited on a board, it would only be for the purpose of justifying a prosecution for an infringement of the byelaws. The fact that it may be necessary to show that the byelaws were appropriately displayed before a prosecution for their infringement could proceed does not justify the contention that they are of no effect generally unless they are displayed. Accordingly, we conclude that the Byelaws were effective as byelaws in the sense of representing the local laws applicable to Newhaven Harbour, even though they were not displayed as required by section 88 of the 1847 Clauses Act, although that may well have meant that breach of the Byelaws could not have led to a prosecution (at least of someone who had infringed them without having seen them). 67. So we turn to the question whether the failure of NPP (and its predecessor) to ensure that the Byelaws were displayed means that they did not operate as an effective licence rendering the use of the Beach by member of the public by right, rather than as of right. 68. The majority of the Court of Appeal, in agreement with Ouseley J, considered that it was essential that any licence be communicated to the inhabitants of the locality before it could be said that their usage of land was by right. That is certainly the normal rule where one is concerned with a private land owner (subject to the point discussed in paras 41 43 above, namely where it is possible or appropriate to infer a consent or licence from the surrounding circumstances, even though there is no communication of a consent, a point which may well require reconsideration in the light of the cases referred to in para 45 above). Support for such a proposition can be found in R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28, [2008] AC 221, paras 32, 56, 68, 74 and 81. The basis of this principle is explained in a number of cases including, Sunningwell, R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11, [2010] 2 AC 70, and, most recently, Barkas, where, at para 21, Lord Neuberger quoted from Lord Hoffmanns opinion in Sunningwell that whether user was as of right should be judged by how the matter would have appeared to the owner of the land, adding that that question should be assessed objectively. 69. However, as the decision in Barkas demonstrates, it is not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of the land concerned was permitted in order for their use to be treated as being by right rather than as of right. In Barkas, land had been acquired and in part developed by a local authority for housing purposes under a statute which permitted any undeveloped part of the land so acquired to be used as recreation grounds if appropriate ministerial consent was obtained, which it was. The undeveloped part of the land was then used for recreation by members of the public, to whom the statutory purpose was not communicated. Despite the absence of any communication of a licence, it was held that local inhabitants were using that undeveloped part of the land by right, and not as of right. In Barkas, para 23, Lord Neuberger said that: 70. Where land is held [by a local authority] for [the statutory] purpose [of recreation], and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so. If that were not so, members of the public using for recreation land held by the local authority for the statutory purpose of public recreation would be trespassing on the land, which cannot be correct. To much the same effect, at para 65, after referring to the general proposition [that] if a right is to be obtained by prescription, the persons claiming that right must by their conduct bring home to the landowner that a right is being asserted against him, Lord Carnwath said: It follows that, in cases of possible ambiguity, the conduct must bring home to the owner, not merely that a right is being asserted, but that it is a village green right. Where the owner is a public authority, no adverse inference can sensibly be drawn from its failure to warn off the users as trespassers, if it has validly and visibly committed the land for public recreation, under powers that have nothing to do with the acquisition of village green rights. 71. In our judgment, the position in the present case is indistinguishable from that in Barkas for the purpose of deciding whether the use of the land in question by members of the public was as of right. In this case, as in Barkas, the legal position, binding on both landowner and users of the land, was that there was a public law right, derived from statute, for the public to go onto the land and to use it for recreational purposes, and therefore, in this case, as in Barkas, the recreational use of the land in question by inhabitants of the locality was by right and not as of right. The fact that the right arose from an act of the landowner (in Barkas, acquiring the land and then electing to obtain ministerial consent to put it to recreational use; in this case, to make the Byelaws which implicitly permit recreational use) does not alter the fact that the ultimate right of the public is a public law right derived from statute (the Housing Act 1936 in Barkas; the 1847 Clauses Act and the 1878 Newhaven Act in this case). We agree with Lewison LJ, who reached the same conclusion in the Court of Appeal, and said at para 138 that given that the Inspector rightly found that Byelaw 68 was an effective prohibition on swimming in the part of the harbour there referred to, it would be inconsistent then to reject the contention that the Byelaws implied permission for swimming elsewhere in the harbour did not operate as a valid licence. 72. By contrast, Richards and McFarlane LJJ considered that the Byelaws had to be communicated to the general public, or at least to the local inhabitants, using the Beach, before they could constitute an effective licence rendering the use by right. They took this view at least partly because of the decision and reasoning of the House of Lords in R (Beresford) v Sunderland City Council [2004] 1 AC 889 see paras 82 87 in the judgment of Richards LJ and para 100 in the judgment of McFarlane LJ. After the decision of the Court of Appeal in the present case, this court in Barkas disapproved the decision and much of the reasoning in Beresford. The disapproval extended to passages quoted by Richards LJ in paras 83 and 84 of his judgment from the opinions of Lord Bingham and Lord Walker. 73. Thus, Richards LJ said at para 86, that, if (as he had concluded) on their proper construction the Byelaws impliedly permitted the public to access the harbour and engage in various sports and activities, it did not follow that they had the effect of conferring any right on the public to do those things. He went on to explain that, on this basis the Byelaws went no further than to give an implied revocable permission by the harbour authority, as landowner, for such access and activities, and if the authority had fenced off some part of the harbour, thereby preventing access to it, he did not think that a claim could have been maintained against the authority by a member of the public on the basis that the fencing off was in breach of rights conferred on him by the byelaws. However, that analysis cannot stand: once one concludes that there is an implied revocable permission for an activity, it follows that there is a licence, which renders the activity in question being carried on by right not as of right. The fact that permission can be subsequently withdrawn by an action on the part of the authority, such as fencing off, merely means that, when and if that occurs, the permission is withdrawn, so that any subsequent continuation of the activity concerned becomes a trespass and would therefore normally be as of right. The Byelaws: conclusion 74. It follows therefore that we would allow NPPs appeal on the second issue, which renders it strictly unnecessary to consider its appeal on the third issue. However, as the third issue is an important issue which was fully argued, and we have reached a clear conclusion on it, we consider that it is appropriate to allow the appeal on that ground as well, for reasons to which we now turn. Statutory incompatibility: introduction 75. NPPs argument is that section 15 of the 2006 Act should not be interpreted as extending to the Harbour because it was reasonably foreseeable that registration of the Beach as a town or village green would conflict with the port authoritys future exercise of its statutory powers. This argument, which Ouseley J upheld, was, as we have said, unanimously rejected by the Court of Appeal. 76. Section 15 is in Part 1 of the 2006 Act, which extends to all land in England and Wales, with the exception of the New Forest, Epping Forest and the Forest of Dean (section 5), and land includes land covered by water (section 61(1)). There is no express exclusion of land held by statutory undertakers for statutory purposes. Therefore any restriction on the scope of section 15 would have to be implicit. NPP argues that statutory incompatibility provides that restriction. In support of its assertion NPP relies on case law in relation to public rights of way and private easements in English law and public rights of way and servitudes in Scots law. 77. When considering some of that case law it is important to recall that, in the context of the legislation relating to town and village greens, reference to case law on public rights of way, easements and servitudes is only by way of analogy. In Beresford, Lord Scott stated at para 34: It is a natural inclination to assume that these expressions, claiming right thereto (the [Prescription Act 1832], as of right (the [Rights of Way Act 1932] and the [Highways Act 1980] and as of right in the [Commons Registration Act 1965], all of which import the three characteristics, nec vi, nec clam, nec precario, ought to be given the same meaning and effect. The inclination should not, however, be taken too far. There are important differences between private easements over land and public rights over land and between the ways in which a public right of way can come into existence and the ways in which a town or village green can come into existence. To apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous. Statutory incompatibility: the English law of dedication and prescription 78. The case law therefore needs to be examined with care. In English law public rights of way are created by dedication by the owner of the land, whether express, implied or deemed, and by acceptance by the public, usually in the form of user (Sunningwell at pp 351H 353B per Lord Hoffmann; Megarry & Wades The Law of Real Property (8th ed (2012)) para 27 035). In such cases, the legal capacity of the landowner to dedicate land for that purpose is a relevant consideration; if the owner had no such power, there could be no dedication. Section 1 of the Rights of Way Act 1932 (now section 31(1) of the Highways Act 1980) provided for deemed dedication resulting from 20 years of uninterrupted user unless there was sufficient evidence that the owner had no intention to dedicate. In this context where dedication is implied through user, the owners ability to dedicate remains relevant. This was stated expressly (in section 1(7) of the 1932 Act and now section 31(8) of the 1980 Act): Nothing in this section affects any incapacity of a corporation or other body or person in possession of land for public or statutory purposes to dedicate a way over that land as a highway if the existence of a highway would be incompatible with those purposes. Thus, in British Transport Commission v Westmorland County Council [1958] AC 126, in which a county council sought to assert a public right of way on a footpath across a bridge over a railway line, the issue was whether the railway owners could be deemed to have dedicated the path. The House of Lords held that the question whether the power to dedicate was incompatible with the owners statutory objects was a question of fact and was to be assessed by reference to what could reasonably be foreseen. 79. Similarly, in the English law of private easements (other than access of light) the capacity of the owner of the potential servient tenement to grant an easement is relevant to prescriptive acquisition. As prescription is based on the fiction of a grant, a landowner who could not have granted the claimed easement cannot suffer prescription (see Sunningwell, per Lord Hoffmann at pp 349G 351C in relation to the common law; Housden v Conservators of Wimbledon and Putney Common [2008] EWCA Civ 200, [2008] 1 WLR 1172, paras 43 and 76, per Mummery LJ, and Carnwath LJ respectively, in relation to the 1832 Act; Megarry & Wade op cit at para 28 065; Gale on Easements (19th ed (2012)), paras 4.88 4.91). The Law Commission in its 2011 Report, Making Land Work: Easements, Covenants and Profits Prendre (Law Com No 327; HC 1067) while advocating the removal of the fiction of grant, recommended (at para 3.168) that the use of land cannot be qualifying use, for the purposes of prescription, at any time when the land is in the freehold ownership of a person or body who is not competent to grant an easement over it. 80. By contrast, the owner of land which others wish to register as a town or village green does not need to have capacity to create such a green. All that is required is that people from the relevant locality have used the land as of right for lawful sports and pastimes (Barkas at paras 14 19 per Lord Neuberger). Indeed, it was only on the enactment of the 2006 Act that an owner obtained power to register land as a town or village green (section 15(8)). Until then an owner could not do so (Barkas at para 68 per Lord Carnwath). The landowner could only create the equivalent of a village green by settlement on trust for local inhabitants or the public at large (R v Doncaster Metropolitan Borough Council, Ex p Braim (1986) 57 P & C R 1, 8, per McCullough J). Statutory incompatibility: the Scots law of positive and negative prescription 81. Faced with this problem NPP turns to the law of Scotland for support for its proposition. Again, those authorities which deal with the creation of public rights of way and servitude rights of way have to be handled with care, not least because they come from a separate legal system whose property law is much more closely related to the civil law than the common law of England and Wales. None the less, in the field of acquisitive prescription there is a clear analogy with English law as, drawing on the rules of Roman law, the user or possession which grounds prescription must be nec vi, nec clam, nec precario (see McGregor v Crieff Co operative Society Ltd 1915 SC (HL) 93, per Earl Loreburn LC at 98, and Lord Dunedin at 103 104). Before the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) created the modern rules for positive (including acquisitive) prescription and also negative prescription, such prescription was governed by early Scottish statutes of the 16th and 17th centuries, although the period for positive prescription was reduced in the 19th and early 20th centuries. At the heart of positive prescription was uninterrupted possession of property. But some of the institutional writers of Scots law advanced rationalisations of the law of acquisitive prescription. Thus Stair (Institutions II 7.1 and 2) and Erskine (Institutes II 9.3 and III 7.2) spoke of the acquisition of a servitude by prescription as giving rise to a presumption of the owners grant of a title or consent. There are also judicial dicta which supported implied grant, presumed grant or presumed consent but, as we shall show, it has long been accepted that the basis of acquisitive prescription of a positive servitude or a public right of way is uninterrupted user as of right for the prescriptive period. We deal first with public rights of way and then private servitudes. In Scots law a public right of way can be constituted without any actual or fictional dedication by the owner of the land. Before the period of positive prescription was reduced, user by the public as a matter of right, continuously and without interruption for 40 years was sufficient to create such a right of way (Mann v Brodie (1885) 10 App Cas 378, per Lord Blackburn 387 388 and Lord Watson 390 391; (1885) 12 R (HL) 52, 54 55 and 57). Lord Watson explained it thus (pp 390 391): 82. According to the law of Scotland, the constitution of such a right does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. I am aware that there are dicta to be found, in which the prescriptive acquisition of a right of way by the public is attributed to implied grant, acquiescence by the owner of the soil, and so forth; but these appear to me to be mere speculations as to the origin of the rule, and their tendency is to obscure rather than to elucidate its due application to a case like the present. 83. Lord Watsons clarification led to the leading case in Scotland on statutory incompatibility, to which we turn. In Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620 the First Division of the Court of Session dealt with a claim that a railway company, which was a statutory undertaker, was obliged to maintain a railway bridge over which a public right of way was asserted. The Court held that there was insufficient evidence of public user for 40 years. But it also held that the public could not acquire a public right of way over the railway by user because it was incompatible with the statutory purposes of the railway company. Lord Kinnear, with whom the Lord President (Lord Kinross), Lord Adam and Lord McLaren concurred, gave the opinion of the court. He accepted Lord Watsons explanation of the basis of acquisitive prescription when he stated (at pp 636 637): I am of opinion, in the first place, that no right of way can be acquired by user over the line of the defenders railway, and especially at a point where the railway traffic is so great as on the main line close to Portobello station. It must always be presumed that if people having no statutory right of any kind have been allowed to cross the line, their passage is permitted only so long as it does not interfere with the purposes of the railway traffic. I am of opinion that no such right can be maintained, and that on the same principle on which it has been repeatedly held that a railway company cannot voluntarily grant a right inconsistent with the performance of the purposes for which it acquired its land. I assent entirely to the doctrine laid down by Lord Watson that the reference to the prescriptive right of way to an implied grant is a juridical speculation to account for an established rule, and not itself a rule of law. But at the same time I do not think it possible that a right of way which it would be ultra vires to grant can be lawfully acquired by user. 84. In so holding, the First Division upheld the decision of the Lord Ordinary, Lord Kincairney, in that case, who in Kinross County Council v Archibald (1899) 7 SLT 308 had relied on Lord Watsons approach in Mann v Brodie to reject any idea of an implied grant as the legal basis of the assertion of a right of way through user. 85. Shortly before the First Division handed down their opinion in Magistrates of Edinburgh the same Division of the Inner House (comprising the same judges) reached a similar conclusion in relation to an assertion of a private servitude right of way by apparently different but not inconsistent reasoning. In Ellices Trustees v The Commissioners of the Caledonian Canal 1904 6 F 325, the First Division considered an assertion by the owners of a landed estate through which the Caledonian Canal passed that they had obtained by user during the prescriptive period of 40 years a servitude right of way over the towpath of the canal. The commissioners, in the exercise of statutory powers to construct and maintain the canal, had constructed a weir, which intersected the towpath, to allow floodwater to escape. The owners sought declarations that they were entitled to use the towpath for access and that the commissioners were obliged to maintain that access road and construct a bridge or other passage over the weir. The court rejected their claim, holding that the slight use made of the towpath, which did not inconvenience the commissioners, was not sufficient to create a servitude right of way. The Lord President (with whom the other judges concurred) also held that the commissioners did not have the power to grant a right of way which was not compatible with the exercise of their statutory duties. He stated (p 335): I think, however, that even if the character of the use of the towing path of the canal had been such as might otherwise have constituted a public or servitude right of passage, the admitted circumstances of the case are such as to exclude any such a result. The Commissioners of the canal, as already stated, hold, and always have held, the canal banks for the purposes of the canal, and they have not now, and never had, any right either to alienate them or to agree that they should be subjected to any uses which were or might become inconsistent with or adverse to the use of the banks for their proper purpose videlicet, the containing and working of the canal. He continued (p 336): And if it would be ultra vires of them to make such an express grant, an effective grant could not be inferred from any such user by the pursuers and their authors as is alleged to have been permitted or tolerated in the present case. 86. In Ellices Trustees the court followed a line of authority, which included Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623, (1883) 10 R (HL) 85, that a statutory body had no power to alienate lands which it had acquired for a statutory purpose or to grant any right over such land which was inconsistent with its use for statutory purposes. The courts reliance on that case might suggest that it considered that the acquisition of a servitude right of way by prescription was based on implied grant. But the reclaimers counsel cited both Mann v Brodie and Kinross County Council in their submissions, and the Lord President stated (again at p 336): I further agree with the Lord Ordinary in thinking that even if a limited and qualified right of user of the canal banks had been acquired by prescription, that right could not be allowed to come into competition with, or to prevail against, the rights possessed by the [commissioners] and the statutory duties which are imposed upon them. 87. The case is thus consistent with the approach the court went on to take in Magistrates of Edinburgh that statutory incompatibility could bar acquisitive prescription. In British Transport Commission Lord Keith of Avonholm (at pp 164 165) commented on Lord Kinnears opinion in Magistrates of Edinburgh, suggesting that it would be going too far to hold that the public could never acquire a right of way over railway property but acknowledging that incompatibility with the conduct of traffic on the railway could bar a public right of passage. He opined (p 166) that incompatibility was a question of fact and that it was for the statutory undertaker to prove incompatibility. 88. Since those cases, the Scots law of prescription has been reformed by statutory provision. The 1973 Act sets out the modern Scots law of positive prescription. Section 3(2) provides: If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge. Section 3(3) provides essentially the same basis for the creation of a public right of way by prescription. In contrast with the provisions for the short negative prescription of five years which in section 6(4)(b) excludes from the prescriptive period any period in which the original creditor is under a legal disability, by reason of non age or disability of mind, such disability on the part of a landowner does not prevent the operation of positive prescription against him. This approach to positive prescription by possession following on a recorded title was expressly stated in earlier statutes, including section 16 of the Conveyancing (Scotland) Act 1924 which provided that periods of legal disability were not to be deducted from the prescriptive period. It applies ex silentio to such prescription in sections 1, 2 and 3(1) of the 1973 Act and extends to prescription by possession without title under section 3(2) and (3). Thus in the Scottish statutory scheme, the lack of legal capacity to grant a public right of way or a servitude of way is of itself not relevant. In this respect the Scottish statute differs from the English law of prescription as section 7 of the 1832 Act excludes from the computation of the period of, among others, the 20 year prescription under section 2 any time during which a person was incapable of resisting a claim because he was an infant or otherwise disabled as specified. But we note that neither the 1832 Act nor the Scottish 1973 Act addresses the issue of statutory incompatibility. It is not necessary in this appeal, which concerns English law, to express any view on whether in Scots law the doctrine of statutory incompatibility has survived the enactment of the 1973 Act. It suffices to note that it is a matter of controversy. Professor David Johnston in his scholarly Prescription and Limitation 2nd ed (2012) questions the continued relevance of the Scottish case law to which we have referred (para 19.27) while Professor Cusine and Professor Paisley, Servitudes and Rights of Way (1998) support the case law on the ground of inconsistency with the statutory purpose for which the servient owner holds the land (para 4.02). Professor Gordon, Scottish Land Law 2nd ed (1999) (paras 24.54 and 24.130) also sees statutory incompatibility or incapacity to grant as a bar to acquisitive prescription. Professor Reid, The Law of Property in Scotland (1996) (at para 449) states: When land has been acquired compulsorily for certain purposes, this precludes the creation of any servitude rights the exercise of which could be prejudicial to these purposes. But he does not repeat this assertion in his discussion of acquisition of such rights by prescription under the 1973 Act (paras 458 461). Statutory incompatibility: statutory construction 91. As we have said, the rules of prescriptive acquisition apply only by analogy because Parliament in legislating for the registration of town and village greens has chosen similar wording (indulging as of right in lawful sports and pastimes) in the 1965 and 2006 Acts. It is, none the less, significant in our view that historically in both English law and Scots law, albeit for different reasons, the passage of time would not give rise to prescriptive 89. 90. acquisition against a public authority, which had acquired land for specified statutory purposes and continued to carry out those purposes, where the user founded on would be incompatible with those purposes. That approach is also consistent with the Irish case, McEvoy v Great Northern Railway Co [1900] 2 IR 325, (Palles CB at 334 336) which proceeded on the basis that the acquisition of an easement by prescription did not require a presumption of grant but that the incapacity of the owner of the servient tenement to grant excluded prescription. In this case if the statutory incompatibility rested only on the incapacity of the statutory body to grant an easement or dedicate land as a public right of way, the Court of Appeal would have been correct to reject the argument based upon incompatibility because the 2006 Act does not require a grant or dedication by the landowner. But in our view the matter does not rest solely on the vires of the statutory body but rather on the incompatibility of the statutory purpose for which Parliament has authorised the acquisition and use of the land with the operation of section 15 of the 2006 Act. 92. 93. The question of incompatibility is one of statutory construction. It does not depend on the legal theory that underpins the rules of acquisitive prescription. The question is: does section 15 of the 2006 Act apply to land which has been acquired by a statutory undertaker (whether by voluntary agreement or by powers of compulsory purchase) and which is held for statutory purposes that are inconsistent with its registration as a town or village green? In our view it does not. Where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes. Where there is a conflict between two statutory regimes, some assistance may be obtained from the rule that a general provision does not derogate from a special one (generalia specialibus non derogant), which is set out in section 88 of the code in Bennion, Statutory Interpretation 6th ed (2013): Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed. While there is no question of repeal in the current context, the existence of a lex specialis is relevant to the interpretation of a generally worded statute such as the 2006 Act. 94. There is an incompatibility between the 2006 Act and the statutory regime which confers harbour powers on NPP to operate a working harbour, which is to be open to the public for the shipping of goods etc on payment of rates (section 33 of the 1847 Clauses Act). NPP is obliged to maintain and support the Harbour and its connected works (section 49 of the 1847 Newhaven Act), and it has powers to that end to carry out works on the Harbour including the dredging of the sea bed and the foreshore (section 57 of the 1878 Newhaven Act, and paras 10 and 11 of the 1991 Newhaven Order). 96. 95. The registration of the Beach as a town or village green would make it a criminal offence to damage the green or interrupt its use and enjoyment as a place for exercise and recreation section 12 of the Inclosure Act 1857 or to encroach on or interfere with the green section 29 of the Commons Act 1876. See the Oxfordshire case [2006] 2 AC 674, per Lord Hoffmann at para 56. In this case, which concerns a working harbour, it is not necessary for the parties to lead evidence as to NPPs plans for the future of the Harbour in order to ascertain whether there is an incompatibility between the registration of the Beach as a town or village green and the use of the Harbour for the statutory purposes to which we have referred. Such registration would clearly impede the use of the adjoining quay to moor vessels. It would prevent the Harbour authority from dredging the Harbour in a way which affected the enjoyment of the Beach. It might also restrict NPPs ability to alter the existing breakwater. All this is apparent without the leading of further evidence. 97. NPP has also suggested that vessels en route to and from other parts of the port might have to reduce speed in circumstances where such reduction would not be desirable to maintain the stability of the vessels. It also led evidence of proposals to unload materials for an offshore windfarm on the Beach. But we do not need to consider such matters in order to determine that there is a clear incompatibility between NPPs statutory functions in relation to the Harbour, which it continues to operate as a working harbour, and the registration of the Beach as a town or village green. 98. The County Council referred to several cases which supported the view that land held by public bodies could be registered as town or village greens. In our view they can readily be distinguished from this case. In New Windsor Corporation v Mellor [1975] Ch 380, the Court of Appeal was concerned with the registration of Bachelors Acre, a grassed area of land in New Windsor, as a customary town or village green under the 1965 Act. The appeal centred on whether the evidence had established a relevant customary right. While the land had long been in the ownership of the local council and its predecessors, it was not acquired and held for a specific statutory purpose. It had been used for archery in mediaeval times and had been leased for grazing subject to the recreational rights of the inhabitants. In recent times it had been used as a sports ground and more recently it was used as to half as a car park and half as a school playground. No question of statutory incompatibility arose. 99. The Oxfordshire case concerned the Trap Grounds, which were nine acres of undeveloped land in North Oxford comprising scrubland and reed beds. The land was, as Lord Hoffmann stated (in para 2) not idyllic. More significantly, while the City Council owned the land and wanted to use a strip on the margin of it to create an access road to a new school and to use a significant part of the land for a housing development, there was no suggestion that it had acquired and held the land for specific statutory purposes that might give rise to a statutory incompatibility. 100. Thirdly, the County Council referred to Lewis v Redcar, which concerned land at Redcar owned by a local authority which had formerly been leased to the Cleveland golf club as part of a links course but which local residents also used for informal recreation. The council proposed to redevelop the land in partnership with a house building company as part of a coastal regeneration project involving a residential and leisure development. Again, there was no question of any statutory incompatibility. It was not asserted that the council had acquired and held the land for a specific statutory purpose which would be likely to be impeded if the land were to be registered as a town or village green. 101. In our view, therefore, these cases do not assist the respondents. The ownership of land by a public body, such as a local authority, which has statutory powers that it can apply in future to develop land, is not of itself sufficient to create a statutory incompatibility. By contrast, in the present case the statutory harbour authority throughout the period of public user of the Beach held the Harbour land for the statutory harbour purposes and as part of a working harbour. 102. In this context it is easy to infer that the harbour authoritys passive response to the use by the public of the Beach was evidence of an implicit permission so long as such user did not disrupt its harbour activities. This is consistent with our view of the byelaws which we have discussed above. There has been no user as of right by the public of the Beach that has interfered with the harbour activities. If there had been such an assertion of right it would not avail the public, because the 2006 Act cannot operate in respect of the Beach by reason of statutory incompatibility. Conclusion 103. The poet Ovid spoke of time as the devourer of things (tempus edax rerum. Metamorphoses 15.234). In the English law of prescription, user as of right can over time eat into a landowners freedom to use land. So too can the 2006 Act. In this case, however, we conclude that, assuming that there is no general common law right for the public to use the foreshore for bathing and associated recreational activities, the user was by permission in the light of the Byelaws, and that in any event the 2006 Act cannot operate by reason of incompatibility with the statutory basis on which NPPs predecessors acquired the land, and the statutory purposes for which they held, and now NPP holds, that land. 104. We therefore would allow the appeal and set aside the order of the Court of Appeal dated 27 March 2013. LORD CARNWATH: 105. As will become apparent, I agree that the appeal should be allowed under ground (ii) for the reasons given by Lord Neuberger and Lord Hodge. While I agree that we need not reach a conclusion on ground (i), I think it useful also to comment on some of the more general issues discussed in argument, which have not previously been considered at this level and which may become relevant in other cases. Bathing rights on the foreshore 106. At least since Brinckman v Matley [1904] 2 Ch 313, the decision of the Court of Kings Bench in Blundell v Catterall (1821) 5 B & Ald 268 has been taken as establishing at Court of Appeal level that under English law the public has no general right to go onto the foreshore for the purpose of bathing or other recreation. In the words of the 1904 headnote: The public have no common law right to use the foreshore or to pass and repass thereon for the purpose of bathing in the sea, whether the foreshore is the property of the Crown or of a private owner. Not even the strong dissenting judgment of Best J in the earlier case, the advocacy of a future Lord Chancellor (Buckmaster KC), nor the criticism of three textbook writers cited by him (p 320), were sufficient to persuade the court to revisit the issue, or even to call on opposing counsel. The members of the court were unanimous in their praise for the model judgment of Holroyd J, regarded it seems as one of the finest examples of how a judgment should be expressed (p 323). Only Cozens Hardy LJ, while observing that the principles laid down in that case have never since been questioned by any authority to which our attention has been called, was prepared to concede that the point might be open for reconsideration by the House of Lords (p 327). 107. No doubt because judicial fashions have changed, I confess that I do not find the enthusiasm of the Court of Appeal for the judgment of Holroyd J altogether easy to share. Its erudite analysis of extracts from Justinian, Bracton, and Hale, and of obscure exchanges between the court and counsel in some early English cases, makes rather heavy reading to modern eyes. 108. It is also difficult to find the basis of the assertion by Vaughan Williams LJ that the majority judgments in the earlier case had been recognised ever since by the whole of the profession as an accurate and binding assertion of the law (p 322). In the intervening century, recreational use of the foreshore and the associated beaches had become an even more wide spread and popular activity. As far as one knows, the public had continued to enjoy the pleasures of the beach without interference, and without anyone suggesting that they were mere trespassers. There is no record of anyone relying on the judgment in Blundell v Catterall to restrict such use. Nor were we referred to any evidence of support from legal commentators to set against the three sources relied on by the appellants (Hall on the Seashore, Phears Rights of Water, and Stuart Moore on the Foreshore). 109. Furthermore, as Vaughan Williams LJ acknowledged (p 322) the actual issue in the earlier case had been narrower than that facing his court. It had been, not the general right of the public to bathe on the foreshore, but their right to bring on to the beach bathing machines for that purpose, and to do so in an area where it conflicted with private rights of fishing with stake nets. On the same page, Vaughan Williams LJ also cited the short statement by Abbott CJ of what the decision of the court was: that is, where one man endeavours to make his own special profit by conveying persons over the soil of another, and claims a public right to do so he has no reason to complain if the owner of the soil shall insist upon participating in the profit . On that footing the case was about commercial exploitation of the beach, rather than the publics right to its recreational use. 110. As appears from the dissenting judgment of Best J in the earlier case (p 279), it had been found as a fact that there was a custom for the public to cross the spot in question on foot for the purpose of bathing. That usage as such was not apparently in issue. The problem arose because of the associated need for bathing machines, use of which at that time was seen as essential to the practice of bathing (Decency must prevent all females, and infirmity many men, from bathing, except from a machine). Even the judgment of the majority was not seen by them as restricting the established right of access to bathing on foot: The right is claimed on the pleadings, as founded not on usage or custom, but upon the supposed general law only; and the usage, as stated in the special case, is found to have been for the public to cross the sea shore on foot only, for the purpose of bathing, no bathing machines having ever been used in Great Crosby, where the locus in quo is situate, before the establishment of the present hotel. My opinion, therefore, on this case, will not affect any right that has been or can be gained by prescription or custom, either by individuals or by either the permanent or temporary inhabitants of any village, parish, or district. (p 289, per Holroyd J) It is unfortunate that neither in that case, nor in any of the later cases relying on it, was there any discussion of the legal basis of such a hypothetical right gained by prescription or custom. 111. This was a point touched on by the first of the textbook writers, Robert Hall, a barrister of Lincolns Inn. In his 1830 treatise An essay on the rights of the Crown and the privileges of the subject in the sea shore of the realms, he devoted some 40 pages of a supplemental chapter to a detailed criticism of the majority judgments. He was troubled (p 219) by the implications of Holroyd Js acceptance that there might be a local usage or custom of bathing, and the difficulty of distinguishing such a custom from one available to the public generally. It would be singular to denominate this a collection of local customs. He compared fishing on the seashore which, though likely to be practised by local inhabitants, was accepted as a general rather than a purely local right. It would be strange, he said, to treat the right to bathe any differently. 112. More generally, he noted that much of Holroyd Js discussion was devoted to criticisms of Bractons exposition of the law relating to river banks, rather than the passages directly concerned with the public right over the sea shore. He commented: The reasoning, therefore, seems to have been this, Bracton was wrong in his law that Riparum usus communis est &c therefore littorum usus non est communis. But this is certainly a non sequitur; and although the court, from the authorities, proved Bracton wrong, to a certain extent in his law respecting particular uses made of banks of rivers (as for towage), yet no authorities were adduced shewing that communis usus of the sea shore for bathing is not a good custom. (pp 191 192) Best J, by contrast, had preferred to see Bractons writings on this issue as derived not so much from the civil or common law, as from the law of all civilised nations (p 281). 113. As to judicial authorities, the only judgment cited to the court in which Blundell v Catterall had been followed without question was Llandudno Urban Council v Woods [1899] 2 Ch 705, but that was at first instance, and it was concerned, not with bathing or general recreation, but with the holding of religious services on the beach. 114. More significant in the present context is Mace v Philcox (1864) 15 CB(NS) 600, which was cited to the Court of Appeal but not mentioned in their judgments. As appeared from the case stated, it was accepted that the sea beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo had been used from time immemorial by the public as a place of public resort (p 603), subject only to the corporations statutory powers to regulate the use by byelaws. The issue was simply as to the right of the defendant to place bathing machines on a part of the foreshore in private ownership, it being accepted that such a right existed on adjoining land owned by the corporation. Although Blundell v Catterall was cited on that point, the court did not evidently read it as settling any wider issue; rather Erle CJ was desirous of guarding (his) judgment so as not to restrict the valuable usage or right of her Majestys subjects to resort to the sea shore for bathing purposes (p 614 per Erle CJ). 115. Against this background the unwillingness of the Court of Appeal in 1904 to reopen the issue seems both surprising and disappointing. Scotland 116. The hearing in Brinckman v Matley took place on 13 July 1904. The judgments appear to have been given on the same day. By a curious coincidence, three days later a similar issue (relating to shooting wildfowl on the foreshore) was considered by the Court of Session in Scotland (Hope v Bennewith (1904) 6 F 1004). Although Brinckman v Matley is noted in a footnote to the report (p 1008), it seems highly improbable that the detail of those judgments would have been available at the hearing. In any event, counsel was able to submit, apparently without contradiction, that Blundell v Catterall had been much criticised and followed with reluctance (p 1010). He relied (inter alia) on Mace v Philcox and various textbook writers, including those cited to the English Court of Appeal. The court did not comment on the authorities, but proceeded on the basis of an admitted public right to use the foreshore (p 1010) without considering its precise scope. 117. It seems that from the middle of the previous century, Scottish law had begun to recognise a public right to use the foreshore for recreation, without feeling inhibited by authorities from the other side of the border. In 2001, the Scottish Law Commission reviewed the cases, beginning with Officers of State v Smith (1846) 8 D 711), and concluded that such a right was well supported by authority. The precise scope of the right was not clear: It appears to include walking and running, having a picnic or barbecue, sunbathing and swimming. While it does not include the right to put up a hut on the shore, it does include the right to shoot wildfowl. The sale of refreshments on the beach is outwith the scope of the right. (Discussion Paper No 113 Uses of the Foreshore para 4(25)) 118. By the time of the Commissions final report (report 190 (2003)) its recommendations had to some extent been overtaken by the enactment of the Land Reform (Scotland) Act 2003 which conferred general rights of access to land for recreational purposes, land for this purpose being defined as including the foreshore (section 32). None the less it was recommended that the common law rights, which were regarded as more extensive than the new access rights, should themselves be put on a separate statutory footing (para 3.1 17). Comparative jurisprudence 119. At the end of the hearing in the present case, the court offered Mr George QC the opportunity to provide information about the practice in other common law jurisdictions. He did not take up that invitation, perhaps in the understandable fear of opening up a Pandoras box. Some comparative material can, however, be found in the appendix to the Scottish Law Commissions 2001 Discussion Paper. That has been supplemented since the hearing in this case by some further work by our own judicial assistants, particularly relating to the United States of America. This research is far from exhaustive, and, since it is not material to our conclusion in the present case, it has not been thought necessary to invite comments from the parties. However, as it may be of relevance to future cases, it seems desirable to make a brief reference to some of the main points. 120. Appendix 2 to the Scottish Law Commissions Discussion Paper contained a short review of the law relating to the foreshore, including rights of recreation, in various jurisdictions. This shows little consistency of approach. In the European countries mentioned (France, Germany, Norway, Spain) recreation on the sea shore seems generally to be regulated by statute. Of the common law countries referred to (Canada, England & Wales, New Zealand), the English position unsurprisingly is defined by reference to Blundell v Catterall; and the position in Canada is said to be unclear (para 31). 121. Of more interest is New Zealand, where reference (para 156) is made to a case from the 19th century, Crawford v Lecren [1868] NZLA 117. In that case the Court of Appeal held, in reliance on Blundell v Catterall, that there was no right for the public to load and unload goods on the foreshore. The court seems to have attached particular weight to the support for this proposition of Best J, as well as of the majority (pp 128 129). The Commission also notes (paras 159 162) that in New Zealand public access to the foreshore is preserved through the concept of the Queens Chain, a strip of land up to 20 metres wide, measured from the high water mark of spring tide. The concept, which has had varying acceptance, and is now implemented by statute, is said to find its origins in an instruction of Queen Victoria given in 1840. United States 122. The Commission did not look at the position in the United States. It says something for the degree of interchange in the early 19th century between the legal communities on either side of the Atlantic, that Halls criticisms of Blundell v Catterall case were being cited with approval in the following year in an academic article: 3 US Law Intelligencer & Review 114 1831. (The US Law Intelligencer and Review was a periodical edited by one Joseph K Angell, who was born in the United States but lived in England from 1819 to 1824. He founded the periodical in 1829, which ran monthly for three years.) The article quoted extensively from the treatise, and praised its author for his zeal and ability in combatting a judicial decision which would abridge the publics undoubted right of indulging in the favourite and healthful practice of bathing in the sea. 123. Somewhat paradoxically, although the subsequent development of the law has varied between the states, it was to the English common law that the judges in later cases looked for the foundation for recognition of public rights of recreation over the foreshore. Thus in Florida, in White v Hughes 139 Fla 54, 59, 190 So 446 (1939), Brown J observed: There is probably no custom more universal, more natural or more ancient, on the sea coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight After quoting Byron on the primeval quality of the wild waves play (Childe Harolds Pilgrimage IV, 182) he continued: The constant enjoyment of this privilege of thus using the ocean and its fore shore for ages without dispute should prove sufficient to establish it as an American common law right, similar to that of fishing in the sea, even if this right had not come down to us as a part of the English common law, which it undoubtedly has (p 449 emphasis added). 124. A more sophisticated (if less poetic) discussion of the development of the law up to 1969 can be found in the Yale Law Journal (William Dayton The Public Trust in Tidal Areas: a Sometime Submerged Traditional Doctrine (1970) 79 YLJ 762). The author traced the history of the law from its Roman roots, through Magna Carta, to the more modern law in England and America. Of Blundell v Catterall he said: This exclusion from common law protection of an ancient and customary right is a prime example of the needless exclusion of an activity. He noted that the State of Oregon in particular had seized the customary usage opening and widened it (citing inter alia State ex rel Thornton v Hay 89 Ore 887 (1969)) (p 784 785). He ended by suggesting that the common law of the foreshore seemed to be entering a major period of reformulation, which he described as a sharp acceleration of the process begun by Magna Carta. He looked forward to the day when common law citizens will have as many rights in the foreshore as Roman citizens once did (p 785 789). 125. The decision of the Oregon Supreme Court in Thornton, which may have provided a stimulus for that article, concerned the publics right to recreational use of what was described as the dry sand area, that is the privately owned area of beach between the vegetation line, and the state owed foreshore (or wet sand area) in which the publics paramount right was not in dispute. The court accepted that the dry sand area had been enjoyed by the general public as a recreational adjunct of the foreshore area since the beginning of the states political history, and before that by aboriginal inhabitants using the foreshore for clam digging and the dry sand area for their cooking fires. The majority upheld the public right over that area, by reference to the English doctrine of custom (as enunciated in Blackstones Commentaries), preferring that basis of decision to one based on prescription. The minority (Denecke J) arrived at the same result, relying simply on long usage by the public of such dry beaches, combined with long and universal belief by the public in their right to that use, and long and universal acquiescence in it by the owners. The narrower English law on customary rights was distinguished as appropriate for a small island nation at a time when most inhabitants lived and died within a days walk from their birthplace, as compared to the vast geography of this continent and the freshness of its civilisation. 126. New Jersey is perhaps of greater interest because of the development of the law by the courts relying on the so called public trust doctrine, using language not dissimilar to that of Best J in the English case. He had spoken of the public trust in such property: From the general nature of this property, it could never be used for exclusive occupation. It was holden by the King, like the sea and the highways, for all his subjects. The soil could only be transferred, subject to this public trust; and general usage shews that the public right has been excepted out of the grant of the soil (p 287). The Court of Appeal in Brinckman v Matley accepted that the Crown holds the foreshore on the terms that it must recognise the jus publicum whatever it may be but saw that as limited by authority to rights of navigation and fishing (p 325). 127. A recent review of the New Jersey authorities comes in the judgment of the New Jersey Supreme Court, in Raleigh Avenue Beach Association v Atlantis Beach Club Inc 879 A 2d 112 (2005). The court (p 119) traced the history of the public trust doctrine to their decision in Arnold v Mundy (1821) 6 NLJ 1. That case, decided as it happens in the same year as Blundell v Catterall, concerned a claim to rights in an oyster bed. The court had explained that following independence the English sovereign's rights to the tidal waters had become vested in the people of New Jersey as the sovereign of the country, and that the land on which water ebbs and flows, including the land between the high and low water, belonged to the State, to be held, protected, and regulated for the common use and benefit. 128. More recently, in Borough of Neptune City v Borough of Avon by the Sea, 61 NJ 296, 303, 294 A 2d 47 (1972), the same court had referred to the roots of that principle in Roman jurisprudence, which held that by the law of nature . the air, running water, the sea, and consequently the shores of the sea, were common to mankind, and had extended the public rights in tidal lands to recreational uses, including bathing, swimming and other shore activities. That extension had been approved in Matthews v Bay Head Improvement Association 95 NJ 306 (1984), in which the court had gone on to consider the extent of the public's interest in privately owned dry sand beaches, in particular its right to cross such beaches in order to gain access to the foreshore (p 323). The court had also affirmed the concept already implicit in our case law that reasonable access to the sea is integral to the public trust doctrine. There was reference to the dissenting judgment of Best J in Blundell v Catterall (without reference to the majority judgments) for the proposition that the particular circumstances must be considered and examined before arriving at a solution that will accommodate the publics right and the private interests involved (p 324). 129. In Raleigh itself, following Matthews, the court applied the principle that the public use of the upland sands is subject to an accommodation of the interests of the owner, to be determined by case to case consideration (pp 120 121). It repeated the following statement from Matthews: Archaic judicial responses are not an answer to a modern social problem. Rather, we perceive the public trust doctrine not to be fixed or static, but one to be molded and extended to meet changing conditions and needs of the public it was created to benefit Precisely what privately owned upland sand area will be available and required to satisfy the public's rights under the public trust doctrine will depend on the circumstances. Location of the dry sand area in relation to the foreshore, extent and availability of publicly owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand. Today, recognizing the increasing demand for our State's beaches and the dynamic nature of the public trust doctrine, we find that the public must be given both access to and use of privately owned dry sand areas as reasonably necessary. While the public's rights in private beaches are not co extensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand. (Matthews p 326) Comparative material summary 130. This review of the comparative jurisprudence is of interest, on the one hand for the apparently universal recognition of the recreational use of the foreshore in practice, but on the other for the continuing uncertainty in many jurisdictions as to the legal basis for that use and the wide variety of legal methods (statutory or judicial) used to resolve it. This divergence seems surprising, given the universality of the practice, and the common roots of most of the systems of law considered, either in Roman law, or in the rights and obligations of the Crown under the English common law. In the common law jurisdictions this confusion seems in part to be the legacy of Blundell v Catterall. Although the authority of that decision has been acknowledged in some common law jurisdictions, there is little evidence of it being given practical application so as to restrict use on the ground. The development of the law in New Jersey is of particular interest as an illustration of how the law in this country might have developed (and might yet develop) if the view of Best J had prevailed over that of the majority. Usage, custom or implied licence 131. It remains to consider what lessons can be drawn for the present case. In the absence of argument to the contrary we must proceed on the basis that Blundell v Catterall and Brinckman v Matley were rightly decided. It follows that public use of the West Beach during the relevant period cannot be attributed to a general public right to use the foreshore for recreational purposes. Leaving aside the arguments relating to the bye laws under the second issue, there are three possibilities: (a) some form of prescriptive or customary right (b) implied licence (as found by Lewison LJ) (c) trespass tolerated or acquiesced in by the owners (as found by the majority of the Court of Appeal). 132. I mention (a), which is not supported by any of the parties, because it is a possibility left open by the majority in Blundell v Catterall. While it may not be appropriate to the relatively recent use found in this case, it might be relevant as an alternative explanation of long standing recreational uses of beaches more generally. However, as I have said, the legal basis for such a right is unclear. A right gained by prescription, as generally understood, would have had to be related to a particular property, which would not have explained the more general usage found in the case. The alternative, a custom claimed by the inhabitants of any village, parish or district, would accord with the principle that a custom should be linked to a particular locality, rather than for the benefit of the public in general. That was a familiar feature of the law of village greens, which in due course was repeated in the definition of customary village greens in the Commons Registration Act 1965. However, quite apart from the criticisms made by Robert Hall in 1830, there seems to have been nothing in the actual findings before the court to support such a limitation. 133. Explanation (c) that those who use public beaches for recreation without specific authorisation do so as mere trespassers defies common sense. It flies in the face of public understanding, and the reality of their use of the beaches of this country for the last three hundred years or more. 134. Explanation (b) accords with the view of Lewison LJ in the present case. He said he thought that the foreshore should be treated as a special case, for a number of reasons: i) The nature of the land is such that it cannot readily be enclosed. It would be wholly impractical to attempt to enclose it on the seaward side; and even on the landward side any attempt would be fraught with difficulty. ii) Historically the foreshore has been Crown property (although there are private persons who derive title from the Crown) and the Crown would not, in practice, prevent citizens from resorting to the foreshore for recreational purposes. This has been the case since time immemorial, and in those circumstances it is not unreasonable to presume that the Crown has implicitly licensed such activities. iii) Even where the owner of the foreshore does attempt to enforce his strict legal rights, there are serious impediments in obtaining an injunction. iv) Although in theory it is possible to prescribe for rights over the foreshore or to establish a customary right, there is no case in the books where a recreational right over the foreshore has been established. v) It would take very little, having regard to the nature of foreshore and the manner in which it is generally enjoyed, to draw the inference that use is permissive by virtue of an implied licence. 129. Even if this is not, on its own, an independent reason for concluding that the use of the foreshore in this case is precario, it does in my judgment provide the context in which the byelaws are to be interpreted. 135. I agree, but I would put the emphasis on the point (v). It is the character of the foreshore and the use which is traditionally made of it, without question or interference, which leads to the natural inference that it is permitted by the owners in accordance with that tradition. As I said in Barkas (para 61 referring to comments of Lord Scott in Beresford [2004] 1 AC 889, para 34): Lord Scott's analysis shows that the tripartite test cannot be applied in the abstract. It needs to be seen in the statutory and factual context of the particular case. It is not a distinct test, but rather a means to arrive at the appropriate inference to be drawn from the circumstances of the case as a whole. Applying that approach to public use of beaches generally, I see no difficulty in drawing the obvious inference, in the absence of evidence to the contrary, that their use, if not in exercise of a public right, is at least impliedly permitted by the owners, rather than a tolerated trespass. 136. That general approach cannot necessarily be applied without question to the present case. This is not an historic beach, but one created artificially in relatively recent times, as a consequence of the statutory harbour works. Nor was public use accepted without question. As appears from the application for registration, the public were barred for some time after the end of the First World War, and their use only resumed in response to a public protest. There might well be a case for treating what followed as tolerated trespass, or use as of right, had not the whole area been brought under formal regulation by the making of the byelaws. For the reasons given by Lord Neuberger, I agree that thereafter the only possible inference is that the use was permitted by the harbour authorities and was therefore by right. Ground (iii) statutory incompatibility 137. In view of our unanimous conclusion on ground (ii), I would have preferred not to have to reach a decision on ground (iii), which I find much more difficult. I see considerable force, with respect, in the detailed reasoning of Richards LJ in the Court of Appeal, and in particular his reasons for not finding assistance in the Scottish cases ([2014] QB 186 paras 10 28). 138. I see a further problem which may have been touched on before Ouseley J (see his judgment at paras 133, 141 142), but has not been raised by the parties or explored in any depth before us. This concerns the consequences of registration under the 2006 Act. Lord Neuberger and Lord Hodge (para 95), citing Lord Hoffmann in the Oxfordshire case, proceed on the basis that registration of the Beach as a town or village green would make it subject to the restrictions (subject to criminal sanctions) imposed by the 19th century village green statutes. It is easy to see why such restrictions are likely to be incompatible with future use for harbour purposes, even if that has not proved a problem hitherto. 139. However, it is to be noted that the supposed incompatibility does not arise from anything in the 2006 Act itself, but rather from inferences drawn by the courts as to Parliaments intentions. In the relevant passage (para 56), Lord Hoffmann expressed agreement with the courts below on this issue, including by implication my own rather fuller reasoning in the Court of Appeal ([2006] Ch 43 paras 82 90). However, he did not see this issue as impinging directly on the question whether the land should be registered. Having noted and disposed of some of the arguments on the effect of the 19th century statutes, he added: Nor do I follow how the fact that, upon registration, the land would become subject to the 1857 and 1876 Acts can be relevant to the question of whether there has been the requisite user by local inhabitants for upwards of 20 years before the date of the application(para 57). It was not necessary in that case to consider the issue which arises here: that is, the potential conflict between the general village green statutes and a more specific statutory regime, such as under the Harbours Acts. It is at least arguable in my view that registration should be confirmed if the necessary use is established, but with the consequence that the 19th century restrictions are imported subject only to the more specific statutory powers governing the operation of the harbour. 140. In conclusion, for the reasons already given, I agree that the appeal should be allowed.

UK-Abs

Newhaven is a port town on the mouth of the River Ouse in East Sussex; its harbour (the Harbour) has existed since the mid sixteenth century. The Newhaven Harbour and Ouse Lower Navigation Act 1847 established harbour trustees with powers to maintain and support the Harbour and associated works. The Newhaven Harbour Improvement Act 1878, transferred these powers to the Newhaven Harbour Company. That Act also conferred on the Harbour Company the power to make byelaws in the manner prescribed by the Harbours, Docks and Piers Clauses Act 1847. In 1931, byelaws were made regulating access to the Harbour and the use of the Harbour for (among other things) fishing, playing sports or games and dog walking (the Byelaws). The Harbour was subsequently vested in Newhaven Port and Properties Limited (NPP) in 1991 by statutory instrument (the 1991 Newhaven Order). West Beach (the Beach) is part of the operational land of the Harbour, and is subject to statutory provisions and to the Byelaws. NPP is obliged to maintain and support the Harbour and it has powers including the dredging of the sea bed and the foreshore In December 2008 Newhaven Town Council applied to the County Council to register the beach as a town or village green on the basis that it had been used by a significant number of local inhabitants as of right for a period of at least 20 years. The issue raised by this appeal is whether the County Council was wrong in law to decide to register the Beach as a village green under the Commons Act 2006. This was on the basis either: (i) that the public enjoyed an implied licence to use the foreshore and therefore the use was not as of right; (ii) that the public enjoyed an implied licence arising from the Byelaws and therefore the use was not as of right; or (iii) that in any event, the Commons Act 2006 cannot be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function. The Supreme Court unanimously allows the appeal. Lord Neuberger and Lord Hodge (with whom Lady Hale and Lord Sumption agree) give the main judgment, allowing the appeal on both the second and third ground. Lord Carnwath (who writes a concurring judgment) would have preferred not to reach any decision on the third ground as it was not necessary to do so in order to dispose of the appeal. Use as of right means use without any right, whether derived from custom and usage, statute, prescription or express or implied permission of the owner. NPP argued that the public enjoyed an implied licence to use the foreshore for sports and pastimes and therefore that use was not as of right. In the alternative they argued that the public had an implied licence to use the Beach arising from the Byelaws. In the further alternative they argued that the Commons Act 2006 could not be interpreted so as to enable registration in circumstances where registration was incompatible with some other statutory function to which the land was to be put, that is, as a working harbour [23 24]. Implied licence to use the foreshore In the absence of express permission from the owner of the foreshore, there are three possible conclusions on the legal basis of the publics use of the foreshore for bathing; (i) there exists a general common law right to use the foreshore for bathing; (ii) the owner of the foreshore is presumed to permit members of the public to use the foreshore for bathing until the owner revokes this implied permission; or (iii) no such right exists and members of the public who do so are trespassers [29]. However, given the difficulty of the issues raised, it seems that, unless necessary to do so for the purpose of determining this appeal, the Court ought not to determine the first issue; it is therefore best to proceed on the assumption that, so far as the general common law is concerned, members of the public used the Beach for bathing as of right and not by right [50 51] Lord Carnwaths concurring judgment offers further discussion and analysis on the question of public rights over the foreshore and the approach taken in Scotland, New Zealand and the United States [105 140]. Implied licence from byelaws A byelaw can permit an activity which would otherwise be unlawful; there is nothing in the wide words of the 1847 Clauses Act to prevent byelaws created under that Act from creating such a permission [54 56]. Moreover, a prohibition can be expressed in such a way as to imply a permission; a requirement that dogs in a park must be kept on a lead implies a permission to bring dogs into the park [57 58]. A normal speaker of English reading the Byelaws would assume that he or she was permitted to bathe or play provided the activity did not fall foul of the restrictions in the Byelaws [60 63]. The only remaining question was whether the Byelaw needed to be brought to the publics attention for this implied licence to exist. It is not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of land was permitted in order their use to be treated as being by right. In this case there existed a public law right for the public to go onto the land and to use it for recreational purposes, and therefore, the recreational use of the land in question by inhabitants of the locality was by right and not as of right [69 71]. It follows that NPPs appeal should be allowed on the second issue [74]. Statutory incompatibility The statutory scheme for registering town and village greens is analogous to the acquisition of rights over land by long use (prescription) under English and Scots law. Under both English and Scots law, it is not possible to acquire rights by prescription against a public authority which had acquired land for specified statutory purposes and continued to carry out those purposes, when the use of the land would be incompatible with those statutory purposes [91]. The question of incompatibility is one of the statutory construction and some assistance may be obtained from the rule that a later general provision does not depart from an earlier special one [93].The registration of the Beach as a town or village green would make it a criminal offence to damage the green or interrupt its use as a place for exercise and recreation. Registration would clearly be incompatible with the use of the Harbour as a working harbour [95 97]. It follows that the Commons Act 2006 cannot operate in respect of the Beach by reason of statutory incompatibility [101 102].

On 11 May 2004 there was an explosion at ICLs factory in Glasgow. Nine people were killed and many others were injured. Extensive damage was caused to neighbouring properties, including a shop owned by Morrison. On 13 August 2009 Morrison began the present proceedings, in which it seeks damages against ICL on the basis that the damage to its shop was caused by ICLs negligence, nuisance and breach of statutory duty. The proceedings are defended on the basis that any obligation owed by ICL to make reparation to Morrison had prescribed before the proceedings began. The relevant prescriptive period is five years, by virtue of section 6(1) of the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act). Morrison argues however that the prescriptive period did not begin to run until long after the explosion occurred, since it was not aware, and could not with reasonable diligence have been aware, that the damage had been caused by negligence, nuisance or breach of statutory duty until a much later date. In that regard, Morrison relies upon section 11(3) of the 1973 Act. In the courts below, the case proceeded on the footing that section 11(3) was to be interpreted as meaning that the commencement of the prescriptive period was postponed where the creditor in the obligation was not aware, and could not with reasonable diligence have been aware, (1) that loss, injury or damage had occurred, and (2) that it had been caused by the breach of a duty owed to him. That interpretation was in accordance with a number of authorities. There was no doubt that Morrison knew that damage had occurred on the date of the explosion. In order to establish that it also knew or could with reasonable diligence have known at that date, or soon after, that the explosion had been caused by a breach of duty, ICL relied on the principle expressed in the maxim res ipsa loquitur. The rationale of that approach is not immediately obvious, since the principle res ipsa loquitur is not concerned with the establishment of knowledge on the part of a pursuer, whether actual or constructive. The principle belongs to the law of evidence, and refers to circumstances from the establishment of which an inference of negligence can be drawn, so as to shift the evidential burden of proof to a defender. It appears to have been considered relevant in the present context because of a gloss placed in some recent decisions upon the earlier interpretation of section 11(3) as postponing the commencement of the prescriptive period until the creditor is aware, actually or constructively, that the damage has been caused by the breach of a duty owed to him. In reality, a creditor often cannot be aware of that until the circumstances and their legal consequences have been established after proof. The earlier interpretation of section 11(3) has therefore been refined in some recent decisions, as I shall explain, so as to postpone the commencement of the prescriptive period until the creditor has sufficient knowledge, actually or constructively, to enable a stateable prima facie claim properly to be advanced. On that approach, the law of evidence would have a bearing on the matter. ICL succeeded before the Lord Ordinary, Lord Woolman, on the basis that the principle res ipsa loquitur applied in the circumstances of the explosion: [2012] CSOH 44; 2012 SLT 813. Morrison succeeded before the Inner House, on the basis that it did not: [2013] CSIH 19; 2013 SC 391. ICL then appealed to this court, where it has been permitted to raise the more fundamental issue of the correct interpretation of section 11(3). The statutory provisions governing prescription Section 6(1) of the 1973 Act provides: (1) If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years (a) without any relevant claim having been made in relation to the obligation, and (b) without the subsistence of the obligation having been relevantly acknowledged, then as from the expiration of that period the obligation shall be extinguished. The obligations to which section 6 applies include any obligation arising from liability to make reparation (Schedule 1, para 1(d)), subject to specified exceptions. The appropriate date, when the five year period begins to run, is defined by section 6(3) as meaning the date when the obligation became enforceable, subject to specified exceptions, none of which is relevant to the present case. the 1973 Act provides: In relation to the date when the obligation became enforceable, section 11 of (1) Subject to subsections (2) and (3) below, any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred. (2) Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased. (3) In relation to a case where on the date referred to in subsection (1) above (or, as the case may be, that subsection as modified by subsection (2) above) the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware. Section 11(3): the problem The interpretation of section 11 has to begin with the text itself. The opening words of section 11(1) (Subject to subsections (2) and (3) below) make it clear that that subsection sets out the general rule, which applies without modification in all circumstances other than those covered by subsections (2) and (3). The general rule applies to any obligation to make reparation for loss, injury or damage caused by an act, neglect or default. The general rule is that the obligation is to be regarded as having become enforceable on the date when loss, injury or damage occurred. The phrase act, neglect or default has appeared in statutory provisions concerned with limitation periods since the Public Authorities Protection Act 1893. It appeared, in particular, in section 6(1)(a) of the Law Reform (Limitation of Actions) Act 1954 (the 1954 Act), which was the predecessor of section 17(1) of the 1973 Act. The meaning of the phrase in that context was considered by the House of Lords in Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 SC (HL) 92. Lord Reid construed default as meaning breach of duty (p 109). Lord Keith of Avonholm was of the opinion that the phrase did not refer to a historical event, as the Inner House had considered in that case, but referred to negligence or a failure of duty (p 111). Lord Denning, echoing the Book of Common Prayer, stated at p 115: The words act, neglect or default are perhaps a little tautologous: for act in legal terminology often includes an omission as well as an act of commission: and default certainly includes neglect. But tautologous as they may be, the words are apt to cover all breaches of legal duty, no matter whether it be by leaving undone those things which we ought to have done, or by doing those things which we ought not to have done. Given that the phrase had been authoritatively determined to have that meaning in legislation which was repealed and replaced by the 1973 Act, Parliament can be presumed to have intended it to bear the same meaning in section 11(1). So understood, section 11(1) establishes a general rule that an obligation to make reparation is to be regarded for the purposes of prescription as having become enforceable on the date when loss, injury or damage has occurred (traditionally denoted by the Latin term damnum) which has been caused by an act, neglect or default (injuria): in other words, when the relevant right of action arises. This was explained by Lord Keith of Kinkel in Dunlop v McGowans 1980 SC (HL) 73, 81: The language of section 11(1) affords no warrant for splitting up the loss, injury or damage caused by an act, neglect or default. An obligation to make reparation for such loss, injury and damage is a single and indivisible obligation, and one action only may be prosecuted for enforcing it. The right to raise such an action accrues when injuria concurs with damnum. Some interval of time may elapse between the two, and it appears to me that section 11(1) does no more than to recognise this possibility and make it clear that in such circumstances time is to run from the date when damnum results, not from the earlier date of injuria. The words loss, injury and damage in the last line of the subsection refer back to the same words in the earlier part and indicate nothing more than the subject matter of the single and indivisible obligation to make reparation. Section 11(2) then sets out a special rule which applies where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default. Loss, injury or damage must therefore have been caused by an act, neglect or default, as in subsection (1). What is special is that the act, neglect or default is of a continuing nature, and that loss, injury or damage has occurred before the cessation of the act, neglect or default. In that situation, the right of action arises as soon as any material loss is suffered as a result of the default. The prescriptive period does not however begin to run on that date: the loss, injury or damage is deemed, for the purposes of subsection (1), to have occurred on the date when the default ceased. For the purposes of prescription, therefore, the loss is deemed to have occurred on a later date than (some of) it actually did. Section 11(3) sets out another special rule, which applies where, on the date when loss, injury or damage occurred (or, in the case of loss, injury or damage resulting from a continuing act, neglect or default, the date of the latters cessation), the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred. In that situation, subsection (1) is to have effect as if for the reference to the date when loss, injury or damage occurred there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware. As Lady Paton observed, in delivering the opinion of the Inner House, section 11(3) might prima facie be thought to refer solely to latent damage (para 29). Just as section 11(2) reflects the view that continuing damage requires some adaptation of the general approach laid down in section 11(1), on the basis that the date when a right of action arises is not in that situation the appropriate date for the commencement of the prescriptive period, so the same is also true of latent damage. In that situation, the right of action arises, and may subsist for more than five years, before the creditor is aware that he has suffered damage. It therefore makes sense to postpone the commencement of the prescriptive period. Section 11(3) does not however say merely that it applies where the creditor was not aware that loss, injury or damage had occurred: it applies where the creditor was not aware that loss, injury or damage caused as aforesaid had occurred (emphasis added). The words caused as aforesaid refer back to the words caused by an act, neglect or default in section 11(1). Does that therefore mean that section 11(3) applies not merely in cases of latent damage, but in every case where the creditor was not aware, at the time when the loss occurred, that it had been caused by an act, neglect or default? The competing interpretations Section 11(3) is capable of being read in two different ways. One possibility is to read the word aware as referring to the loss, injury or damage, and to treat the phrase caused as aforesaid as adjectival. The subsection is then read as if it said: the creditor was not aware that loss, injury or damage, which had been caused as aforesaid, had occurred. The creditor has then to be aware only of the occurrence of loss, while the words caused as aforesaid connect the loss to the cause of action. The other possibility is to read the word aware as referring not only to the loss, injury or damage but also to the fact that it has been caused as aforesaid. The subsection is then read as if it said: the creditor was not aware that loss, injury or damage had occurred, and that it had been caused as aforesaid. Since the words caused as aforesaid refer back to section 11(1) and mean caused by an act, neglect or default, the creditor then has to be aware of a composite of fact and law, comprising the occurrence of loss and the act, neglect or default which caused it, actionability being an element of the concept of an act, neglect or default. Lord Clyde adopted the latter reading of section 11(3) in Greater Glasgow Health Board v Baxter Clark & Paul 1990 SC 237 and Kirk Care Housing Association Ltd v Crerar & Partners 1996 SLT 150, both decisions in the Outer House. The Inner House expressed their agreement with that approach in Glasper v Rodger 1996 SLT 44, in a judgment delivered by Lord President Hope, although that case did not raise any question as to the effect of the words caused as aforesaid. Later cases have followed the same approach without further reassessment at the appellate level. The views of such distinguished judges as Lord Clyde and Lord Hope deserve great weight and respect. Nevertheless, I have reached a different conclusion as to the proper interpretation of section 11(3), for a number of reasons. First, I am inclined to think that the first of the interpretations suggested in paras 16 and 17 is the more natural reading as a matter of ordinary English. I recognise however that others may take a different view. More significantly, I am inclined to think that, if the draftsman had intended to require awareness of the cause of the loss, injury or damage before the prescriptive period would begin to run, that would have been a matter of such importance that he would have been likely to make that intention clearer. In that regard, section 11(3) can be contrasted with section 18(3) of the 1973 Act as originally enacted, which postponed the commencement of the limitation period applicable in cases of personal injury where the material facts relating to that right of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the pursuer. Such facts were defined by section 22(2) as being: (a) the fact that personal injuries resulted from a wrongful act or omission; (b) the nature or extent of the personal injuries so resulting; (c) the fact that the personal injuries so resulting were attributable to that wrongful act or omission, or the extent to which any of those personal injuries were so attributable. Although there are significant differences between prescription and limitation, the point can nevertheless be made that sections 18(3) and 22(2) illustrate that where it was intended that the limitation period was not to run so long as there was a lack of awareness of particular matters, the draftsman made it clear, by express language, what those matters were. If it had been Parliaments intention, in relation to section 11(3), that the prescriptive period was not to run so long as there was a lack of awareness of matters other than the occurrence of loss, injury and damage, one could reasonably expect that that would have been made equally clear. The contrast is equally striking if section 11(3) is compared with section 17(2)(b) of the 1973 Act as amended by the Prescription and Limitation (Scotland) Act 1984. The latter provision postpones the commencement of the limitation period until the pursuer was actually or constructively aware of a number of specified facts, including (ii) that the injuries were attributable in whole or in part to an act or omission. The effect of Lord Clydes interpretation of section 11(3) is to postpone the commencement of the prescriptive period until the creditor was actually or constructively aware of a more complex matter relating to causation (namely that the loss was caused by an actionable breach of duty) without there being comparably specific statutory language. The principal counter argument is that the words caused as aforesaid are unnecessary, on the reading which I prefer, and that statutes should be construed so as to avoid tautology. That is not in my opinion a persuasive argument. In the first place, as Lord Rodger of Earlsferry remarked, cautious tautologous drafting used to be typical of much of the statute book (Ghaidan v Godin Mendoza [2004] UKHL 30; [2004] 2 AC 557, para 107). Secondly, the words in question are not in my opinion truly tautologous, if section 11(3) is interpreted as I have suggested. They connect the loss to the cause of action, like the corresponding words in section 11(1) and (2). As Lord Keith explained in Dunlop v McGowans, there is a legal nexus between the loss which is the subject matter of the obligation to make reparation and the default causing the loss. The words caused as aforesaid make it clear that it is only knowledge of loss caused by the default relied upon by the creditor (as distinct from loss arising from any other cause) which is relevant in determining whether the obligation has prescribed. Two other counter arguments were accepted by Lord Clyde in the Greater Glasgow Health Board case. One was that the logic of the scheme points to a requirement of knowledge that the right of action exists before the obligation is deemed to be enforceable. Lord Clyde did not however explain what he considered the logic of the scheme to be, or the basis on which he arrived at that view. The second counter argument was that it was difficult to give much content to the reference to reasonable diligence, if it applied only to knowledge that loss had occurred. It is true that the greater the range of matters of which the creditor must be aware, the greater the scope for diligent inquiry. That does not however entail that section 11(3) must be given an expansive interpretation. Reasonable diligence is an appropriate standard by which to attribute constructive knowledge of the fact that loss, injury or damage has occurred. The interpretation of section 11(3) which I prefer is also consistent with my initial impression that the subsection is intended to deal with latent damage. So understood, section 11(3) follows the same approach as section 11(1) and (2). The general rule laid down by section 11(1) focuses on the occurrence of loss: the timing of its occurrence determines the date on which the prescriptive period begins. Section 11(2) addresses the problem which could otherwise arise where loss results from a continuing default, by providing a deemed date for the occurrence of loss, which is to be used instead of the actual date for the purposes of section 11(1). Section 11(3) addresses the problem which could otherwise arise where there is latent damage, namely that the creditor is unaware of its occurrence, by requiring the date of actual or constructive knowledge of its occurrence to be used instead for the purposes of section 11(1). If section 11(3) is so interpreted, all three subsections share a common focus upon the occurrence and timing of loss. There are two further, and in my opinion compelling, reasons for rejecting the interpretation of section 11(3) favoured by Lord Clyde. The first is the sheer oddity of postponing prescription according to the creditors knowledge that an act or omission is actionable. If he has to be aware that the loss was caused by an act, neglect or default, then it follows from Watson v Fram that he has to be aware that there has been a breach of a legal duty owed to him, as was accepted in the Greater Glasgow Health Board case and the other authorities I have mentioned. As it was put in Glasper v Rodger at p 47, the lack of awareness which requires to be established for the purposes of section 11(3) is a lack of awareness that a loss has occurred caused by an act, neglect or default which gives rise to an obligation to make reparation for it. That however results in a number of unlikely consequences. It means, in the first place, that prescription will run more or less quickly according to the creditors awareness of the law. If he receives accurate advice from his solicitor, it will begin on one date; if the advice is inaccurate, it will begin on another. If there are a number of creditors who suffer loss as a result of the same event, their claims may prescribe on different dates, depending on the legal advice which they receive. That runs contrary to the legal certainty which is the objective of prescription, and seems unlikely to have been the intention of Parliament. More fundamentally, in what sense can the creditor be aware that there has been a breach of duty, in advance of a judicial determination of the issue? Does being aware require certainty of success in a claim, or probability, or something less? In practice, even if the creditor has received legal advice, he is likely, at best, to be aware only that he has good prospects of success. If the advice has been less optimistic, he may be aware that he has reasonable prospects of success, or that he has an arguable case. Some recent decisions in the Outer House have sought to address this difficulty by glossing the phrase aware . that loss, injury or damage caused as aforesaid had occurred as meaning aware that a stateable prima facie claim could properly be advanced against someone (AMN Group Ltd v Gilcomston North Ltd [2008] CSOH 90; 2008 SLT 835, para 58; Pelagic Freezing (Scotland) Ltd v Lovie Construction Ltd [2010] CSOH 145, para 111). This test is however much less precise than one would expect in a context in which certainty is important, relying as it does on such uncertain standards as what may be regarded as stateable and what could properly be advanced. The gloss also seems to me to be reading more into the statutory language than it will bear. On the other hand, without some such gloss, it is difficult to see how the problem raised in para 28 can be addressed. An approach to the interpretation of section 11(3) which leads to impalement on one branch or other of Mortons Fork is not an attractive starting point. Lord Hodge and Lord Toulson, while agreeing with Lord Clyde that section 11(3) requires the creditor to be aware that loss was caused as aforesaid, depart from Lord Clydes approach by not relating those words back to the words caused by an act, neglect or default in section 11(1). Instead, they interpret the words caused as aforesaid as meaning caused by an act or omission, without any implication that the act or omission is actionable. They suggest that this approach is consistent with the policy of the provision. This approach seems to me to be one which might be recommended for adoption as a matter of law reform: indeed, recommendations to that effect were included among those made by the Scottish Law Commission in its Report on Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (1989) (Scot Law Com No 122), paras 2.36 and 2.55. Those recommendations have not however been implemented by Parliament. It is not possible in my opinion for this court to reach the same result by interpretation of the words used in section 11(3). In the first place, Lord Clyde and Lord Hope were in my opinion correct to construe the words caused as aforesaid as referring back to the phrase caused by an act, neglect or default in section 11(1). That is to my mind the only possible meaning of the words as aforesaid, since section 11(1) contains the only prior reference in the section to causation. If Parliament had intended caused as aforesaid to mean caused by an act or omission, it could not have said as aforesaid, since there are no words with that meaning elsewhere in section 11. It also seems to me that it would make little sense to postpone the commencement of the prescriptive period until the creditor was aware of one fact which was critical to his bringing proceedings in respect of his loss, namely that it had been caused by an act or omission, but unaware of another, namely the identity of the person responsible. Such an arbitrary result would in my view serve no discernible policy. While Lord Hodge and Lord Toulson consider that it would be strange if the prescriptive period were to run before the creditor had sufficient awareness of the facts about what had caused him to suffer loss to be able reasonably to raise an action, it would seem to me to be stranger still to postpone the running of time until he knew what had caused him to suffer loss, but not who. In so far as Lord Hodge and Lord Toulson suggest that their interpretation is consistent with the policy which they attribute to the provision, I would also comment that I cannot see any basis for inferring such a policy other than their interpretation of section 11(3) itself. Such a policy cannot in particular be inferred from the report of the Scottish Law Commission which preceded the 1973 Act: see its report on Reform of the Law Relating to Prescription and Limitation of Actions in Scotland (1970) (Scot Law Com No 15), para 97, and its later memorandum, Prescription and Limitation of Actions (Latent Damage) (1987) (No 74), paras 2.9 and 4.6. Legal certainty Although all the members of this court agree that the interpretation hitherto placed on section 11(3) does not correctly reflect the intention of Parliament, careful consideration nevertheless has to be given to the overturning, with immediate effect, of an interpretation of a statutory provision relating to prescription which has been followed for many years. That is because of the potential impact on persons who may have conducted their affairs on the basis of the existing interpretation and might be prejudiced by the change. In the present context, however, counsel were agreed that parties with claims falling within the scope of section 11(3) were unlikely to have been advised to delay in initiating proceedings in reliance upon the existing authorities. It is also fair to observe that, although the approach adopted in the authorities I have mentioned has been followed for many years, it rests on slender foundations for a matter of such importance (as I have explained at para 18), and its correctness has not gone unquestioned: see, for example, Ghani v Peter T McCann & Co 2002 SLT (Sh Ct) 135; Adams v Thorntons WS 2005 1 SC 30; and particularly Johnston, Prescription and Limitation, 1st ed (1999), para 6.97, 2nd ed (2012), para 6.96 (this interpretation has been adopted in the face of cogent argument to the contrary). Like Lord Hodge, I would not regard it as settled law. Res ipsa loquitur It follows that, on a correct interpretation of section 11(3), the principle expressed by the maxim res ipsa loquitur is of no relevance to the application of the subsection. I am however in agreement with Lord Hodges observations on that subject. Conclusion LORD NEUBERGER I agree with the judgment of Lord Reed and would accordingly allow this appeal. However, in the light of the fact that a different conclusion has been reached by Lord Hodge and Lord Toulson as to the interpretation of section 11(3) of the Prescription and Limitation (Scotland) Act 1973, I will express my reasons on that issue in my own words. In these circumstances I would allow the appeal. The history of this case is set out by Lord Hodge in paras 59 63, but the basic facts are these. A serious explosion at ICLs premises occurred on 11 May 2004, and extensively damaged adjacent premises owned by Morrison. Morrison obtained access to its premises in June 2004, and contends that it could not have obtained a reliable expert report on the cause of the explosion until after mid August 2004. In August 2007 ICL pleaded guilty to breaches of the health and safety legislation, and in July 2009 a report was published identifying the explosion as an avoidable tragedy resulting from a number of failures by ICL. Morrison issued the current proceedings for reparation for the damage to its property and for lost profits against ICL on 13 August 2009. ICL admit that, but for one point, it would be liable to pay Morrison such reparation (although the question of quantum is not agreed). That one point is that Morrisons claim was extinguished as it was raised more than five years after the date when it could have raised its claim. That argument raises a short issue, namely the meaning of section 11, and in particular the meaning of the expression loss, injury or damage caused as aforesaid in section 11(3), of the 1973 Act. Section 6(1) of the 1973 Act by virtue of section 6(2) and para 1(d) of Schedule 1, applies to any obligation arising from liability to make reparation. It provides that (subject to certain irrelevant exceptions) where such an obligation has subsisted for a continuous period of five years without a claim being brought or a relevant acknowledgment having been made, then as from the expiration of that period the obligation shall be extinguished. Section 11 of the 1973 Act is set out in para 66 of Lord Hodges judgment and in para 8 of Lord Reeds judgment. Section 11(1) provides that, [s]ubject to subsections (2) and (3), for the purposes of section 6 any obligation to make reparation for loss, injury or damage should be regarded as having become enforceable on the date when the loss, injury or damage occurred. Section 11(2) provides that where as a result of a continuing act, neglect or default loss, injury or damage occurs, the loss, injury or damage should be deemed to have occurred when the act, neglect or default ceased. Section 11(3) applies to a case where on the date referred to in subsection (1) the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred. In such a case, section 11(3), provides that section 11(1) has effect as if the date there referred to was when the creditor first became, or could with reasonable diligence have become, so aware. It is, rightly, common ground that, subject to subsections (2) and (3), under section 11(1), ICLs obligation . to make reparation for loss, injury or damage arose on 11 May 2004, the date of the explosion, as that was the date on which the loss, injury or damage occurred. It is also, again rightly, common ground that section 11(2) has no application: the explosion was by no stretch of the imagination a continuing act. Accordingly, subject to it being able to rely on section 11(3), Morrisons claim became extinguished on 11 May 2009, and hence it started its claim three months too late. The issue therefore turns on section 11(3). ICL contends that Morrison must have been aware that loss, injury or damage had occurred on the very day that the explosion took place (or possibly a day later), and, if for some reason it had not been so aware, it seems clear that it could with reasonable diligence have [been] so aware), and accordingly section 11(3) is of no assistance to Morrison. Morrison, on the other hand, lays stress on the words caused as aforesaid after the words loss, injury or damage, and contends that those words carry with them a requirement that that the creditor knows the cause of the loss, injury or damage, and that this could not have happened until late August 2004 at the earliest, when a promptly instructed expert would have reported. The issue therefore is whether the words caused as aforesaid have the effect contended for by Morrison. On ICLs case, the three words merely describe or identify the loss, injury or damage of which the creditor has to be aware. On Morrisons case, the three words extend the scope of the creditors required awareness from the loss, injury or damage to the cause of that loss, injury or damage. As a matter of ordinary language, the three words simply amount to an adjectival phrase, which serves to describe the words which precede them, rather than being words which add a requirement of causation to the scope of the creditors required awareness. The words aware . that loss caused as aforesaid had occurred simply do not naturally mean aware that loss had occurred and that it had been caused as aforesaid. They mean aware that loss, which had been caused as aforesaid, had occurred. That reading is reinforced by the point that, if the drafter had intended a creditor to be aware of the cause of the injury before time began running, one would have expected that intention to have been spelled out clearly. That is not, of course, necessarily the end of the matter, as interpretation of statutes is not merely an exercise in linguistics. While the natural meaning of an expression or a provision is as good a place as any (and very often the best place) to start, it is seldom, if ever, the only factor to take into account. I would accept that if there were other good reasons to do so, it may well be appropriate to depart from the natural meaning of section 11(3), and in particular the words caused as aforesaid, and to give those words the less natural meaning for which Morrison contends. I turn to consider the various reasons put forward by Morrison. First, there is the point that the words caused as aforesaid are surplusage on ICLs case. I am unimpressed with that point. A cautious drafter of the 1973 Act could easily have thought it appropriate to emphasise that in section 11(3) he was referring only to loss, injury or damage which had been caused as described in section 11(1). Cautious drafters of statutes and contracts often include protective or qualifying words which are not strictly necessary, and it would hinder clarity and certainty in the law, and seriously risk subverting the parliamentary or contractual intention, if judges started giving such expressions unnatural meanings simply to avoid them being surplusage. A second and similar point is that, if the drafter intended the words to have the effect contended for by ICL, he would have simply said the aforesaid loss, injury or damage rather than the more cumbersome and specific loss, injury or damage caused as aforesaid. I consider that that argument suffers from the same sort of problem as the first point. In addition, the drafter may well have thought that the more simple formulation (which anyway only has one less word) could lead to an ambiguity, as it might be argued that it referred to the immediately preceding reference to loss, injury or damage, namely that in subsection (2). By using the phrase that he did, including the word caused, which is not found in subsection (2), the drafter made it clear that he was referring to the loss, injury or damage mentioned in subsection (1). A third point is the contrast between section 11(2), which simply refers to loss, injury or damage and section 11(3), which refers to loss, injury or damage caused as aforesaid. I am not impressed with that point either. It is a big jump to conclude that the distinction justifies a significant and non natural meaning being given to the words caused as aforesaid. But, quite apart from that, the very different ways in which subsections (2) and (3) are structured satisfies me that it is unsafe to draw any conclusions from the inclusion of the three words in the latter subsection when they are not in the former. In particular the words as a result of in subsection (2) tie the loss, injury or damage to the continuing act, neglect or default, and so, even a cautious draftsman would have regarded it as unnecessary to include the words caused as aforesaid in subsection (2). Fourthly, there is section 17, whose provisions are set out and explained by Lord Hodge in para 67. Morrison contends that its interpretation of section 11(3) has the merit of consistency of approach with section 17 of the 1973 Act. I see no reason why the same principles should apply to prescription under section 11 and section 17: they relate to different types of claim and have different primary prescription periods. Indeed, in my view, far from supporting Morrisons case, section 17 assists ICLs case. Where the legislature wishes to provide that time does not start running for limitation or prescriptive purposes until an injured party knows or should know that an injury was caused by a defenders act or omission, it is spelled out in clear terms. Fifthly, there is the argument as to what, on Morrisons case, a creditor has to be aware of before times starts to run. In that connection, the clear provisions of section 17 highlight a problem with Morrisons interpretation: the words caused as aforesaid are ambiguous on its case, as they could mean caused by some actionable wrong or they could mean caused by some act or omission, which may or may not turn out to be an actionable wrong. This sort of uncertainty is reflected in the discussion in paras 81 94 of Lord Hodges judgment, as well as in paras 27 29 of Lord Reeds judgment. Sixthly, there are policy issues. Both parties advanced arguments based on policy, and I am unimpressed with those arguments in this case. The imposition of prescription and limitation periods inevitably involve balancing competing public and individual interests. In particular, it involves balancing the public interest in valid claims being litigated and legal wrongs being righted with the public interest in claims not lingering over the heads of potential defenders and claims not being difficult to dispose of justly due to their antiquity. Similarly, it is an area which throws up another, familiar, tension: on the one hand, it is desirable to have general and clear rules about limitation, even if they occasionally appear to produce a harsh result; on the other hand, it is sometimes appropriate to have specific exceptions to avoid too many unfairnesses. I see no particular policy reasons for adopting either interpretation in the present case, as each of them seems to me to result in a defensible and appropriate outcome. Seventhly, and connected with the sixth point, there is the alleged unfairness on a potential pursuer if time runs against him from the date he knows of the injury, even though he may not know of the identity of the person who caused the injury or what the cause of the injury was. In my view, the legislature could perfectly reasonably have assumed that in almost every case, five years from the date of discovery of loss, injury or damage would represent plenty of time for the injured party to discover all he needs to know to bring proceedings. The fact that there may be a very rare case where five years may not be enough is simply an example of the inevitable consequence of the compromise which limitation law involves. After all, even under the interpretation favoured by Lord Hodge there could be potential unfairnesses in individual and unusual cases, sometimes to pursuers and sometimes to defenders. Finally, there is the fact that there is a number of cases where Scottish judges have held that the interpretation advanced in these proceedings by Morrison is correct. Those decisions are discussed by Lord Hodge in paras 69 and 70. There are occasions when it is right for a court to accept that a statute should be accorded a meaning which would not otherwise appear to the court to be right, because that meaning has been generally accepted. However, in the present case, there is simply the fact that, since 1985, Scottish courts have held that section 11(3) has a certain meaning. This is not a case, for instance, where it can be said that Parliament has impliedly approved that interpretation, or assumed that it is correct. I do not consider that the mere fact that, over some decades, successive judges, however eminent, have come to, or assumed, a conclusion which a superior court thinks is wrong, justifies that court holding that that meaning is correct. Indeed, in the present case, as Lord Hodge explains in para 68, the leading textbook on the topic of prescription and limitation makes it clear, and would have made it clear to practitioners, that the interpretation of section 11(3) is a live issue. I also note that as long ago as 1987, the Scottish Law Commission suggested that the interpretation being adopted by the Scottish courts was not in accordance with the Commissions views Consultative Memorandum No 74 (1987). For these reasons, which are little more than a summary of Lord Reeds reasons, and differing with diffidence from Lord Hodge and the other distinguished Scottish judges who have consistently taken the opposite view, I would allow this appeal. LORD HODGE (dissenting, with whom Lord Toulson agrees) This appeal raises two questions concerning the Scots law of prescription, which extinguishes obligations through the passage of time. First, what is the nature of the actual or constructive awareness required of a pursuer in order to start the running of the prescriptive period? Secondly, of what is the pursuer to be aware? A third and subordinate question concerns the doctrine of res ipsa loquitur. Background facts On 11 May 2004 a serious explosion occurred at the factory premises of the appellants (ICL) at Grovepark Mills, Maryhill, Glasgow, causing the substantial collapse of the building. Nine people were killed and others were seriously injured. The shop owned by the respondent (Morrison), which was adjacent to ICLs premises, suffered extensive damage. After the accident the police sealed off the area around ICLs premises, including Morrisons shop. Morrison was not allowed access to its premises until June 2004 and had then to deal with its damaged stock and the risk of asbestos contamination. ICLs premises remained under the control of the Crown Office. On about 21 June 2004 ICL petitioned the Court of Session for judicial review of the procurator fiscals decision to refuse it access to its premises to investigate the cause of and legal responsibility for the explosion. The Crown Office released ICLs premises from its control on 12 July 2004. Morrison avers that it was unlikely that, having ascertained that the premises had been released, it could have arranged for experts to inspect the fire damaged premises and have obtained an expert report on the cause of the explosion so as to be able to commence legal proceedings before 13 August 2004. Morrison avers that speculation about a number of possible causes of the explosion continued and that in late 2005 the media were still reporting that the cause of the accident had not been established. In February 2006 the Crown Office announced its intention to bring criminal proceedings against two of the appellants (ICL Plastics Ltd and ICL Tech Ltd), and on 17 August 2007 those companies pleaded guilty to breaches of the Health and Safety at Work etc Act 1974. On 1 October 2007 the Lord Advocate announced that a public inquiry would be held into the explosion. That inquiry, which Lord Gill chaired, reported in July 2009. It pointed to a number of failures, including by ICL companies, which led to what was an avoidable tragedy. On 13 August 2009 Morrison raised this action, in which it seeks reparation for the damage to its property, and for lost profits and other costs. ICL admitted that it had had a liability to make reasonable reparation to Morrison but pleaded that its obligation to do so had prescribed. According to ICL, Morrison had sufficient knowledge to raise an action against it on the day of the explosion, more than five years earlier. The legislation The Prescription and Limitation (Scotland) Act 1973, as its title shows, covers both prescription and limitation. The rules of negative prescription (both the five year short negative prescription and the twenty year long negative prescription) are rules of substantive law and involve the extinction of rights through the passage of time. Limitation on the other hand is a procedural rule relating to personal injury claims. It has to be pleaded as a defence and a defender can waive it. If the plea is successful, it bars an action from proceeding in court after the lapse of the statutorily specified time. Negative prescription and limitation are thus conceptually different. But the sections of the 1973 Act on the short negative prescription, with which we are concerned in this appeal, and the provisions in that Act on limitation both address the circumstances in which a pursuers lack of actual or constructive knowledge postpones the starting of a clock. The basic relevant rule of the short negative prescription, in section 6 of the 1973 Act, is that if an obligation has subsisted for five years after the date when it became enforceable, without a relevant claim having been made or the subsistence of the obligation having been relevantly acknowledged, that obligation is extinguished as from the end of that period. That rule applies to any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation (para 1(d) of Schedule 1 to the 1973 Act). Section 11 sets out the relevant rules in relation to such obligations to make reparation. It provides so far as relevant: (1) Subject to subsections (2) and (3) below, any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred. (2) Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased. (3) In relation to a case where on the date referred to in subsection (1) above (or, as the case may be, that subsection as modified by subsection (2) above) the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware. (my underlining) Thus subsection (3) postpones the start of the five year prescriptive period where the pursuer does not have the specified actual or constructive awareness. Section 17 of the Act, which deals with the limitation of personal injury actions, establishes as a general rule that the action must be commenced within a period of three years after the date when the injuries were sustained or, if later, the date when the act or omission, to which the injuries were attributable, ceased (section 17(2)(a)). This general rule is again qualified by a provision which postpones the start of the period of limitation when the pursuer does not have the specified actual or constructive knowledge. While section 17(2)(b), like section 11(3), uses the concept of awareness, it is much more explicit as to what the pursuer must be aware of. It provides that no action shall be brought unless it is commenced within a period of three years after: the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts (i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree; (ii) that the injuries were attributable in whole or in part to an act or omission; and (iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person. Unlike section 11(3), this provision makes it clear that the pursuers awareness is of specified factual matters. Section 22(3) confirms the irrelevance of legal knowledge of the actionability of the act or omission: see para 80 below. The English Law Reform Committee in its 24th report, Latent Damage (November 1984, Cmnd 9390) recognised (at para 4.7) the possibility that section 11(3) might not cover such matters. It decided to model what became section 14A of the Limitation Act 1980 on section 14 of that Act rather than section 11(3) of the Scottish Act because it was arguable that section 11(3) did not cover lack of knowledge of the causation of the damage or the identity of the persons responsible. Similarly, in its Report on Prescription and Limitation of Actions (Latent Damage and Other Related Issues) (Scot Law Com No 122), the Scottish Law Commission recorded in 1989 that, notwithstanding the first case that I mention below, there was doubt whether the discoverability formula in section 11(3) required knowledge of the cause of the damage. It recommended that the law be clarified by amending the legislation to state expressly that the discoverability formula included knowledge (a) that the loss, injury and damage was attributable in whole or in part to an act or omission and (b) of the identity of the defender. There has been no legislation to implement that report. David Johnston QC in his impressive book, Prescription and Limitation (2nd ed. 2012), also recognises that there are several ways in which section 11(3) can be read: he suggests that it might require awareness of (a) the facts of the loss, its cause and the identity of the defender, or (b) only the fact of the loss, or (c) the facts of the loss and of its being caused by negligence (para 6.96). The resolution of this uncertainty is the main issue in this appeal. Nonetheless, there has for almost 30 years been a consistent line of Scottish case law which has treated the words caused as aforesaid not as merely adjectival but as imposing a requirement of knowledge of causation. The first case was Dunfermline District Council v Blyth & Blyth Associates 1985 SLT 345, in which Lord McDonald said, obiter, that the creditor had to know that the loss which he had suffered occurred in circumstances giving rise to an obligation upon someone to make reparation to him. Lord Clyde adopted the same approach in Greater Glasgow Health Board v Baxter Clark & Paul 1990 SC 237 (GGHB), again in an obiter discussion. He held that the ordinary and natural meaning of the phrase caused as aforesaid included the distinct ingredient of causation by negligence (p 251). This was consistent with the logic of the statutory scheme, which was that a right of action was enforceable only once the pursuer could know that it existed (p 252). He also expressed the view that if the section required only knowledge of loss, there would be little content to the reference to reasonable diligence in the discoverability formula. But he was not persuaded that that formula required knowledge of the person on whom the obligation lay (also p 252). Lord President Hope, delivering the opinion of the First Division in Glasper v Rodger 1996 SLT 44, approved Lord Clydes decision in GGHB and suggested that section 11(3) looked for an awareness, not only of the fact of loss having occurred, but of the fact that it is a loss caused by negligence (p 47G). In Kirk Care Housing Association Ltd v Crerar and Partners 1996 SLT 150, Lord Clyde reiterated his view, rejecting a challenge by counsel for the defenders that section 11(3) was concerned only with awareness of loss, a matter of fact, and not with matters of legal liability. The courts have applied an interpretation consistent with the approach in GGHB and Glasper in several other cases, including an Extra Division of the Inner House of the Court of Session in Beveridge & Kellas WS v Abercromby 1997 SC 88, Lord MacFadyen in Britannia Building Society v Clarke 2001 SLT 1355 and Lord Menzies in Pelagic Freezing Ltd v Lovie Construction Ltd [2010] CSOH 145. In Ghani v Peter T McCann & Co 2002 SLT (Sh Ct) 135 Sheriff Principal Bowen expressed doubts about the soundness of the discussion in GGHB because he considered that knowledge that the loss was caused by negligence was not knowledge of fact and suggested that knowledge of loss was sufficient for time to run. Nevertheless, he followed GGHB and Glasper. More recently, in AMN Group Ltd v Gilcomston North Ltd 2008 SLT 835, Lord Emslie, addressing an argument that section 11(3) did not require knowledge that the causal act or omission was actionable, held (in para 32) that a construction of the statutory phraseology importing actionability has now been settled law . for nearly a quarter of a century The Scottish courts have thus required knowledge, actual or constructive, of more than the occurrence of loss. But there are doubts at the margins. First, there is a question whether awareness of causation extends beyond factual causation to the actionability of the causative act or omission (as in Ghani). Secondly, concerns have been expressed whether it is correct that the pursuer need not know of the identity of the defender before time starts to run. In Adams v Thorntons WS 2005 1 SC 30 two of the three members of an Extra Division (Lord Marnoch and Sir David Edward) reserved their opinion on whether in section 11(3) the pursuer had to have actual or constructive knowledge not only of his loss and its causation but also of the identity of the wrongdoer. David Johnston QC, commenting on the first instance decision in this case (para 72 below), suggested (at para 6.96) that the approach that time runs against a pursuer who does not know the identity of the defender produced what might be thought to be unsatisfactory results. The proceedings in this action On 9 March 2012 the Lord Ordinary (Lord Woolman) upheld ICLs plea of prescription after a legal debate in which Morrisons averments were taken pro veritate. He accepted as correct the approach of the Scottish courts, which I have discussed, as did ICLs counsel at that stage. In particular, Lord Woolman held that in section 11(3) it was for the pursuer to show that it did not have actual or constructive awareness that loss caused by negligence had occurred. He held (in para 24 of his opinion) that the question was whether Morrison knew, or could using reasonable diligence have found out, that it had a stateable prima facie claim arising out of the explosion. The identity of the obligant, the prospects of success and the precise extent of the damage were not relevant. Taking that approach, he concluded that the explosion within ICLs factory gave rise to a presumption of negligence in accordance with the principle of res ipsa loquitur. In the absence of any explanation for the explosion, Morrison was entitled to infer that the owner and occupier was responsible for the explosion. He took a similar approach to Morrisons alternative case of nuisance. Thus he held that, from the moment of the explosion, Morrison had the requisite knowledge and the prescriptive period began to run immediately. An Extra Division (Lady Paton, Lord Mackay of Drumadoon and Lady Smith) on 14 March 2013 recalled his interlocutor and allowed a proof before answer on prescription and the effect of section 11(3). They followed the approach in GGHB and Glasper but rejected the submission that the fact that there had been an explosion in a building meant that it had been caused by negligence. Because the maxim of res ipsa loquitur applied where the cause of the accident was not known, an action based on the maxim was the antithesis of the requirement in Glasper, namely awareness, not only of the fact of loss having occurred, but of the fact that it is loss caused by negligence. This appeal ICL seeks to challenge the established approach of the Scottish courts. Its case is that the period of the short negative prescription began to run on the date of the explosion. Its primary case is that all the pursuer needs to know, or constructively know, is that he has suffered loss. He needs no awareness of what had caused that loss and whether anyone has any legal liability to him for it. As a fall back, Mr Keen QC submits that if the Scottish case law were correct, Morrison had constructive knowledge that it had a prima facie case of negligence against the factory owners or someone because of the operation of the doctrine of res ipsa loquitur. Morrisons primary case, which adopts the approach of existing case law, is that time did not run against it until it had actual or constructive knowledge that it had suffered loss caused by some actionable wrong. As a fall back, Mr Howie QC submits that the requisite knowledge was factual, namely that Morrison had suffered loss, that there had been an act or omission and that there was a causal link between that act or omission and that loss. This appeal therefore raises sharply the question of which if any of the three possible interpretations of section 11(3) (para 11 above) is correct. Discussion (i) The discoverability test ICL submits in its written case that when interpreting section 11 it is important to consider the purpose of prescription. I agree. The law seeks to prevent stale claims both as a question of public interest and also as a matter of balancing the interests of the parties. Delay can diminish the quality of justice through both the loss of evidence and the diminution in the quality of the extant evidence. There is a public interest in dealing with disputes promptly. There is also a need for legal certainty. Thus the 20 year long negative prescription runs against a person whatever the state of his actual or constructive knowledge and despite any legal disability (sections 7 and 11(4) of the 1973 Act). In balancing the interests of the parties the law seeks to avoid keeping a defender in suspense as to his liability long after the events which might have given rise to such liability. It also allows people, including insurers, to organise their affairs and use their financial resources on the basis that after a certain period a claim relating to a past event will not be made. The importance of those policy justifications is underlined by the present case. They apply equally to the law of limitation in relation to personal injuries: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J at pp 552 553. The law, by introducing discoverability tests in section 11(3) and section 17(2)(b) of the 1973 Act, has also recognised the injustice of cutting off a claim before the pursuer had or could with reasonable diligence have had sufficient information for a sufficient period to allow him to obtain legal advice and instruct the necessary investigations to raise legal proceedings to assert his right. The Scottish law of limitation in relation to actions for damages for personal injury and claims arising out of death through personal injury is a relatively modern innovation. Perhaps because claims for personal injury have generated greater political interest than claims for damage to property or financial loss, the Scottish law of limitation has had a different and more extensive history of legislative amendment. It was first enacted in section 6 of the Law Reform (Limitation of Actions, etc) Act 1954. A discoverability test was introduced by the Limitation Act 1963 and was retained and expanded in the 1973 Act. In 1980 section 19A was introduced into the 1973 Act, giving the court an equitable discretion to override the limitation period. The Prescription and Limitation (Scotland) Act 1984 amended the discoverability test and abolished the longstop of the 20 year long negative prescription in relation to claims for personal injuries. While since 1954 the limitation period has been three years, in 2007 the Scottish Law Commission in its Report on Personal Injury Actions: Limitation and Prescribed Claims (Scot Law Com No 207) recommended assimilating the limitation period with the five year prescriptive period. That recommendation has not been implemented. Notwithstanding the different legislative histories, there is in my view no obvious policy reason for the legislature to adopt radically different approaches to the substance of a pursuers knowledge in the discoverability tests applicable to claims for damage to property on the one hand and personal injury claims on the other (in sections 11(3) and 17(2)(b) respectively). Before 1984 the test for postponing the start of the limitation period was contained in section 18(3) of the 1973 Act. It was that the material facts relating to [the] right of action [which] were or included facts of a decisive character were outside the knowledge (actual or constructive) of the pursuer. In section 22(2) material facts were defined to include among others the fact that personal injuries resulted from a wrongful act or omission and the fact that they were attributable to that wrongful act or omission. Like section 11(3) this provision could be construed as referring to both factual and legal matters. This gave rise to conflicting judicial opinions. But in McIntyre v Armitage Shanks Ltd 1980 SC (HL) 46 the House of Lords determined that the legal consequences of a defenders act or omission were not a material fact of decisive character. In other words, the relevant facts did not include the existence of a right of action arising from the defenders act or omission. The provision was concerned with matters of fact, namely (i) the existence of injuries, (ii) their nature and extent and (iii) their cause. This exclusion of legal knowledge from the test was confirmed in the 1984 Act, which re worded section 17 of the 1973 Act (para 67 above) and also amended section 22(3) of that Act to provide that knowledge that any act or omission was or was not, as a matter of law, actionable, is irrelevant. (a) The meaning of awareness Both section 11(3) and section 17(2)(b) speak of the pursuer being actually or constructively aware of certain things. While the earlier tests in relation to limitation spoke of the pursuers knowledge, there does not seen to be any substantive difference between that and awareness. The word, awareness is a term of colloquial speech and its meaning is to be understood by reference to its context and to the policy of the legislature. In Borella v Borden Co (1945) 145 F 2d 63, 64 Justice Learned Hand spoke of words of colloquial speech having fringes of connotation, and unlike the terminology of science, deliberately fabricated for its definite outlines, it is to be expected that interpretation will vary. legislators, like others concerned with ordinary affairs, do not deal in rigid symbols, so far as possible stripped of suggestion, and do not expect their words to be made the starting point for a dialectical progression. We can best reach the meaning here, as always, by recourse to the underlying purpose, and, with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time. Such an approach is appropriate here. The policy is to fix the time when the pursuer is aware, or could have been aware if he exercised reasonable diligence, of sufficient information to take steps to pursue his claim. In AMN Group Ltd (above) Lord Emslie (at para 73) said that awareness went beyond surmising the relevant facts as a mere possibility. In Pelagic Freezing Ltd (above), a case which concerned defects in a building, Lord Menzies, in applying the approach set out in GGHB, spoke (at paras 110 and 111) of knowledge of material damage and knowledge that the relevant loss was actionable. In relation to the latter he stated that It is not necessary for the [expert] report to link defaults to specific defects any more than it is necessary for the report to explain or identify in minute detail the mechanism of [the] defects. Similarly, in the case law on limitation, the courts have drawn a distinction between an awareness of a possibility (which is not sufficient to cause time to run) and awareness of the relevant facts (which is). In Comer v James Scott & Co (Electrical Engineers) Ltd 1978 SLT 235 (a case which concerned the wording of the test before it was altered in 1984) Lord Maxwell stated (at p 240): [W]hether a person knows a fact seems to me to involve a question of degree. I do not consider it advisable to attempt to define it, but at least I think it involves something approximating more to certainty than mere suspicion or guess. Moreover, in my opinion, some information, suspicion or belief falling short of knowledge is not transformed into knowledge if it happens to be correct. I accept that a person cannot be said to know a fact if the thing which he believes with whatever conviction is not in accordance with the truth. But I do not think that the converse is correct. I do not think that any information or belief, however uncertain, necessarily amounts to knowledge merely because it happens to coincide with the truth. In Nicol v British Steel Corporation (General Steels) Ltd 1992 SLT 141, a case under the current section 17(2)(b) of the 1973 Act, Lord Coulsfield adopted a similar approach in relation to a pursuers awareness of the cause of his injuries. He held that a pursuers awareness that an accident might be attributable to an act or omission of one of a group of persons, as only one of a number of possibilities where there was no reason to choose between them, was not sufficient to start time running against him. He also warned against too prescriptive an approach, stating, at p 144: Beyond that, it does not seem to me to be possible to generalise and the question whether the pursuer was aware, or whether it was reasonably practicable for him to become aware, of sufficient facts and circumstances to start the triennium running must depend on the particular facts and circumstances. In Agnew v Scott Lithgow Ltd (No 2) 2003 SC 448 an Extra Division held that a pursuer, who had vibration white finger, ought to have made enquiry about his condition once he heard former colleagues talking about making claims arising out of having contracted that condition and time started to run then. In the provisions relating to limitation, therefore, a modest level of awareness of the causal link between the act or omission and the injury suffices. In my view, awareness in both section 11(3) and section 17(2)(b) does not require certainty but it needs more than mere knowledge of possibilities. The pursuer must know the specified facts with sufficient confidence for him to be able to take the necessary steps to prepare a legal claim based on them, by obtaining appropriate legal and other advice and collecting evidence of those facts to present to a court or other tribunal. It is not appropriate to draw too much on the English law of limitation, is a different statutory regime. But I think that the approach to the nature of awareness or knowledge as a starting point when time begins to run is similar in both jurisdictions: see Halford v Brookes [1991] 1 WLR 428, Lord Donaldson MR at p 443E G. The question then is: what are the specified facts? (b) Awareness of what? I have come to the view that the correct interpretation of section 11(3) is that there needs to be actual or constructive awareness of both (i) loss, (ii) its factual cause through an act or omission. I consider that there are three reasons to support this view which is essentially Mr Howies fall back case. First, like Lord Clyde in GGHB, I think that the statutory language of section 11 of the 1973 Act points towards giving content to the words, caused as aforesaid. In para 9 above I have underlined the words used in sub sections (1) and (2) which refer back to the loss, injury or damage caused by an act, neglect or default. All that was required for that reference back was the use of the definite article. The words, caused as aforesaid are not needed for that purpose and Parliament must have intended them to have a meaning. I also think that section 11(3)s reference to the awareness which the pursuer could acquire through exercising reasonable diligence points to knowledge of more than the fact of loss, injury or damage. Secondly, the purpose of the discoverability test in section 11(3) is to ascertain the point at which the pursuer is, or should have been, justified in preparing or instructing the preparation of his legal case. It seems to me that this points towards the pursuers knowledge of facts rather than legal rules. The starting point should not depend on the competence of the legal advice which he receives. Were it otherwise, the pursuer could defeat a plea of prescription on the basis that he had received incompetent legal advice. Section 11(1) establishes the general rule that the obligation to make reparation becomes enforceable when the pursuers right of action arises: see Watson v Fram Reinforced Concrete (Scotland) Ltd 1960 SC (HL) 92, Lord Reid (p 109), Lord Keith of Avonholm (p 111) and Lord Denning (p 115); Dunlop v McGowans 1980 SC (HL) 73, Lord Keith of Kinkel (p 81). It uses the words act, neglect or default in the context of its description of the obligation to make reparation. Those words characterise the acts or omissions that give rise to the obligation to make reparation because they are a breach of statutory duty, a delict or a breach of contract. I do not see that characterisation as relevant to the pursuers knowledge in section 11(3). It seems to me that in section 11(3) the phrase, loss caused as aforesaid, refers to actual or constructive knowledge of loss caused by an act or a failure to act and not the legal characterisation of the act or omission. Thirdly, the object of section 11 is to identify the date when the defenders obligation to make reparation became enforceable. It would be strange if prescription were to run before the pursuer had sufficient awareness of the facts (actually or constructively) about what had caused him to suffer loss to be able reasonably to raise an action. I do not go so far as Mr Johnston in his first interpretation of the subsection (in para 68 above): while there is, as he has said, much to be said for such a policy, on reflection, I do not think that the statutory words extend to require the pursuer to have knowledge of the identity of the defender before the clock starts. Clearly, when the pursuer instructs the raising of an action, his legal advisers will have to identify a person or someone within an identified class of persons (such as the employees of an employer) as the person who has caused him loss. This should not be difficult if there is awareness of the act or omission. If the claim is for breach of contract or breach of promise, there should be little difficulty in identifying the defender. In cases of negligence if there is knowledge of the act or omission, the pursuer can readily use section 1 or 1(1A) of the Administration of Justice (Scotland) Act 1972 (the 1972 Act) to apply to recover documents or for the disclosure of information as to the identity of persons who might be the defenders. I am comforted by the thought that the interpretation which I favour is not likely significantly to bring forward or postpone the starting point of the prescriptive period from that set by the established line of case law to which I have referred and thereby upset the expectations of litigants. The prescriptive period will usually start to run at about the same time as it does on the established line of case law as the pursuer will usually seek legal advice once he has the requisite factual knowledge. In any event, the pursuers constructive knowledge is measured objectively. By contrast, the start of the prescriptive period would be brought forward significantly in most cases if all that a pursuer needed to know was that he had suffered loss. While counsel debated whether the discussion by the Inner House in Glasper was obiter, a point which we need not decide, many in the legal profession have acted on the understanding that section 11(3) required more than knowledge of loss. I would not go so far as Lord Emslie in AMN by saying that it was settled law, but I can foresee that some pursuers might suffer loss as a result of this courts acceptance of Mr Keens attractively presented primary submission. In reaching my view on this matter I have not attached weight to the recommendations of the Scottish Law Commission in their report in 1970, Reform of the Law Relating to Prescription and Limitation of Actions. I recognise that the Commission addressed the mischief of latent damage, but they did not prepare a Bill with their report to give effect to their recommendations. The courts task is to construe the words which Parliament used unaided by those recommendations. (c) Summary In summary, the pursuer must have actual or constructive knowledge (in the sense set out in para 84 above) (i) that he has suffered more than minimal loss, and (ii) of the acts or omissions which caused that loss. With that awareness he would be justified in preparing or instructing a solicitor to prepare legal proceedings, and the law gives him five years to commence those proceedings. In most cases that knowledge would be combined with or readily lead to knowledge of the identity of the defender and, as I have said, there are procedures under the 1972 Act to assist him to acquire that further knowledge. I think that the Inner House was correct to require a proof before answer on the issue of prescription and the pursuers knowledge under section 11(3) as Morrisons averments (paras 60 63 above) raise issues of fact about both the state of its actual knowledge and the background against which the court may assess what it could have known in the exercise of reasonable diligence. (ii) Res ipsa loquitur On this approach, the applicability of the doctrine of res ipsa loquitur to the facts of the case does not arise. But as it was the principal matter that engaged both the Lord Ordinary and the Inner House, I comment on it briefly. Section 11(3) is concerned with the factual knowledge of the pursuer which justifies his preparation of the legal action: an awareness that an identified persons act or omission caused him loss. Res ipsa loquitur is an evidential rule for finding facts. Where the facts give rise to an inference of negligence by the defender, the evidential burden shifts onto the defender to establish facts to negative that inference. But it is of no relevance if one does not know who the defender is. Toulson LJ summarised the doctrine in Smith v Fordyce [2013] EWCA Civ 320, in which he stated (at para 61): The doctrine expressed in the maxim res ipsa loquitur is a rule of evidence based on fairness and common sense. It should not be applied mechanistically but in a way which reflects its underlying purpose. The maxim encapsulates the principle that in order for a claimant to show that an event was caused by the negligence of the defendant, he need not necessarily be able to show precisely how it happened. He may be able to point to a combination of facts which are sufficient, without more, to give rise to a proper inference that the defendant was negligent. A car going off the road is an obvious example. A driver owes a duty to keep his vehicle under proper control. Unexplained failure to do so will justify the inference that the incident was the drivers fault. In the words of the Latin tag, the matter speaks for itself. In such circumstances the burden rests on the defendant to establish facts from which it is no longer proper for the court to draw the initial inference. To show merely that the car skidded is not sufficient, because a car should not go into a skid without a good explanation. In Barkway v South Wales Transport Co Ltd [1949] 1 KB 54 the court took the same view about a tyre burst. A properly maintained vehicle ought not to suffer a tyre burst. It is therefore not surprising that the court held that in such circumstances: the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres. I agree. On the pleadings it appears that, when the explosion occurred, the source of the flammable material which caused it was not known. In an urban environment there might have been several possible causes involving the responsibility of different people or bodies. The fact of the explosion might cause a reasonable pursuer to suspect that something done or omitted to be done by the owners or occupiers of the factory where it occurred had caused it. But, for the reasons I set out when discussing the nature of the needed awareness, suspicion is not enough. If, contrary to my view, the doctrine were relevant to ascertaining the starting point of the prescriptive period, I do not think that it could be invoked against Morrison until there was evidence that the facts indeed spoke for themselves against ICL. Morrisons case is that the cause of the explosion was capable of being ascertained but that it was not able to carry out the necessary enquiries before 13 August 2004. For the same reason I do not accept ICLs argument that Morrison could infer fault on its part to support its case of nuisance. Conclusion I would therefore dismiss the appeal. My view is a minority view. It is 25 years since the Scottish Law Commission produced its 1989 report on prescription and limitation to which I referred in para 68 above. If the Commissions recommendations had been acted upon, Morrison would have been able to pursue its present claim. In the light of the decision in this case, which has changed the law as it was previously understood, I would urge that those recommendations should be given fresh consideration.

UK-Abs

On 11 May 2004 an explosion occurred at ICLs factory in Glasgow. Nine people were killed and many others injured, but the present case has no bearing on the claims made by or on behalf of those persons. Morrisons shop was among a number of properties damaged. On 13 August 2009 Morrison began the present proceedings, seeking damages against ICL on the basis that the damage to its shop was caused by ICLs negligence, nuisance and breach of duty [1]. Under section 6(1) of the Prescription and Limitation (Scotland) 1973 Act, an obligation to make reparation is extinguished through the operation of prescription if a claim has not been made or the subsistence of the obligation not acknowledged within five years of the relevant obligation having become enforceable [6 7]. Section 11(1) provides that an obligation to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 as having become enforceable on the date when the loss injury or damage occurred. ICL accept that they had an obligation to make reparation to Morrison, but argue that it prescribed long before the action was raised [63]. Morrison dispute this, relying on section 11(3). It postpones the date from which the prescriptive period begins to run where the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred until a later date [2; 8]. Morrison argue that it was unlikely that, having ascertained that ICLs premises had been released, they could have investigated the cause of the explosion so as to be able to commence legal proceedings before 13 August 2004 [60]. In line with a number of authorities, the case proceeded in the courts below on the footing that under section 11(3) the commencement of the prescriptive period was postponed where the creditor was not aware, and could not with reasonable diligence have been aware, (1) that loss, injury or damage had occurred, and (2) that it had been caused by the breach of a duty owed to him. There was no doubt that Morrison knew damage had occurred on the date of the explosion. In order to establish that they also knew, or could with reasonable diligence have known, at that date or soon after that the explosion had been caused by a breach of duty, ICL relied on the principle expressed in the maxim res ipsa loquitur (the thing speaks for itself) [3]. ICL was successful before the Lord Ordinary, but the Inner House overturned his decision, holding that res ipsa loquitur did not apply. In its appeal to this Court, ICL has been permitted to raise the more fundamental issue of the interpretation of section 11(3) [5]. Lord Neuberger, Lord Sumption and Lord Reed agree that the appeal should be allowed. Lord Hodge and Lord Toulson dissent and would not have allowed the appeal. Lord Reed, with whom Lord Neuberger and Lord Sumption agree, considers that the words caused as aforesaid in section 11(3) are adjectival: they describe the loss with which the provision is concerned, but they do not have the effect of postponing the running of time until the creditor was aware that the loss had been caused by a breach of duty. Properly construed, section 11(3) is concerned with latent damage [15 17]. This is consistent with a natural reading of the provision in its context [19; 47]. If the draftsman had intended to require awareness that the loss had been caused by an actionable breach of duty, before the prescriptive period began to run, then he would have made this clearer [19], as he had done elsewhere in the Act in relation to the limitation period [20 22]. Lord Reed identifies a number of problems which would arise if the creditor had to be aware that there had been a breach of a legal duty owed to him. Prescription would run more or less quickly according to creditors awareness of the law [27]. In what sense could a creditor be aware of a breach of duty in advance of a judicial determination? [28] Describing awareness by reference to the creditors ability to advance a stateable prima facie case, as some recent Scottish decisions had done, would undermine legal certainty and go well beyond the language of the statute [29]. Lord Neuberger concurs, considering that the legislature could reasonably have assumed that in almost every case, five years from the date of loss, would be plenty of time for the creditor to discover all he needs to know to bring proceedings [55]. While careful consideration has to be given to the overturning of an approach followed for many years, Lord Reed points out counsels agreement that parties were unlikely to have been advised to delay initiating proceedings in reliance on the existing authorities. The approach previously followed rests on slender foundations for a matter of such importance, and has not gone unquestioned. The Justices agree that is not settled law [37]. Lord Hodge, with whom Lord Toulson agrees, also disagrees with the interpretation previously followed by the Scottish courts, but considers that section 11(3) should be construed as meaning that for time to begin to run there needs to be actual or constructive awareness of (i) more than minimal loss and (ii) its factual cause through an act or omission, but not (iii) that it is due to a breach of duty [87; 95]. He notes the Scottish Law Commissions 1989 recommendation (not implemented) that the legislation should be amended to require knowledge (a) that the loss, injury and damage was attributable in whole or in part to an act or omission and (b) of the identity of the defender [68]. All members of the Court agree that res ipsa loquitur has no application on a proper interpretation of section 11(3), and the majority agrees with Lord Hodges observations on that subject [37; 97 99]. In the light of the decision in this case, Lord Hodge urges that fresh consideration be given to the 1989 recommendations of the Scottish Law Commission.

The issue in this case is whether the High Court of England and Wales has jurisdiction to order the return to this country of a small child who has never lived or even been here, on the basis either that he is habitually resident here or that he has British nationality. The facts The child, whom I shall call Haroon, was born on 20 October 2010 in Pakistan. His father (born in 1973) is one of five siblings, who were all born in England to parents who came here to live from Pakistan in the 1960s. His mother (born in 1978) is the fathers first cousin. She was born and brought up in Pakistan and entered into an arranged marriage with the father in Pakistan in 1999. She joined the father here the following year and they lived together in a property shared with other members of the fathers family. The mother and father have three children together who were born here: a daughter born in 2001, who is now 12, a second daughter born in 2002, who is now 10, and a son born in 2005, who is now eight. The father and children have dual British and Pakistani nationality and the mother has indefinite leave to remain here. This much is uncontentious. The subsequent history was in dispute at the fact finding hearing before Parker J in the High Court. However, the father had remained in Pakistan throughout, had never made a witness statement, and was neither present nor (by the final day) represented at the hearing. His version of events was put forward by his brother. The judge ordered him to take part by telephone but he could not be reached at the number through which he had previously been reached. The judge had no doubt that the telephone had been deliberately turned off. Nevertheless, she insisted that the mother give evidence and put the fathers version of events to her quite forcefully. She found the mother to be an intelligent, careful and precise witness and accepted her evidence. The following are therefore the facts as found by the judge. The marriage was happy until 2006, when the father began to spend a good deal of time in Pakistan. In 2008, the mother complained of physical abuse by the father and moved with the three children into a refuge. Early in 2009, they moved into a flat owned by the fathers brother, PA, for which the mother paid rent. The mother planned to take the children on a trip to Pakistan in the autumn to visit her father. She obtained Pakistani identity cards for them, was given leave of absence from their school, and travelled out with them on 13 October 2009, with tickets to return early in November. She did not know that the father was going to be in Pakistan at the same time. While they were staying at her fathers home, the father, his mother and another brother arrived and, together with her own father, insisted that the parents reconcile. The mother felt that she had no choice: there was physical and emotional coercion. She returned with the father to his family home in Pakistan and was forced to give up her own and the childrens passports, although she later managed to retrieve her own. But she made it clear that she wanted to return with the children to England. The judge did not find it necessary to make any specific finding about violence. She was quite satisfied that such pressure was put on the mother that she had no choice in her own mind, particularly because she did not want to leave her children and that she was frightened of the consequences. In February 2010, the mother became pregnant with Haroon. The refuge in England confirmed that, from that month, she was making telephone calls to them asking for their help to return with the children to England. After Haroon was born, the father brought proceedings for custody of the children in Pakistan. In December 2010, the mothers father brought proceedings, as the judge termed it, essentially for habeas corpus of the mother and the four children. It appears that both sets of proceedings were dropped. Eventually, in May 2011, the mothers father sent elders round to the fathers family to persuade them to let the mother leave for a few days to stay with relatives. She was thus able to leave the country with their help and return to England, but she had to leave the children behind. These proceedings began on 20 June 2011 with an order made by Peter Jackson J without notice to the father. By that order, the judge made all four children wards of court and ordered that they be returned to England and Wales by the father forthwith. Every person within the jurisdiction who was in a position to do so was ordered to co operate in assisting and securing the childrens immediate return. Any person not within the jurisdiction who was in a position to do so was requested to co operate in assisting and securing their immediate return. The judicial, administrative and law enforcement authorities of the Islamic Republic of Pakistan were requested to use their best endeavours to assist in taking any steps which might appear to them necessary and appropriate in locating, safeguarding and facilitating the return of the children in accordance with the spirit of the UK Pakistan Judicial Protocol on Children Matters signed by the Chief Justice of Pakistan and the President of the Family Division of the High Court of England and Wales on 17 January 2003. That order was served on the father in Pakistan and confirmed by Her Honour Judge Coates on 30 September 2011. On 31 October 2011, the mother obtained a without notice order from Eleanor King J freezing the fathers assets in this country, with a view to sequestration as a means of persuading the father to comply with the courts orders or at least of providing the mother with funds to litigate in Pakistan. This brought the fathers brother, PA, into the proceedings, as he is co owner of one of the properties specifically named in the order. The order was confirmed by Her Honour Judge Cahill QC on 28 November 2011 after a hearing at which the father was represented by counsel, but not present. The matter was listed for determination of the jurisdiction question in February 2012. Despite various manoeuvrings in an attempt to have it postponed, the hearing went ahead before Parker J, with the father playing no part and PA now acting in person with another brother, JA, as his McKenzie friend. PA had also filed two witness statements setting out the case for the father and his family. On 20 February 2012, Parker J determined that all four children were habitually resident in England and Wales: [2012] EWHC 663 (Fam). She was satisfied that the mother never voluntarily sought for the children to live in Pakistan. She rejected the fathers assertion that there was an agreement that the parents should reconcile and live in Pakistan. She accepted that the mother never acquiesced, became resigned or consented to her and the children remaining in Pakistan. The three older children therefore retained their habitual residence in England. Adopting the approach of Charles J in B v H (Habitual Residence: Wardship) [2002] 1 FLR 388, she determined that Haroon, too, was habitually resident here, having been born to a mother who remained habitually resident here and who was kept in Pakistan against her will. She continued both the wardship and the freezing orders and again ordered that the children be returned to this jurisdiction by their father forthwith. The father and his brother applied for permission to appeal out of time to the Court of Appeal, which heard the case in July 2012. The reserved judgment was sent to the parties in October 2012, but the order was not made until 31 January 2013, when a short supplemental judgment was delivered: [2012] EWCA Civ 1396 and [2013] EWCA Civ 232. The Court unanimously dismissed the fathers appeal in respect of the three older children, described by Patten LJ as quite hopeless. But by a majority, Rimer and Patten LJJ, his appeal in relation to Haroon was allowed, on the ground that the acquisition of habitual residence in any country requires the child in question to be physically present there. Habitual residence is a question of fact and a rule that a newly born child is presumed on birth to take the habitual residence of his parents would be a legal construct divorced from actual fact. It would also be inconsistent with the approach of the Court of Justice of the European Union. B v H (Habitual Residence: Wardship) should be overruled. Thorpe LJ dissented. In his view a baby born to a mother resident here while on holiday abroad would be habitually resident here from the moment of birth and not from the time when he entered this country. But he recognised that on its facts this case narrowly falls on the right side of an important boundary. The judgment also invited the parties to make further submissions on whether England and Wales was the right forum in which to determine the future of the older children, given the Courts decision about Haroon. By the time of the hearing in January this year, it was clear that leading counsel now instructed on behalf of the mother would be seeking permission to appeal to this Court and wished to raise nationality as an alternative basis of jurisdiction. The most economical course, therefore, was for him to seek to argue the point in this Court and for the Court of Appeal to defer any consideration of the fathers forum non conveniens argument until the outcome in this Court was known. The legislation Jurisdiction in cases concerning children is governed by two pieces of legislation. The Family Law Act 1986 resulted from recommendations of the Law Commission and Scottish Law Commission: Family Law: Custody of Children Jurisdiction and Enforcement within the United Kingdom (1984, Law Com No 138, Scot Law Com No 91). Its principal purpose was to provide a uniform scheme for jurisdiction, recognition and enforcement of custody and related orders as between the three different jurisdictions within the United Kingdom. But the jurisdictional rules also apply as between England and Wales (and the other jurisdictions in the United Kingdom) and other countries. The rules as originally laid down in the 1986 Act have been modified to take account of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, otherwise known as the Brussels II revised Regulation (the Regulation), which is of course directly applicable in United Kingdom law. They also now take account of the 1996 Hague Convention on the Protection of Children, but that was not incorporated into United Kingdom law until after the relevant date for our purposes, which all are agreed is 20 June 2011, when the first order was made. The scope of the Act and the Regulation Part I of the 1986 Act applies only to Part I orders, defined for England and Wales in section 1(1). For our purposes, the following are relevant: (a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order; . (d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children (i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but (ii) excluding an order varying or revoking such an order; Article 1 of the Regulation defines its scope. By article 1.1(b) it applies to civil matters relating to the attribution, exercise, delegation, restriction or termination of parental responsibility. Article 1.2 gives a non exhaustive list of examples, including (a) rights of custody and rights of access; (b) guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the childs person or property, representing or assisting the child; Article 1.3 contains a list of exclusions, none of which is relevant here. Article 2 of the Regulation defines some terms, including: 2.7 the term parental responsibility shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access; . 2.9 the term rights of custody shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the childs place of residence. The first question, therefore, is whether the order first made by Peter Jackson J and repeated by Her Honour Judge Coates and by Parker J is either a Part I order within the meaning of the 1986 Act or an order relating to parental responsibility within the meaning of the Regulation. Jurisdiction under the 1986 Act follows: If it is a Part I order, section 2 of the 1986 Act provides relevantly as (1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless (a) it has jurisdiction under the Council Regulation, or (b) the Council Regulation does not apply but . (ii) the condition in section 3 of this Act is satisfied. (3) A court in England and Wales shall not make a section 1(1)(d) order unless (a) it has jurisdiction under the Council Regulation, or (b) the Council Regulation does not apply, but (i) the condition in section 3 of this Act is satisfied, or (ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection. Section 3 relevantly provides: (1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom, . The omission of a reference to section 2(3)(b)(i) from section 3(1) appears to be an oversight which does not alter the sense of the provisions. Thus, if the order in question is a Part I order, the first port of call is the Regulation. But if it is not a Part I order, and is an order relating to parental responsibility within the meaning of the Regulation, the first port of call is also the Regulation, because it is directly applicable in United Kingdom law. That, however, raises the prior question of whether the jurisdictional scheme in the Regulation applies not only in cases potentially involving two or more European Union members who are parties to the Regulation (all save Denmark) but also in cases potentially involving third countries such as Pakistan. The jurisdictional scheme in the Regulation The general rule is contained in article 8: 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. 2. Para 1 shall be subject to the provisions of Articles 9, 10 and 12. Article 9 provides for the courts of a childs former habitual residence to retain jurisdiction to modify a judgment about access rights for three months after the child has lawfully moved from one Member State to another. More significantly, Article 10 provides for cases where a child has been wrongfully removed or retained. The courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention retain jurisdiction until the child has acquired a habitual residence in another Member State and either each person with rights of custody has acquiesced in the removal or retention or (to paraphrase) the child lived there for at least a year after the person left behind should have known his whereabouts, the child is settled there and (in effect) there are no extant proceedings for his return. Article 12 gives jurisdiction in relation to parental responsibility if the child has a substantial connection with that Member State, all parties have accepted that jurisdiction, and it is in the best interests of the child: the application of this provision in a case where the child was habitually resident in Pakistan was considered by this Court in Re I (A Child) (Contact Application: Jurisdiction)(Centre for Family Law and Practice intervening) [2009] UKSC 10, [2010] 1 AC 319. Two other articles also give jurisdiction. Article 13 gives jurisdiction to the courts of the Member State where the child is present, if the childs habitual residence cannot be established and article 12 does not determine jurisdiction. More relevantly in this case, article 14 provides for a residual jurisdiction: Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State. Finally, reference should be made to articles 15, 19 and 20, all of which address potential conflicts between the courts in different Member States. Article 15 provides, by way of exception, that the courts of the Member State having jurisdiction may transfer the case to another Member State with which the child has a particular connection, if it would be better placed to hear the case, and this is in the best interests of the child. Article 19.2 and 19.3 provide that, where proceedings relating to parental responsibility in respect of the same child are brought in different Member States, the court second seised must stay the proceedings until it is established whether the court first seised has jurisdiction, and if that court does have jurisdiction the second court must decline it. Article 20 allows the courts of a Member State to take provisional measures in urgent cases, even if another has jurisdiction over the substance of the matter. Was this a Part I order? Mr Henry Setright QC argues on behalf of the father and his brother that the order made by Peter Jackson J fell within section 1(1)(a) of the 1986 Act because it was a specific issue order made under section 8 of the Children Act 1989. This is defined as an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child: see s 8(1). Mr James Turner QC argues on behalf of the mother that, because the order was made in proposed proceedings under the inherent jurisdiction of the High Court, it could not be a Children Act order. Neither is completely right. The court has power to make any section 8 order of its own motion in any family proceedings in which a question arises with respect to the welfare of any child: see s 10(1)(b). Proceedings under the inherent jurisdiction of the High Court are family proceedings for this purpose: see s 8(3)(a). So, assuming for the moment that an order to return or bring a child to this jurisdiction falls within the definition of a specific issue order, the judge might have made such an order even though this was not what the mother applied for. But that is not what he did. There are many orders relating to children which may be made either under the Children Act 1989 or under the inherent jurisdiction of the High Court: an order authorising a blood transfusion for a Jehovahs Witness child is a good example. There is no mention of the Children Act 1989 in the order made by Peter Jackson J, which specifically refers to the inherent jurisdiction and moreover also makes the children wards of court, which is not an order available under the Children Act 1989. So does the order fall within section 1(1)(d) of the 1986 Act? Quite clearly it does not fall within the wording of that para. It is not an order giving care of a child to any person or providing for contact with or education of a child. Moreover it is clear from the Law Commissions Report that the Scottish Law Commission had regretfully acknowledged the view of the Law Commission that a review of the wardship jurisdiction beyond the core areas of care and control, access and education would require further consultation and could not now be undertaken in this exercise without causing unacceptable delay: Law Com No 138, para 1.25. I conclude, therefore, that the order made by Peter Jackson J and repeated by Parker J fell neither within section 1(1)(a) or section 1(1)(d) of the 1986 Act and was therefore not covered by the jurisdictional prohibitions in section 2 of that Act. Was this an order relating to parental responsibility within the scope of the Regulation? Parental responsibility is given a wide definition in article 2.7 and must include deciding where the child shall be for the time being. The order to bring the children to this jurisdiction related to the exercise of that power. Furthermore, the order made the children wards of court, which places them in the guardianship of the High Court, and is thus one of the examples expressly referred to in article 1.2(b). I conclude, therefore, that the orders made did fall within the scope of the Regulation. Does the Regulation apply where there is a rival jurisdiction in a non Member State? The Regulation deals with jurisdiction, recognition and enforcement in matrimonial and parental responsibility matters. Chapter III, dealing with recognition and enforcement, expressly deals with the recognition in one Member State of judgments given in another Member State: see article 21.1. But there is nothing in the various attributions of jurisdiction in Chapter II to limit these to cases in which the rival jurisdiction is another Member State. Article 3 merely asserts that in matters relating to divorce, legal separation or marriage annulment jurisdiction shall lie with the courts of the Member State in relation to which the various bases of jurisdiction listed there apply. Article 8 similarly asserts that the courts of a Member State shall have jurisdiction in matters of parental responsibility . Furthermore, article 12.4 deals with a case where the parties have accepted the jurisdiction of a Member State but the child is habitually resident in a non Member State, thus clearly asserting jurisdiction as against the third country in question. Hence in Re I (A Child) (Contact Application: Jurisdiction), this Court held that article 12 did apply in a case where the child was habitually resident in Pakistan. There is no reason to distinguish article 12 from the other bases of jurisdiction in the Regulation. In Owusu v Jackson (Case C 281/02) [2005] QB 801, the Court of Justice of the European Communities held that the rule in article 2 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Measures 1968, which required that persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state, meant that the courts of that state had to assume jurisdiction, even though there was a third country which also had jurisdiction and even though that country was, on the face of it, the more appropriate forum in which to bring the action. Thus the English court was not only empowered but obliged to assert and exercise jurisdiction rather than leave the parties to the jurisdiction of a state (Jamaica) which was not party to the Convention. We have not heard detailed argument on whether the courts of a Member State which has jurisdiction in respect of parental responsibility for a child under the Brussels II revised Regulation is obliged to exercise that jurisdiction even though there is a third country which would be better placed to hear the case. The wording of articles 3 and 8 of the Regulation is not the same as that in article 2 of the Brussels Convention. Furthermore, article 19 of the Regulation deals with the position where there are pending proceedings in two Member States and article 15 allows the courts of the Member State having jurisdiction to transfer the case to another Member State in appropriate circumstances (see para 24 above). It might therefore be thought anomalous for this to be precluded in a case where the courts of a non Member State were better placed to hear the case. In the context of matrimonial proceedings, it has twice been held in the High Court that Owusu v Jackson does not prevent the court from invoking the statutory power (in section 5(6) and para 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973) to stay proceedings here if there are already proceedings in a non Member State: see JKN v JCN (Divorce: Forum) [2010] EWHC 843 (Fam); [2011] 1 FLR 826 and AB v CB [2012] EWHC 3841 (Fam); [2013] 2 FLR 29. We are told that permission to appeal has been granted in the latter case. It would therefore be unwise of us to express a view on the position in childrens cases, which might well require us to make a reference to the Court of Justice. The relevance of Owusu v Jackson is merely to reinforce the conclusion that the jurisdiction provisions of the Regulation do indeed apply regardless of whether there is an alternative jurisdiction in a non Member State. Is there jurisdiction under article 8 of the Regulation? Jurisdiction under article 8 depends upon where the child is habitually resident. It has hitherto been thought (see, for example, Dicey, Morris and Collins on The Conflict of Laws, 15th Edition (2012), Rules 17(2) and 18(2); Clarke Hall and Morrison on Children, paras 234 and 236) that the concept of habitual residence, as developed by the courts of England and Wales for the purposes of both the 1986 Act and the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Child Abduction Convention), is different from the concept of habitual residence as interpreted by the Court of Justice of the European Union for the purposes of the Regulation. Very recently, in DL v EL [2013] EWCA Civ 865, at para 48, the Court of Appeal has expressed the view that there is now no distinction to be drawn between the test adopted in each of those three contexts. As we are dealing only with habitual residence under the Regulation, it is not strictly necessary for us to resolve that debate. Nevertheless, it is highly desirable that the same test be adopted and that, if there is any difference, it is that adopted by the Court of Justice. There are several reasons for this. First, the Law Commissions recommended the adoption of habitual residence in part because it had been widely used in international conventions, including the Council of Europe Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (1981) Cmnd 8155 and the Hague Child Abduction Convention, and was likely to be recognised abroad: see Law Com No 138, para 4.15. As Advocate General Kokott pointed out in Proceedings brought by A (Case C 523/07) [2010] Fam 42, various international conventions, in particular the Hague Convention of the Protection of Minors 1961, the Hague Convention on the Protection of Children 1996 which superseded it, and the Hague Convention on the Civil Aspects of International Child Abduction 1980, formed part of the legislative history of the Regulation. In part, the Regulation supersedes them. In part, they operate alongside one another. The fields of application of the various instruments must be consistently demarcated from one another. This presumed a uniform understanding of the concept of habitual residence (para AG23). Thus it would appear that the purpose of both the 1986 Act and the Regulation was to adopt a concept which would apply across the board. Secondly, as both the Law Commissions and the Advocate General pointed out, that concept was to be distinguished from the legalistic concept of domicile (para AG31). As Professor Perez Vera put it in her Explanatory Report on the Hague Child Abduction Convention: 66. We shall not dwell at this point upon the notion of habitual residence, a well established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile. To the same effect are the first two of the four well known propositions of Lord Brandon in the leading English case on habitual residence under the Child Abduction Convention, Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578: The first point is that the expression habitually resident, as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. Thirdly, however, as Rhona Schuz has put it Many courts have been unable to resist the temptation to legalise the concept (Habitual residence of children under the Hague Child Abduction Convention theory and practice (2001) 13 CFLQ 1, at 4). In particular, the courts in England and Wales have supplied their own test, derived from the test of ordinary residence regarded by the House of Lords in R v Barnet London Borough Council, ex p Shah [1983] 2 AC 309 as settled law, itself derived from taxation statutes. Lord Scarman defined it thus, at 343: Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ordinarily resident refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. (See, for example, Re M (Abduction: Habitual Residence) [1996] 1 FLR 887; Al Habtoor v Fotheringham [2001] 1 FLR 951; Re R (Abduction: Habitual Residence) [2004] 1 FLR 216; Re P J (Children) (Abduction: Consent) [2010] 1 WLR 1237; Re H K (Habitual Residence) [2012] 1 FLR 436). This test has at least two disadvantages. In the first place, the Law Commissions deliberately adopted habitual rather than ordinary residence, because the latter frequently occurred in tax and immigration statutes and they thought that its use in the wholly different context of family law was a potential source of confusion (Law Com No 138, para 4.15). Furthermore, the reference to adopting an abode voluntarily and for settled purposes is not readily applicable to a child, who usually has little choice about where he lives and no settled purpose, other than survival, in living there. If this test is adopted, the focus inevitably shifts from the actual situation of the child to the intentions of his parents. Fourthly, and perhaps for that reason, the English courts have been tempted to overlay the factual concept of habitual residence with legal constructs. The most important of these is the rule that where two parents have parental responsibility for a child, one cannot change the childs habitual residence unilaterally: this dates back at least as far as a dictum of Lord Donaldson MR in the Court of Appeal in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, at 572, and the decision of Wall J in In re S (Minors)(Child Abduction: Wrongful Retention) [1994] Fam 70, approved by the Court of Appeal in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 892, and taken for granted ever since. It was for this reason that Patten LJ regarded the fathers appeal in relation to the three older children as quite hopeless. Recognising a unilateral fait accompli would be a charter for abduction (para 52). The father has not challenged that conclusion in this Court and so the question is not before us. It is worth noting that the rule has not been universally adopted: see, for example, Mozes v Mozes 239 F 3rd 1067 (9th Circuit 2001); SK v KP [2005] 3 NZLR 590. Nor is there a hint of it in the European jurisprudence. It would not inevitably be a charter for abduction. Both the 1986 Act and the Regulation contain provisions designed to retain jurisdiction in the country where a child was formerly habitually resident for at least a year after his wrongful removal or retention: see 1986 Act, s 41 (albeit that it has been held that this does not apply as between the United Kingdom and other countries: Re S (A Child: Abduction) [2002] EWCA Civ 1941, [2003] 1 FLR 1008) and Regulation, article 10 (see para 22 above). As Lord Hughes points out, article 10 provides a good reason why the courts of England and Wales retain jurisdiction over the three older children in any event. The Hague Child Abduction Convention is concerned with wrongful removal or retention of a child from the country where he was habitually resident immediately before that wrongful removal or retention: see article 3. As Lord Hughes also points out, the rule is more relevant in retention than removal cases, but the answer may lie in treating the unilateral change of habitual residence as the act of wrongful retention, even if it takes place before the child was due to be returned. The matter may therefore require fuller consideration in another case, but it is not necessary for us to express a concluded view. Fifthly, of course, once one adopts concepts of this sort, it becomes tempting to construct another rule, that a childs habitual residence is necessarily that of his primary carer or carers. In Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, Lord Brandon continued, at 579C: The fourth point is that, where a young child of Js age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers. It may then seem a small step to apply this principle to a case in which the child has never even been present, let alone lived, in the country where his primary carer is habitually resident. It is not difficult to think of examples where this would accord with both the underlying reality and the criterion of proximity referred to in Recital 12 to the Regulation. In this case, Thorpe LJ gave the example of an English mother habitually resident in England who gives birth to a child in France. As a result of complications mother and child are hospitalised for an extended period before they are fit to come home (para 29). In his view, the child was habitually resident in England from birth and not just from when she set foot in this country. In In re T (A Child)(Care Proceedings: Request to Assume Jurisdiction [2013] EWHC 521 (Fam), [2013] Fam 253, a pregnant 17 year old Slovakian girl ran away from a childrens home in Slovakia and gave birth to the baby here. While deciding to transfer the case to Slovakia under article 15, Mostyn J would instinctively conclude that an infants habitual residence derives from his mother (para 41) were it not for the Court of Appeals decision in this case. In B v H (Habitual Residence: Wardship) [2002] 1 FLR 388, both parents were habitually resident in England, where the child was conceived, but she was born in Bangladesh, after the father had refused to let the mother and the other children return home from a holiday. Charles J held that all the children, including the new baby, were habitually resident here. He placed some reliance on Re J (above) and also took the view that to erect a positive rule that physical presence was a necessary prerequisite to establishing an habitual residence ran counter to the proposition . that habitual residence is, or is primarily, an issue of fact and is not an artificial concept (para 133). The facts of this case are, of course, very similar to those of B v H. It follows from the requirement that residence be habitual that it is not lost by temporary absences, such as that of the mother giving birth while on holiday in France or the mother on the run from a Slovakian childrens home. Thus one can be habitually resident somewhere where one is not actually present at the relevant time. No one doubts that this mother remained habitually resident in England during her enforced absence in Pakistan. From this too, it can appear artificial to construct a rule that physical presence at some time, however fleeting, is an essential pre requisite. On the other hand, the English jurisprudence recognises that a person may have no country of habitual residence. In Re J, at 578 9, Lord Brandon said this: The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. I share Lord Hughes view that the third and fourth points made by Lord Brandon are best seen as helpful generalisations of fact, which will usually but not invariably be true, rather than as propositions of law. There has been a tendency to construe this fourth statement as if it were a statute, and debate the meaning of appreciable time. I would not accept that it is impossible to become habitually resident in a single day. It will all depend upon the circumstances. But I would accept that one may cease to be habitually resident in one country without having yet become habitually resident in another. Finally, as we have seen, in the vast majority of cases jurisdiction will now be governed by the Regulation, which the courts in the United Kingdom will have to construe in accordance with the guidance given by the Court of Justice. How then does the English approach square with that of the Court of Justice of the European Union? That court has considered the matter in two cases. Proceedings brought by A (Case C 523/07) [2010] Fam 42 concerned a family who had originally lived in Finland but then moved to live in Sweden. Some years later, they travelled to Finland in a camper van, originally for the holidays, moving from campsite to campsite and the children did not go to school. But in October the parents applied to the Finnish authorities for social housing. So were the children habitually resident in Finland? Advocate General Kokott stressed that habitual residence had to be distinguished from mere presence (para AG20), and also from the legalistic concept of domicile (para AG31). She proposed that it should correspond to the actual centre of interests of the child (para AG38); the court should take account of all factors present when it was seised of the case (para AG 39); the duration and regularity of residence and the childs familial and social integration may be particularly significant (para 40). The actual centre of interests concept dates back to Professor Steigers Explanatory Report to the 1961 Protection of Children Convention and has been adopted by the Court of Justice in other contexts. But in Proceedings brought by A the Court accepted that the approach under the Regulation should be different from the approach in other areas of European Union law. Their approach was a child centred one: 38. In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment. (Emphasis supplied) The operative part of the judgment put it this way: 2. The concept of habitual residence under article 8(1) . must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the familys move to that state, the childs nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case. Mercredi v Chaffe (Case C 497/10 PPU) [2012] Fam 22 concerned a two month old baby born in England to unmarried parents and removed by her French mother to the French island of La Runion. The English court made orders for her return four days later. But proceedings in France under the Hague Child Abduction Convention failed because the father did not have rights of custody. Was the child habitually resident in England and Wales when the orders were first made? The Court of Justice repeated much of the guidance in Proceedings brought by A, including this: 49 . in order to determine where a child is habitually resident, in addition to the physical presence of the child in a member state, other factors must also make it clear that that presence is not in any way temporary or intermittent. (Emphasis supplied) The court went on to point out that the childs age is liable to be of particular importance. Normally it is the social and family environment of the child which is fundamental in determining habitual residence. But where the child concerned is an infant: 55 . An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where . the infant is in fact looked after by her mother, it is necessary to assess the mothers integration in her social and family environment. In that regard, the tests stated in the courts case law, such as the reasons for the move by the childs mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant. The operative part of the judgment put it this way: 1 The concept of habitual residence . must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state other than that of her habitual residence to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mothers move to that state and second, with particular reference to the childs age, the mothers geographic and family origins and the family and social connections which the mother and child have with that member state. Incidentally, although not directly relevant to the point which we have to decide, concern had been expressed in the English courts at other passages in Mercredi v Chaffe which appeared to import a requirement of permanence for residence to be habitual. At first instance in DL v EL, Sir Peter Singer compared the French and English texts of the judgment, which showed that the French text had almost throughout used stabilit rather than permanence and in the one place where it did use permanence it was as an alternative to habituelle: [2013] 2 FLR 163, paras 71 et seq. It was this comparison which helped the Court of Appeal to conclude that there was no difference between the English and European approaches. Understandably, Mr Setright concentrates on the phrase in addition to the physical presence of the child which appears in both judgments. He can also pray in aid the view previously taken in the English courts that, in order to be habitually resident, one must first be resident, and that in order to be resident once must at least have set foot in a country (see, for example, Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, per Sir John Balcombe at 895, heavily relied upon by Patten LJ in this case). He does, however, accept that a child can acquire the parents habitual residence almost immediately after arriving there. Mr Turner stresses that the point with which we are concerned simply did not arise in either Proceedings brought by A or Mercredi v Chaffe: the question was whether the children were habitually resident in the place where they were. The references to physical presence should be read in the context of the Advocate Generals argument in Proceedings brought by A that habitual residence must be distinguished from mere presence (AG20). In Mercredi the court had regarded the habitual residence of an infant as depending on the social and family integration of the mother, thus implying that the childs habitual residence would be that of the mother, even if the child had never been there. This is consistent with Lord Brandons fourth point in Re J (above), with the undoubted proposition that one can be habitually resident without being physically present at the relevant time, and with the realities of a young childs situation. Drawing the threads together, therefore: i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents. ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions. iii) The test adopted by the European Court is the place which reflects some degree of integration by the child in a social and family environment in the country concerned. This depends upon numerous factors, including the reasons for the familys stay in the country in question. iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention. v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child. vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned. vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time. So which approach accords most closely with the factual situation of the child an approach which holds that presence is a necessary pre cursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a childs integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been. However, I cannot be confident that this is acte clair for the purpose of European Union law, for several reasons. First, the Court of Justice has not so far had to consider a case such as the present, or indeed any of the examples given in para 42 above. Second, the facts are particularly stark. This child would probably not have been conceived, and certainly would not have been born and kept in Pakistan, had his mother not been held there against her will. Without that, the child would undoubtedly have become habitually resident in this country. Third, the European Court would have to consider the implications for the Hague Child Abduction Convention if a child such as this, or a child born on holiday, were held to have no country of habitual residence. The whole Convention, beginning with article 3, is predicated upon there being a state where the child is habitually resident immediately before the wrongful removal or retention. Can it be the case that the Convention would not apply if the child born to an English mother while on holiday abroad were abducted from the hospital? Fourth, there is judicial, expert and academic opinion in favour of the child acquiring his mothers habitual residence in circumstances such as these. Principal amongst those judicial opinions is the conclusion reached by Lord Hughes in this very case. Reunite International Child Abduction Centre, the leading non governmental organisation specialising in advice, assistance, mediation and research in relation to international child abduction and the movement of children across international borders, have intervened in this case in support of the mother. They submitted that, while there should be no rule that a new born child takes the habitual residence of the mother, the childs place of birth should carry little weight where the only reason that the child has been born in a particular place is because the mother has been deprived of her autonomy to choose where to give birth. The Centre for Family Law and Practice, whose co Director has conducted some important research into child abduction, similarly submitted that a person who had used such coercion should not be enabled to deprive the child of the protection of the courts of the country where he would otherwise have been born. More broadly, it has been suggested that, given the inherent vagueness of the concept, the decision in any particular case will inevitably depend upon a balance between the applicable policy considerations: see Rhona Schuz, Policy Considerations in Determining the Habitual Residence of a Child and the Relevance of Context (2001) 11 J Transnational Law and Policy 101. Hence I would not feel able to dispose of this case on the basis that Haroon was not habitually resident in England and Wales on 21 June 2011 without making a reference to the Court of Justice. But we can only refer a question to the Court if it is necessary for us to determine the case before us. For the reasons which will appear below, it is not at present so necessary. Is there another basis of jurisdiction? Article 14 applies where no court of a Member State has jurisdiction under articles 8 to 13. No other Member State is involved in this case. Either the courts of England and Wales have jurisdiction under article 8 or no court of a Member State does so. In that case, the jurisdiction of England and Wales is determined by the laws of England and Wales. We have already established that the prohibition in section 2 of the 1986 Act does not apply to the orders made in this case. The common law rules as to the inherent jurisdiction of the High Court continue to apply. There is no doubt that this jurisdiction can be exercised if the child is a British national. The original basis of the jurisdiction was that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was. As Lord Cranworth LC explained in Hope v Hope (1854) 4 De GM & G 328, at 344 345: The jurisdiction of this Court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the State and of the Sovereign that children should be properly brought up and educated ; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects. The first question then is, whether this principle applies to children born out of the allegiance of the Crown ; and I confess that I do not entertain any doubt upon the point, because the moment that it is established by statute that the children of a natural born father born out of the Queen's allegiance are to all intents and purposes to be treated as British born subjects, of course it is clear that one of the incidents of a British born subject is, that he or she is entitled to the protection of the Crown, as parens patria. The continued existence of this basis of jurisdiction was recognised by the Court of Appeal in Re P (GE) (An Infant) [1965] Ch 568, where Lord Denning MR said this: The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see Hope v Hope (1854) 4 De GM & G 328; In re Willoughby (1885) 30 Ch D 324; R v Sandbach Justices, ex p Smith [1951] 1 KB 62. The Law Commissions in their Report also recognised its continued existence, while pointing out that there appears to be no reported decision in which jurisdiction to make a wardship order has been based on the allegiance of a child who was neither resident nor present in England and Wales (see Law Com No 138, paras 2.9 and 4.41). In fact, Hope was just such a case, as the boys in question had been born in France to British parents, had never lived here (although they had been brought here for a few days by their father), and were in France when the proceedings were begun. However, in Al Habtoor v Fotheringham [2001] 1 FLR 951, para 42 Thorpe LJ advised that the court should be extremely circumspect and must refrain from exhorbitant jurisdictional claims founded on nationality over a child who was neither habitually resident nor present here, because such claims were outdated, eccentric and liable to put at risk the development of understanding and co operation between nations. But in Re B; RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) [2008] 2 FLR 1624, Hogg J did exercise the jurisdiction in respect of a 15 year old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High Commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half brother. The High Commission wanted to help her but felt unable to do so without the backing of a court order. Hogg J made the girl a ward of court and ordered that she be brought to this country. The half brother was assessed as offering a suitable home and in fact she went to him. Hogg J explained that she thought the circumstances sufficiently dire and exceptional: para 10. In Re N (Abduction: Appeal) [2013] 1 FLR 457, McFarlane LJ commented that If the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum (para 29). The facts of that case were certainly not such as to require the High Court to assume jurisdiction over the child in question. In my view, there is no doubt that the jurisdiction exists, insofar as it has not been taken away by the provisions of the 1986 Act. The question is whether it is appropriate to exercise it in the particular circumstances of the case. Mr Turner accepts that Parker J did not address herself to this basis of jurisdiction and to whether, if Haroon were not habitually resident here, it would be appropriate to exercise it. He accepts that the case will have to return to her in order for her to do so. Mr Setright, with the able assistance of Mr Manjit Gill QC, has raised a number of important general considerations which may militate against its exercise. It is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions; using it to order the child to come here may disrupt the scheme of the 1986 Act by enabling the childs future to be decided in a country other than that where he or she is habitually resident. In a completely different context, there are also rules of public international law for determining which is the effective nationality where a person holds dual nationality. All of these are reasons for, as Thorpe LJ put it in Al Habtoor, extreme circumspection in deciding to exercise the jurisdiction. But all must depend upon the circumstances of the particular case. Among the factors which may be relevant in this case are: i) The father is now estopped from denying that the three older children are habitually resident here. There is no obstacle to their future being decided in this country, which is undoubtedly the country with which they had the closest connection until they were prevented from leaving Pakistan to return here in November 2009. ii) The basis upon which the father proposed to mount a forum non conveniens argument in relation to the older children was that the High Court did not have jurisdiction in relation to Haroon. If it is determined that the High Court should exercise its jurisdiction in relation to Haroon, that argument disappears. The father should not be permitted to raise any other arguments in relation to the older children which he could have raised at first instance. iii) Nevertheless, arguments as to the appropriate forum in which to decide Haroons future will be relevant to whether it would be right for the High Court to exercise its inherent jurisdiction based on nationality in his case. iv) Among those arguments will be the practicability of the mother litigating the childrens future in Pakistan, in the light of the findings already made by the judge. How reasonable is it to expect her to return to that country, given what happened to her there previously? Conversely, how reasonable is it to expect the father to return here, where he was born and has lived for most of his life and has property and other family members? v) The circumstances in which these children came to be in Pakistan, and the coercion to which their mother was subject, while not determinative, are highly relevant factors. vi) It is troubling that these proceedings have been continuing for so long without any inquiry being made about how the children are. Children and Families across Borders (formerly International Social Service) have helpfully intervened to suggest how this might be done, and the judge may wish to consider what they say. We are told that the father wishes to file evidence in relation to the issue which is to be remitted to the judge. However, he must not be permitted to reopen the factual and legal issues which have been decided against him. He must not be permitted to take any advantage from his past refusal to take part in the proceedings, to file or to give evidence, or to obey court orders. The judge has already decided to exercise jurisdiction on the basis that Haroon is habitually resident here. Should she decide not to exercise jurisdiction on the basis of his nationality and allegiance, it will become necessary to decide whether he is indeed habitually resident here. As already explained, this Court cannot resolve that question without referring it to the Court of Justice. The parties should therefore have liberty to apply to this Court for a reference to be made in the event that a decision on the point becomes necessary. Conclusion The appeal is allowed. The case is remitted to Parker J to consider as a matter of urgency whether to exercise the Courts inherent jurisdiction in relation LORD HUGHES I gratefully acknowledge Lady Hales exposition of the facts of this case, and I agree with her about the order which this court should make to dispose of this appeal. I also respectfully agree with much the greater part of her reasoning en route to that proposed order. I do not, however, feel able to leave the case without setting out some observations on the issue of the habitual residence of the youngest child, which is the question on which the appeal came to this court, and on which at present the last word in this jurisdiction is that of the majority of the Court of Appeal. The point is of some importance since although it is unusual for the habitual residence of a newborn baby to fall for consideration when he has not yet reached the shores of his familys established home, both this case and B v H (Habitual Residence: Wardship) [2002] 1 FLR 388 show that it is by no means hypothetical. Moreover, although in the present case there exists another possible basis for the jurisdiction of the English court, similar events to those which have taken place here could very easily occur in a family which was well established and settled here, but which did not have British nationality. As to the several other issues in the case it is enough to set out in the briefest terms my agreement with each of the propositions which follow. i) The order made by the judge for the return of the children to England, including the youngest, was an order . relating tothe exerciseof parental responsibility within the terms of Articles 1(1)(b) and 2(7) of the (directly effective) Council Regulation EC 2201/2003 (Brussels II revised). ii) It follows that the jurisdiction of the English court falls to be exercised on one or more of the bases set out in Articles 8 to 14 of Brussels II revised, and that the primary basis is, as provided for by Article 8, the habitual residence of the child at the time at which the court was seised of the application by Mother. iii) The order made by the judge was not a Part I order within the terms of the Family Law Act 1986, and therefore the jurisdiction of the English court is not confined by that Act to the basis of the habitual residence of the child. iv) The order made by the judge was made in the course of the courts very longstanding wardship jurisdiction over children, which has always been available in the case of a child who is a British national, irrespective of the childs habitual residence or current whereabouts. v) As a matter of English law, this nationality based jurisdiction should be exercised with great caution in a case where the habitual residence of the child in England is not established, but there will be some instances where it is proper to exercise it. vi) If it be the case that the youngest child is not habitually resident in England, he is not habitually resident in any State which is a member of the European Union. In that event, if it is proper under English law for the English court to exercise jurisdiction on the basis of his nationality, such jurisdiction is available to the court within Brussels II Revised through Article 14. vii) The judge has not had the opportunity to consider the exercise of jurisdiction in relation to the youngest child on the basis of his nationality. The case should be remitted to her to address this possibility, and also for her to consider Fathers application to stay the English proceedings on the grounds that Pakistan is on the facts a more convenient and suitable forum for the determination of the childrens future. viii) The factors set out in Lady Hales judgment at paras 64 and 65 will be amongst those potentially relevant to the judges remitted enquiry. I also agree that if Father is to be permitted to adduce further evidence it must be limited to evidence which addresses the remitted issues and does not attempt to re open the factual matters on which the judge has already made findings: see para 66 of Lady Hales judgment. ix) There is no occasion for us to resolve the difficulty presented by Owusu v Jackson nor its impact (if any) on family cases governed by Brussels II revised. Habitual residence: the youngest child This is not the place to attempt a wide ranging analysis of all aspects of habitual residence. Indeed the most commonly troublesome questions, namely those associated with moves from one country to another which one side contends to be temporary and the other to be sufficiently settled, do not arise in this case. What follows is directed only to the decision of the Court of Appeal in the present case that there exists a rule which requires that before a person can be habitually resident in a jurisdiction, he or she must at some time have been physically present there. Some general considerations must, however, be set out if that issue is to be addressed. I agree with Lady Hale who has identified the long standing tension between the generally accepted proposition that habitual residence is a question of fact and the desire to provide some guidance on the approach which courts should adopt when deciding whether it has been demonstrated. A good example is Mozes v Mozes (2001) 239 F 3rd 1067. At times, the guidance offered comes close to being framed as propositions of law, although usually this has not been the intention of the authors. Such intention was disclaimed in Mozes v Mozes and it is absent also, I think, from the locus classicus in England and Wales of Lord Brandon of Oakbrooks speech in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562. There Lord Brandon made it clear (at 578G) that the question whether someone was or was not habitually resident in a particular country is a question of fact to be decided by reference to all the circumstances of any particular case. He then went on to offer a number of general guides to the determination of the issue. Immediately after the proposition just cited he said this: The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers. It will be seen that that immediately following passage offers at least three generally stated propositions, many of which have since been treated in some quarters as amounting to propositions of law. One is that an habitual residence in country A may be abandoned in a single day. A second is that habitual residence in country B cannot be established (or, as English lawyers are prone to say, acquired) in a single day, and a third is that an infant who is in the sole lawful custody of his mother will necessarily have the same habitual residence as she has (or, as English lawyers are prone to say, will derive his habitual residence from hers). Lord Brandons propositions are, as it seems to me, much better regarded as helpful generalisations of fact than as propositions of law. He cannot have intended them to operate as propositions of law without destroying his starting point, namely that habitual residence is a question of fact, to be determined by consideration of all the circumstances. However, whether or not that is the correct analysis of Re J, it is now clear from the jurisdiction of the Court of Justice of the EU that habitual residence is a question of fact: see below. Consistently with treating habitual residence as a question of fact, it seems to me that each of Lord Brandons supplemental propositions will clearly usually be true. An migr flying from Heathrow to a new home in Australia, who has sold every possession in England and intends to make a permanent home in Sydney will surely normally no longer be habitually resident in England from the day of his departure. But it might perhaps be different if he had neglected to obtain permission from Australia to re locate, and decided at Dubai that he would return to England. A person arriving in a foreign country hoping to make his permanent home there will no doubt in many cases not be regarded as habitually resident there until he has established himself, with home, occupation, permission to reside and so on. But if he has pre arranged all of this and is joining his spouse and family, it might well be that his habitual residence would be established more or less immediately on arrival. The same is true of Lord Brandons third generalisation, which is of direct relevance to the present case. One commonly relevant factor in the establishment of habitual residence is clearly the intention of the individual. But an infant of very tender years is in no position to form any independent intention. His or her habitual residence will normally be established by belonging to a family unit which has habitual residence in a particular place, and the infant will thus share it. As a generalisation it is therefore plainly true that the infant will normally share the habitual residence of the person who has lawful custody of him, and this is a valuable aid to courts. But this is not an invariable rule of law, and it is not too difficult to envisage factual situations in which this proposition will not be true. If a young unmarried woman who is habitually resident in State A but whose parents live in State B becomes pregnant and determines to give birth to her child back at the home of her parents, and thereafter by agreement with them to leave the child there to be brought up by them, she will no doubt remain habitually resident in State A. If State A is England she will, by English law, have the sole lawful custody of the child (ie sole parental rights and the right, unless and until a court intervenes, to determine where the child lives). But neither before or after she travels back to England after the birth, leaving the child in State B as planned, will the child will derive his habitual residence from hers as a matter of law, nor will he share it with her as a matter of fact. The trans national movement of children in the course of disputes about their upbringing, and the associated forum shopping by parents and others, is a major international problem. Its incidence has only grown since the 1980 Hague Convention, with the increase in cross border personal relationships and the ever greater ease of international travel. The 1980 Convention may on occasion operate as a relatively blunt instrument, and no one would claim that its necessarily summary procedure is incapable of ever resulting in injustice, but its contribution to controlling this international problem has been immense. As between the large number of party States, it proceeds upon the basis that in the event of wrongful removal or retention of a child there should normally be a summary return to the State of his or her habitual residence and that the necessary, and often finely balanced, merits decisions which fall to be made are to be made in the courts of that country. In turn, wrongful removal or retention is to be ascertained by reference to the rights of the parties under the law of the State in which the child was habitually resident immediately before the event. This has spawned, in England at least, a proposition closer than those above to a rule of law, namely that where two parents have parental responsibility for a child, one of them cannot by unilateral action alter the habitual residence of the child: see Lord Donaldson of Lymington MR in the Court of Appeal in Re J (A Minor) (Abduction: Custody Rights) supra at 572 and Wall J in In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70. The occasion for propounding this rule was not so much the case of wrongful removal but that of wrongful retention. In most cases of wrongful removal, the habitual residence of the child immediately before removal will not be put in doubt by the unilateral actions of one parent. But in the case of wrongful retention, it may. If for example the child, hitherto living with parent A in State A, is visiting parent B in State B under an agreement for contact, and whilst there parent B unilaterally makes arrangements for the child to stay permanently, such as by obtaining immigration rights, enrolling at school and taking similar associated steps, it may be contended that such steps cause the child thereafter to be habitually resident in State B. If, additionally, the view is taken that retention does not occur until the time arrives at which the child is due to return to State A, the argument can be advanced that by then the child is habitually resident in State B, where it follows that retention cannot be wrongful. To hold that parent Bs unilateral actions cannot bring about a change of habitual residence is one route to ensuring that the 1980 Convention is not made ineffective in such a case. It seems to me important to note this situation, which is not rare. As Lady Hale explains at paras 39 40, Brussels II revised contains provisions designed for such a case. Article 10 preserves the jurisdiction of State A not only until habitual residence has been established in State B but also until either all relevant persons have acquiesced in the removal/retention or (broadly) a year has passed, the child is settled and there has been unjustified failure to object, or the courts of State A have reached a determination inconsistent with the continued exercise of jurisdiction. But neither under Article 10 nor the 1980 Hague Convention can this continuing jurisdiction in State A operate if by the time of retention (or even removal) habitual residence has already changed. What matters most is that State A can make an effective order for return. This may be either under the 1980 Hague Convention (as chiefly it will be) or outside it, as may well be possible if the person ordered to make the return is present in State A or has property there (as here). So what matters is where the childs habitual residence was immediately before the removal or retention. I agree with Lady Hale that we are not called upon to resolve this question in the present case, which must await another day. I also agree that it is apparent from Article 10 that Brussels II revised contemplates that habitual residence may shift at some stage after a wrongful removal or retention. It may well be that the problem identified can be resolved consistently with the effectiveness of the 1980 Hague Convention. It may well be that the correct view is that unilateral acts designed to make permanent the childs stay in State B are properly to be regarded as acts of wrongful retention, notwithstanding that the scheduled end of the childs visit has not yet arrived. Such a conclusion is not, to my mind, in any way precluded by the decision of the House of Lords in Re H (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, which holds no more than that a specific act of retention must be identified, and it is consistent with the decision of Wall J in In re S (supra). The significance of the point here is simply twofold. First, Brussels II Revised is, notwithstanding that in the event of conflict it prevails over the 1980 Hague Convention (see Article 60), clearly meant to co exist consistently with that Convention remaining effective see for example Articles 10 and 11 and it ought to be construed wherever possible with that very important objective in mind; in particular the concept of habitual residence needs to be construed similarly in each of the two instruments. Second, providing this approach is adopted, it is unlikely that even in this situation it is necessary to formulate a rule of law that a childs habitual residence cannot unilaterally be changed by one parent where two parents both have parental responsibility. The general approach advanced above is, I believe, wholly consistent with the decisions of the CJEU on the approach to habitual residence in Proceedings brought by A (Case C 523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C 497/10PPU) [2012] Fam 22. In accordance with its usual practice when dealing with the same issue in successive cases, the court used substantially the same language in each. The following principal propositions can be extracted from the decisions. The meaning of habitual residence is autonomous, that is to say not i) governed by differing national laws on the topic: As case at para 34. ii) One of the great values of habitual residence as a base for jurisdiction is proximity: As case at para 35; by this the court clearly meant the practical connection between the child and the country concerned. iii) The question is one of fact. At para 37 in As case, repeated at para 47 in Mercredi v Chaffe the court said: The "habitual residence" of a child, within the meaning of article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case. iv) Simple physical presence is not by itself sufficient. At para 38 in As case the court said: In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment. Those words were substantially repeated in Mercredi v Chaffe at para 49. v) Those other factors will mainly be, in the case of a child, those which show some degree of integration in a social and family environment: see paras 38 and 44 in As case and identical language at para 47 in Mercredi v Chaffe. Thus, for example, on the facts of As case where the issue was whether the stay was enduring or intermittent, they are likely to include, as the court said at paras 39 and 44: the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration. This formulation was preferred by the court to that suggested by the Advocate General in As case, namely the actual centre of interests (see AG at para 38). vi) Similarly, in the case of a child, the intention of the parent or parents will normally be a relevant factor. At para 40 in As case, repeated at para 50 in Mercredi v Chaffe, the court said: the intention of the person with parental responsibility to settle permanently with the child in another member state, manifested by certain tangible steps such as the purchase or rental of accommodation in the host member state, may constitute an indicator of the transfer of the habitual residence On the facts of Mercredi v Chaffe where the child was a babe in arms and the issue was less whether the presence was intermittent than whether there was sufficient endurance to amount to habitual residence, this factor was of greater significance. vii) The duration of the stay is a relevant factor but is not determinative. In Mercredi v Chaffe at para 51 the court said: In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case. The use of the word permanence (which did not appear in As case) must, for the reasons explained by Lady Hale at para 51, be read together with the careful analysis of Sir Peter Singer in DL v EL [2013] EWHC 49 (Fam), [2013] 2 FLR 163, endorsed by the Court of Appeal at [2013] EWCA Civ 865. viii) Generally speaking, an infant will share the habitual residence of the parent(s) with whom he or she lives. In Mercredi v Chaffe at paras 54 55 the court said: 54. As a general rule, the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of. 55 That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where, as in the main proceedings, the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. ix) residence: As case at para 43. It follows from the above that I respectfully agree with the helpful summary In exceptional circumstances a person may have no habitual given by Lady Hale at para 54. To the extent that the Court of Appeal in the present case held that the youngest child did not derive his habitual residence from his mother as a matter of law, I agree, for the reasons set out above. But in my view the court was wrong to attribute the argument for Mother to a contention for dependent habitual residence. This is essentially what Patten LJ did at para 61 when he considered and rejected the case for a special rule for newly born children: One could construct a rule by which a newly born child was presumed to take on birth the habitual residence of its parents or custodial parent. But the rule would be a legal construct divorced from actual fact which is what the court in B v H (Habitual Residence: Wardship) said that it was anxious to avoid and which has been rejected in all the earlier decisions of this court. It would also run contrary to this court's acceptance in cases such as Al Habtoor v Fotheringham that a child's habitual residence is not to be treated as necessarily the same as that of his parents. I entirely agree that no such rule exists. But it does not follow that England was not the youngest childs habitual residence and I am unable to see that the application of the approach set out above produces the conclusion to which the majority of the Court of Appeal came, namely that he could not be habitually resident in England simply because he had never been physically present here. Both Patten and Rimer LJJ proceeded on the basis that it is a minimum legal requirement of habitual residence that there has at some time been physical presence. The decision amounts to a rule of law at least to the extent that it propounds a general proposition that factual habitual residence cannot be achieved without physical presence at some time. Rimer LJ put it thus at 38: As regards the youngest child, H, the position is different. He was born in Pakistan and has never set foot in England and Wales. In respectful disagreement with Thorpe LJ, I agree with Patten LJ, for the reasons he gives, that it follows that H cannot be said to have been habitually resident in England and Wales at the date of either order. The decisions of this court in In re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Al Habtoor v Fotheringham [2001] 1 FLR 951 show that the question of whether a person is habitually resident in a particular country is one of fact. They further show that an essential ingredient in the factual mix justifying an affirmative answer is that the person was at some point resident in that country; and that it is not possible to become so resident save by being physically present there. If there has been no residence there, there can be no habitual residence there. For his part, Patten LJ, at 47, derived from the same cases a boundary to the effect that: The acquisition of habitual residence in any country requires the adult or child in question to be physically present there. He returned to that proposition at 60, saying: As the cases recognise, residence denotes and involves a physical presence. Both judgments thus relied upon passages in In re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Al Habtoor v Fotheringham [2001] FLR 951. In the former, parents of Indian origin who were living in England agreed on their separation to send their son to India for his minority, to be brought up by his grandparents. Mother subsequently changed her mind and sought to make the child, still in India, a ward of the English court. The issue was whether her decision changed the habitual residence of the boy back to England. The argument was that it did because the continuing assent of both parents was necessary as a matter of law to his continuing habitual residence being in India. That argument was rejected, as it is clear it would be today both in Europe and in England. It is perfectly correct that Sir John Balcombe said this at 895: Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country. Of course, residence does not necessarily require physical presence at all times. Temporary absence on holiday, or for educational purposes (as in Re A), will not bring to an end habitual residence. But here the judge found as a fact, and on ample evidence, that K became habitually resident in India. He has never to this day come back to England. As a matter of fact, he has not been resident in England since he went to India in February 1994. Bracewell J held that the mother's change of mind both brought to an end K's habitual residence in India and gave him an habitual residence in England. I have the gravest doubts whether the first proposition is correct. Clearly, the mother's change of mind could not alter the fact that he was, and is, physically resident in India. Whether her change of mind could alone alter the 'habitual' nature of that residence I very much doubt, but in any event it is not necessary finally to decide that point on this appeal, since the one thing about which I am quite clear is that the child's residence in India could not become a residence in England and Wales without his ever having returned to this country. As I said before, the idea that a child's residence can be changed without his ever leaving the country where he is resident is to abandon the factual basis of 'habitual residence' and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicil. To like effect, Millett LJ said simply at 896: While it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically present in another. It was sufficient for the decision that that independent habitual residence was not altered simply by the wish of one parent. It is unsurprising that the fact that the boy had remained in India was treated as an additional reason why his habitual residence was still there. He had clearly established an habitual residence independent of his parents. The court did not have before it the case of an infant who has no independence of his parents but is by contrast integrated into the family unit of one of them. In the later case of Al Habtoor v Fotheringham the whole family unit of which the child was part had emigrated to Dubai where the boys father lived. Some months later the mother and stepfather became disenchanted with Dubai, quarelled with father and returned to England without the boy. On the question of habitual residence, the issue was whether the boys had reverted to England because Mothers had. That was an argument for dependent (or legally derived) habitual residence, which the court rightly rejected. In doing so, Thorpe LJ cited the passages above quoted from Re M. They were clearly cited for the rejection of dependent habitual residence. Once again, the fact that the boy remained in Dubai was an additional reason why his habitual residence remained there. Once again, the court did not have to consider the case of an infant who was an integrated member of a family unit which was habitually resident in a particular place and did not change it. In the present case Thorpe LJ clearly did not regard either this decision or Re M as binding the Court of Appeal to hold that the youngest child could not be habitually resident in England because he had not yet physically reached these shores, for he dissented from the decision that it did. Particularly given his unrivalled experience of all aspects of cross border family issues, his views deserve considerable weight. This court is not in any event bound even if the Court of Appeal was, but for my part I agree with him. Next, the majority in the Court of Appeal treated the CJEU cases as inconsistent with the youngest child having an habitual residence in England. Patten LJ (with whom Rimer LJ agreed) said at para 62 that such a proposition would also clearly be inconsistent with the approach set out in Mercredi v Chaffe . which contemplates a detailed examination of whether a child's presence in a particular jurisdiction involves a sufficient engagement with a settled family life in that place as to amount to habitual residence. Of course the enquiry in both As case and Mercredi v Chaffe would involve a detailed examination of the connection or engagement of the child with a settled family life in Finland or France respectively, but that was because the issue in those cases was whether the family unit as a whole had sufficiently settled to be habitually resident in the new country. In neither case did the court have to consider the case of an infant who is an integrated member of a family unit which was habitually resident in State A although currently detained against the will of the adult in State B. Whilst in both cases the court incorporated into its decision, at paras 38 and 49 respectively, the need for other evidence in addition to mere presence it is crystal clear that this was said in order to demonstrate that mere presence was not automatically sufficient. Neither court was concerned with the question whether presence is always necessary. The CJEU emphasised in both cases the importance of examining the degree of integration of the child into a social and family environment. It emphasised in Mercredi v Chaffe at paras 54 55, cited above at para 80(viii), the manner in which an infants environment is essentially a family one. In the present case, the youngest child was born into a family unit which consisted of his mother and siblings; Father had been, when in England, estranged from it and living elsewhere. This family unit had its habitual residence in England. So, in my view, did the youngest child. He similarly would have shared their habitual residence if he had been born unexpectedly whilst mother was on holiday in Spain, or at sea on a cruise or in transit. In any of these situations, if one asked anyone but a lawyer where the newly born child was habitually resident, the answer would, in my view, have been With his mother, brother and sisters of course. The same would be true, as it seems to me, if he was born to his mother at a time when she was running away from home and temporarily abroad, like the mother in flight from Slovakia in In re T (a Child)(Care Proceedings; Request to Assume Jurisdiction) [2013] EWHC 521 (Fam); [2013] Fam 253. The slightly different facts of H v H (Jurisdiction to Grant Wardship) [2011] EWCA Civ 796; [2012] 1 FLR 23, to which we were referred after the hearing, illustrate the factual nature of the enquiry. There the British father, of Afghan origin, travelled back to Afghanistan to marry. His wife, the mother, planned to come to England but had never left Afghanistan when their first child was born. Her subsequent journey (alone) to England may have resulted in her own habitual residence being established in England, but clearly could not affect that of the child, which was understandably conceded by experienced counsel to be in Afghanistan. There was in that case no family unit with an habitual residence in England, into which the child was born. Nor was there any question of Mother being detained in Afghanistan by coercion. There was rightly no suggestion in the Court of Appeal of any rule of law either that the child derived habitual residence from one or other parent, or that the fact that the child had never been present in England was alone enough to resolve the question. Jurisdiction based on the nationality of the child was not advanced in that case. The sole question on this part of this case is whether the factual enquiry required is overlain by a rule which prevents a person from being habitually resident in a place where he has not yet set foot. I see no occasion for any such rule. There is, I entirely agree, also no rule automatically ascribing habitual residence by dependence to a place to which the child has never been. There is a factual enquiry into the integration of the family unit to which he or she belongs, and that may well yield the conclusion that the child shares the habitual residence of that unit even if he has not yet achieved physical presence there, especially if he is being prevented by coercion or other force majeure from doing so. The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and is where he would be but for force majeure. It is true of course that if one focuses on the position after a year or more in Pakistan it is no doubt the case that one will find links and a degree of integration perforce experienced by the youngest child in that country. He has extended family there. He is physically cared for there. But that is, in this case, only because he, as well as his siblings, have been wrongfully detained there by coercion. It is also of course true that in the great majority of cases, habitual residence is characterised by actual residence, that is to say physical presence. But it is well established that although rules of law are generally inappropriate the concept of habitual residence is necessarily to some extent a legal one; as Patten LJ said at para 59, it is a jurisdictional concept. And it is well established that habitual residence can and often does co exist with actual current absence. If current physical presence is not essential, then so also can habitual residence exist without any physical presence yet having occurred, at least if it has only been prevented by some kind of unexpected force majeure. There can be no doubt about the jurisdiction of the English court in relation to the elder siblings. This is not because of any rule of law which prevents one of two parents from unilaterally altering the habitual residence of a child. It is because as the 1980 Hague Convention requires, in the case of abduction, whether removal or, as here, retention, the acid test is habitual residence immediately before the event. They were resident in England. They went to Pakistan only for a three week holiday. There they have been wrongfully retained. For the same reason, Article 10 of Brussels II revised maintains the jurisdiction of the English court. The only difference between the elder children and the youngest is the accidental fact that he has not yet reached the shores of his homeland. The reason why he has not done so is because he has been wrongly detained elsewhere by coercion. In my view he is, like them, a member of a family unit which is firmly based in England and when born into it he was like the rest of its members habitually resident there. His wrongful retention commenced immediately afterwards. Indeed, if the Court of Appeal is right, he could now be removed to another country without the removal being wrongful; such successive transportation of children to avoid enforced return is by no means unknown. There would, in my respectful view, be a serious failure of the protection afforded by the 1980 Hague Convention and Article 10 if a newly born child in this situation is held to have no habitual residence and thus to be incapable of wrongful removal or retention. I am unable to see any sufficient reason for such a conclusion. I accept of course that, this view being a minority one, it cannot be said to be acte clair, so that if this case or some other were to turn on the point, reference to the CJEU would be indicated. At present, this case does not turn on it.

UK-Abs

The issue in this appeal is whether the High Court of England and Wales has jurisdiction to order the return to this country of a small child who has never been present here on the basis that he is habitually resident here or that he has British nationality. The child, called Haroon in the judgment, was born on 20 October 2010 in Pakistan. His father was born in England and his mother in Pakistan. They married in Pakistan in 1999 and lived in England from 2000. They have four children: two daughters, born in 2001 and 2002, and two sons, one born in 2005 and Haroon. The father and the first three children, who were born in England, have dual British and Pakistani nationality and the mother has indefinite leave to remain in the United Kingdom. From 2006 the father began to spend a lot of time in Pakistan. The marriage was unhappy and in 2008 the mother moved into a refuge with her three children complaining of abuse. The mother arranged a three week trip to Pakistan in October 2009, in order to visit her father with the children. When she was there she was put under pressure by her father, her husband and his family to reconcile with her husband and was forced to give up the childrens passports. She strongly wished to return to England and telephoned the refuge asking for their help to return from February 2010, when she became pregnant with Haroon. Eventually in May 2011 her family helped her to return to England without the children and she began proceedings for their return in the High Court. On 20 June 2011 all four children were made wards of court and the father was ordered to return them forthwith. The father challenged the jurisdiction of the court to make orders for the return of the children. The judge found that all four children were habitually resident in England and Wales as the mother had not agreed that the children should live in Pakistan. The older children had retained their habitual residence in England. Haroon had habitual residence because he was born to a mother who was being kept in Pakistan against her will. The Court of Appeal by a majority allowed the fathers appeal in relation to Haroon only, on the ground that habitual residence was a question of fact (rather than deriving from the habitual residence of the parents) and required physical presence in the country. The Supreme Court unanimously allows the mothers appeal and holds that the court had inherent jurisdiction to make the orders in this case on the basis of Haroons British nationality. The case is however remitted to the judge to consider as a matter of urgency whether it is appropriate to exercise this exceptional jurisdiction. Lady Hale gives the main judgment, with which Lord Wilson, Lord Reed, and Lord Toulson agree. Lord Hughes gives an additional judgment explaining why he would have held that Haroon was habitually resident in the circumstances of this case. The orders exercising the courts wardship jurisdiction in this case did not fall within Part 1 of the Family Law Act 1986 (the 1986 Act) [26 28]. They did relate to parental responsibility within the scope of Council Regulation (EC) No 2201/2003 (the Brussels II revised Regulation)(the Regulation) [29], which applied regardless of whether there was alternative jurisdiction in a non member state [33]. The question was whether there was jurisdiction under article 8 of the Regulation, which depended on where the child was habitually resident [34]. Habitual residence is a question of fact and not a legal concept such as domicile. It is desirable that the test for habitual residence be the same for the purposes of the 1986 Act, the Hague Child Abduction Convention and the Regulation, namely that adopted by the Court of Justice of the European Union (CJEU)for the purposes of the Regulation [35 39]. The CJEU has ruled that habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors including the reasons for the familys stay in the country in question [54]. Four of the justices held that presence was a necessary precursor to residence. A child could not be integrated into the social environment of a place to which his primary carer had never taken him. Lord Hughes, by contrast, would have held that in these circumstances the child acquired the habitual residence of his mother. The CJEU had not had to consider a case with facts as stark as this, where the only reason that the child had been born in a particular place was because the mother had been deprived of her autonomy to choose where to give birth, and if it had been necessary to decide the appeal under the Regulation, the Supreme Court would have made a reference to it [58]. There was however another basis of jurisdiction which was open to the court to exercise in this case. By Article 14 of the Regulation, the common law rules as to the inherent jurisdiction of the High Court continue to apply if the child is not habitually resident in a Member State. The Crown retained the ancient power as parens patriae over those who owe it allegiance as British nationals. For most types of order this jurisdiction was removed by the 1986 Act but not for the order for return made in this case [60]. The judge below did not address herself to this basis of jurisdiction and whether it would be appropriate to exercise it. The case should be remitted to the High Court for it to be considered, in the light of the particular circumstances of this case [64 65]. If the court declined to exercise this jurisdiction, it would remain open to the mother to seek a reference to the CJEU on the issue of habitual residence [67]. Lord Hughes in an additional judgment did not accept that it was a minimum legal requirement of habitual residence that there had at some time been physical presence. This was tantamount to a rule when a purely factual enquiry was required. With a very young child the important environment was essentially a family one. Haroons family unit had its habitual residence in England. He therefore would have held that Haroon was habitually resident in England and Wales [93].

The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair minded and informed observer, all of whom have had season tickets for many years. The horse drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 728: The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well informed and normally diligent tenderer. The reasonably well informed and diligent tenderer The RWIND tenderer, as he has been referred to in these proceedings, was born in Luxembourg. He owes his existence to the EU directives concerned with public procurement. For present purposes, the most significant directive is Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, 30 April 2004, p 114). The background to the Directive, as explained in the second recital to the preamble, is that the award of contracts by public authorities in the member states is subject to the principles of freedom of movement of goods, freedom of establishment and freedom to provide services, and to other principles derived from those, such as the principles of equal treatment, non discrimination, mutual recognition, proportionality and transparency. In particular, as explained in the forty sixth recital: Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non discrimination and equal treatment and which guarantee that tenders are assessed in conditions of effective competition. To ensure compliance with the principle of equal treatment in the award of contracts, it is appropriate to lay down an obligation established by case law to ensure the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. These general principles are reflected in the requirements laid down in Directive 2004/18. In particular, article 2 requires that contracting authorities shall treat economic operators equally and non discriminatorily and shall act in a transparent way. Article 41 entitles unsuccessful candidates to be informed of the reasons for the rejection of their applications. Article 53 sets out requirements governing the disclosure of the criteria for the award of public contracts. It was in order to articulate the standard of clarity required in this context by the principle of transparency that the European Court of Justice invoked the RWIND tenderer. In the case of SIAC Construction Ltd v County Council of the County of Mayo (Case C 19/00) [2001] ECR I 7725, where there was a disagreement between the parties as to the interpretation of tender documents, the court stated: 41. Next, the principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified (see, by analogy, Case C 275/98 Unitron Scandinavia and 3 S [1999] ECR 1 8291, paragraph 31). More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret them in the same way. In that passage, the court explained what the legal principle of transparency meant in the context of invitations to tender for public contracts: the award criteria must be formulated in such a way as to allow all RWIND tenderers to interpret them in the same way. That requirement set a legal standard: the question was not whether it had been proved that all actual or potential tenderers had in fact interpreted the criteria in the same way, but whether the court considered that the criteria were sufficiently clear to permit of uniform interpretation by all RWIND tenderers. The objective nature of the standard to be applied also appears from the opinion of Advocate General Jacobs in the same case: The national court should take into consideration not merely the literal terms of the contract documents but also the way in which they may be presumed to be understood by a normally experienced tenderer (para 51: emphasis supplied). That the standard is objective also appears from the opinion of Advocate General Sharpston in Lmmerzahl GmbH v Freie Hansestadt Bremen (Case C 241/06) [2008] 1 CMLR 462. The case concerned another directive which is relevant to the present appeal, namely Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30 December 1989, p 33). Article 1 of the Directive requires member states to take the measures necessary to ensure that: as regards contracts falling within the scope of Directive 2004/18/EC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law. The issue in the case was whether a national time limit for the bringing of proceedings was compatible with Directive 89/665. The time limit started to run if the alleged irregularity was identifiable on the basis of the tender notice. The Advocate General posed the question as to what was the degree or nature of knowledge of an irregularity which might be attributed to a tenderer without breaching the effectiveness principle underlying Directive 89/665. She observed: 66. It seems to me that a requirement of actual, or subjective, knowledge on the part of the tenderer would run counter to legal certainty. Furthermore, in circumstances such as those of the present case, it could be difficult to prove that a tenderer had actual knowledge of an irregularity, and a requirement of such proof would hardly be consistent with the need for a rapid review process. 67. It therefore seems preferable to formulate the test in terms of a standard of deemed, or objective, knowledge. The court already applies an objective standard in respect of tenderers' ability to interpret award criteria against the yardstick of equality of treatment in public procurement, namely the ability of a reasonably well informed and normally diligent tenderer. The same formula seems appropriate in the context of what knowledge of an irregularity in the tender procedure it is reasonable to deem a tenderer to possess. As the Advocate General noted in that passage, the yardstick of the RWIND tenderer is an objective standard applied by the court. An objective standard of that kind is essential in order to ensure equality of treatment, as the court explained in SIAC. In addition, as the Advocate General explained, such a standard is consistent with legal certainty: something which would be undermined by a standard which depended on evidence of the actual or subjective ability of particular tenderers to interpret award criteria in a uniform manner. Furthermore, to require proof of the subjective understanding of tenderers would be inconsistent with the need for review to be carried out as rapidly as possible, as required by article 1 of Directive 89/665. The latter requirement has also been emphasised by the Court of Justice: see for example Universale Bau AG v Entsorgungsbetriebe Simmering GmbH (Case C 470/99) [2002] ECR I 11617, para 74. Judgments of the Court of Justice subsequent to SIAC are consistent with this approach. An example is the case of EVN AG v Austria (Case C 448/01) [2003] ECR I 14527, which concerned the award of a contract for the supply of electricity. The invitation to tender required tenderers to state the amount of electricity which could be supplied from renewable sources. It was contended by an unsuccessful tenderer that that requirement lacked the transparency required by the predecessor directive to Directive 2004/18, because there was a failure to specify the period of time in respect of which the amount that could be supplied was to be stated. The Court of Justice said: 56. It is clear from the court's case law that the procedure for awarding a public contract must comply, at every stage, with both the principle of the equal treatment of potential tenderers and the principle of transparency so as to afford all parties equality of opportunity in formulating the terms of their tenders (see, to that effect, Universale Bau, paragraph 93). 57. More specifically, this means that the award criteria must contract documents or the contract be formulated, in the notice, in such a way as to allow all reasonably well informed tenderers of normal diligence to interpret them in the same way (SIAC Construction, paragraph 41). 58. Consequently, in the case at issue in the main proceedings, the fact that in the invitation to tender the contracting authority omitted to determine the period in respect of which tenderers had to state in their tenders the amount of electricity from renewable energy sources which they could supply could be an infringement of the principles of equal treatment and transparency were it to transpire that that omission made it difficult or even impossible for tenderers to know the exact scope of the criterion in question and thus to be able to interpret it in the same way. 59. Inasmuch as that requires a factual assessment, it is for the national court to determine, taking account of all the circumstances of the case, whether, despite that omission, the award criterion at issue in the main proceedings was sufficiently clearly formulated to satisfy the requirements of equal treatment and transparency of procedures for awarding public contracts. The rationale of the standard of the RWIND tenderer is thus to determine whether the invitation to tender is sufficiently clear to enable tenderers to interpret it in the same way, so ensuring equality of treatment. The application of the standard involves the making of a factual assessment by the national court, taking account of all the circumstances of the particular case. The standard of the RWIND tenderer has been applied by the Court of Justice and the General Court in a number of cases in which those courts have themselves had to determine whether tender documents complied with the standard. An example is the case of Commission of the European Communities v Netherlands (Case C 368/10) [2012] 3 CMLR 234, which concerned the compatibility with Directive 2004/18 of a tender specification for drinks machines which contained generally expressed requirements relating to sustainability. The court stated: 109. The principle of transparency implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract 110. As the Advocate General stated in point 146 of her opinion, it must be held that the requirements relating to compliance with the criteria of sustainability of purchases and socially responsible business and the obligation to contribute to improving the sustainability of the coffee market and to environmentally, socially and economically responsible coffee production are not so clear, precise and unequivocal as to enable all reasonably informed tenderers exercising ordinary care to be completely sure what the criteria governing those requirements are. The same applies, and all the more so, in relation to the requirement addressed to tenderers that they state in their tender in what way [they] fulfil those criteria or in what way [they] contribute to the goals sought by the contracting authority with regard to the contract and to coffee production, without precisely indicating to them what information they must provide. In that case, as in other direct actions where the RWIND tenderer test has been applied (such as Evropaki Dynamiki Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission of the European Communities) (Case T 59/05) (unreported) 10 September 2008 and Evropaki Dynamiki Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Maritime Safety Agency (EMSA) (Case T 70/05) [2010] ECR II 313), the court arrived at its conclusion on the basis of its consideration of the relevant documents, without requiring evidence as to the interpretation placed on the documents by actual or potential tenderers. The provision of reasons As I have explained, article 41 of Directive 2004/18 imposes on contracting authorities a duty to inform any unsuccessful candidate, on request, of the reasons for the rejection of his application. Guidance as to the effect of that duty can be found in the judgment of the Court of First Instance in Strabag Benelux NV v Council of the European Union (Case T 183/00) [2003] ECR II 138, paras 54 58, where the court stated (para 54) that the obligation imposed by an analogous provision was fulfilled if tenderers were informed of the relative characteristics and advantages of the successful tenderer and the name of the successful tenderer. The court continued (para 55): The reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the court to exercise its supervisory Jurisdiction. The Court of Justice stated in Evropaki Dynamiki Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission of the European Communities (Case C 561/10 P), judgment of 20 September 2011 (unreported), paras 25 and 27, that the contracting authority is not obliged to produce a copy of the evaluation report or to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tender. The present case The present case concerns a tendering process carried out by the respondent in 2010 in respect of the provision of medical services to health authorities in Scotland. The appellant was the existing supplier of the services in question, but was unsuccessful in a tender competition for a replacement contract. It challenged that decision on the ground that the respondent had breached certain of its duties under the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1), which implemented Directives 89/665 and 2004/18. In particular, it complained that the criteria in the invitation to tender were insufficiently clear, and that the reasons given to it for the rejection of its tender were unclear and lacking in detail. Following an eight day proof, at which the appellant adduced evidence from a number of witnesses to the effect that they had not understood the criteria in the same way as the successful tenderer, the appellants case was rejected by the Lord Ordinary, Lord Hodge: [2012] CSOH 75. In relation to the clarity of the criteria, he expressed the opinion that it was unrealistic to require a contracting authority to frame its invitation to tender in such detail that two reasonable people could not reach different views on its interpretation. He noted that there were practical limits to the extent to which a contracting authority could spell out every aspect of what its criteria might entail, and stated that it was implicit in the RWIND tenderer test that the court should ask what would have been reasonably foreseeable by a RWIND tenderer as being encompassed by the stated criteria. Applying that objective approach to the invitation to tender, in the light of evidence as to the relevant context, he concluded that the criteria met the required standard of clarity. In relation to the reasons given, he applied the approach which I have described in paragraph 17 in the light of the evidence, and concluded that the reasons which had been given were adequate: the appellant could have been left in no real doubt as to why it had been unsuccessful, and as to the relative characteristics and advantages of the successful tenderer. The appellant was able to assert its rights before the courts. An appeal to the Inner House was refused, for reasons set out in an opinion delivered by the Lord Justice Clerk, Lord Carloway: [2013] CSIH 22; 2013 SC 411. In his opinion, the Lord Justice Clerk recalled what the Court of Justice had said about the requirement of transparency in SIAC, namely that the test was whether the invitation to tender had formulated the criteria in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret them in the same way (para 52). He observed (para 57): The criteria must be formulated in such a manner as to allow all reasonably well informed and diligent tenderers to interpret them uniformly. If such a tenderer could, understandably and plausibly have construed the criteria in different ways then the criteria must be deemed insufficiently transparent. However, that is a long way from a proposition that the mere fact that a tenderer, who might normally be regarded as reasonably well informed and diligent, construed the criteria in his own particular way is destructive of the process. For such an outcome, the court has to be satisfied that the interpretation was open to the hypothetical tenderer and not simply that the unsuccessful tenderer had been reasonably well informed and diligent and in fact reached that interpretation. The Lord Justice Clerk also observed that it was relevant to consider what the hypothetical RWIND tenderer would have anticipated was entailed by the criteria, but expressed doubt as to whether it was useful or appropriate to employ in this context the concept of reasonable foreseeability: a concept which appeared to add nothing to the established jurisprudence in this field but which, because of its familiarity in other branches of the law, might cause confusion in this context. In the appeal to the Inner House, counsel for the appellant founded on evidence which had been led before the Lord Ordinary as to witnesses understanding of the invitation to tender. Counsel sought to rely on the evidence in order to establish how a RWIND tenderer would have understood the criteria in question. The Lord Justice Clerk considered however that the attempt to establish by evidence how the RWIND tenderer would have understood the criteria was misguided (para 60). The Lord Justice Clerk also observed that it was of considerable importance that decisions of the courts on the validity of a tendering process were taken with all due expedition, so that the parties could know, without delay, whether or not the contract was going to proceed. Unless there was a strong reason to suppose that it would cause injustice, such decisions ought to be capable of being taken in the absence of detailed oral testimony. If it were otherwise, a swift decision would be almost impossible. In relation to the adequacy of the reasons given, the Inner House followed the same approach as the Lord Ordinary and arrived at the same conclusion. The appeal In its appeal to this court, the appellant challenges the conclusions reached by the courts below both in relation to the clarity of the tender criteria and in relation to the adequacy of the reasons given for the rejection of its tender. In relation to the tender criteria, the appellant submits that the Inner House erred in treating the RWIND tenderer as a hypothetical construct, and in applying the RWIND tenderer standard not according to the evidence of witnesses as to what an actual tenderer did or thought, but according to the courts assessment of what a hypothetical RWIND tenderer would have done or thought. The evidence of witnesses from an actual tenderer as to their understanding of the tender criteria, far from being irrelevant, established what RWIND tenderers actually understood, unless it were shown that the witnesses were not reasonably well informed or normally diligent. The courts below had, it was submitted, confused the RWIND tenderer test with the interpretation of a contract: an objective test was appropriate in the latter context, but not in the former. For the reasons I have explained at paragraphs 2 3 and 7 12, these submissions are in my view ill founded. I agree with the way in which this issue was dealt with by the Lord Justice Clerk: The court's decision will involve it placing itself in the position of the reasonably informed tenderer, looking at the matter objectively, rather than, as occurred here to a degree, hearing evidence of what such a hypothetical person might think Although different from an orthodox exercise in contractual interpretation, the question of what a reasonably well informed and normally diligent tenderer might anticipate or understand requires an objective answer, albeit on a properly informed basis. Just like those other juridical creations, such as the man on the Clapham omnibus (delict) or the officious bystander (contract), the court decides what that person would think by making its own evaluation against the background circumstances. It does not hear evidence from a person offered up as a candidate for the role of reasonable tenderer. In a disputed case, the court will, no doubt, need to have explained to it certain technical terms and will have to be informed of some of the particular circumstances of the terms or industry in question, which should have been known to informed tenderers. However, evidence as to what the tenderers themselves thought the criteria required is, essentially, irrelevant. (para 60) As the Lord Justice Clerk made clear, evidence may be relevant to the question of how a document would be understood by the RWIND tenderer. The court has to be able to put itself into the position of the RWIND tenderer, and evidence may be necessary for that purpose: for example, so as to understand any technical terms, and the context in which the document has to be construed. But the question cannot be determined by evidence, as it depends on the application of a legal test, rather than being a purely empirical enquiry. Although, as counsel for the appellants emphasised, the question is not one of contractual interpretation the issue is not what the invitation to tender meant, but whether its meaning would be clear to any RWIND tenderer it is equally suitable for objective determination. I also agree with the Lord Justice Clerk that it is unnecessary, and potentially confusing, to introduce the concept of reasonable foreseeability in the present context. The Lord Ordinarys reference to reasonable foreseeability did not however lead him into error: in substance, he and the Inner House applied the same objective test by considering what a RWIND tenderer would have understood as being encompassed or entailed by the terms of the invitation to tender. Counsel for the appellant also submitted that the Lord Ordinary and the Inner House had erred in concluding that a number of specific aspects of the invitation to tender complied with the requisite standards of transparency. In each case, the argument was essentially that the court had erred in holding that the meaning of the relevant criterion would have been sufficiently clear to a hypothetical RWIND tenderer, in the light of evidence that it had not been clear to witnesses whose understanding was said to be representative of that of a RWIND tenderer. Once it is accepted, however, that the courts below applied the correct legal test, this court will not readily interfere with the conclusion which they reached in the light of their evaluation of the evidence (cf Biogen Inc v Medeva plc [1997] RPC 1, 45; In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911). There is no suggestion that circumstances entitling this court to interfere might exist in the present case, if the principal submission, that the courts below erred in law in their treatment of the evidence in question, were rejected. In these circumstances, it is unnecessary to repeat the analysis carried out by the Inner House. It was also submitted that the courts below had erred in concluding that the reasons given to the appellants for the rejection of their tender were adequate. As I have explained, however, the courts below applied the approach laid down by the Court of Justice. It is not the function of this court to review their findings, in the absence of any error of law in their approach to the evidence or some other recognised ground for interfering with their assessment. Conclusion For these reasons, I would dismiss the appeal.

UK-Abs

The present case concerns a tendering process carried out by the respondent in 2010 in respect of the provision of medical services to health authorities in Scotland. The appellant was the existing supplier of the services in question, but was unsuccessful in a tender competition for a replacement contract. The appellant challenged that decision on the ground that the respondent had breached certain of its duties under the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1), which implemented certain EU Directives. In particular, the appellant complained that: (i) the criteria in the invitation to tender were insufficiently clear; and (ii) that the reasons given for the rejection of the tender bid were unclear and lacking in detail. [18] One of the EU Directives implemented by the Regulations is Directive 2004/18/EC of 31 March 2004, which concerns the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. The Directive seeks to ensure that the award of contracts by public authorities in the member states is subject to the principles of freedom of movement of goods, freedom of establishment and freedom to provide services, and to other principles derived from those, such as the principles of equal treatment, non discrimination, mutual recognition, proportionality and transparency. In particular, article 2 requires that contracting authorities shall treat economic operators equally and non discriminatorily and shall act in a transparent way. Article 41 entitles unsuccessful candidates to be informed of the reasons for the rejection of their applications. The Court of Justice of the European Union (the CJEU) has explained that the principle of transparency requires that that the award criteria for public contracts must be formulated in such a way as to allow all reasonably well informed and normally diligent tenderers [(RWIND tenders)] to interpret them in the same way. [57] The appellants case was rejected by the Outer House of the Court of Session. There, the Lord Ordinary, Lord Hodge, concluded that the award criteria met the required standard of clarity and that the reasons given by the respondent for rejecting the appellants tender were adequate. The appellants appeal to the Inner House of the Court of Session was refused. [1923] The issues before the Supreme Court on the appeal from the Inner House are: (i) in relation to the clarity of award criteria, whether the lower courts erred in treating the RWIND tenderer as a hypothetical construct, based on the courts objective assessment of the appropriate standard of clarity, rather than on the basis of the evidence of witnesses as to what an actual tenderer did or thought; and (ii) whether the lower courts had erred in concluding that the reasons given to the appellants for the rejection of their tender were adequate. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the only judgment, with which the other Justices agree. The courts below applied the correct legal test to assess the clarity of the award criteria. In these circumstances it was not appropriate for the Supreme Court to interfere with the conclusion which they reached in the light of their evaluation of the evidence. Similarly, in assessing the adequacy of reasons given to the appellant, the lower courts applied the approach laid down by the CJEU, and it is not appropriate for the Supreme Court to interfere with their factual findings. Standard of clarity in award criteria When courts refer to the approach of a reasonable person or, in this case, an RWIND tenderer, they are describing an objective legal standard by reference to a hypothetical person. It follows that it would be misconceived for a party to seek to lead evidence from actual persons on how they would have acted in a given situation or what they would have perceived. [23] The decisions of the CJEU and the opinions of Advocates General in a series of cases also make clear that the RWIND tenderer standard is an objective one. The relevant question is not whether it had been proved that all actual or potential tenderers had in fact interpreted the criteria in the same way, but whether the court considered that the criteria were sufficiently clear to permit of uniform interpretation by all RWIND tenderers. An approach which depends on evidence of the actual or subjective understanding of tenderers would undermine the principle of legal certainty and the need that any review of a tender process be carried out as quickly as possible. [716] Reasons given to unsuccessful tenderers The scope of the duty to give reasons for an unsuccessful tender is described by the Court of First Instance in Strabag Benelux NV v Council of the European Union (Case T 183/00). The court stated that the obligation was fulfilled if tenderers were informed of the relative characteristics and advantages of the successful tenderer and the name of the successful tenderer. The lower courts followed this approach and each concluded that the reasons which had been given to the appellant were adequate since the appellant could have been left in no real doubt as to why it had been unsuccessful, and as to the relative characteristics and advantages of the successful tenderer. [19; 23; 30]

This appeal is concerned with the systematic collection and retention by police authorities of electronic data about individuals. The issue in both cases is whether the practice of the police governing retention is lawful, as the appellant Police Commissioner contends, or contrary to article 8 of the European Convention on Human Rights, as the respondents say. A particular feature of the data in question is that they consist entirely of records made of acts of the individuals in question which took place in public or in the common spaces of a block of flats to which other tenants had access. The information has not been obtained by any intrusive technique such as bugging or DNA sampling. In the first appeal, Mr John Catt objects to the retention on a police database of records of his participation in political demonstrations going back to 2005. In the second appeal, Ms T objects to the retention on a police database of a record of a minor altercation with a neighbour which the latter reported to the police. Each of them accepts that it was lawful for the police to make a record of the events in question as they occurred, but contends that the police interfered with their rights under article 8 of the European Convention on Human Rights by thereafter retaining the information on a searchable database. I shall have to say more about the facts of these cases in due course. Both applications failed at first instance. In the Court of Appeal, they were heard together, and both appeals were allowed: [2013] 1 WLR 3305. Historically, one of the main limitations on the power of the state was its lack of information and its difficulty in accessing efficiently even the information it had. The rapid expansion over the past century of mans technical capacity for recording, preserving and collating information has transformed many aspects of our lives. One of its more significant consequences has been to shift the balance between individual autonomy and public power decisively in favour of the latter. In a famous article in the Harvard Law Review for 1890 (The Right to Privacy, 4 Harvard LR 193), Louis Brandeis and Samuel Warren drew attention to the potential for recent inventions and business methods to undermine the autonomy of individuals, and made the case for the legal protection not just of privacy in its traditional sense but what they called the more general right of the individual to be let alone. Brandeis and Warren were thinking mainly of photography and archiving techniques. In an age of relatively minimal government they saw the main threat as coming from business organisations and the press rather than the 4. state. Their warning has proved remarkably prescient and of much wider application than they realised. Yet although their argument was based mainly on English authority, the concept of a legal right of privacy whether broadly or narrowly defined fell on stony ground in England. Its reception here has been relatively recent and almost entirely due to the incorporation into domestic law of the European Convention on Human Rights. Is article 8 engaged? Article 8 of the Convention confers on everyone a qualified right to respect for his private and family life, his home and his correspondence. It has proved to be the most elastic of the rights protected by the Convention and, as Lord Rodger pointed out in R (Countryside Alliance) v Attorney General [2008] AC 719, para 92, has for many years extended well beyond the protection of privacy in its narrower sense. A long series of individual decisions, each in itself of limited scope, culminated in the following statement of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1, para 61: As the court has had previous occasion to remark, the concept of private life is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . It can sometimes embrace aspects of an individual's physical and social identity . Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8 . Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world . Though no previous case has established as such any right to self determination as being contained in article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees. In common with other jurisdictions, including the European Court of Human Rights and the courts of the United States, Canada and New Zealand, the courts of the United Kingdom have adopted as the test for what constitutes private life whether there was a reasonable expectation of privacy in the relevant respect: see Campbell v MGN Ltd [2004] 2 AC 457, para 21 (Lord Nicholls) and Kinloch v HM Advocate [2013] 2 AC 93, paras 19 21 (Lord Hope). In one sense this test might be thought to be circular. It begs the question what is the privacy which may be the subject of a reasonable 5. expectation. Given the expanded concept of private life in the jurisprudence of the Convention, the test cannot be limited to cases where a person can be said to have a reasonable expectation about the privacy of his home or personal communications. It must extend to every occasion on which a person has a reasonable expectation that there will be no interference with the broader right of personal autonomy recognised in the case law of the Strasbourg court. This is consistent with the recognition that there may be some matters about which there is a reasonable expectation of privacy, notwithstanding that they occur in public and are patent to all the world. In this context mere observation cannot, save perhaps in extreme circumstances, engage article 8, but the systematic retention of information may do. In Rotaru v Romania (2000) 8 BHRC 449, para 43, the Grand Chamber held that public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. Cf SegerstedtWiberg v Sweden (2006) 44 EHRR 14, para 72. In PG v United Kingdom (2001) 46 EHRR 1272, the court found a violation of article 8 by covertly recording the applicants voices at a police station in the presence of police officers, for the purposes of future voice recognition. At para 57 the court said: There are a number of elements relevant to a consideration of whether a persons private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of article 8, even where the information has not been gathered by any intrusive or covert method. In Bouchacourt v France, 17 December 2009, Application No 5335/06, a case concerning the inclusion of persons in a register of convicted sex offenders, it was held at para 57 that the mere storing by a public authority of data relating to the private life of an individual engaged article 8 of the Convention so as to require to be justified. In S v United Kingdom (2008) 48 EHRR 1169 the Strasbourg court held that article 8 was engaged by the mere storage of cellular samples, DNA profiles and fingerprints: see paras 77, 86. This was because of the sensitivity and amount of the personal information in question, and the uses to which it might conceivably be put: paras 70 86. The same principle has been recognised and applied in English case law. As Lord Hope of Craighead DPSC observed in R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening) [2010] 1 AC 410, para 27, even public information such as a criminal conviction may become part of a persons private life once it recedes into the past and other people are likely to have forgotten about it. 6. These cases, and others like them, all have particular features which differentiate them both from each other and from the present cases. But it is clear that the states systematic collection and storage in retrievable form even of public information about an individual is an interference with private life. For that reason I think that the Court of Appeal was right to hold (overruling the Divisional Court in Catt) that article 8(1) was engaged. It follows that the present appeals turn on article 8(2) of the Convention, and in particular on whether the retention of the data is (i) in accordance with law, and (ii) proportionate to its objective of securing public safety or preventing disorder or crime. The domestic legal framework 7. At common law the police have the power to obtain and store information for policing purposes, ie broadly speaking for the maintenance of public order and the prevention and detection of crime. These powers do not authorise intrusive methods of obtaining information, such as entry upon private property or acts (other than arrest under common law powers) which would constitute an assault. But they were amply sufficient to authorise the obtaining and storage of the kind of public information in question on these appeals. 8. The exercise of these powers is subject to an intensive regime of statutory and administrative regulation. The principal element of this regime is the Data Protection Act 1998. The Act was passed to give effect to Directive 95/46/EC on the protection of individuals with regard to the processing of personal data, a harmonisation measure designed to produce a common European framework of regulation ensuring a high level of protection satisfying (among other standards) article 8 of the Convention: see recitals 10 and 11. On ordinary principles of statutory construction the Act will as far as possible be interpreted in a manner consistent with that objective. It is primarily concerned to regulate the processing of data by any data controller or any other person who processes data on behalf of a data controller. For this purpose, personal data means data relating to a living individual identifiable from the data (whether or not in conjunction with other information or data available to the controller). Processing means obtaining, recording or holding information or data or carrying out any operation upon it including retrieval, consultation, use or disclosure. For present purposes, the relevant provisions can be summarised as follows: (1) Subject to exceptions of no present relevance, a data controller is required by section 4(4) to comply with the data protection principles in Schedule 1. So far as they are relevant to the present appeals, the data protection principles are as follows: Principle 1 is that personal data may not be processed at all unless it is necessary for a relevant purpose. In the case of the police, the relevant purposes are the administration of justice and the exercise of any other function of a public nature exercised in the public interest. Principle 2 is that personal data may be obtained only for lawful purposes and may not be further processed in a manner incompatible with those purposes. Principle 3 is that the data must be adequate, relevant and not excessive for the relevant purpose. Principle 5 is that the data may not be kept for longer than is necessary for those purposes. Principle 7 is that proper and proportionate measures must be taken against the unauthorised or unlawful processing of the data. (2) There is a statutory right in any data subject on request to be given access to any personal data concerning him: section 7. This is subject to an exception under section 29 for personal data processed for the purpose of (among other things) preventing or detecting crime or apprehending or prosecuting offenders. The effect of the exception is to protect information relating to current police investigations or operations. (3) There is a statutory right in a data subject to require a data controller not to process personal data, on the ground that it is causing or is likely to cause unwarranted and substantial damage or substantial distress to him or to someone else: section 10(1). This right would not apply to processing which is necessary for the administration of justice or for the exercise of other public functions in the public interest. But it would apply in any case where that limitation has been exceeded: section 10(2) and Schedule 2, para 5. (4) Complaints about breach of a data controllers obligations may be pursued in the courts or by way of complaint to the regulator, the Information Commissioner: sections 13 and 14. The relief available includes damages. 9. These provisions are supplemented in the case of the police by published administrative codes. Under section 39A of the Police Act 1996 the Secretary of State is empowered to issue codes of practice for the purpose of promoting the efficiency and effectiveness of police forces. A Code of Practice on the management of police information was issued by the Secretary of State in July 2005. The Code follows fairly closely the provisions of the Data Protection Act, while relating them more directly to the particular functions of the police. The central concept underlying it is the limitation of the handling of police information to police purposes. These are defined at paragraph 2.2 as protecting life and property, preserving order, preventing crime, bringing offenders to justice and performing any legal duty or responsibility of the police. Subsequent provisions of the Code deal with the use, review and deletion of information originally recorded for police purposes. Paragraph 4.7 provides for the sharing of information within the United Kingdom police service if it is required for police purposes and the recipient observes the Code. Paragraph 4.8 provides for the sharing of information outside the service on the authority of a chief officer of police if he is satisfied that it is reasonable and lawful to do so for police purposes. Paragraph 4.10 imposes a duty directly on those receiving information in these ways to use it only for the purpose for which it was supplied. Under paragraphs 4.5 and 4.6, information originally recorded for police purposes must be reviewed at intervals. At each review the likelihood that it will be used for police purposes should be assessed, and it should be considered for retention or deletion. 10. The Code of Practice provides for more detailed provision to be made by way of guidance which will (among other things) identify minimum standards of information management to be observed. Guidance on the Management of Police Information (or MOPI) was originally issued by the Association of Chief Police Officers in 2006, and updated by a new edition in 2010. This was in turn superseded by the Authorised Professional Practice: Information Management Retention, review and disposal, published by the College of Policing in 2013. Section 7 of the 2010 document deals with the review of information for retention or disposal. It requires police information to be managed in compliance with the Convention, the Human Rights Act and the Data Protection Act. Paragraph 7.1 begins: Reviewing information held by forces to determine its adequacy and continuing necessity for a policing purpose is a reliable means of meeting the requirements of the Data Protection Act. Review procedures should be practical, risk focused and able to identify information which is valuable to the policing purpose and needs to be retained. Review procedures should not be overly complex but should be as straightforward as is operationally possible. Paragraph 7.4 provides: All records which are accurate, adequate, up to date and necessary for policing purposes will be held for a minimum of six years from the date of creation. This six year minimum helps to ensure that forces have sufficient information to identify offending patterns over time, and helps guard against individuals efforts to avoid detection for lengthy periods. Beyond the six year period, there is a requirement to review whether it is still necessary to keep the record for a policing purpose. The review process specifies that forces may retain records only for as long as they are necessary. Paragraph 7.3.1 provides that the object of the review is to ensure that there is a continuing policing purpose for holding the record, that the record is adequate, up to date and not excessive, that the Data Protection Act is complied with, and that the assessment of the level of risk that the person presents is correct. A number of detailed criteria for carrying out this exercise are then set out. Records are required to be subjected to an initial evaluation, and then kept for a minimum of six years. Thereafter, they are subject to: (i) triggered reviews, when information is added about the person in question or a statutory demand for access or disclosure is received or a request for information is made by another law enforcement agency; and (ii) scheduled reviews, which occur automatically at intervals varying with the nature of the information and the gravity of the risk: paragraphs 7.6.2 and 7.6.3. The criteria for retention or deletion are directed to the risk of harm to the public or to vulnerable sections of the public. Only in the case of persons convicted or suspected of involvement in offences involving the highest level of danger to the public are records to be retained indefinitely. Information which is no longer required must be irretrievably deleted. Substantially similar provisions appear in the current Guidance of 2013. In accordance with the law 11. The requirement of article 8(2) that any interference with a persons right to respect for private life should be in accordance with the law is a precondition of any attempt to justify it. Its purpose is not limited to requiring an ascertainable legal basis for the interference as a matter of domestic law. It also ensures that the law is not so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis. In R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307, para 34, Lord Bingham of Cornhill observed that the lawfulness requirement in the Convention addresses supremely important features of the rule of law: The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. In the context of the retention by the police of cellular samples, DNA profiles and fingerprints, the Grand Chamber observed in S v United Kingdom (2008) 48 EHRR 1169, para 99, that there must be clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness. For this purpose, the rules need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them. Their application, including the manner in which any discretion will be exercised, should be reasonably predictable, if necessary with the assistance of expert advice. But except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise. It is enough that it lays down principles which are capable of being predictably applied to any situation. 12. The Data Protection Act is a statute of general application. It is not specifically directed to data obtained or stored by the police. But it lays down principles which are germane and directly applicable to police information, and contains a framework for their enforcement on the police among others through the Information Commissioner and the courts. It deals directly in section 29 and in Schedule 2, paragraph 5 with the application of the principles to law enforcement. The Data Protection Principles themselves constitute a comprehensive code corresponding to the requirements of the EU Directive and the Convention. The effect of the first principle, read in conjunction with the requirements of Schedule 2, is that data cannot be obtained, recorded, held or used by the police unless it is necessary for them to do so for the purpose of the administration of justice or the performance of their other functions. The fifth principle prevents the retention of data for any longer than is necessary for this purpose. These principles are supplemented by a statutory Code of Conduct and administrative Guidance compliance with which is mandatory. The relevant functions of the police are limited to policing functions which are clearly and narrowly defined in para 2.2 of the statutory Code of Practice. 13. There are discretionary elements in the statutory scheme as there must inevitably be, given the great variety of circumstances that may give rise to allegations that personal data have been improperly processed. But their ambit is limited. In the first place, the Code of Practice governing police information is an administrative document whose contents are determined by police organisations subject to the approval of the Home Secretary. It leaves room for discretionary judgment by the police within specified limits, notably in the area of the duration of retention. But both the Code and the Guidance issued under it are subordinate instruments which are subject to the Data Protection Principles. Neither the Information Commissioner nor the courts are bound or indeed entitled to apply them in a manner inconsistent with those principles. Secondly, the Commissioner has a discretion whether to take action. He need not, for example, necessarily issue an enforcement notice in a trivial case or one in which a contravention has caused no appreciable damage or distress. But he is bound to enforce the Act, and his performance (or non performance) of his functions is subject to judicial review in the ordinary way. 14. Much of the argument advanced on behalf of Mr Catt and Ms T on this point amounted to a complaint that this material did not enable them to know precisely what data would be obtained and stored or for how long. But these arguments were not in my opinion realistic. The infinite variety of situations in which issues of compliance may arise and the inevitable element of judgment involved in assessing them make complete codification impossible. However, any person who thinks that the police may hold personal information about him may call for access to it under section 7 of the Act, subject (in the present kind of case) only to the exception in section 29. Armed with the information any person who objects to its retention or use can bring the matter before the Information Commissioner. 15. Before leaving this aspect of the current appeals, I should say something about two cases on which the respondents particularly relied. They are the decision of the European Court of Human Rights in MM v United Kingdom, 13 Nov 2012, Application No 24029/07, and the decision of this court in R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2015] AC 49. Both cases concerned the disclosure of information from police records under the Police Act 1997 to potential employers and regulatory bodies, as a result of which the complainants were unable to obtain employment involving contact with children or vulnerable adults. Section 113A of the Police Act 1997 required the disclosure of convictions (including cautions), and section 113B required the disclosure of other information on police records which the relevant chief officer of police reasonably believed to be relevant and which in his opinion ought to be disclosed. Since these disclosures were required by statute, the provisions of the Data Protection Act 1998 restricting their disclosure had no application: see section 35(1) of that Act. In MM, the European Court of Human Rights held that disclosure in accordance with sections 113A and 113B was not in accordance with law because it was mandatory. The relevant provisions involved no rational assessment of risk and contained no safeguards against abuse or arbitrary treatment of individuals. In T, the Supreme Court, on materially indistinguishable facts, applied the same principle. The present appeals, however, come before us on a very different basis. There has been no disclosure to third parties, and the prospect of future disclosure is limited by comprehensive restrictions. It is limited to policing purposes, and is subject to an internal proportionality review and the review by the Information Commissioner and the Courts. In MM, the Strasbourg court criticised the generous approach of the law of the United Kingdom to the exercise of police power to retain personal data even before disclosure (para 170). It does not, however, follow from these criticisms that retention of personal data in the United Kingdom is not in accordance with law. In the first place, at the time which was relevant to the 16. applicants complaint in MM, challenges to the retention of data were seriously inhibited by the decisions of the House of Lords in R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, which concerned the statutory power of the police to retain DNA profiles taken from persons who had been arrested but who were subsequently acquitted or not prosecuted, and Chief Constable of Humberside Police v Information Comr (Secretary of State for the Home Department intervening) [2010] 1 WLR 1136, which concerned the retention of records of minor convictions. In both cases, the courts had doubted whether article 8 of the Convention was even engaged, but on the footing that it was engaged considered that the interference with private life was minor and justified. Things have moved on since then. There is no longer any doubt about the application of article 8 to the systematic retention of processable personal data, and the test of justification has become more exacting since the decision of the Strasbourg court in S v United Kingdom (2008) 48 EHRR 1169. The decisions of this court in R (GC) v Comr of Police for the Metropolis [2011] 1 WLR 1230 and R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening) [2010] 1 AC 410 were important milestones. Secondly, the purpose for which the rules and practices about data retention were reviewed by the Strasbourg court in MM was not to ascertain the legality of the retention but to assess the adequacy of domestic remedies having regard to the applicants alleged failure to exhaust them before petitioning the Strasbourg court. Thirdly, it is clear that the retention of the data in MM was relevant not so much in itself as because it exposed the applicant to future disclosure. The problem with which the Strasbourg court was concerned was that once the data were entered into the system, there was no way of preventing their disclosure under the mandatory provisions of the Police Act. It followed that the only legal protection against disclosure consisted in the restrictions on the obtaining or retention of the data in the first place. The point is well captured in the courts conclusion, at para 207. It was not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant's private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant's caution data accordingly cannot be regarded as being in accordance with the law. 17. In my opinion, the retention of data in police information systems in the United Kingdom is in accordance with law. The real question on these appeals is whether the interference with the respondents article 8 rights was proportionate to the objective of maintaining public order and preventing or detecting crime. For this purpose, it is necessary to look separately at the two cases before us, for the relevant considerations are very different. Proportionality: Mr Catt 18. Mr Catts complaint relates to the recording and retention of information relating to his participation in political protests. Before addressing his own position, it is necessary to summarise, so far as it is relevant to these proceedings, how and why information of this kind is dealt with by the police. 19. Political protest is a basic right which the common law has always recognised, within broad limits directed to keeping the peace and protecting the rights and property of others. It is also a right protected by articles 10 and 11 of the Convention. It is an unfortunate but inescapable fact that some extremist groups deliberately adopt tactics which are likely to involve serious criminal damage to property, assaults against police officers and others, and serious acts of aggravated trespass, harassment and intimidation. This case is mainly concerned with one such group, called Smash EDO. Its object is to close down the activities in the United Kingdom of EDO MBM Technology Ltd, a US owned company which manufactures weapons and weapon components and has a factory in Brighton. Not all of those who attend demonstrations organised by Smash EDO are intent on violence, but the evidence is that some are. Recorded crimes associated with the groups operations against EDO include assault on police officers, sometimes by organised groups (black blocs) who arrive with missiles and other weapons, padding and body armour. They also include: extensive and repeated criminal damage to EDO premises by smashing windows, blocking air conditioning units, throwing fireworks and glass bottles of red oxide paint, forcibly entering premises and breaking equipment; damage to cars belonging to their employees; harassment and intimidation of staff both at their place of work and at home; and conducting secondary campaigns by similar methods against companies supplying services to EDO, such as couriers and banks. In his witness statement, Detective Chief Superintendent Tudway of the Metropolitan Police describes Smash EDO as amongst the most violent in the UK and the only one that would be attended by anarchists prepared to use black bloc tactics. 20. The local organisation of police forces in England makes it necessary for police forces to create organisations to coordinate their response to threats which transcend the limits of individual police areas. At the time when he wrote his witness statement, Detective Chief Superintendent Tudway was the National Coordinator for Domestic Extremism, an office established in 2004 under the auspices of the Association of Chief Police Officers (ACPO) but which subsequently became part of the Metropolitan Police. The National Coordinator is responsible for a number of units whose function is to coordinate the police response to domestic extremism, which is currently defined by ACPO as the planning or commission of crimes motivated by a political or ideological point of view. One of these is the National Domestic Extremism and Disorder Intelligence Unit, formerly known as National Public Order Intelligence Unit (or NPOIU). The Unit was created in 1999 but has its origins in an organisation created in 1986 to coordinate police intelligence about animal rights extremists who were responsible during the 1980s and 1990s for a particularly violent and destructive campaign of criminality directed against the use of animals in research institutions. The Unit exists to support local police forces by gathering, evaluating and disseminating among police forces intelligence relating to threats to public order, including those arising from domestic extremism. The police routinely collect information at public demonstrations. Much of this is done overtly, no intrusive techniques being employed. Very often, they do not retain the information if no offences have occurred and the demonstration was a one off event. However, where a demonstration is part of a regular and long running campaign which gives rise to repeated acts of crime and disorder, the practice is to retain it even if offences have not been committed on that particular occasion or at any rate not by the individual whose presence or activities are recorded. Each incident is recorded on Information Reports, which generally contain a brief description of what occurred, with the names of those attending, so far as recognised. Some individuals are the subject of a nominal record, which will collect together Information Reports referring to them. These records are stored on a database which has been referred to in these proceedings as the Domestic Extremism Database. Its formal title is the National Special Branch Intelligence System. 21. Nominal records, and Information Reports, are reviewed for retention or deletion in accordance with current MOPI recommendations, which I have already summarised. More stringent procedures are followed in the case of photographs, which until recently were reviewed automatically every three years, and are now reviewed every year. These processes were, however, accelerated as a result of a report by HM Inspectorate of Constabulary published in January 2012 on undercover police operations designed to obtain intelligence about protest movements. The report concluded (among other things) that information was being unnecessarily retained in police records. Although the report was concerned with covertly obtained intelligence, it led to an extensive review of the existing database covering overtly obtained intelligence as well, so as to ensure that its continued retention was justified. This resulted in the deletion of a large number of nominal records and associated Information Reports. 22. Mr Catt is a 91 year old man living in Brighton. By his own account, he has been active in the peace movement since 1948, and has been a regular attender at public demonstrations throughout that period. Since 2005, he has frequently participated in demonstrations organised by Smash EDO, generally in Brighton. Mr Catt has twice been arrested at Smash EDO demonstrations for obstructing the public highway, but he has never been convicted of any offence. For my part, I am happy to take at face value his statement that he believes in peaceful protest and practises it. 23. From March 2005, Mr Catt began to appear in police information reports relating to Smash EDO protests in Brighton. As a result of his being identified on these occasions, he occasionally appeared in addition in Information Reports relating to other protests in which he participated, some of them away from Brighton. In March 2010, Mr Catt made an access request under section 7 of the Data Protection Act 1998 for information relating to him. As a result of the disclosure made in response to that request, and of the evidence in these proceedings, the position in relation to Mr Catt can be summarised as follows. There had at one stage been a nominal record for Mr Catt, but it was deleted some time before these proceedings were begun (November 2010). Presumably it had already been deleted when Mr Catt made his access request in March 2010, or its existence would have been disclosed. Nominal records for other persons and Information Reports concerning demonstrations, which incidentally mention Mr Catt had been retained. Some entries from these documents relating to incidents between March 2005 and October 2009 were retrieved which referred to Mr Catt, and these were disclosed to him in response to his access request, in addition to a photograph of him taken at a demonstration in September 2007. In January 2012, information was supplied about three further reports mentioning Mr Catt, which were received in July 2011. In the great majority of cases, all that was recorded about Mr Catt was his presence, date of birth and address. In some cases his appearance is also described. 24. Mr Catt believes that he was specifically targeted by the police. There is, however, no evidence of this. His name appears along with the names of other participants about whom the same sort of information is recorded, together with the names of witnesses and victims. Nominal records about other people which mention Mr Catt were reviewed for deletion or retention in accordance with the criteria which I have summarised. The intervals between scheduled reviews will depend on the category of risk to which the subject of the nominal record belongs. Mr Catts photograph came up for automatic review in July 2010, and was deleted. Subsequently, as a result of the general review of the database undertaken since 2012, the number of nominal reports and Information Reports which mentioned Mr Catt was reduced to two. 25. Do these considerations justify the retention of information including some which relates to persons such as Mr Catt against whom no criminality is alleged? In my opinion, they do. 26. The starting point is the nature and extent of the invasion of privacy involved in the retention of information of this kind. I am conscious that the Strasbourg court has in the past taken exception to the characterisation of interferences by English courts with private life as being minor (see, notably, MM, at para 170), but the word seems to me to be appropriate to describe what happened in this case. The information stored is personal information because it relates to individuals, but it is in no sense intimate or sensitive information like, for example, DNA material or fingerprints. It is information about the overt activities in public places of individuals whose main object in attending the events in question was to draw public attention to their support for a cause. Although the collation of the information in the form in which it appears in police records is not publicly available, the primary facts recorded are and always have been in the public domain. No intrusive procedures have been used to discover and record them, another marked contrast with DNA material. The material records what was observed by uniformed police officers in public places. 27. The retention in a nominal record about a particular person or in an Information Report about a demonstration of information about other persons such as Mr Catt who were participating in the same event does not carry any stigma of suspicion or guilt. Mr Catt takes exception to what he regards as the inference that all those mentioned as participating in events such as Smash EDO protests are extremists. But that is not a fair inference. The relevant police units are concerned with extremism, in the sense of the pursuit of a political cause by criminal means, but it does not follow that all those who are recorded as attending these events are being characterised as extremists in that or any other sense. Unlike the records of criminal convictions or cautions, the information would not be regarded as discreditable to those who were merely recorded as attending an event at which they were not alleged to have committed offences. But in fact, the material is not usable or disclosable for any purpose other than police purposes, except as a result of an access request by the subject under the Data Protection Act. It is not used for political purposes or for any kind of victimisation of dissidents. It is not available to potential employers or other outside interests. There are robust procedures for ensuring that these restrictions are observed. Finally, the material is periodically reviewed for retention or deletion according to rational and proportionate criteria based on an assessment of danger to the public and value for policing purposes. 28. Mr Catt has characterised the practice of retaining such information on a database as secret, but to my mind this is somewhat extravagant. The retention by the police of personal data about persons and events of interest to them is the subject of a statutory Code of Practice and administrative Guidance. These are public documents. With limited exceptions relating mainly to current investigations or operations, any personal data in the possession of the police can be accessed by the subject by a request under the Data Protection Act. The existence of specialised police units dealing with political demonstrations which are thought liable to degenerate into criminality is widely known. The fact that they record information about them and those who participate in them has never been concealed from those who wish to know about these matters. They have been referred to in the press and in reports of HM Inspectorate of Constabulary. Our attention was drawn to a report on the BBC News web site dating from 2002 and an HMIC report of 2003. Given the high profile of some protest groups and their association with criminality, these are the kind of matters which, even in the absence of specific information, most people would expect the police to record and retain. 29. Even a comparatively minor interference with a persons right to respect for private life calls for justification. I turn therefore to the question why is it necessary to retain such material at all, especially in the case of a person like Mr Catt who has a clean record and for whom violent criminality must be a very remote prospect indeed. The purposes for which the evidence about participants in demonstrations is retained are described in Detective Chief Superintendent Tudways witness statement, with a fair amount of specific illustrative detail: (1) (2) (3) It is retained in order to enable the police to make a more informed assessment of the risks and the threats to public order associated with demonstrations forming part of an identifiable campaign, and the scale and nature of the police response which may be necessary in future. It is retained in order to investigate criminal offences where there have been any, and to identify potential witnesses and victims. It is retained in order to study the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence, and other protest groups associated with them. Links between protest groups are potentially important. There is a significant correlation between participation in a group such as Smash EDO and other extremist groups such as animal rights activists. The evidence is that out of 242 Smash EDO activists recorded in the database at the time when these proceedings were begun, 42 also had links with animal rights protest groups. There is considerable cross fertilisation of ideas between different extremist causes on tactics and methods. 30. These are all proper policing purposes. The evidence of the police is that a significant contribution is made to all of them by the retention of information of this kind. That evidence is supported by illustrative examples, and this court has no evidential basis or personal experience on which to challenge that assessment. And, to put it at its lowest, the evidence is credible. The proper performance of these functions is important not only in order to assist the prevention and detection of crime associated with public demonstrations, but to enable the great majority of public demonstrations which are peaceful and lawful to take place without incident and without an overbearing police presence. 31. These points need to be considered in the light of some basic, and perhaps obvious, facts about the nature of intelligence gathering. Most intelligence is necessarily acquired in the first instance indiscriminately. Its value can only be judged in hindsight, as subsequent analysis for particular purposes discloses a relevant pattern. The picture which is thus formed is in the nature of things a developing one, and there is not always a particular point of time at which one can say that any one piece in the jigsaw is irrelevant. The most that can be done is to assess whether the value of the material is proportionate to the gravity of the threat to the public. This is the principle on which the review procedures are required to be conducted by the Code of Practice and the successive editions of the Guidance. The fact that some of the information recorded in the database relates to people like Mr Catt who have not committed and are not likely to commit offences does not make it irrelevant for legitimate policing purposes. The composition, organisation and leadership of protest groups who are persistently associated with violence and criminality at public demonstrations is a matter of proper interest to the police even if some of the individuals in question are not themselves involved in any criminality. The longer term consequences of restricting the availability of this resource to the police would potentially be very serious. It would adversely affect police operations directed against far less benign spirits than Mr Catt. Organised crime, terrorism, drug distribution and football hooliganism are all obvious examples. One cannot look at an issue of this kind simply in relation to Mr Catt. 32. Even if it were consistent with the purpose and proper use of the database to exclude people like Mr Catt from it, the labour involved would be disproportionate to the value of the exercise to them. The current weeding process in relation to nominal records involves an assessment of the threat posed by the subject of each such record. Mr Catt is not the subject of a nominal record, but merely appears as part of the cast in incidents with which the subjects of nominal records are associated. To fillet all the nominal records not simply in order to review the retention of information relating to the subject of the record but to examine the individual position of every other person mentioned in it would be a major administrative exercise. The alternative of not retaining information in a nominal record about any other members of the cast would significantly undermine the value of the record. 33. Although the jurisprudence of the European Court of Human Rights is exacting in treating the systematic storage of personal data as engaging article 8 and requiring justification, it has consistently recognised that (subject always to proportionality) public safety and the prevention and detection of crime will justify it provided that sufficient safeguards exist to ensure that personal information is not retained for longer than is required for the purpose of maintaining public order and preventing or detecting crime, and that disclosure to third parties is properly restricted: see Bouchacourt v France, 17 December 2009, Application No 5335/06, paras 68 69, and Brunet v France, 18 September 2014, Application No 21010/10, para 36. In my opinion, both of these requirements are satisfied in this case. Like any complex system dependent on administrative supervision, the present system is not proof against mistakes. At least in hindsight, it is implicit in the 2012 report of HMIC and the scale on which the database was weeded out over the next two years that the police may have been retaining more records than the Code of Practice and the MOPI guidelines really required. But the judicial and administrative procedures for addressing this are effective, as the facts disclosed on this appeal suggest. 34. Mr Catt could have complained about the retention of his personal data to the Information Commissioner. He has in fact chosen to proceed in court by way of application for judicial review. The result of that process, in my opinion, is that the police have shown that the retention of data about his participation in demonstrations in the nominal records of other persons and in other event reports is justified by the legitimate requirements of police intelligence gathering in the interests of the maintenance of public order and the prevention of crime. 35. This was substantially the view taken by Gross LJ, delivering the judgment of the Divisional Court. He dealt with the point quite shortly, because he regarded it as plain that the retention of the data concerning Mr Catt was both in accordance with law and justifiable as a proportionate measure for proper policing purposes. The Court of Appeal (Lord Dyson MR, and Moore Bick and McCombe LJJ) disagreed. They expressed no view on the question whether it was in accordance with law, because they were satisfied that it was disproportionate to the admittedly legitimate purpose of proper policing of the community. But they considered that the information retained about Mr Catt had been indiscriminately collected and that it had not been shown to have any value for policing purposes. They thought that while Detective Chief Superintendent Tudway had state[d] in general terms that it is valuable to have information about Mr Catts attendance at protests because he associates with those who have a propensity to violence and crime, he did not explain why, given that Mr Catt was not alleged to have committed crimes himself or encouraged others to do so (para 44). In my view, this does not do justice to the points made by Detective Chief Superintendent Tudway, which I have summarised at para 29, nor does it take account of the reality of police intelligence work, which I have addressed at para 31. It also misses the point that the material is relevant not primarily for the purpose of establishing criminality against Mr Catt but for the purpose of studying the methods and organisation of a violent organised group whose demonstrations he attends. I would therefore allow the appeal in Mr Catts case, and dismiss his claim. Proportionality: T 36. Section 1(1) of the Protection from Harassment Act 1997 makes it a civil wrong and a criminal offence for a person to pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. 37. Ms T lives in a block of flats in London managed by a housing association. On 20 July 2010 a minor incident occurred there. Ms T had previously complained about the noise coming from the flat of a neighbour, Mr B. On leaving the flat, she saw Mr S, a friend of Mr B. There is a dispute about what happened next. Mr S later reported to the police that she had called him a faggot. He said that he associated this with insulting remarks which she had made to him on earlier occasions, which he had interpreted as homophobic. A Crime Reporting Information System record (CRIS) was completed, recording the facts as alleged by Mr S and that a decision had been made to serve on Ms T a Prevention of Harassment Letter. The police made a number of attempts to visit Ms T at home, but no one answered the door. Finally, the letter was pushed through her letter box on 7 October 2010. It was a standard form on Metropolitan Police headed paper in the following terms: 38. An allegation of harassment has been made against you: Details of alleged conduct (specific actions that are cause for complaint): On the 20/07/2010 you went outside Flat 5 and told a visitor who was making a phone call YOU FAGGOT HARASSMENT IS A CRIMINAL OFFENCE under the Protection from Harassment Act 1997. A person must not pursue a course of conduct which amounts to harassment of another and which he/she knows, or ought to know, amounts to harassment of the other. Harassment can take many forms and examples can include: wilful damage to property, assault, unwarranted verbal or physical threats, abusive communication or repeated attempts to talk to or approach a person who is opposed to this. It is important that you understand that should you commit any act or acts either directly or indirectly that amount to harassment, you may be liable to arrest and prosecution. A copy of this letter which has been served on you will be retained by police but will not be disclosed now to the alleged victim. However a copy could be disclosed in any subsequent criminal proceedings against you as proof that police have spoken to you about this allegation. This does not in any way constitute a criminal record and will only be referred to should further allegations of harassment be received. 39. The service of such notices appears to be a common practice by police forces across the country, although they are not all in this form. Moreover, different police forces retain the original hard copy of the Harassment Letter for different periods, in some cases as short as eight months. The current practice of the Metropolitan Police is to retain a copy of the Harassment Letter on their electronic records for at least seven years, and the corresponding CRIS for 12 years. The issue of the letter is not tantamount to a criminal conviction, like a caution, but it would in theory be disclosable to a potential employer in response to a request for an Enhanced Criminal Record Certificate under section 113B of the Police Act 1997, if the relevant chief officer considered that the allegation was sufficiently relevant. 40. Ms Ts complaint was originally directed mainly at the issue of the notice. She was outraged, because she regarded it as an accusation which treated Mr Ss allegation as true, when her side of the story had not been heard. This was the main point made by her solicitors when, on 3 December 2010, they wrote to the Metropolitan Police in accordance with the pre action protocol for judicial review. But they added that they had also advised that the retention of the information was a violation of Ms Ts article 8 rights. They called for the withdrawal of the notice and the removal of any reference to it in police records. Proceedings were begun on that basis on 23 December 2010. Before us, however, Ms T was unsuccessful in her application for permission to cross appeal on the question whether the letter was lawfully issued, and has founded her case only on the retention of the information on police records. That point has, however, lost much of its practical substance, since January 2013, when the Metropolitan Police wrote to her solicitors notifying them that, having re examined the materials in the course of preparing for the appeal, they had decided to delete the material in any event. The reason was that there have been no ongoing concerns regarding risk and there are no reports of any further incidents. It is now retained solely for the purpose of these proceedings. As a result both the nature of Ms Ts complaint and its factual basis have significantly changed in the course of these proceedings. 41. Against this background, Ms Ts appeal can be dealt with quite shortly. 42. The purpose of the Prevention of Harassment letter is plain enough from its terms. Under the Act, harassment requires a course of conduct, not just a single incident. The Prevention of Harassment Letter is intended to warn the recipient that some conduct on his or her part may, if repeated, constitute an offence. It also seeks to prevent the recipient from denying that he or she knew that it might amount to harassment. It therefore serves a legitimate policing function of preventing crime and, if a repetition occurs, it may also assist in bringing the accused to justice. It is, however, impossible to conceive how, in the circumstances of this case, that purpose could justify the retention of the letter in police records for as long as seven years or of the corresponding CRIS for 12. It seems obvious that within a few months the incident on 20 July 2010 would have become too remote to form part of the same course of conduct as any further acts of harassment directed against Mr S It is not suggested that the material has any relevance to the investigation or prevention of possible offences by others. 43. It may well be that longer periods, even much longer periods, of retention would have been justified in a more serious case arising under the Protection from Harassment Act 1997: for example in a case of stalking (section 2A) or putting people in fear of violence (sections 4 and 4A). These kinds of offence are often characterised by the development of abusive behaviour over a long period of time. This is especially true of domestic violence, a difficult and sensitive area in which the protection of persons at risk may require sensitive monitoring over a considerable period. However, this is a long way away from that kind of case. It arises, if the allegation is true, from a relatively trivial act of rudeness between neighbours who did not get on. The real problem is that the period of retention seems to be a standard period which applies regardless of the nature of the incident and regardless of any continuing value that the material may have for policing purposes. It was only because of these proceedings that the retention of the material was reviewed and the decision made in January 2013 to delete it. This is in my view difficult to reconcile with the Data Protection Principles in the Act. Nonetheless, I do not think that Ms Ts article 8 rights have been violated, because although the Metropolitan Polices policy envisages the retention of the material for seven or 12 years, it was in fact retained for only two and a half years before the decision to delete it was made. The latter period can be justified by reference to the need to relate the incident of 20 July 2010 to future incidents, bearing in mind that some time may elapse after a repetition before a complaint is made to the police. 44. The Court of Appeal considered that the retention of the material for seven or 12 years, or indeed for any period of more than a year or so at the most was disproportionate (para 61). They therefore overruled Eady J, who had held, with some hesitation, that the standard periods of seven and 12 years were justifiable. It follows from what I have said that I agree that seven or 12 years could not be justified, but I would not wish to lay down a limit of one year, because the circumstances which may give rise to harassment notices are too varied to permit such a generalisation. The time which elapsed before the police in fact deleted the material was in my view at the far end of the spectrum. But I am not prepared to say that it was too long. 45. The main lesson of this case is that a minor incident has been allowed to get out of hand by a heavy handed response on both sides. The form of Prevention of Harassment Letter used by the Metropolitan Police is unnecessarily menacing and accusatorial, given that no crime has been committed and that the facts have not always been fully investigated. The form used by Dyfed Powys Police is an example of the far clearer and more reasonable documentation used by some other police forces. On Ms Ts side, the decision to proceed by way of application for judicial review may have made sense on the footing that the object was to have the original notice quashed, but that permission to pursue that objective was refused by this court. What remained was a straightforward dispute about retention which could have been more appropriately resolved by applying to the Information Commissioner. As it is, the parties have gone through three levels of judicial decision, at a cost out of all proportion to the questions at stake. Much of that cost will have been incurred after Ms Ts object had been achieved as a result of the polices agreement to delete the material in January 2013. I would accordingly allow the appeal in Ms Ts case also. 46. LADY HALE: 47. I too agree that the systematic collection and retention of information about Mr Catt and Ms T constitutes an interference with their right to respect for their private life protected by article 8, even though, in the case of Mr Catt, the information collected related to his activities in public. I also agree that, as Lord Sumption has explained, the combination of the requirements of the Data Protection Act 1998, coupled with the Code of Practice issued by the Secretary of State under the Police Act 1996 and the detailed Guidance on the Management of Police Information issued by the Association of Chief Police Officers, provided sufficient protection against arbitrary police behaviour, so that the collection and retention of this information was in accordance with the law for the purpose of article 8(2) of the Convention. 48. No one doubts that this information was collected and kept for several of the important purposes permitted by article 8(2): certainly for the prevention of disorder or crime and probably also for the protection of the rights and freedoms of others. We do not need any reminding, since the murder of two little girls by a school care taker in Soham and the recommendations of the Report of the Bichard Inquiry which followed (2004, HC 653), of the crucial role which piecing together different items of police intelligence can play in preventing as well as detecting crime. 50. However, it has been clear since at least the decision in S v United Kingdom (2008) 48 EHRR 1169 that the police may not be able to retain information indefinitely (indeed in that case even if it could very well be useful, even vital, in the prevention and detection of crime). Safeguards are certainly needed against the keeping of personal information for longer than is reasonably necessary. Such general guidance as the Strasbourg court was able to give was based on the Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data of 1981 (the Data Protection Convention) and Recommendation R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector: 103. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits the identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data was [sic] efficiently protected from misuse and abuse 51. Applying those principles to Mr Catt, I can well understand that it would be more objectionable if the police were to retain a nominal record collecting together all the information that they currently hold about him. Such dossiers require particular justification, not least because of their potentially chilling effect upon the right to engage in peaceful public protest. Mr Catt may be a regular attender at demonstrations, some of which are organised by a group which resorts to extreme tactics, but he himself has not been involved in criminal activity at those or any other demonstrations, nor is he likely to be in the future. Had the police kept a nominal record about him, therefore, I would have been inclined to agree with Lord Toulson that it could not be justified. 52. However, as I understand it, the nominal record relating to Mr Catt was deleted some time ago. All that remained, until recently, were the incidental references to his presence at certain demonstrations in information reports about those demonstrations and nominal records relating to other people. The same limited information is kept about other participants in the 53. demonstrations, along with the names of witnesses and victims. The police keep such information for three main purposes: to make informed assessments about the risk to public order associated with particular campaigns; to investigate any criminal offences which have been committed; and to study the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence and their links with other such groups. Among other things, this enables the police to concentrate their resources on those campaigns and demonstrations where disorder can be predicted, while enabling the great majority of demonstrations to take place without an over bearing police presence. Demonstration based reports containing the names of the people taking part, even those who have not committed any criminal offences in the course of the protest, can assist the police with these important aims. They can indeed be said to facilitate rather than impede the right of peaceful protest in a democratic society. There is absolutely no reason to believe that this information will be passed on to others to whom it should not be revealed or used to victimise people like Mr Catt. I therefore agree with Lord Sumption that retaining this information in this form is not a disproportionate interference with his right to respect for his private life. In relation to Ms T, I quite agree that the Prevention of Harassment letter used by the Metropolitan Police was, as Lord Sumption puts it, unnecessarily menacing and accusatorial. For whatever reason, the police had been unable to interview her about the allegation, which on any view was of minor importance, and yet the letter (wrongly) gives the impression that the police had accepted the complainants version of events and that it amounted to harassment. It is not surprising that Ms T was affronted or that she should try and find some way of obliging the police to withdraw it. A complaint to the Information Commissioner might have secured the deletion of the police record of the incident, but it could not have secured the withdrawal of the letter. That, no doubt, is why these proceedings were launched. 54. However, I agree with Lord Toulson that there are often very good reasons for making and keeping records of incidents such as these. It is not just that, if found to have occurred and to have been repeated within a short enough period for the incidents to be connected, it can form part of a course of conduct for the purpose of proving an offence under the Protection from Harassment Act 1997. And it must be recalled that many harassment cases are a great deal more serious than this (if this happened at all). It is also that, particularly in disputes between neighbours and in cases of domestic ill treatment and abuse, the police response to a new complaint will be affected by knowing whether other complaints have been made in the past against the same person. It is well known that, for a variety of reasons, complaints of domestic violence are often not followed through to prosecution and conviction. But it is vital for the police, when responding to any new complaint, to know whether there have been similar complaints in the past. Domestic violence often escalates in seriousness with each new incident, and the police have to be aware of this when considering how to respond. It is not too dramatic to say that lives have been saved as a result. 55. For these reasons, I agree with Lord Toulson that the policy of the Metropolitan Police in relation to these records was not unlawful, provided that it was flexible enough to allow for information to be deleted when retaining it would no longer serve any useful policing purpose, as in fact happened here. I would therefore allow both appeals, in the case of Mr Catt broadly for the reasons given by Lord Sumption and in the case of Ms T for the reasons given by Lord Toulson. The result is that both claims are dismissed. 56. LORD MANCE: 57. 58. 59. I have come to the conclusion that the appeals should be allowed in the cases of both Mr Catt and Ms T. I reach this conclusion in the case of Mr Catt for the reasons which have been set out by Lord Sumption and Lady Hale. I reach it in the case of Ms T primarily for the reasons set out by Lord Toulson and Lady Hale. However, even if one proceeds on an opposite assumption (namely that the polices policy of retention was originally inflexible and was to retain for a standard period whatever the nature of the incident or the value of the material), I would still conclude that the appeal should be allowed for the reasons set out by Lord Sumption. The policy, even if not originally flexible, became so and the material regarding her was in the event only retained for two and a half years, which was not in context disproportionate. LORD TOULSON: 60. I agree that the systematic collection and retention by the police of data about the two respondents impacts on their rights to respect for their private lives protected by article 8, and that it is in accordance with the law within the meaning of article 8.2, for the reasons given by Lord Sumption. The critical issue in each case is that of proportionality. Mr Catt 61. Mr Catts case is about information relating to him which was stored on a database established by the National Public Order Intelligence Unit (NPOIU), a national policing unit set up under the aegis of the Association of Chief of Police Officers, now run by the Metropolitan Police Service. The Commander of the NPOIU, Detective Chief Superintendent Adrian Tudway, explained in a witness statement dated 6 June 2011, that the main function of the NPOIU is to gather, evaluate, analyse, develop and disseminate intelligence in relation to domestic extremism and single issue campaigning where a substantial threat of criminal activities or public disorder arises. He said that the NPOIU carries out regular reviews in order to decide what information should be retained. In particular, every three years it reviews all photographic images on its database. 62. Mr Catts claim was issued on 17 November 2010. A review four months earlier had resulted in a decision to delete Mr Catts photograph from the database. Mr Tudway explained the reasons: Mr Catt was not known to have organised or been involved in any actions resulting in arrests since the photograph was taken (the date of which is unclear); he had no recorded convictions; and he no longer appeared to be involved in the coordination of Smash EDO events or actions. It should be added that there is no evidence before the court that he was ever involved in the coordination of Smash EDO events or actions or ever displayed any propensity for violence. However, the NPOIU retained over 60 written database entries relating to Mr Catts presence at demonstrations dating back for over five years. Most of them related to demonstrations at the offices of EDO, but 13 related to other demonstrations. They included, for example, the recording of his attendance at the TUC Conference in Brighton in September 2006, at a Voices in the Wilderness demonstration at the Labour Party Conference in Bournemouth in September 2007, at a pro Gaza demonstration and march in Brighton in January 2009 and at a demonstration against New Labour organised by a number of trade unions in September 2009. 63. Mr Catt is 91 years old. Because he has been an attender at protest events for many years he is obviously well known to the police. The question is whether it is proportionate for the police to keep details on a database of the mere attendance of an elderly peaceful demonstrator at all these events. 64. Mr Tudway said in his statement that the police often collect information and intelligence at events and incidents including local protest events. Very often, it is not considered necessary to retain such information because no offences have occurred and the event may be a one off. However, where a protest event such as the Smash EDO campaign becomes established, regular and long running, and where on occasion crime and disorder feature, then the need to collect information to make more informed assessments about risks, threats, public safety and the scale and nature of policing operations increases. I have no difficulty in accepting all of that in general terms, but there must be limits, particularly in the case of someone who has never been accused of violence or organising violence and who has been assessed not to be a threat. 65. Mr Tudway said that it is accepted that many of the people at these events do not commit criminal offences, but it is important for police to seek to identify those who are associated with criminal activity (whether as offenders or as witnesses) for the purpose of investigating any instance of criminality, for the purposes of ensuring that both prosecution and defence are provided with names of potential witnesses in the event of a prosecution, and for intelligence purposes to assist the policing of further events. However, that does not explain to my mind why it should be thought necessary to maintain for many years after the event information on someone about whom the police have concluded (as they did in July 2010) that he was not known to have acted violently and did not appear to be involved in the coordination of the relevant events or actions. Nor is it explained why it was thought necessary and proportionate to keep details of Mr Catts attendance at other political protest events. Mr Tudway said that there can be a cross fertilisation of tactics and strategies from one domestic extremist organisation to another. That does not explain why it is thought proportionate to keep, sometimes years after the event, a record of the fact that Mr Catt, who is not suspected of being an organiser or coordinator of Smash EDO, peaceably attended protest events at the Labour Party conference, the TUC conference and so on. I agree with the opinion of the judges of the Court of Appeal that the appellant has not shown on the evidence that the value of the information relating to Mr Catt was sufficient to justify its continued retention. It was suggested that it would place too great a burden on the police to have to review constantly the information retained on individuals whose names appear in their database to see whether there was sufficient cause to keep the information. As the Court of Appeal observed, there was no evidence from the police that this would be over burdensome. On the contrary, the thrust of the evidence was that they do carry out regular reviews. As I have said, a review was carried out a few months before these proceedings were begun. 67. 66. The police obviously had to review their information about Mr Catt in deciding whether to retain his photograph. We know what view they formed. There is no evidence from the police to suggest, and I see no basis to conclude, that there would have been any real burden in deleting their historic records of his attendances at protest events. 68. More significantly, it was submitted on behalf of the appellants that the decision of the Court of Appeal would have a grave impact on the polices ability to combat crime. The purpose of the Bichard Review of police recordkeeping was to enhance its effectiveness as a way of preventing and detecting crime. There is no doubt that when investigating serious organised crime, including narcotics, gang violence, people trafficking and extortion, and conspiracies aimed at the destruction of lawful businesses by violence, intimidation and threats, it is necessary for the police to be able to collate and keep records of the details of their investigations. The records naturally include names of people apparently involved as suspects, witnesses or victims. I do not accept that there need be any risk of that being hampered by the court upholding the decision of the Court of Appeal in the case of Mr Catt. After all, the police accept that they need to have periodic reviews of the information which they have obtained in order to decide whether there is any real purpose to be gained by keeping it. I also accept that the court should be slow to disagree with the evaluation of the potential usefulness of evidence by the police if a clear reason for it has been advanced. But on the facts of this case, I cannot see what value they have identified by keeping indefinitely a record of Mr Catts attendances at these various events, where he has done no more than exercise his democratic right of peaceful protest. 69. One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizens activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest. I would therefore dismiss the appeal in the case of Mr Catt. 70. Ms T 71. Ms Ts complaint relates to the retention by the police of a copy of a warning notice under the Protection from Harassment Act 1997 sent to her by the police after the friend of a neighbour had complained that she had used a homophobic insult towards him (a claim which she denies), and a corresponding entry about the matter in police records (a CRIS report). 72. Ms Ts complaint in her application for judicial review was that the notice had been issued at all. She sought a declaration that it had been unlawfully issued and a mandatory order requiring the police to withdraw the notice and to remove information about it from their records. The detailed grounds of judicial review made only brief reference to the proportionality of the continued retention of the information. 73. Her claim was dismissed by Eady J [2012] EWHC 1115 (Admin), [2012] 1 WLR 2978. As Lord Sumption has recorded, it is the standard practice of the appellant to retain a copy of the notice for seven years and the CRIS entry for 12 years. Eady J said in his judgment, at para 99, that it seemed surprising to him that such information needed to be retained for such a length of time. He observed that if the sole purpose were to lay the ground for establishing a course of conduct under the 1997 Act, only a much shorter period could be justified, but he recognised that a longer period of retention might well be appropriate for other purposes, such as assisting in resolving later allegations. He added that it was largely a matter of expert judgment with which the court should be slow to interfere, and that it was better to have a transparent and clearly expressed policy than to have repeated ad hoc applications for judicial review. He noted also, at para 102, that it was the appellants case that the seven year period was not fixed rigidly and that he was prepared to entertain requests for earlier deletion. 74. By the time that the case reached the Court of Appeal, two and a half years after the event, the entries relating to Ms T had been expunged from the police records on the grounds that there have been no ongoing concerns regarding risk and there are no reports of any further incidents. Rather than regarding that fact as supporting what had been said by the police to Eady J about the policy not being inflexible, the Court of Appeal regarded this as making it only too clear that the continued retention of the information would have been unnecessary, disproportionate and unjustifiable (para 61). That seems to me, with respect, to be an example of hindsight. I doubt whether the courts reaction would have been the same if in the meantime the police had received similar complaints either from the original complainant or from somebody else. 75. The Court of Appeal allowed Ms Ts appeal and made a declaration in the following terms: The respondents decision to retain the Warning Notice on file for a minimum period of seven years, and to retain details of the underlying allegation for a minimum of 12 years, was unlawful and in breach of the appellants right to respect for her private life, contrary to section 6 of, and article 8 of Schedule 1 to, the Human Rights Act 1998. 76. In my view the Court of Appeal erred in granting that declaration. By the time Ms Ts claim came before Eady J the police had made it clear that their policy was not inflexible, as later events have confirmed. I am not persuaded that the policy, with that flexibility, was unlawful. The Protection from Harassment Act covers a wide spectrum of offensive behaviour which may occur in a variety of circumstances. It has been useful particularly, but not exclusively, in the context of domestic abuse and problems between neighbours. The response of the police to complaints about abusive conduct may well be affected by knowing whether similar earlier complaints have been made against the same person, either by the same or by other complainants. In those circumstances I do not consider it to be unlawful for the police to adopt a standard practice of retaining a record of such complaints for several years, but with a readiness to be flexible in the application of the practice. 77. For those reasons I agree that the appeal in the case of Ms T should be allowed. 49. The real issue in this case is whether keeping the information about these two people is necessary in a democratic society in the sense in which that phrase is now understood: is the means used, and the interference with privacy which it involves, a proportionate way of achieving those legitimate aims? In particular, is it proportionate to keep the information which the police have collected about Mr Catt and Ms T, in the form in which it was kept, and for the length of time for which it was kept? These are not easy judgments to make. If society can trust the police to behave properly, and not therefore to misuse the information which they have, there is much to be said for allowing the police to keep any information which they reasonably believe may be useful in preventing or detecting crime in the future. Safeguards are needed against the misuse of the information they have rather than against simply having it.

UK-Abs

In domestic law, the polices power to retain data is controlled by the Data Protection Act 1998 and by a mandatory Code of Practice and accompanying Guidance issued under the Police Act 1995. Individuals also have a right to respect for their private lives under Article 8 of the European Convention on Human Rights (ECHR). The Code of Practice limits the handling of police information to police purposes, limits the circumstances under which data can be shared between police forces, and requires that information originally recorded for police purposes must be reviewed for deletion at prescribed intervals. The Guidance says that the object of such reviews is to ensure that there is a continuing policing purpose for holding the record, the record is accurate, up to date and not excessive, the Data Protection Act has been complied with, and the assessment of the risk level presented by the data subject is correct. Mr Catt, a 91 year old man from Brighton, participates in political protests, including with a group called Smash EDO. Mr Catt is a peaceful protestor, but some members of Smash EDO commit violent offences. The police overtly collect information from Smash EDO public demonstrations. Because Smash EDO has associations with violent crime, information is retained even where no crime has been committed. Events are recorded in Information Reports and some individuals are the subject of a nominal record. These records are stored on a Domestic Extremism Database. At one point there was a nominal record and a photograph for Mr Catt, but both were deleted in separate reviews before these proceedings began. However, information about Mr Catt, including his presence, date of birth, and address, is contained in 107 Information Reports primarily directed to the activities of other people (including at mainstream non Smash EDO protests). Ms T is alleged to have said a homophobic insult to her neighbours friend in July 2010. The police made a Crime Reporting Information System (CRIS) record about the incident and sent her a Prevention of Harassment Letter notifying her that she may be liable for arrest and prosecution should she commit any act or acts amounting to harassment. The practice of the Metropolitan Police is to retain a copy of the letter in their electronic records for seven years, and the corresponding CRIS for 12 years. The police deleted the materials in January 2013 in the course of preparing for this appeal. Mr Catt and Ms T accept that it was lawful for the police to make records of the events as they occurred. However, they contend that the Metropolitan Polices policy in thereafter retaining the data on a searchable database is unlawful because it is contrary to their rights under Article 8 ECHR. Both of their claims failed at first instance. Their claims were heard together in the Court of Appeal, which allowed both appeals. In the case of Mr Catt, the Supreme Court allows the appeal by a majority of 4 1 and restores the first instance judgment. Lord Sumption (with whom Lord Neuberger agrees) gives the leading judgment. Lady Hale delivers a concurring judgment, agreeing with Lord Sumption, and Lord Mance agrees with both Lady Hale and Lord Sumption. Lord Toulson would have dismissed the appeal. In the case of Ms T, the Supreme Court unanimously allows the appeal and restores the first instance judgment. Lady Hale and Lord Toulson (with whom Lord Mance agrees) say that the policy was lawful. Lord Sumption (with whom Lord Neuberger agrees) says that the policy was not originally lawful but became so in this case. Lord Sumption explains that the states systematic collection and storage in retrievable form even of public information about an individual is clearly an interference with private life under Article 8(1) ECHR [3 5]. These appeals therefore turn on whether the retention of the data can be justified under Article 8(2), and in particular whether the retention is (i) in accordance with the law and (ii) proportionate to its objective of securing public safety or preventing of disorder and crime [6]. The in accordance with the law condition under Article 8(2) requires that the applicable rules not be so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis and that their application be reasonably predictable [11]. The retention of data in police information systems in the United Kingdom is in accordance with the law: there are some discretionary elements in the scheme, but this is inevitable, and the space of discretionary judgment is limited and subject to judicial review; further, future disclosure is limited by comprehensive restrictions [13 17]. Lady Hale [47 49], Lord Mance [58 59] and Lord Toulson [60] all agree that the real issue in these appeals is proportionality. Proportionality: Mr Catt Lord Sumption holds that the interference with Mr Catts private life is minor: the information stored is personal but not intimate or sensitive; the primary facts recorded have always been in the public domain, and it is known that the police records them; there is no stigma attached to the inclusion of his information in the database as part of reports primarily directed to the activities of other people; the material is usable and disclosable only for police purposes and in response to requests made by Mr Catt himself under the Data Protection Act; and the material is regularly reviewed for deletion according to rational and proportionate criteria contained in the publicly available Code of Conduct and accompanying Guidance [26 28]. There are numerous proper policing purposes to which the retention of evidence of this kind makes a significant contribution. The longer term consequences of restricting the availability of this method of intelligence gathering to the police would potentially be very serious, and the amount of labour required to excise information relating to persons such as Mr Catt from the database would be disproportionate [29 31]. Lady Hale agrees with Lord Sumptions analysis of the case of Mr Catt [56], though adds that it would have been disproportionate to keep a nominal record about Mr Catt since he has not been and is not likely to be involved in criminal activity himself and the keeping of such records has a potentially chilling effect on the right to engage in peaceful public protest [50 52]. Lord Mance agrees with both Lord Sumption and Lady Hale [58]. Lord Toulson would have dismissed the appeal in the case of Mr Catt. He does not think that the evidence given by the police explains why it is necessary to retain for many years after the event information about someone about whom they have concluded that he was not known to have acted violently. He notes in particular that information was retained about Mr Catts attendance at mainstream political protest events and does not see how this could be thought necessary and proportionate [65 66]. The suggestion that it would be over burdensome for the police to have to review information about individuals such as Mr Catt was not supported by the evidence, especially since the police already conduct regular reviews [67 68]. Proportionality: Ms T Lady Hale [54 56] and Lord Toulson [76] both say that retaining information about previous harassment complaints serves a vital purpose, particularly in domestic abuse cases, and it is not unlawful for the police to adopt a standard practice of retaining such information for several years, provided that the policy is flexible enough to allow it to be deleted when retention no longer serves any useful policing purposesas in fact happened in this case [76]. Lady Hale notes that the Information Commissioner could not have secured the withdrawal of the Prevention of Harassment Letter and that is presumably why these proceedings were launched [53]. Lord Mance agrees with Lady Hale and Lord Toulson, but adds that even if the policy were originally inflexible, he would still have allowed the appeal for the reasons given by Lord Sumption [59]. Lord Sumption says that the Prevention of Harassment Letter, while in this case unnecessarily accusatorial, clearly serves a legitimate policing purpose, but the standard period of retention applied by the Metropolitan Police is wholly disproportionate in light of the trivial nature of the incident in this case. However, Ms Ts Article 8 rights have not been violated because the material was in fact retained for only two and a half years, a period at the far end of the spectrum but not disproportionate [42 44]. The dispute could have been more appropriately resolved by applying to the Information Commissioner [45].

When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation? 3. Until 1 April 2013 there was a scheme in England for the payment of Council Tax Benefit (CTB) for the relief, in whole or in part, of certain persons from their annual obligation to pay council tax. The scheme was made by the Department for Work and Pensions and the duty of local authorities was only to operate it. From 1 April 2013, however, local authorities were required to operate a new scheme, entitled a Council Tax Reduction Scheme (CTRS), which they were required to have made for themselves. Before making a CTRS, local authorities were required to consult interested persons on a draft of it. Between August and November 2012 the London Borough of Haringey (Haringey) purported to consult interested persons on its draft CTRS, following which it made the scheme in substantial accordance with its draft. In these proceedings two single mothers, who were resident in Haringey and who until 1 April 2013 had been in receipt of what I will describe as full CTB (by which I mean at a level which had relieved them entirely of their obligation to pay council tax), applied for judicial review of the lawfulness of the consultation which Haringey had purported to conduct in relation to its draft CTRS. The women asked the court to quash the decision which on 17 January 2013 Haringey had made in the light of the consultation; and my reference in paragraph 8 below to the default scheme will explain why the quashing of the decision would have been very much in their interests. On 7 February 2013 Underhill J dismissed their application: [2013] EWHC 252 (Admin); [2013] ACD 62. The judge had allowed them to be anonymised as M and section The latter appealed to the Court of Appeal, which ruled that she was not entitled to anonymity and should be referred to by name, Ms Stirling. On 12 February 2013, with astonishing alacrity referable no doubt to the deadline of 1 April 2013, the court heard the appeal. On 22 February 2013, by a judgment of Sullivan LJ with which Sir Terence Etherton, the Chancellor of the High Court, agreed, and by a judgment of Pitchford LJ in which he disagreed with one aspect of the reasoning of Sullivan LJ but concurred in the proposed result, the court dismissed her appeal: [2013] EWCA Civ 116; [2013] PTSR 1285. Ms Stirling appealed to this court 5. 6. 7. 8. The Surrounding Facts 4. against the dismissal of her appeal but unfortunately she became ill and unable to give instructions, with the result that, by consent, the court substituted Ms Moseley as the appellant; and since then, sadly, Ms Stirling has died. Like the other two women, Ms Moseley is a single mother, resident in Haringey, who until 1 April 2013 had been in receipt of full CTB. For the period prior to 1 April 2013 a means tested scheme set by central government identified those entitled to CTB. Local authorities were obliged to apply it to residents in their area. Although reference is conveniently made to payment of CTB, it was not, in the usual sense of that word, paid to those entitled to it. Instead it provided them with a credit, in whole or in part, against what they would otherwise owe to their local authority in respect of council tax. Central government reimbursed local authorities, pound for pound, for what they forewent as a result of being obliged to grant the benefit. In the final year in which it was payable, namely the year to 1 April 2013, about 36,000 households in Haringey, namely about one third of all of its households, were entitled to CTB. Of those, 25,560 were entitled to full CTB. In its Spending Review back in 2010 central government announced that, as part of its programme for reduction of the national deficit, it would from April 2013 transfer to each local authority the responsibility for making, as well as for operating, a scheme for providing relief from council tax; and that in 2013 2014 the reimbursement by central government to each local authority in respect of whatever it provided by way of relief from council tax would be fixed at about 90% of the amount which the government would have paid to it in that regard in 2012 2013. Section 33(1)(e) of the Welfare Reform Act 2012 duly abolished CTB with effect from 1 April 2013. Section 13(A)(2) of the Local Government Finance Act 1992 (the 1992 Act), as substituted by section 10(1) of the Local Government Finance Act 2012 (the 2012 Act), duly obliged each local authority to make a CTRS for those whom it considered to be in financial need. Schedule 1A to the 1992 Act [the schedule], which was added by Paragraph 1 of Schedule 4(1) to the 2012 Act and given effect by section 13A(3) of that Act, made provisions about a CTRS. Paragraph 2 of the schedule, together with regulations made under subparagraph 8 of it, specified requirements for a scheme, including that pensioners who would have been entitled to CTB should be granted relief at the same level. Paragraph 3 of the schedule, entitled Preparation of a scheme, provided: (1) Before making a scheme, the authority must (in the following order) (a) consult any major precepting authority which has power to issue a precept to it, (b) publish a draft scheme in such manner as it thinks fit, and (c) consult such other persons as it considers are likely to have an interest in the operation of the scheme. (2) (3) Having made a scheme, the authority must publish it in such manner as the authority thinks fit. (4) The Secretary of State may make regulations about the procedure for preparing a scheme. The title of the paragraph puts beyond doubt that the procedure for preparing a scheme, which can be the subject of regulations under subparagraph (4), includes the procedure for the consultation required by subparagraph (1)(c). In the event, however, no such regulations were made. Paragraph 4 of the schedule required the Secretary of State to prescribe a default scheme so as to provide for relief from council tax in and after 2013 2014 for households in the area of any local authority which had failed to make a scheme by 31 January 2013. The default scheme, set out in the Council Tax Reduction Schemes (Default Scheme) (England) Regulations, SI 2012/2886, provided that, notwithstanding the reduction in reimbursement by central government, a local authority should grant relief against council tax after 1 April 2013 at the same level as had previously been granted by way of CTB. Paragraph 5 of the schedule provides that, for each year subsequent to 2013 2014, a local authority must consider whether to revise its CTRS and that, if it resolves to do so, it should again comply with the provisions for preparation of a scheme in paragraph 3. 9. Mr Ellicott, Head of Revenues, Benefits and Customer Services in Haringey, was the main author of a report for consideration by Haringeys Cabinet on 10 July 2012. In it he identified the need for Haringey to make a CTRS by 31 January 2013. He explained that reimbursement by central government to Haringey in respect of relief from council tax was to be reduced by about 10% in 2013 2014 but that, were Haringeys CTRS to provide relief at a level equivalent to CTB, the shortfall would rise to about 17 18%, mainly because of the trend in Haringey for an annual increase in the number of households eligible for relief. In his introduction to the report Councillor Goldberg, Haringeys Cabinet Member for Finance, wrote: Needless to say it is my belief that this represents one of the most appalling policies of the government and it is not insignificant that the unemployed will now be facing the prospect of having to pay 20% local taxation levels, which they last were subjected to paying under the Poll Tax. There was nothing wrong with Councillor Goldbergs expression of indignation. But it did betray an assumption that the shortfall would have to be reflected by provisions in the CTRS which reduced the level of relief below the level previously provided by way of CTB rather than that Haringey should absorb it in other ways. It is true that in the body of the report Mr Ellicott proceeded to refer to the option of absorbing the cost and then rejected it on the ground that it would require a reduction in services. He also identified, and rejected, options for exempting each of four classes of claimant for relief from any reduction below its existing level. In the end he recommended that Haringeys CTRS should provide that the shortfall be met by a percentage reduction in the amount of CTB payable to all claimants other than, of course, to pensioners; and that, because pensioners would not be meeting their share, the percentage reduction for other claimants would have to rise to between 18% and 22%. Those who were then in receipt of full CTB, other than pensioners, would therefore, for example, be required to pay between 18% and 22% of their council tax liability. 10. On 10 July 2012 Haringeys Cabinet approved the recommendation in Mr Ellicotts report. Haringey thereupon proceeded to prepare its draft scheme. Pursuant to paragraph 3(1)(a) of the schedule, it consulted the Greater London Authority, which has power to issue a precept to local authorities in London for a contribution to the cost of funding the Metropolitan Police and fire and transport services. Then, on 29 August 2012, Haringey published its draft scheme pursuant to paragraph 3(1)(b) and purported to embark on the consultation required of it by paragraph 3(1)(c). In that the terms by which it conducted its consultation are at the centre of this appeal, Haringeys consultation exercise deserves separate consideration in the next section of this judgment. 11. 12. Haringeys consultation exercise was expressed to continue until 19 November 2012. Meanwhile, however, on 16 October 2012 a government minister announced the introduction of a Transitional Grant Scheme (TGS). The scheme, set out in a circular published two days later, was that central government would make a grant, not likely to be extended beyond 2013 2014, to each local authority which introduced a CTRS for that year in accordance with three criteria. Of these the most important was that those currently in receipt of full CTB should pay no more than 8.5% of their council tax liability. An annex to the circular revealed that the grant referable to Haringey would be 706,021. Haringey concluded, however, that the grant would not cover the difference between a recovery from those currently in receipt of full CTB of 8.5% of their liability, on the one hand, and of 18 22% of their liability, on the other; and that the scheme would therefore leave Haringey with an unacceptable net shortfall in its receipts of council tax. So it resolved not to amend its draft CTRS so as to comply with the TGS criteria and not to bring the TGS to the attention of those likely to be interested in the operation of its CTRS by means of any enlarged consultation exercise. 13. Haringeys full Council met on 17 January 2013. Before it was a report substantially drafted by Mr Ellicott. Annexed to the report was an elaborate analysis of the responses to Haringeys consultation exercise, including numerous quotations from them, often in vivid language. It was suggested in the report: (a) (b) (c) that the effect of the default CTRS would be to leave Haringey with a shortfall of 3.846m; that adoption of a CTRS which complied with the TGS criteria would leave Haringey with a net shortfall of 1.489m; that in the light, among other things, of responses to the consultation exercise, it would be appropriate for the disabled to join pensioners as the two groups exempt from reduction in support below current CTB levels; and that, in the light of (c) above and of clarification by central government of the precise amount to be paid by it in respect of council tax reduction in 2013 2014, Haringeys CTRS should provide for a reduction of relief below current CTB levels of 19.8% across the board other than for those two groups; and that, subject to difficulties of collection, such a reduction would render Haringey not out of pocket as a result of the move from CTB to a CTRS. (d) 14. The full Council adopted the suggestion in the report. Thus it was that, prior to 31 January 2013, Haringey made a CTRS which provided for a reduction of relief in 2013 14, below the 2012 2013 CTB level, of 19.8% other than for pensioners and the disabled. Its CTRS came into operation on 1 April 2013 (and has not been revised for 2014 2015). 15. Of the 326 local authorities in England, about 25% allowed the default CTRS to take effect in 2013 2014; they thus entirely absorbed the shortfall in central governments funding by means other than the reduction of relief from council tax below the current level of CTB. About 33% of them adopted a CTRS which complied with the TGS criteria; they thus partially absorbed the shortfall by means other than such a reduction. The remaining 42%, like Haringey, adopted a CTRS which entirely translated the shortfall into an increase in liability for council tax above the amount, if any, which in 2012 2013 recipients of CTB were liable to pay; and they thus had no need to absorb the shortfall by other means. The Consultation 16. Haringeys statutory obligation, set out in paragraph 3(1)(c) of the schedule, was to consult such persons as it considers are likely to have an interest in the operation of the scheme. One could argue that even those residents who were not entitled to CTB had a financial interest in the operation of the scheme, namely that it should indeed come into operation rather than that a scheme which addressed the shortfall in other ways, likely to be prejudicial to them, should do so. But those who most obviously had an interest in the operation of the scheme were those who would be adversely affected by it, namely those who were entitled to CTB, other than any group proposed to be excluded from the scheme, being (at the time of the consultation exercise) only the pensioners. It is agreed that, in this regard, Haringey directed its consultation in accordance with paragraph 3(1)(c). For, while it posted a consultation document online and invited all residents to respond to it, Haringey delivered hard copies by hand to each of its 36,000 households entitled to CTB, together with a covering letter signed by Mr Ellicott. In the covering letter Mr Ellicott explained that he was writing it because the recipient was receiving CTB and that the government was abolishing CTB and requiring local authorities to replace it with a CTRS. He continued: At present the Government gives us the money we need to fund Council Tax Benefit in Haringey. We will receive much less money for the new scheme and once we factor in the increasing number of people claiming benefit and the cost of protecting our pensioners, we estimate the shortfall could be as much as 5.7m. This means that the introduction of a local Council Tax Reduction Scheme in Haringey will directly affect the 17. assistance provided to anyone below pensionable age that currently involves council tax benefit. The attached booklet provides all the information you need to understand the changes the Government are making. It sets out the proposed Council Tax Reduction Scheme and explains how this is likely to affect you. Please read this information carefully. We want to know what you think of these proposals before reaching a final decision about the scheme we adopt. Once you have looked at the information please complete the attached questionnaire and return it in the FREEPOST envelope by 19th November 2012. Be heard have your say. For present purposes the importance of Mr Ellicotts letter surrounds the paragraph of it which he chose to print in bold. Note its opening words, namely This means that. Mr Ellicott was there stating that the shortfall in government funding meant that Haringeys CTRS would provide less relief against council tax than recipients of the letter, other than pensioners, were receiving by way of CTB. But the shortfall did not necessarily have that consequence. Why was Mr Ellicott not there recognising that at least there were other options, albeit not favoured by Haringey, for meeting the shortfall? Note also Mr Ellicotts use of the indefinite article, in his reference to the introduction of a local [CTRS] in Haringey. It suggests that any CTRS introduced in Haringey, not just the scheme proposed, would need to meet the shortfall by a reduction from existing levels of CTB. 18. The booklet attached to Mr Ellicotts letter was the consultation document, comprising in part the provision of information and in part the questionnaire. So I turn to see whether the information reasonably dispelled the impression given in the letter that the shortfall had inevitably to be met by a reduction of relief against council tax below CTB levels. 19. The document was entitled The Government is abolishing Council Tax Benefit. It referred to the reduction in government funding and proceeded as follows: Early estimates suggest that the cut will leave Haringey with an actual shortfall in funding of around 20%. This means Haringey claimants will lose on average approximately 1 in every 5 of support they currently receive in [CTB]. [Italics supplied] There is no doubt that Haringeys proposed scheme meant that its claimants would suffer a loss of that order. But the reduction in government funding did not inevitably have that effect. Then, under the subheading Whats changing?, Haringey, adopting almost the same terms as those in Mr Ellicotts letter, said: At present the Government gives us the money we need to fund [CTB] in Haringey. From next April we must implement a new [CTRS]. Well receive much less money for the new scheme and once we factor in the increasing number of people claiming benefit and the cost of protecting our pensioners, we estimate the shortfall could be as much as 5.7m next year and this could rise in later years. Although pensioners will move on to the new [CTRS], they will receive the same amount of support they would have received under the current [CTB] regulations. That means that the introduction of a local [CTRS] in Haringey will directly affect the assistance provided to everyone below pensionable age that currently receives [CTB]. [Italics supplied] 20. In the consultation document there was no reference to options for meeting the shortfall other than by a reduction in relief from council tax, namely to the options of raising council tax or of reducing the funding of Haringeys services or of applying its deployable reserves of capital (which amounted to 76.8m in March 2012); and it follows that there was no explanation of why Haringey was not proposing to adopt any of those three options. In the document Haringey thereupon set out its proposals. It stated its belief that the fairest way in which to apply the government cut was to reduce all relief to working age claimants by about 20% from CTB levels. It added: We also have to decide if certain groups should be protected from any changes we make and continue to get the same level of support as they do now. Doing this would mean that other claimants would get even less support. 21. Then followed Haringeys questionnaire. There were five main questions. The first was: To what extent do you agree we should apply the Governments reduction in funding equally to all recipients of working age? This means that every household of working age will have to pay something towards their council tax bill. I consider, contrary to Haringeys contention, that the reader of the first question was in effect presented with an assumption that the shortfall in government funding would be met by a reduction in the relief from council tax afforded to recipients of working age, rather than that it should be met in other ways so that the level of their relief might be preserved. The gist of the first question was in my view whether, upon that assumption, all such recipients should suffer the reduction in equal proportions. The fifth question, again cast upon that assumption, presented the alternative possibility as follows: Should some groups of people continue to get the same support as now even if doing this would mean that other claimants would get less support? A reader who answered Yes to the fifth question was then offered a box in which to identify the groups whom he or she considered should be protected. The second, third and fourth questions related to other, less significant, departures from CTB rules proposed in Haringeys draft CTRS. Following the five main questions there was a second box, above which Haringey wrote: Please use the space below to make any other comments about our draft Council Tax Reduction Scheme. In response to its consultation exercise Haringey received 1251 completed questionnaires and 36 letters and emails. Of those who completed the questionnaire, 43% agreed or strongly agreed with the first question and 44% disagreed or strongly disagreed with it. Suggestions were made in at least ten of the responses that Haringey should meet the shortfall by cutting services 22. and in at least 11 of them that it should meet it by increasing council tax. One of the 36 letters and emails was an email sent to Haringey by The Reverend Paul Nicolson, a prominent anti poverty campaigner, on 29 October 2012. He wrote: I write to oppose your proposals on the grounds that the 25,560 households who now pay no council tax will not be able to pay 20%, or around 300 pa, from April 2013[B]enefits are paid to our poorest fellow citizens to provide the necessities of life; they are already inadequate On 6 November 2012 Haringey responded: We have asked for comments around protecting groups in addition to Pensioners, however protecting additional groups will have an impact on the remaining recipients who will have to pay a higher amount to cover the shortfall. Your email below is unclear as to which group you are suggesting we protect and how we then make up the shortfall. In his response dated 7 November 2012 The Rev. Nicolson observed: I am aware that central government has cut its council tax benefit grant to Haringey and all other councils by 10%. Other councils are absorbing the cut and continuing [to] implement the current CT benefit scheme. Why cannot Haringey do the same? There is no consultation taking place about that central issue. On 10 December 2012, following the end of the consultation, The Rev. Nicolson wrote a letter of protest to the Leader of Haringey Council, which ended as follows: I am shocked that no alternative to hitting the fragile incomes of the poorest residents of Haringey was included in the recent consultation. The Law 23. A public authoritys duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source, for example, of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R v Devon County Council, ex parte Baker [1995] 1 All ER 73. But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted. 24. Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court addressed the common law duty of procedural fairness in the determination of a persons legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, the requirement is liable to result in better decisions, by ensuring that the decision maker receives all relevant information and that it is properly tested (para 67). Second, it avoids the sense of injustice which the person who is the subject of the decision will otherwise feel (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not Yes or no, should we close this particular care home, this particular school etc? It was Required, as we are, to make a taxation related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose? In R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brents decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said at p 189: 25. Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals. Clearly Hodgson J accepted Mr Sedleys submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in the Baker case, cited above (see pp 91 and 87), and then in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at para 108. In the Coughlan case, which concerned the closure of a home for the disabled, the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated at para 112: It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this. The time has come for this court also to endorse the Sedley criteria. They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134, at para 9, a prescription for fairness. 26. Two further general points emerge from the authorities. First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting. Thus, for example, local authorities who were consulted about the governments proposed designation of Stevenage as a new town (Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496 at p 501) would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public, particularly perhaps the economically disadvantaged. Second, in the words of Simon Brown LJ in the Baker case, at p 91, the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit. 27. Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. For example, in R (Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 (Admin), [2003] JPL 583, the court held that, in consulting about an increase in airport capacity in South East England, the government had acted unlawfully in consulting upon possible development only at Heathrow, Stansted and the Thames estuary and not also at Gatwick; and see also R (Montpeliers and Trevors Association) v Westminster City Council [2005] EWHC 16 (Admin), [2006] LGR 304, at para 29. 28. But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options. In Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435 Gateshead, confronted by a falling birth rate and therefore an inability to sustain a viable sixth form in all its secondary schools, decided to set up sixth form colleges instead. Local parents failed to establish that Gatesheads prior consultation had been unlawful. The Court of Appeal held that Gateshead had made clear what the other options were: see pp 455, 456 and 462. In the Royal Brompton case, cited above, the defendant, an advisory body, was minded to advise that only two London hospitals should provide paediatric cardiac surgical services, namely Guys and Great Ormond Street. In the Court of Appeal the Royal Brompton Hospital failed to establish that the defendants exercise in consultation upon its prospective advice was unlawful. In its judgment delivered by Arden LJ, the court, at para 10, cited the Gateshead case as authority for the proposition that a decision maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are. It held, at para 95, that the defendant had made clear to those consulted that they were at liberty to press the case for the Royal Brompton. Application of the law to the facts 29. Paragraph 3(1)(c) of the schedule imposed on Haringey the requirement to consult. The requirement was to consult such other persons as it considers are likely to have an interest in the operation of the scheme. So the subject of the consultation was Haringeys preferred scheme and not any other discarded scheme. It is, however, at this point in the analysis that the division 30. of opinion arose in the Court of Appeal. Sullivan LJ, with whom Sir Terence Etherton agreed, concluded, at para 18, that: In this statutory context fairness does not require the Council in the consultation process to mention other options which it has decided not to incorporate into its published draft scheme; much less does fairness require that the consultation document contain an explanation as to why those options were not incorporated in the draft scheme. Pitchford LJ, by contrast, agreed with Underhill J who, at para 27, had concluded that: consulting about a proposal does inevitably involve inviting and considering views about possible alternatives. It is clear to me that the latter conclusion is correct. It is substantially in accordance with the decisions in the Gateshead and the Royal Brompton cases referred to in para 28 above. Those whom Haringey was primarily consulting were the most economically disadvantaged of its residents. Their income was already at a basic level and the effect of Haringeys proposed scheme would be to reduce it even below that level and thus in all likelihood to cause real hardship, while sparing its more prosperous residents from making any contribution to the shortfall in government funding. Fairness demanded that in the consultation document brief reference should be made to other ways of absorbing the shortfall and to the reasons why (unlike 58% of local authorities in England: see para 15 above) Haringey had concluded that they were unacceptable. The protest of The Rev. Nicolson in his letter dated 10 December 2012 was well directed. It would not have been onerous for Haringey to make brief reference to other ways of absorbing the shortfall. The CTRS proposed by Birmingham City Council was, like that proposed by Haringey, for the shortfall to be met by a reduction in council tax support, although Birmingham favoured sparing households with children aged under six and therefore reducing support more severely for the remainder. In its consultation document dated September 2012 Birmingham nevertheless wrote: We could decide to provide support at the same level as Council Tax Benefit, but this would mean raising Council Tax in the region of 4.4%; reducing Council services and using the compensatory savings to fund Council Tax Support; or a combination of [the two]. [But] we already have to plan the Councils finances on the basis that there may be a rise in Council Tax of around 1.9% and that all service areas will have to make savings this year. Part of Birminghams first question was: if you think the Council should make an additional contribution from its own finances to the [CTRS], how do you think this should be funded? In particular, should the Council increase Council Tax, or cut other Council services, or both? Birminghams presentation was fair. 31. Underhill J and Pitchford LJ nevertheless proceeded to conclude, as did Sullivan LJ and Sir Terence Etherton on the assumption that they were wrong to discern an absence of need to refer to other options, that Haringeys consultation exercise had been lawful because the other options would have been reasonably obvious to those consulted. It is clear that no conclusion to that effect can be drawn from the fact that, from the 36,000 households to which a hard copy of the consultation document was delivered, there were at least ten responses that services should be cut and at least 11 responses that council tax should be increased. On the contrary the apparently infinitesimal number of such responses arguably runs the other way. Assuming, however, that Underhill J and the Court of Appeal were entitled to conclude that the other options would have been reasonably obvious to those consulted, two matters arise. The first is to question whether it would also have been reasonably obvious to them why Haringey was minded to reject the other options. I speak as one who, even after a survey of the evidence filed by Haringey in these proceedings, remains unclear why it was minded to reject the other options. Perhaps the driver of its approach was political. At all events I cannot imagine that an affirmative answer can be given to that question. The second matter is the need to link the assumed knowledge of those consulted with the terms of Haringeys presentation to them in the consultation document and the covering letter. With respect to them, Underhill J and the Court of Appeal gave insufficient attention to the terms both of the document and of the letter, which, as I have demonstrated in paras 17 to 21 above, represented, as being an accomplished fact, that the shortfall in government funding would be met by a reduction in council tax support and that the only question was how, within that parameter, the burden should be distributed. This limited approach to the relevant question was entirely consistent with Mr Ellicotts report in July 2012 (see para 9 above) and, Haringeys response dated 6 November 2012 to The Rev. Nicolson (see para 22 above). Haringeys message to those consulted was therefore that other options were irrelevant and in such circumstances I cannot agree that their assumed knowledge of them saves Haringeys consultation exercise from a verdict that it was unfair and therefore unlawful. 32. A separate ground of Ms Moseleys appeal relates to the TGS. The contention, rejected by Underhill J and the Court of Appeal, is that, following the announcement of the TGS on 16 October 2012, Haringey, even though not minded to propose a scheme in accordance with it, acted unlawfully in failing to enlarge its consultation exercise so as to refer to it. But adoption of a scheme in accordance with the TGS would have left Haringey with a net shortfall in its receipts of council tax and have therefore required its absorption in other ways. Granted that reference should in any event have been made to other ways in Haringeys consultation exercise, the TGS did not add any substantially different dimension to the relevant possibilities. In the light also of the practical consideration that the announcement of the TGS was made on a date when Haringeys consultation exercise was less than five weeks short of completion, I also consider that it was not unlawful for Haringey to fail to refer to the TGS. In its argument on this ground, however, Haringey makes an illuminating concession, namely that, had it known of the TGS when it commenced its consultation exercise, it would have referred to it. The need for brief reference to other discarded options which would have required absorption of the shortfall in ways other than by reduction of council tax support is indeed the basis of my earlier conclusion. In addition to the declaration to which in my view she is entitled, Ms Moseley aspires, albeit with little apparent enthusiasm, to persuade the court to order Haringey to undertake a fresh consultation exercise, in accordance with the terms of its judgments, in relation to its CTRS for the forthcoming year 2015 2016. Paragraph 5(5) of the schedule requires it to comply with paragraph 3, including therefore to undertake the consultation exercise mandated by paragraph 3(1)(c), only if it is minded to revise its CTRS. It is unclear whether it is so minded but, if so, no doubt it will undertake its exercise in accordance with the terms of this courts judgments. The proposed mandatory order would therefore have practical effect only in the event that Haringey was not minded to revise its CTRS. My conclusion is that it would not be 33. proportionate to order Haringey to undertake a fresh consultation exercise in relation to a CTRS which will have been in operation for two years and which it is not minded to revise. LORD REED 34. I am generally in agreement with Lord Wilson, but would prefer to express my analysis of the relevant law in a way which lays less emphasis upon the common law duty to act fairly, and more upon the statutory context and purpose of the particular duty of consultation with which we are concerned. 35. The common law imposes a general duty of procedural fairness upon public authorities exercising a wide range of functions which affect the interests of individuals, but the content of that duty varies almost infinitely depending upon the circumstances. There is however no general common law duty to consult persons who may be affected by a measure before it is adopted. The reasons for the absence of such a duty were explained by Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139; [2008] ACD 20, paras 43 47. A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation. The general approach of the common law is illustrated by the cases of R v Devon County Council, Ex p Baker [1995] 1 All ER 73 and R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, cited by Lord Wilson, with which the BAPIO case might be contrasted. 36. This case is not concerned with a situation of that kind. It is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore vary greatly from one statutory context to another: the nature and the object of consultation must be related to the circumstances which call for it (Port Louis Corporation v Attorney General of Mauritius [1965] AC 1111, 1124). A mechanistic approach to the requirements of consultation should therefore be avoided. 37. Depending on the circumstances, issues of fairness may be relevant to the explication of a duty to consult. But the present case is not in my opinion concerned with circumstances in which a duty of fairness is owed, and the problem with the consultation is not that it was unfair as that term is normally used in administrative law. In the present context, the local authority is discharging an important function in relation to local government finance, which affects its residents generally. The statutory obligation is, before making a scheme, to consult any major precepting authority, to publish a draft scheme, and, critically, to consult such other persons as it considers are likely to have an interest in the operation of the scheme. All residents of the local authoritys area could reasonably be regarded as likely to have an interest in the operation of the scheme, and it is on that basis that Haringey proceeded. 39. 40. That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected. The matter may be made clear, one way or the other, by the terms of the relevant statutory provisions, as it was in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472; [2012] 126 BMLR 134. To the extent that the issue is left open by the relevant statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal. The case of Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice [2011] EWHC 1532 (Admin) is an example of a case where such information was not considered necessary, having regard to the nature and purpose of that particular consultation exercise, which concerned the proposed closure of a specific court. In the present case, on the other hand, it is difficult to see how ordinary members of the public could express an intelligent view on the proposed scheme, so as to participate in a meaningful way in the decision making process, unless they had an idea of how the loss of income by the local authority might otherwise be replaced or absorbed. 41. Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection. The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy. Nevertheless, enough must be said about realistic alternatives, and the reasons for the local authoritys preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought. 42. As Lord Wilson has explained, those requirements were not met in this case. The consultation document presented the proposed reduction in council tax support as if it were the inevitable consequence of the Governments funding cuts, and thereby disguised the choice made by Haringey itself. It misleadingly implied that there were no possible alternatives to that choice. In reality, therefore, there was no consultation on the fundamental basis of the scheme. I therefore concur in the order proposed by Lord Wilson. 43. LADY HALE AND LORD CLARKE 44. We agree that the appeal should be disposed of as indicated by Lord Wilson and Lord Reed. There appears to us to be very little between them as to the correct approach. We agree with Lord Reed that the court must have regard to the statutory context and that, as he puts it, in the particular statutory context, the duty of the local authority was to ensure public participation in the decision making process. It seems to us that in order to do so it must act fairly by taking the specific steps set out by Lord Reed in his para 39. In these circumstances we can we think safely agree with both judgments. 38. Such wide ranging consultation, in respect of the exercise of a local authoritys exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authoritys decision making process. In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authoritys adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response: R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, para 112, per Lord Woolf MR.

UK-Abs

Until 1 April 2013 central government operated a Council Tax Benefit (CTB) scheme whereby residents in local authority areas in England were granted relief from paying council tax on a means tested basis, for which the local authorities were reimbursed in full [4]. For the year 2013 2014, reimbursement to each local authority was fixed at 90% of the sum it had received in the previous year [6] and each local authority was required to devise its own Council Tax Reduction Scheme (CTRS) to provide relief from council tax to those whom it considered to be in financial need [7]. It was a requirement that each local authority consult interested persons on its CTRS in draft form before deciding on a final scheme: Paragraph 3(1)(c) of Schedule 1A of the Local Government Finance Act 1992 (added by Paragraph 1 of Schedule 4(1) to the Local Government Finance Act 2012) provides that Before making a scheme, the authority must consult such other persons as it considers are likely to have an interest in the operation of the scheme. The Respondent published a draft CTRS on 29 August 2012 under which it was proposed that the shortfall in central government funding would be met by a reduction in council tax relief of between 18% and 22% for all CTB claimants in Haringey other than pensioners [9 10]. The consultation document for Haringey residents explained the reduction in funding, and stated That means that the introduction of a local [CTRS] in Haringey will directly affect the assistance provided to everyone below pensionable age that currently receives [CTB]. There was no reference to other options for meeting the shortfall, for example by raising council tax, reducing funding to council services or deploying capital reserves [19]. The consultation document also included a questionnaire asking how the reduction in relief should be distributed as among CTB claimants [21]. Following the consultation exercise, the Respondent on 17 January 2013 decided to adopt a CTRS under which the level of council tax relief was reduced by 19.8% from 2012 2013 levels for all claimants other than pensioners and the disabled [14]. The Appellant is a resident of Haringey who until 1 April 2013 had been in receipt of full CTB, and thereafter had to pay 19.8% of full council tax. She was not originally a claimant in the judicial review proceedings which were brought by two other similarly circumstanced Haringey residents to challenge the Respondents consultation process. Underhill J dismissed their application for judicial review on 7 February 2013. One claimant, Ms Stirling, appealed to the Court of Appeal and that appeal was dismissed on 22 February 2013. Ms Stirling subsequently became ill and the Appellant was by consent substituted for the purposes of this appeal. Ms Stirling has since sadly died [3]. The Supreme Court unanimously allows the appeal and declares that the consultation exercise was unlawful [31]. However, it declines to order the Respondent to undertake a fresh consultation exercise because this would be disproportionate in the circumstances [33]. Lord Wilson (with whom Lord Kerr agrees) gives the main judgment. Lord Reed gives a concurring judgment. Lady Hale and Lord Clarke agree with both judgments. Lord Wilson considers that where a public authority has a duty to consult before taking a decision, whether such duty is generated by statute, as in this case, or arises as a matter of common law, the same common law requirements of procedural fairness will inform the manner in which the consultation should be conducted [23]. The requirements of a fair consultation are as summarised in the case of R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168: First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals. [25]. Fairness may require that interested persons be consulted not only upon the preferred option but also upon discarded options [27]. In this case, fairness demanded that the consultation document should briefly refer to alternative methods of absorbing the shortfall in government funding and to the reasons why the Respondent had concluded that they were unacceptable [29]. In fact, the purported consultation was premised on the assumption that the shortfall would be met by a reduction in council tax relief and no other option was presented [17, 18, 21]. Neither was it reasonably obvious to those consulted what other options there may have been and the reasons why such options had been discarded. Indeed, only an infinitesimal number of responses to the consultation (approximately 20 out of 1287 responses) alluded to other ways of meeting the shortfall. Therefore, the consultation exercise was unfair and unlawful [31]. However, it was not unlawful that the Respondent had failed to consult on the possible adoption of a Transitional Grant Scheme announced by central government only 5 weeks before the completion of the draft CTRS consultation [32]. Lord Reed allows the appeal for slightly different reasons. In cases such as this where the duty to consult is imposed by statute, the scope of the duty varies according to the statutory context [36]. The purpose of this particular statutory duty was to ensure public participation in the local authoritys decision making process [38]; it was not to ensure procedural fairness as under the common law. Meaningful participation in these circumstances required that those consulted be provided with an outline of the realistic alternatives [39]. In the absence of specific statutory provision, reference to alternative options will be required where this is necessary in order for the consultees to express meaningful views on the proposals [40]. Lady Hale and Lord Clarke give a brief joint judgment agreeing with both Lord Wilson and Lord Reeds judgments [44].

Local authority rates are the oldest tax in continuous existence in England, having originally been introduced in the reign of Queen Elizabeth I by the Poor Relief Act 1601 (43 Eliz 1, c 2). Historically, they were payable in respect of the rateable occupation of hereditaments, and that continues to shape the law in this area even though non domestic rates are today imposed on unoccupied hereditaments also. The core concepts underlying the assessment of rates are that they are a tax on property and not on persons or businesses, and that the hereditament is the unit of assessment. Each hereditament is separately identified in the rating list and separately assessed, notwithstanding that the same occupier may have more than one. The question at issue on this appeal is how different storeys under common occupation in the same block are to be entered in the rating list for the purpose of non domestic rating. Tower Bridge House is an eight storey office block in St Katherines Way in the London Borough of Tower Hamlets. In plan it is a U shaped building. The open space between the three wings is filled by a covered atrium, with a central lift shaft containing six high speed lifts serving the first to seventh floors of the building. There is a common reception area on the first floor serving the entire building. Mazars is a firm of chartered accountants which occupies the non common areas of the second and sixth floors under separate leases. The first, third, fourth and fifth floors are occupied by the solicitors Reynolds Porter Chamberlain. The seventh floor is divided between two other occupants. Where different parts of an office building are occupied by the same occupier, the ordinary practice of the valuer, and apparently of valuers generally, is to enter them as a single hereditament if they are contiguous, but as separate hereditaments if they are not. In accordance with this practice, in the 2005 rating list, the non common parts of the two storeys occupied by Mazars were entered as separate hereditaments. The non common parts of the first storey occupied by Reynolds Porter Chamberlain were entered as one hereditament, and the non common parts of the third, fourth and fifth floors occupied by the same firm were together entered as another hereditament. Each of the spaces separately occupied on the seventh floor was also entered as one hereditament. In February 2010, Mazars applied to merge the two entries for the spaces demised to them to form a single hereditament, with an allowance for fragmentation of 10%. They proposed that the merger should take effect from 26 November 2007, when they had begun to occupy the two floors, and contended that although physically separate, they were functionally inter dependent. The Valuation Tribunal for England agreed that the two entries should be merged, and allowed 5% for fragmentation. The Valuation Officer appealed to the Upper Tribunal (Lands Chamber). The case came before the President of the Chamber, who affirmed the Valuation Tribunals decision as to merger, but held that there should be no fragmentation allowance. The Valuation Officer has appealed to this court on the merger issue, but the disallowance of Mazars claim to a fragmentation allowance has left them with no financial interest in the outcome. They have not therefore appeared on the further appeal of the Valuation Officer to this court. We have, however, been assisted by Mr Forsdick QC, who appeared as the Advocate of the Court, and whose submissions have been of great value in elucidating a novel and difficult point. Hereditament is a somewhat archaic conveyancing term which as a matter of ordinary legal terminology refers to any species of real property which would descend upon intestacy to the heirs at law: see section 205(1)(ix) of the Law of Property Act 1925. In a conveyance, there is no problem about its bounds. They will be identified by the deed. But notwithstanding more than four centuries of experience, the question how a hereditament is to be identified for rating purposes remains in important respects unclear. Section 64(1) of the Local Government Finance Act 1988 defines a hereditament as anything which would before the passing of the Act have been a hereditament for the purposes of section 115(1) of the General Rate Act 1967. That means a property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list. The result, in the absence of further statutory definition, is that the meaning of hereditament is left to be elucidated by the courts in accordance with the principles underlying the rating Acts. The question which arises in a case like this is a very simple one. Given that non domestic rates are a tax on individual properties, what is the property in question? In principle, the fact that the same occupier holds two or more properties is irrelevant to the rateable status of any of them. He must pay rates separately on each. If the law is to be rational and consistent, the circumstances in which a continuous territorial block is to be treated as several separate properties or in which geographically separate properties are to be treated as one for rating purposes, must be determined according to some ascertainable and defensible principle. There are two principles on which these questions might be decided. One is geographical and depends simply on whether the premises said to constitute a hereditament constitute a single unit on a plan. The other is functional and depends on the use that is or might be made of it. The distinction was first applied in a series of rating cases in Scotland, where the question was essentially the same as the one which arises on this appeal, namely whether property should be assessed for local rates as a number of distinct heritable subjects or as unum quid (one thing). These cases establish that the primary test is geographical, but that a functional test may in certain cases be relevant either to break up a geographical unit into several subjects for rating purposes or to unite geographically dispersed units in unum quid. By far the commonest application of the functional test is in derating cases. In these cases, the functional test serves to divide a single territorial block into different hereditaments where severable parts of it are used for quite different purposes. Thus a garage used in conjunction with a residence within the same curtilage will readily be treated as part of the same hereditament, whereas a factory within the same curtilage which is operated by the same occupier may not be. There are, however, rare cases in which function may also serve to aggregate geographically distinct subjects. It is with this latter question that the present appeal is concerned. In Bank of Scotland v Assessor for Edinburgh (1890) 17 R 839, the Lands Valuation Appeal Court dealt with a number of rating appeals involving banks with office premises used in conjunction with nearby residential premises occupied by bank employees. There were three categories of residential premises: (i) dwellings which were in buildings separate from the banks offices; (ii) dwellings which were under the same roof as the commercial offices with internal communication between them; and (iii) dwellings which were under the same roof but with no internal communication between them, or none that was in use. Lord Trayner held that in case (i) the dwellings fell to be valued separately while those in cases (ii) and (iii) were unum quid with the commercial offices. Lord Wellwood agreed with him on cases (i) and (ii), but not on case (iii) which he would have directed to be separately valued. However, the underlying principle applied by both judges was the same. They applied the geographical principle, distinguishing cases where the various bank buildings formed a continuous territorial block from cases where they did not. In those cases where the different buildings did not form a continuous territorial block, they could be treated as unum quid only where there was a necessary functional connection between them. Lord Trayner said at p 843: In the case of the Commercial Bank I think the assessor has gone wrong in including the messengers houses as part of the bank. These houses form no part of the bank buildings; they are separate houses in the adjoining street, no doubt sufficiently near to the bank to be convenient and suitable for the bank servants, but still no part of the bank buildings, and therefore no part of the unum quid. The assessor in support of the view he has adopted referred to the case of MJannet, 10 R 32, but I do not think that that case has any application here. It was decided in that case that the conservatory, stables, and outhouses connected with a dwelling house were not to be separately valued, but were to be regarded and valued as a unum quid. I agree entirely with that decision. The different parts of the subject to be valued lay together, and were within the one enclosure; they were the different parts which together went to make up the establishment. But although the stables, for example, were held in that case to be part of the residence and to be so valued, it does not follow that stables are in every case to be valued as part of the residence to which they are an accessory. The stables of a gentleman in town are as much a convenience or accessory to his town residence as they are in the case of a country house. They are not, however, valued along with the town residence, although situated in the adjoining street or mews. They are not so connected as they were in the case of a country mansion or residence as to make it impossible or difficult to let them separately. In the same way the Commercial Bank could not well retain their bank premises, and let the part thereof devoted to official residence, but they could quite well and conveniently let the messengers houses in the street to persons entirely unconnected with the bank. I think these houses therefore should be separately entered and valued in the Valuation roll. Lord Wellwood, at p 844, divided the residential buildings into three categories: First Those which are entirely detached from the bank buildings, as in the case of the messengers houses of the Commercial Bank of Scotland. I agree with Lord Trayner that the yearly value of those houses should be separately entered in the roll. Second The houses which form part of the main building, but have no internal communication with the business premises. I am of opinion that the yearly value of those dwelling houses also should be separately entered. The fact that they form part of the same building with the business premises is not I think in this question material, and was not much relied on by the respondent. Structurally they are self contained premises, and could be let separately if this were desired. The respondent relied mainly upon the consideration that the houses form necessary adjuncts to the bank premises, and together with them fell to be valued as a unum quid. Dwelling houses for bank officials connected with the bank premises are no doubt usual and useful additions to banking premises, but it is not indispensable that they should form part of the bank buildings, as is shewn in the case of the messengers houses of the Commercial Bank of Scotland. If, as is sometimes the case, it did not suit any of the officials to reside in the dwelling houses, they could be let to a tenant with no more danger to the bank than if they were under a different roof. The case seems to me to be precisely the same as that with which we are familiar of the lower flat of a dwelling house being converted into a shop with a separate entrance. The upper flats may or may not be occupied by the shopkeeper himself as a dwelling house, but I take it that in any case the dwelling house and the shop are valued separately. Third Dwelling houses which are connected by internal communication with the business premises. In regard to those I have more doubt. In their actual state they are at present connected with the business premises by an internal door of communication, which is used not merely as a convenient short cut by the occupant of the dwelling house, but also by other bank officials and servants for the purpose of locking the outer door of the bank and other purposes. This means of communication could be easily cut off by building up or even locking the door. But that is not the present state of matters, and the question being doubtful, I am not prepared to differ from the opinion of Lord Trayner and the Valuation Committee as to those dwelling houses. The point on which Lord Traynor and Lord Wellwood differed, concerning premises which were contiguous but did not interconnect arose for decision a year later in Bank of Scotland v Assessor for Edinburgh (1891) 18 R 936. Lord Wellwood, sitting with Lord Kyllachy, repeated his view that they fell to be separately valued. Lord Kyllachy, said, at p 938: The test I think here is whether the houses in question are capable, not merely physically but, all conditions being considered, of being separately let, and having a separate rent or value attached to them. As regards the house occupied by the messenger, and which has no internal communication with the rest of the bank, I agree with the opinion of Lord Wellwood at the last court. I see no reason, at least none appears in the case, why, if the bank chose, this house should not be separately let to a suitable tenant, or assigned by way of pension to an old servant, or otherwise dealt with as a separate and independent dwelling. In University of Glasgow v Assessor for Glasgow 1952 SC 504, the Lands Valuation Appeal Court held that various buildings of the University which were physically separate from the main buildings, capable of being separately let and dispersed among buildings belonging to other proprietors, were properly entered on the valuation roll as separate subjects. Lord Keith, delivering the judgment of the court, treated the first Bank of Scotland case as authority for the geographical principle (p 509). He said at p 510: The common enclosure in many cases supplies a useful basis, or test, for a unum quid entry. It is the reason why a villa with its garden ground, or a mansion house with its policies, and any ancillary buildings are entered as a unum quid. The geographical conception has never been lost sight of in making up entries in the Valuation Roll, and in the case of John Leng & Co v Assessor for Dundee Lord Sands took occasion twice to refer to the ordinary geographical arrangement followed in making up the Valuation Roll. There may be cases where geographical unity has to be departed from, as where premises within what would otherwise be a single entity are separately let, or lands or buildings within a common enclosure are used for separate purposes. It is not perhaps possible to lay down general rules for all cases. Something must depend on particular circumstances. But the broad general principles are as stated. Midlothian Assessor v Buccleuch Estates Ltd [1962] RA 257 concerned geographically separate parcels of woodland and sawmills on separate sites, which were operated as a single business. Lord Kilbrandon, sitting in the Lands Valuation Appeal Court, observed at p 268: It has never yet been admitted that you can have a unit of valuation consisting of widely scattered heritable subjects connected only by some functional or commercial nexus, and I do not see why it should be. I do not think one is being merely old fashioned or obscurantist in insisting, in the conception of unum quid, on a fairly close physical relationship between what might be considered as parts of a commercial unit; one is, after all, attempting to value not a business but heritable subjects, and it may be that the precedents, which all insist on such a physical relationship, indicate a determination to preserve that essential distinction. Not only do I know of no precedent in valuation practice which could justify a functional approach to the problem such as is here sought to be made, but I am still of opinion that no such approach can in this case give a proper content to the whole words of the statute. This statement was cited with approval by Lord Slynn of Hadley, delivering the only reasoned speech in the English valuation case of Hambleton District Council v Buxted Poultry Ltd [1993] AC 369, 378. More recently, in Burn Stewart Distillers plc v Lanarkshire Valuation Joint Board [2001] RA 110, the Lands Tribunal for Scotland held that premises under common occupation but situated on opposite sides of a main road constituted two hereditaments. The tribunal observed, at pp 140 141: We consider that the emphasis on the geographical test is an aspect of recognition that lands and heritages are physical subjects. The underlying purpose is to provide a proper basis for a tax on property, not a tax on persons or businesses. Where the subjects share characteristics of function which, in a robust practical sense, support the use of a single term to describe the physical subjects, they can be treated as one unit. On the other hand, we are satisfied that the fact that certain heritable subjects function together as one business will, by itself, be insufficient to demonstrate that they are to be regarded as a unum quid in any physical sense. A business is not a concept based on physical or heritable factors. Entry in the roll is based on identification of heritable subjects. The fact that one business may need to occupy two separate physical subjects does not change the character of the subjects. It is clear that undue emphasis on a business connection as evidence of functional connection between subjects could lead to a distinction for rating purposes between a business whose operating units were in close proximity and those whose operating units were, perhaps only slightly, more remote. There is no basis in legislation for such a distinction. We see no basis in fairness for it. We are not persuaded that there is a consistent practice which would lead to that result. If there is, we see no need to follow it. In the present case there is a clear physical separation of the two subjects. They each have a clear curtilage and these curtilages are separated by a public road and pavements. Although, in a sense, little different from the interposition of a public road, the fact that the ratepayers do not have exclusive occupation of the land which provides their access to that public road and the intermittent presence at their gate of large, slow moving vehicles belonging to another occupier, tends to enhance the impression of separation of the two subjects. A test based on appearance and impression may properly be treated as part of the geographical test. The two subjects have no unifying visual characteristics. There is nothing to indicate that they are operated together, far less that the physical presence of one is essential to the function of the other. Their physical characteristic as two distinct subjects is supported by the consideration that there is no real doubt that the subjects could be let separately. I derive from these decisions three broad principles relevant to cases like this one where the question is whether distinct spaces under common occupation form a single hereditament. First, the primary test is, as I have said, geographical. It is based on visual or cartographic unity. Contiguous spaces will normally possess this characteristic, but unity is not simply a question of contiguity, as the second Bank of Scotland case illustrates. If adjoining houses in a terrace or vertically contiguous units in an office block do not intercommunicate and can be accessed only via other property (such as a public street or the common parts of the building) of which the common occupier is not in exclusive possession, this will be a strong indication that they are separate hereditaments. If direct communication were to be established, by piercing a door or a staircase, the occupier would usually be said to create a new and larger hereditament in place of the two which previously existed. Secondly, where in accordance with this principle two spaces are geographically distinct, a functional test may nevertheless enable them to be treated as a single hereditament, but only where the use of the one is necessary to the effectual enjoyment of the other. This last point may commonly be tested by asking whether the two sections could reasonably be let separately. Third, the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the subjects. The application of these principles cannot be a mere mechanical exercise. They will commonly call for a factual judgment on the part of the valuer and the exercise of a large measure of professional common sense. But in my opinion they correctly summarise the relevant law. They are also rationally founded on the nature of a tax on individual properties. If the functional test were to be applied in any other than the limited category of cases envisaged in the second and third principles, a subject (or in English terms a hereditament) would fall to be identified not by reference to the physical characteristics of the property, but by reference to the business needs of a particular occupier and the use which, for his own purposes, he chose to make of it. One would not expect the law to be any different when the identical questions arise for decision in England. However, confusion has been caused by the leading English case, which is the decision of the Court of Appeal in Gilbert v S Hickinbottom and Sons Ltd [1956] 2 QB 40. The facts in this case were very similar to those in Burn Stewart Distillers. A large industrial bakery comprised a number of buildings in two blocks separated by a street. The Lands Tribunal held, overruling the valuation officer, that they constituted a single hereditament, and its decision was affirmed by the Court of Appeal. Denning LJ held that geographically contiguous spaces were normally to be treated as one hereditament and geographically separate spaces as distinct, but that there were exceptional cases where their function required a different treatment. He gave as examples of the treatment of separate premises as one hereditament, the case where a road bisected a noblemans park, or agricultural land (in the days when agricultural land was rateable) or a golf course. The common feature of these cases, he thought (pp 49 50), was that the two properties on either side of the road are so essentially one whole by which I mean, so essential in use the one to another that they should be regarded as one single hereditament. Denning LJ appears to have derived this test from the decision in the University of Glasgow case, which he cited with approval. In my opinion his statement of the law was correct, although I would not necessarily endorse his examples, at any rate without more facts. The reason why Denning LJ nevertheless felt bound to dismiss the appeal was that the application of the test was a question of degree and therefore of fact (p 50), and if the Lands Tribunal thought that it was one hereditament they must have had their reasons. This seems a surprising conclusion on the facts recited in the report, but it has no bearing on the principle. Denning LJ was manifestly not suggesting that the Lands Tribunal was free to apply the test or not as they thought fit. The views of the other two judges are less clear. Morris LJ regarded it as undesirable to lay down general principles to govern what he regarded as a common sense assessment (p 52). The closest that he came to indicating in what circumstances geographically separate spaces might be regarded as a single hereditament was in the following passage, at p 52: buildings which, though not actually enclosed together or actually contiguous, are very near together and are not separated by the presence of other buildings and are being put to one common use may be regarded as comprising one hereditament. There can be no doubt that ordinarily very great weight will be placed upon what may be termed the geographical test. But the question is always one of fact and degree. The case before him he regarded as an exceptional one which depended on its particular facts (p 53), although it is not clear which particular facts made the difference, nor why. The third member of the court, Parker LJ, offered the following guidance, at pp 53 54: Whether or not premises in one occupation fall to be entered in the valuation list as one or more hereditaments depends upon a number of considerations. Without attempting an exhaustive list, the following considerations can be mentioned: (1) Whether the premises are in more than one rating area. If so, they must be divided into at least the same number of hereditaments as the rating areas in which the premises are situated. (2) Whether two or more parts of the premises are capable of being separately let. If not, then the premises must be entered as a single hereditament. (3) Whether the premises form a single geographical unit. (4) Whether though forming a single geographical unit the premises by their structure and layout consist of two or more separate parts. (5) Whether the occupier finds it necessary or convenient to use the premises as a whole for one purpose, or whether he uses different parts of the premises for different purposes. Whereas a consideration of questions (1) and (2) will in certain events conclude the matter one way or the other, the same does not, I think, result from a consideration of any one of the other questions alone. The conclusion, where the considerations of (1) and (2) are not decisive, must depend on the weight to be attached on the facts of each case to the other considerations. No doubt the most important of these other considerations is whether the premises form a geographical unit. Can they be ringed round on a map? Later, after citing the University of Glasgow case, he addressed the geographical and functional tests in the following terms, at pp 54 55: [The geographical test] is so often decisive that it is a convenient starting point to the inquiry, but it is not decisive in all cases. Thus, though the premises may form a geographical unit, the manner in which different parts are used may justify the premises being treated as several hereditaments; cf North Eastern Railway Co v Guardians of York Union [1900] 1 QB 733, 739 per Channell J. The appellants contention, however, is that though the functional test may justify treating a geographical unit as two hereditaments, it is wholly inapplicable where the premises occupied are geographically and structurally separate. There is no doubt, I think, that in the latter case little weight will ordinarily be given to any functional connexion, but it is another thing to say that it is irrelevant. If, as is admitted, a functional connexion is a relevant consideration when considering a geographical and structural unit, I fail to see why as a matter of law it cannot be considered at all when there are separate geographical and structural units. Each case must be considered on its particular facts, due weight being given to the degree and nature of the separation on the one hand and the importance of the functional connexion on the other. In these passages, Parker LJ clearly rejected the submission that function was irrelevant where premises were geographically separate. He was right to do so, because function may be relevant to the question whether separate premises must necessarily be enjoyed together, or are incapable of being reasonably let as separate units: see his proposition (2). Whether Parker LJ would have recognised the relevance of function to a case of geographically separate premises for any wider purpose is not clear. His proposition (5) suggests that he might have done, although he considered that even in such a case function was of little weight. In my opinion, the decision in Gilbert cannot be supported, at any rate on the grounds given, and the reasoning cannot be regarded as authority for very much. The only clear statement of principle is that of Denning LJ, which he does not appear to have applied. Mr Forsdick QC, the Advocate of the Court, submitted that the effect of the judgments of Morris LJ and Parker LJ was that it was for the tribunal of fact to determine not just the functional connection between separate premises, but the relevance of its conclusion on that point. I do not think that that clearly emerges from either judgment, but if it was indeed their view, then I respectfully disagree. Both the geographical and the functional principle require an evaluation of the facts by the tribunal of fact. However, the relationship between them is not itself a question of fact but a question of principle. The relevant principle is in my opinion summed up in the three propositions which I have extracted from the Scottish cases. The geographical test and the functional test are different and in some respects inconsistent. They cannot both operate in parallel unless there is some rational framework of principle for distinguishing their respective spheres. The English and the Scottish cases are agreed that the potential inconsistency is to be resolved by acknowledging the primacy of the geographical test and the subordinate character of the functional test. But what does this mean? The answer to the question must surely be supplied by the tribunal of law which posed it. To treat the relationship between these two incommensurate tests as no more than a question of fact and degree is to leave to the tribunal of fact what amounts to a discretion to give the functional test such weight as they choose as against the geographical one, and to allow the business choices of the occupier to determine the bounds of the hereditament. This would in turn make the basis of assessment more opaque and less consistent as between different occupiers. It would be a poor substitute for clear and principled rules, capable of uniform application. Until the present case came before the Valuation Tribunal and the President of the Lands Chamber, there had been no decision on how these principles were to be applied to cases in which the same occupier occupied different storeys within the same building. The only case which was arguably in point was British Railways Board v Hopkins (Valuation Officer) [1981] RA 328, in which the Lands Tribunal treated different storeys under common occupation as constituting a single hereditament, whether they were contiguous or not. But the decision turned on other issues and there was no discussion of this particular point. On the other hand, valuation officers had for some years adopted the practice of treating contiguous storeys under common occupation as one hereditament, but non contiguous storeys as distinct hereditaments. As far as the case law is concerned, this was therefore an unresolved question when the present case came before the Valuation Tribunal and then the President of the Lands Chamber. The President accepted Denning LJs formulation in Gilbert as applied to premises which were horizontally separated, in the sense that they were in different buildings or different territorial blocks. It will be apparent from what I have already said that I agree with him about this. But he thought that premises which were in the same building but were vertically separated were different. At para 20, he observed: I agree with Mr Woolway, and with the submissions made by Mr Kolinsky on the point, that in identifying hereditaments within a modern office building the concept of the curtilage has no useful part to play, and is far removed from what Denning LJ had in mind when formulating his general rules in Gilbert v Hickinbottom. The Valuation Tribunal, having concluded that the two floors were within the same curtilage, then explored whether there was an essential: functional link between them. In so doing it was clearly misapplying Denning LJs general rules, where the question of the essential functional link only arose in the case of premises that were not within the same curtilage but were separated by a highway, and I do not think that an essential connection should be treated as a criterion in the present case. I agree in any event with the Valuation Officer that a detailed inquiry into the functional relationship between parts of a building in the same occupation is of no assistance in the present case and is positively undesirable. It seems to me inappropriate to explore the degree of functional interaction between two floors in common occupation. Any such process would tend to be detailed and time consuming (as it was in the present case) and always liable to reassessment as the occupier made changes in the way that the space was utilised. The fact that the floors of office premises are in the same occupation for the purposes He concluded, at para 29: of the occupying firm is by itself; in my judgment, a significant pointer. The proper approach in a case such as this, therefore, in my judgment, is to treat the floors occupied within the building by the same occupier as a single hereditament. Since the occupier will be occupying the floors as offices for the purposes of his business, it is not in my view necessary to investigate the functional interrelationship between the floors at any particular time. In the present case, therefore, floors two and six are properly to be entered as a single hereditament, as the Valuation Tribunal determined; and the Valuation Officers appeal on this point fails. In effect, therefore, the President applied neither a geographical test nor a functional one. He declined to ask himself whether the possession of both storeys was necessary to the enjoyment of either, nor whether they could be let separately, nor whether they intercommunicated (the answers would clearly have been No, Yes and No respectively). He quite rightly regarded the way in which a particular occupier chose to use the premises together as irrelevant. Yet at the same time he considered that when separate premises were located in the same building, it was wrong to apply a geographical test either. He therefore declined to ask himself Parker LJs question, whether the alleged single hereditament could be ringed round on a plan (the answer would have been No). The President of the Lands Chamber was labouring under the difficulty that he was bound by Gilbert, and therefore obliged to make more sense of it than the judgments really permit. At any rate, I am unable to accept his reasoning. It introduces an arbitrary distinction between horizontal and vertical separation which responds to no discernible principle. In order to pass from level 2 to level 6, it is necessary to leave the demised premises on level 2, enter the common parts over which Mazars had a licence but no right of possession, and to ascend in a lift to the common parts on level 6 before entering the other premises. This is no different, either geographically or functionally, from leaving a building which is exclusively occupied by the ratepayer, crossing land belonging to someone else and entering another building under the same occupation. The President remarks that the lifts were fast and the move from one level to the other simple, but why should that be any more relevant than the fact that the separate building was only a short distance away or could be reached at high speed by car? In my opinion there is no rational reason to regard Denning LJs test as any less applicable to distinct premises within the same building than it is to different buildings within the same urban park. It is clear that the President was strongly influenced by the Valuation Officers acceptance that vertically or horizontally contiguous spaces in the same building fall to be treated as one hereditament, so that if Mazars had occupied levels 2 and 3, instead of levels 2 and 6, the result would have been different. This concession, as I have pointed out, is not necessarily correct unless the two spaces directly intercommunicate. For present purposes, however, it is enough to note that there is nothing anomalous about the notion that the result is different when the spaces are not contiguous and do not directly intercommunicate. It simply shows that the same occupier has two distinct taxable properties, just as he would have if they were on opposite sides of the street. For these reasons I would allow the Valuation Officers appeal, set aside the orders of the Valuation Tribunal and the Upper Tribunal and declare that the premises demised to Mazars on the second and sixth storeys of Tower Bridge House are to be entered in the rating lists as separate hereditaments. LORD GILL: (who agrees with Lord Sumption) I agree that this appeal should be allowed. It seems that in this case the decision whether the ratepayers premises constitute one hereditament or two does not affect the overall value of them; but in other cases the effect of the decision may be significant (eg Trunkfield (Valuation Officer) v Camden London Borough Council [2011] RA 1). The appeal is important from that practical point of view; but its principal importance is that it requires us to examine, in a modern context, the principles by which the hereditament is to be identified, and to do so in a case that does not involve de rating. The Valuation Tribunal for England (VTE) held that the premises were a single hereditament on the view that the two floors were within a single curtilage and that the integrated use of them was essential to the efficiency of the ratepayers business as a whole. In the Upper Tribunal (Lands Chamber) the President (Mr George Bartlett QC) agreed with the decision of the VTE, subject to a reduction of the valuation; but he took a different approach. He was not persuaded that the essential functional link between the two parts, on which the VTE had relied, should be the criterion. He considered that a detailed inquiry into such a question would be positively undesirable (para 20). He considered it significant that the two floors were in single occupation, and that in the context of a modern office building the concept of the curtilage had no place. His decision turned on the facts relating to the physical nature of the premises and the purposes for which the ratepayer occupied them, there being no significant difference from the occupiers point of view between floors that were adjoining and floors that were separated. The Court of Appeal dismissed an appeal against that decision, essentially for the reasons given by the President of the Tribunal. The decision of the Court of Appeal in Gilbert v S Hickinbottom and Sons Ltd [1956] 2 QB 40 has been central to this case. It has stood for nearly 60 years. The effect of it was that premises of different kinds situated on opposite sides of a highway were to be regarded as one hereditament where the ratepayer had integrated its use of one with its use of the other. It is plainly an unsatisfactory decision. There is no common thread of reasoning in the opinions of the three judges. I cannot understand why Denning LJ (as he then was), who clearly favoured the geographical test and found three cases based on it that commended themselves to his mind, one of them being the Glasgow University case [1952] SC 504, deferred to the conclusion of the Lands Tribunal to the contrary effect, especially when it was not clear to him why the Tribunal had distinguished those cases from the case that was under appeal. In the result, the Gilbert decision has been understood to mean that whether separate premises constitute a single hereditament may depend on the use to which the ratepayer puts them: in short, that geographical separation may in some circumstances be outweighed by functional integration. The Gilbert case was decided on the definition of hereditament in section 68 of the Rating and Valuation Act 1925 (the 1925 Act); namely: any lands, tenements, hereditaments or property which are or may become liable to any rate in respect of which the valuation list is by this Act made conclusive In section 115(1) of the General Rate Act 1967 (the 1967 Act), which now applies, hereditament means property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list. Counsel for the valuation officer suggested that that the Gilbert decision should be distinguished because it was decided on the definition of hereditament in the 1925 Act, which in counsels submission was materially different from the present definition. I do not accept that. The 1967 Act was a consolidating measure. It was reasonable in such a consolidation to recast the former definition, which suffered from circularity. In my view the reference to a unit of property which is, or would fall to be, shown as a separate item in the valuation list simply means a unit of property that would constitute a separate hereditament in accordance with established legal principles. I agree with the Court of Appeal on this point. If I am right in the view that section 115(1) has not changed the law on the point, it follows that the decision in Gilbert cannot be side stepped in this way. The real point on which the Gilbert case should be distinguished is that it concerned industrial de rating. In Gilbert and in the other de rating cases that have been referred to in this appeal, it was to the advantage of the ratepayer if ancillary but separate premises could be said to be part of one hereditament. If they were, the benefit of de rating was applied to the whole. Inevitably in such cases ratepayers emphasised the functional connection. The influence of that consideration is immediately apparent in the Gilbert case and, in similar circumstances, in the Scottish case of John Leng and Co v Assessor for Dundee 1929 SC 315. It can also be seen in the unsuccessful argument for the ratepayer in the Glasgow University case, where the University enjoyed partial exemption from local rates. De rating cases are not concerned with valuation for rating. They are about the remission of a liability for rates based on the use that the ratepayer makes of the property. On the other hand, valuation for rating is concerned with physical premises. It cannot be right that geographically separate premises should be valued as one hereditament simply because the ratepayer chooses to link his use of one with his use of the other. To modify the geographical test with considerations of functionality, in this sense of the word, is to add to a clear and objective test the uncertainty of a test that is dependent on whatever happens to be the ratepayers choice of use. Numerous cases have been referred to by counsel for the appellant and by the amicus that purport to apply the Gilbert decision. It would be an unprofitable exercise to go through them one by one. They merely demonstrate the various approaches that courts and tribunals have taken in the attempt to deduce a coherent principle from the Gilbert case. Notable among these cases is Trunkfield (Valuation Officer) v Camden London Borough Council [2011] RA 1. It concerned two adjoining office buildings. The ratepayers occupied one building in its entirety. In the other, they occupied the third, fifth and sixth floors and part of the fourth. In the valuation list there was a single assessment for the first building and four separate assessments for the floors occupied by the ratepayers in the other building. The Valuation Tribunal determined that the five assessments should be merged. In his appeal to the Upper Tribunal (Lands Chamber) the valuation officer contended that there should be two assessments, one for the first building and one for the four floors occupied in the other. The President allowed the appeal and directed that the list should be amended as the valuation officer proposed. If, as I assume, there were no means of internal communication between any of the four floors in the second building, the question in this appeal would have arisen; but in the event the valuation officers position precluded any discussion of that question. In my view the valuation officers position was unsound. Section 67 of the 1967 Act requires the valuation officer inter alia to maintain a valuation list for each rating area in accordance with the provisions of Part V of the Act. In Scotland, the equivalent obligation of the assessor is to make up a valuation roll listing all of the lands and heritages in his valuation area (Local Government (Scotland) Act 1975, section 1). The expression lands and heritages dates back to the Lands Valuation (Scotland) Act 1854 (17 & 18 Vict c 91). Although the law of valuation for rating is governed in Scotland by different legislation, the essential point is identical in both jurisdictions. It is to identify the unit of valuation. In my view, there is no reason why the two jurisdictions should diverge on the principles of the matter. On the contrary, it is desirable that they should coincide. In the law of Scotland, the identification of the valuation unit, or the unum quid, rests on a geographical test. The history of the matter begins with the decision of the Lands Valuation Appeal Court in Bank of Scotland v Assessor for Edinburgh (1890) 17 R 839. That case concerned a number of bank buildings and the associated dwellinghouses of the staff who worked in them. In some cases, those in the third category referred to by Lord Sumption (para 7) the dwellinghouse was part of the bank building itself, but had no internal means of communication with the bank premises. Lord Trayner thought that in those cases the whole building should be valued as a unum quid. Lord Wellwood thought that the dwellinghouse and the bank premises should be valued as separate lands and heritages. In the following year, the Lands Valuation Appeal Court reconsidered the case. On that occasion the court, consisting of Lord Wellwood and Lord Kyllachy, decided that where the bank premises and the staff dwellinghouse were not internally connected, they should be entered in the roll as separate lands and heritages (Bank of Scotland v Assessor for Edinburgh (1891) 18 R 936). In my view, that was correct. The absence of an internal connection between the residential unit and the bank premises meant that to reach the bank the occupier of the dwellinghouse had to leave the building and go by the street to the public entrance of the bank. The question arose again in Glasgow University v Assessor for Glasgow 1952 SC 504. In that case the ratepayer, in seeking the benefit of partial de rating, argued that there should be a single entry in the roll comprehending the main University buildings as planned and built as such, and with later additions; together with a diverse group of peripheral University buildings dispersed among the buildings of other proprietors. This last group included, for example, a laboratory and a reading room that was on a separate site on the other side of a main road. The Lands Valuation Appeal Court concluded that the main buildings lay within the University enclosure proper, being structurally and geographically part of a common whole, and should be entered in the roll as a unum quid. On the other hand it considered that while the peripheral buildings were functionally part of the University, they were geographically separate and should be entered as separate lands and heritages. That decision reaffirmed the primacy of the geographical test. The geographical test was strictly applied by the Lands Valuation Appeal Court in Edinburgh Merchant Co Education Board v Assessor for Lothian 1982 SC 129 in a case where two schools on opposite sides of a main road had come to be occupied as one. One set of buildings was situated in playing fields. The other was in a set of converted terraced houses. Access from one to the other was by a path over a railway bridge and a lane. Although they were occupied as a functional unit, the court concluded that there was no geographical unum quid. The Glasgow University case and the Gilbert case were considered by the Lands Tribunal for Scotland in Burn Stewart Distillers plc v Lanarkshire Valuation Joint Board [2001] RA 110. In that case the ratepayer contended that there should be a single entry in the roll for premises situated on opposite sides of a main road. On one side the premises consisted of warehousing and the main office accommodation. On the other, there was a whisky bottling complex and distribution plant with ancillary storage space and small proportion of office and cloakroom space. On this side there was a canteen used by staff from both premises. Materials were moved between the two premises by fork lift trucks which traversed the public road. A concrete communications conduit linking the two premises ran under the main road. The main office accommodation constituted the head office of the ratepayer and dealt with many matters unrelated to the bottling and distribution plant, including worldwide marketing. The Tribunal, chaired by Lord McGhie, applied the geographical test and held that it was not satisfied. The Burn Stewart decision was referred to in argument in Trunkfield (Valuation Officer) v Camden London Borough Council (supra); but was not referred to in the judgment. I agree with the three general principles that have been stated by Lord Sumption (at para 12). It is important to emphasise that the reference to functionality in the second and third of these principles is not a reference to the use that the ratepayer chooses to make of the premises. It is a reference to a necessary interdependence of the separate parts that is objectively ascertainable. For example, such an interdependence is to be found between a tourist attraction in a castle and the associated gift shop in the castle grounds (Roxburghe Estates v Assessor for Scottish Borders Council [2004] RA 15). Conversely, functionality in this sense may also be relevant where premises that are apparently geographically linked are wholly dissociated; for example, the hotel and the engine sheds at a railway station (North Eastern Railway Co v Guardians of York Union [1900] 1 QB 733). To the three general principles that Lord Sumption has laid down, I would add only the comment that in the application of them, the concept of fairness, alluded to in this case by the President of the Tribunal, has no place. In my opinion, these general principles provide straightforward and workable guidance that is consistent with the underlying theory of rating law that rates are a tax on a ratepayers property and not on a ratepayers business (Midlothian Assessor v Buccleuch Estates Ltd [1962] RA 257, Lord Kilbrandon at p 268). It was suggested on behalf of the valuation officer that in the application of the geographical test the decisive criterion is contiguity. That is an extreme position that I do not accept. Properties that are discontiguous but nonetheless geographically linked, may constitute one hereditament if the occupation of one part would be pointless without the occupation of the other. The Glasgow University case is an example. In that case it was clearly right that an assemblage of academic buildings constituting the core of the university campus should be valued as a unum quid. Roxburghe Estates v Assessor for Scottish Borders Council (supra) is another example. In that case the lands and heritages consisted of exhibition rooms within a castle with an adjacent gift shop and restaurant, a coffee shop and parts of the gardens and ground. The gift shop and the restaurant owed their existence to the castle; whereas the coffee shop was situated outside the pay wall and had an independent existence that linked it more closely with a nearby garden centre. It was not part of the unum quid. On the facts of the present case, I fail to see why premises on separate floors of a building, where the only access from one to the other is through the common parts, should be regarded as one hereditament. In reaching that view, the President has misdirected himself. He has lost sight of the geographical test. He has been influenced by the use that the present occupier has chosen to make of the premises and has introduced an irrelevant and confusing consideration of fairness. It was suggested in the discussion in this case that if the two parts of the office had been on adjacent floors they could have been treated as one hereditament on the view that they were contiguous in the vertical rather than the horizontal plane. That, in my view, is a contrived argument. The disjunction of the two parts of the ratepayers offices lies in the fact that the only access between them is through the public part of the building. The same disjunction would apply even if they were on adjacent floors. In that event, I would have taken the view that they remained separate hereditaments. LORD NEUBERGER: (who agrees with Lord Sumption and Lord Gill) I add a few words of my own, partly because we are disagreeing with the experienced and respected President of the Lands Chamber, whose decision was unanimously upheld by the Court of Appeal, and partly because I have found this a difficult point in the light of the unsatisfactory state of the English and Welsh case law. This case concerns the issue whether two physically separate pieces of property, namely the second and sixth floors of an office building, can be a single hereditament for rating purposes because they are occupied by, and let to, the same person in connection with the same business. The statutory definition of hereditament in section 115(1) of the General Rate Act 1967 states that it is such a unit of property which is, or would fall to be, shown as a separate item in the valuation list. While, at least to some extent, that is a circular definition, it does contain the expression unit of property, which carries with it the notion of a single piece of property, what in Scots law is called unum quid. And, in that connection, I entirely agree that there should be no difference of approach between Scottish and English law on the issue raised on this appeal. Normally at any rate, both as a matter of ordinary legal language and as a matter of judicial observation, a hereditament is a self contained piece of property (ie property all parts of which are physically accessible from all other parts, without having to go onto other property), and a self contained piece of property is a single hereditament. As the Scottish Lands Tribunal said in Burn Stewart Distillers plc v Lanarkshire Valuation Joint Board [2001] RA 110, 140, the emphasis on the geographical test is an aspect of recognition that lands and heritages are physical subjects. Thus, two separate self contained buildings, even if sharing a common wall, would not be expected to be a single hereditament but two hereditaments. And a building no part of which was self contained would be expected to be a single hereditament. At first sight, it might appear that whether certain premises constitute one hereditament or two hereditaments should not depend on how those premises are occupied. To quote again from Burn Stewart, [a] business is not a concept based on physical or heritable factors (p 141). Of course, occupation is traditionally a central issue in rating law, but at least primarily for the purpose of determining who, if anyone, is in rateable occupation. On the face of it, however, it may be thought that there should be no logical connection between the identification of the boundaries or extent of a hereditament and the identification of the rateable occupier of that hereditament. Nonetheless, on further reflection, it can be seen that the occupation of premises can in some circumstances serve to control their status as one or more hereditaments. An office building let to and occupied by a single occupier would be a single hereditament, but if the freeholder let each floor of the building to a different occupying tenant, retaining the common parts for their common use, then each floor would be a separate hereditament. Furthermore, it is well established that premises are not merely liable to have their rateable value assessed, but also to have their status as a hereditament assessed, by reference to the machinery, plant and other structures which have been placed in or on them, whether by the occupier or someone else, sometimes even if the structure retains its character as a chattel see per Lord Radcliffe in London County Council v Wilkins (Valuation Officer) [1957] AC 362, 378. The problem thrown up by this appeal is how far what I have described as the normal position in para 47 above, ie what Lord Gill has called the geographical test, should be modified by a particular occupational arrangement. In my view, that question should, if possible, be answered in a way which is not only principled, but which is as clear and practical as possible. That is because Valuation Officers and others concerned with rating are entitled to expect to know what approach to adopt when such an issue arises, and the approach should be one which is tolerably easy to apply. However, as is not unusual, clarity and practicality are to some extent in conflict, and, unsurprisingly in the complex and multi faceted world of land and buildings, there cannot be complete certainty. Where premises consist of two self contained pieces of property, it would, in my view, require relatively exceptional facts before they could be treated as a single hereditament. The mere fact that each property may have the same occupier should, at least normally, make no difference. As Lord Keith said in Glasgow University v Assessor for Glasgow 1952 SC 504, 509, [i]n the ordinary case the question whether separate buildings, or parts of buildings, should be entered in the Roll as unum quid falls to be decided primarily from the geographical standpoint. However, it is possible to conceive of facts which would justify a different conclusion. Thus, if one property could not sensibly be occupied or let other than together with the other property, I think that the two properties could, and indeed normally should, be properly treated as a single hereditament. As Lord Keith went on to say in Glasgow University at p 510, quoting Lord Trayner in Bank of Scotland v Assessor for Edinburgh (1890) 17 R 839, 843, for two separate properties to be treated as a single hereditament, it is not enough that one of the properties is a convenience or accessory for the other: it would have to be impossible or difficult to let them separately. Strict necessity is not the test. As Lord Sumption says, his three tests set out in para 12 (with which I agree) have to be applied with professional common sense to the facts of each case. A golf course, a shipyard, a distillery or a factory which is, in each case, divided by a public road could properly be treated as a single hereditament. These are all examples given in the decision of the Lands Tribunal for Scotland in Burn Stewart Distillers plc v Assessors for Lanarkshire Valuation Joint Board [2001] RA 110, where it was rightly said that, while the fact that certain heritable subjects function together as one business will, by itself, be insufficient to demonstrate that they are to be regarded as a unum quid in any physical sense, [i]t is impossible to lay down clear rules which will apply in all cases. The Lands Tribunal also suggested that, while physical separation of subjects would normally prevent them from being a single hereditament (to use the English expression), [w]here the subjects share characteristics of function which, in a robust practical sense, support the use of a single term to describe the physical subjects, they can be treated as one unit (p 141). That is well illustrated by the unreported 1982 Scottish case of Lothian Regional Council v Assessor for Lothian Region whose effect is summarised in these terms in Armour on Valuation for Rating (looseleaf, August 2014 ed), para 10 05: [I]t was held to be competent for the assessor to make a single composite entry in the roll in respect of 923 bus shelters maintained by the appellants throughout the region, where the work involved in making separate entries would have been very onerous and unnecessary, there being no suggestion of any prejudice suffered by the appellants as a result. The cases summarised in the English text book Ryde on Rating and the Council Tax (looseleaf, July 2014 ed), paras C 210 and 211, suggest that the most frequent type of case where the question of whether two separate properties are to be treated as a single hereditament arises in connection with industrial or retail premises. Rydes summary of the effect of those cases also suggests that, on the current understanding of the law, the question is one to which the answer is unpredictable following the unfortunate decision of the Court of Appeal in Gilbert v S Hickinbottom & Sons Ltd [1956] 2 QB 40 (which I shall discuss in more detail below). Indeed, the question is almost treated as an issue of discretion for each first instance tribunal, which is an approach that is both unprincipled and unclear. The Scottish cases cited in Armour demonstrate a far more satisfactory state of affairs. There is a risk, as I have mentioned, of being too prescriptive in generalising about an issue which, as a matter of fact, can apply to cases which are rather different from the present case (which of course concerns floors in an office building). However, it seems to me that a principled approach to all premises, whether used or recorded as office, retail, industrial, warehouse, recreational or any other purpose, which accords with the law as I understand it to have been laid down in Scottish courts, is as follows. In order to decide whether two separate self contained units of property constitute a single hereditament, one does not so much look at the actual occupation or actual use of those properties, although that might provide useful evidence in some marginal cases. Rather one looks at the relationship between the two properties, as discussed in paras 51 53 above. And, when considering the two properties in this connection, one takes into account the plant, machinery, and other fixtures (including some chattels) which form part of the property for all rating purposes see the London County Council case cited above. In my opinion, two separate self contained floors in the same office building, whether or not they are contiguous, cannot be said to satisfy such a test, at least in the absence of very unusual facts. Once they cease to be self contained, because, say, an internal means of access (eg an internal staircase) is constructed, so that each floor is accessible from the other without going onto other property eg the common parts of the building then the two hereditaments will normally be treated as have been converted into one larger hereditament. Unless there is such a means of access, each floor is self contained from the other, and each can be occupied and let independently of the other. Accordingly, I can see no good reason why they should be treated as a single hereditament merely because they happen to be let to and occupied by the same tenant. It is true that they are in the same building, but it is hard to see why a different result should obtain if, for instance, the respondents had occupied the second floor of Tower Bridge House and the sixth floor of an adjoining building. The courts below considered that it was artificial and unfair to treat two self contained floors in common occupation in the same building differently depending on whether or not they were at consecutive levels. There is considerable force in that, but their error was to assume that the two floors should be treated as a single hereditament if they were at consecutive levels. As explained, if they are each self contained from the other, then, absent very unusual facts, they should be separate hereditaments. Furthermore, closer consideration suggests that, particularly in modern buildings, two consecutive floors are not actually contiguous to each other: there will often be a void between them, which contains servicing equipment and is in the possession and occupation of the landlord of the building. Absent a communicating internal staircase or lift, passing through the void, two consecutive floors in the same building would be physically separated in much the same way as two non consecutive floors. I do not doubt that there will be cases where the guidance given on this appeal will be difficult to apply with any confidence. However, it is hard to believe that we will be leaving the law of England and Wales on this topic in a less satisfactory state than it was as a result of Gilbert, although it is only fair to add that the judgments in that case contain some accurate and helpful dicta. At p 50, Denning LJ correctly expressed approval of earlier Lands Tribunal cases where it had been held that properties on different sides of the road in the same occupation should normally be assessed as separate hereditaments. However, he dismissed the appeal against a decision to the opposite effect, on the ground that there must be some distinction because the chairman of the Lands Tribunal had those cases well in mind, and he had the advantage of a view an analysis which it is tempting to describe as an abdication of an appellate judges responsibility. In Gilbert, Denning LJ also stated the correct test, namely where the two properties so essential in use the one to another that they should be regarded as one single hereditament (pp 49 50); however, that test is to be assessed objectively and not by reference to the needs or use of the particular occupier, and it is by no means clear to me that Denning LJ was saying that. Morris LJ at p 52 seems to have thought that the actual use was important, but it is not clear what weight he thought it should be given, although it led him to join in wrongly dismissing the appeal. Parker LJ set out a number of factors at pp 53 54, and (correctly) said that if premises consist of two properties which are not capable of being separately let , then the premises must be entered as a single hereditament. However, he also identified a number of other factors, which may be of more questionable value, as is supported by the fact that he also wrongly joined in dismissing the appeal. While there are therefore undoubtedly dicta in Gilbert which may be right, it is difficult to know precisely what to make of it. At best, it is an unhelpful decision, and the actual result was wrong: the appeal should have been allowed. The Scottish cases, which are more fully considered by Lord Sumption and Lord Gill, are far more satisfactory, and, as Lord Gill says, it is very hard to understand how Denning LJs approval of them can be reconciled with his dismissing the appeal in Gilbert. As it is, for the reasons given by Lord Sumption, and indeed for those given by Lord Gill, I would allow this appeal. LORD CARNWATH: (agrees with Lord Sumption) I agree that the appeal should be allowed for the reasons given by Lord Sumption. The treatment of contiguous floors in single occupation (which is addressed in the judgments of Lord Neuberger and Lord Gill) is not before us for decision, and I would prefer not to express any firm view. The Valuation Officers practice of treating such cases as single hereditaments, even if in part concessionary, seems to me unobjectionable if it avoids narrow factual disputes about degrees of connection. LORD TOULSON: (who agrees with Lord Sumption, Lord Gill and Lord Neuberger) I agree with the judgments of Lord Sumption and Lord Neuberger. I agree also with the judgment of Lord Gill, subject to the qualification that I am not sure about distinguishing Gilbert on the basis that it was a de rating case. But there is no need for me to say any more on that point, since I entirely agree with Lord Gills description of Gilbert as plainly an unsatisfactory decision.

UK-Abs

Local authority rates are payable in respect of the rateable occupation of hereditaments. Rates are a tax on property and hereditaments are the units of assessment. The statutory definition of hereditament in section 115(1) of the General Rate Act 1967 states that it is such a unit of property which is, or would fall to be, shown as a separate item in the valuation list. Where different parts of an office building are occupied by the same occupier, the ordinary practice of the valuer is to enter them as a single hereditament if they are contiguous, but as separate hereditaments if they are not. The property in question in this appeal, Tower Bridge House, is an eight storey office block in St Katherines Way, London. Mazars, a firm of chartered accountants, occupies the second and sixth floors of the building under separate leases. These floors are separated by common areas in the building and were entered in the 2005 rating list as separate hereditaments. In February 2010 Mazars applied to the Valuation Tribunal for England (VTE) to merge the two entries to form a single hereditament. The VTE agreed that the two entries should be merged. The Valuation Officer, Mr Woolway, appealed to the Upper Tribunal (Lands Chamber) on the grounds that the properties were two separate hereditaments. The Upper Tribunal confirmed that the premises could be treated as one hereditament. The Court of Appeal dismissed Mr Woolways appeal. Mr Woolway appeals to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Sumption gives the leading judgment and Lord Neuberger, Lord Carnwath and Lord Gill give separate concurring judgments. The question in this appeal is how different storeys under common occupation in the same block are to be entered in the rating list for the purpose of non domestic rating [1]. Three broad principles apply in answering this question. The primary test is geographical, being based on visual or cartographic unity. Contiguous spaces will normally possess this characteristic, but unity is not simply a question of contiguity. If contiguous units do not intercommunicate and can be accessed via other property of which the common occupier is not in exclusive possession, this will be a strong indication that they are separate hereditaments. Second, where two spaces are geographically distinct, a functional test may nevertheless enable them to be treated as a single hereditament, but only where the use of the one is necessary to the effectual enjoyment of the other. Third, the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the premises. This calls for a factual judgment on the part of the valuer, exercising professional common sense [12]. In the present case neither a geographical nor a functional test was applied [20]. The appeal is allowed therefore. The orders of the Valuation Tribunal and Upper Tribunal are set aside and the Court makes a declaration that the premises demised to Mazars on the second and sixth storeys of Tower Bridge House are to be entered in the rating lists as separate hereditaments [22]. In his concurring judgment, Lord Gill emphasises that the reference to functionality in the tests articulated by Lord Sumption does not refer to the use which the ratepayer chooses to make of the premises. Rather, it is a reference to the necessary interdependence of the separate parts of the property that is objectively ascertainable [39]. The concept of fairness has no place in the application of the three principles laid down by Lord Sumption, which provide straightforward and workable guidance [40]. Contiguity is not the decisive criterion in the geographical tests. Properties that are discontinguous but geographically linked may constitute one hereditament if the occupation of one part would be pointless without the occupation of the other [41]. The discontiguity between the offices in question lies in the fact that the only access between them is through the public part of the building, not whether they are vertically or horizontally adjacent [43]. Lord Neuberger, concurring with Lord Sumption and Lord Gill, concludes that a hereditament is a self contained piece of property, namely all parts of which are physically accessible from all other parts, without having to go onto other property [47]. Where premises consist of two self contained pieces of property it would require relatively exceptional facts before they could be treated as a single hereditament. The mere fact that each property may have the same occupier should, normally, make no difference [51]. If, however, one property could not be sensible occupied or let other than with the other property, they should normally be treated as single hereditament [52]. In order to decide whether two separate self contained units of property constitute a single hereditament the relationship between the two properties should be considered. The plant, machinery and other fixtures which form part of the property for rating purposes are relevant to this consideration [55]. Two separate self contained floors in the same office building, whether or not they are contiguous, cannot be said to constitute a single hereditament, at least in the absence of very unusual facts. Once they cease to be self contained, so that each floor is accessible from the other without going onto other property, then the two hereditaments will normally be treated as having been converted into one larger hereditament [56]. Lord Carnwath agrees with the judgment of Lord Sumption but does not express a concluded view on the treatment of contiguous floors [62].

The Abortion Act 1967 provides a comprehensive code of the circumstances in which it is lawful to bring about the termination of a pregnancy in England, Wales and Scotland. It enlarged and replaced the limited circumstances in which this was recognised as lawful by the common law. It also regulated the procedure. Other than in an emergency, two doctors must be of the opinion that the grounds for bringing about a termination exist and the termination must take place either in a National Health Service Hospital or in a clinic approved for the purpose. While the Bill was going through Parliament, a clause protecting the right of conscientious objection to taking part in an abortion was introduced. This case is about the precise scope of that right. The relevant legislation As originally enacted, section 1 of the 1967 Act read thus: (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith (a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or (b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this section, account may be taken of the pregnant womans actual or reasonably foreseeable environment. (3) Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Minister of Health or the Secretary of State under the National Health Service Acts, or in a place for the time being approved for the purposes of this section by the said Minister or the Secretary of State. (4) Subsection (3) of this section, and so much of subsection (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave, permanent injury to the physical or mental health of the pregnant woman. Section 5 of the Act also provided: (1) Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus). (2) For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of this Act. The Human Fertilisation and Embryology Act 1990 modified the circumstances in which abortion is lawful in two ways. It substituted the following for paragraphs (a) and (b) of section 1(1) of the 1967 Act: (a) that the pregnancy has not exceeded its twenty fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or Section 5 was also amended to read as follows: (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act. (2) For the purpose of the law relating to abortion, anything done with intent to procure a womans miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by that section if (a) the ground for termination of the pregnancy specified in subsection 1(d) of that section applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus, or (b) any of the other grounds for termination of the pregnancy specified in that section applies. The broad effect, therefore, was to introduce a limit of twenty four weeks gestation for abortions carried out on ground (a), which is far and away the most common of the four grounds (see para 13 below), but to remove the limit provided by the Infant Life (Preservation) Act 1929 for abortions carried out on grounds (b), (c) or (d). It also introduced the possibility of selective abortion, where a woman is carrying more than one foetus, either in order to abort a foetus which may be seriously handicapped or because the reduction in the number of foetuses she is carrying is justified on one of the other grounds. Section 1(3) has also been amended, and a new section 1(3A) added, by the 1990 and other legislation and now reads as follows: (3) Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 2006 or the National Health Service (Scotland) Act 1978 or in a hospital vested in a Primary Care Trust or a National Health Service trust or an NHS foundation trust or in a place approved for the purposes of this section by the Secretary of State. (3A) The power under subsection (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medication as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places. Section 1(3A) reflects a change in the methods by which abortions are generally performed. When the 1967 Act was passed, pregnancies were terminated by surgical procedures to remove the foetus from the uterus. Now they are mostly terminated by the administration of drugs which prematurely induce labour. Current practice is that a patient is given an anti progestogenic steroid in tablet form followed some 48 hours later by a prostaglandin in pessary form. The patient then undergoes a labour and delivers the foetus, placenta and membrane in the normal way unless surgical intervention is required. Selective reduction in the number of foetuses carried is performed by what is known as feticide, killing one of those foetuses in the womb. Feticide is also carried out where there is a risk of the foetus being born alive following the termination. The change from surgical operations to medical methods of induction of labour led to the first of two cases under the 1967 Act to reach the House of Lords. In Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, the issue was pithily explained by Lord Denning MR in the Court of Appeal: when a pregnancy is terminated by medical induction, who should do the actual act of termination? Should it be done by a doctor? Or can he leave it to the nurses? The Royal College of Nursing say that a doctor should do the actual act himself and not leave it to the nurses. The Department of Health and Social Security take a different view. They say that the doctor can initiate the process and then go off and do other things, so long as he is on call. (p 802) The majority of the House of Lords (Lord Diplock, Lord Keith of Kinkel and Lord Roskill) held that when a pregnancy is terminated in section 1(1) of the 1967 Act meant the whole process of treatment designed to bring that about, and not just the actual ending of the pregnancy. Furthermore, that process was carried out by a registered medical practitioner when it was a team effort carried out under his direction, with the doctor performing those tasks that are reserved to a doctor and the nurses and others carrying out those tasks which they are qualified to perform. One reason for reaching that conclusion was that the Act uses the words termination and treatment apparently interchangeably. In particular, the conscience clause in section 4 is headed Conscientious objection to participation in treatment and reads: (1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection: Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it. (2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman. (3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section. It is common ground in this case that subsection (3) was enacted because of the requirement of corroboration in civil proceedings in Scotland which has since been abolished. It will immediately be apparent that the question in this case, and the only question, is the meaning of the words to participate in any treatment authorised by this Act to which he has a conscientious objection. That question was addressed by the House of Lords in R v Salford Health Authority, Ex p Janaway [1989] AC 537, a case which all parties accept was rightly decided. Mrs Janaway was a secretary and receptionist in a health centre, who objected to typing a letter from a GP at the health centre referring a patient to a hospital consultant with a view to a possible termination. It was held that any treatment authorised by this Act meant the process of treatment in hospital for the termination of pregnancy and participating meant actually taking part in that process. It did not have the extended meaning given to participation by the criminal law. The House was not concerned, as we are in this case, with what those words mean in the context of hospital treatment. How this claim came about The petitioners are both experienced midwives employed at the Southern General Hospital in Glasgow. The job which they both held now has the title Labour Ward Co ordinator. Miss Doogan has worked predominantly in the Labour Ward since 1988, but has been absent through ill health since March 2010. Mrs Wood worked in the Labour Ward from 1992 until March 2010 when she transferred to work in maternity assessment. Both are practising Roman Catholics who believe that human life is sacred from the moment of conception and that termination of pregnancy is a grave offence against human life. They also believe that any involvement in the process of termination renders them accomplices to and culpable for that grave offence. Each informed their employer, the Greater Glasgow Health Board, of their conscientious objection to taking part in the termination of pregnancy when they began work in the Labour Ward in 1988 and 1992 respectively. Maternity services in Glasgow used to be provided in three hospitals, but in 2004 it was decided to close one of them down. Maternity facilities at the remaining two hospitals, the Southern General Hospital and the Princess Royal Maternity Hospital, were extended and refurbished. The first babies were born in the new maternity unit at the Southern General Hospital in December 2009. The Fetal Medicine Unit at the closed hospital was transferred to the Southern General Hospital. The vast majority of abortions performed in the United Kingdom are performed on ground (a) (98% in England and Wales and 98.7% in Scotland in the year to 31st December 2012). All medical terminations of pregnancy on that ground at the Southern General Hospital (which by definition are now under 24 weeks gestation) take place in the Gynaecology Ward, not the Labour Ward. Medical terminations (after 12 weeks gestation) on the remaining grounds, that is on grounds (b), (c) and (d) in section 1(1) and in the emergencies provided for by section 1(4), take place in the Labour Ward. These are a tiny proportion of all terminations and a tiny proportion of the work of the Labour Ward. Since 2010, there have been about 6000 births a year at the Southern General Hospital and just under 60 terminations a year in the Labour Ward. The majority of these are because of foetal abnormalities (ground (d)) and are particularly distressing for everyone concerned, because these were often wanted babies who may have to be aborted at a late stage of gestation. The practice since 2010 has been that where a foetal abnormality is detected the patient will be transferred to the Fetal Medicine Unit, where she will be counselled about the test results and the options available to her. If she decides on termination, the Fetal Medicine Unit will liaise with the Labour Ward to decide upon a suitable time for her admission and will administer the first dose of medication to induce labour. She will return to the Fetal Medicine Unit 48 hours later. They will contact the Labour Ward to make sure that there is suitable accommodation available and escort her round to the Labour Ward where the remainder of the process will take place. The aim is for no more than one medical termination a day to be scheduled in the ward. Other scheduled work in the Labour Ward includes elective caesarean sections and inductions of labour. Unscheduled work includes normal spontaneous labours or foetal losses and emergency operations. Scheduling the Labour Ward workload is the job of the Labour Ward Co ordinator. When a patient undergoing a termination is admitted to the Labour Ward, a midwife will be assigned to give her one to one care. This will involve all the usual care of a patient in labour and giving birth monitoring her condition and stage of labour, pain relief, toileting, delivering the foetus and placenta, supporting the patient and her family through an emotional and upsetting experience, and making the arrangements for the baby once delivered. These will depend upon the familys wishes, but may include helping them with, for example, taking photographs and making funeral arrangements. Terminations where there are medical rather than foetal abnormality issues will generally only reach the Labour Ward because its high dependency care is required and this is rare. Between 2006 and 2010, feticide was carried out in the ultra sound department at Southern General Hospital and the Labour Ward Co ordinator would assign a midwife to take care of the patient there. Since 2010, feticide has been carried out in the Fetal Medicine Unit which has its own midwifery staff and the Labour Ward Co ordinator is no longer involved. The Labour Ward has midwifery staff in bands 5, 6 and 7. Midwives in each band may be assigned to looking after a particular patient. They have to update the Labour Ward Co ordinator and to seek her guidance, advice and support where appropriate. There is always a band 7 Labour Ward Co ordinator on duty. The parties have agreed a detailed list of 13 tasks included in her role, covering the management of resources within the ward, booking in patients from the Fetal Medicine Unit, allocating staff to patients, providing guidance, advice, and support to midwives, and on occasions taking a direct part in patient care. It will be helpful to return to that list after the applicable principles have been decided (see para 39 below). These proceedings came about because the petitioners became concerned that the reorganisation of maternity services would result in an increased number of abortions being carried out on the Labour Ward. Up until then it had been possible to work around their conscientious objections to playing any part at all in these procedures, by getting someone else to do the tasks which might otherwise have fallen to them. They sought assurances from management that their objections would continue to be respected and accommodated. Being dissatisfied with what they were told, they first raised an informal grievance in September 2009, which was completed in March 2010. They then began the formal grievance procedure, which went through three stages until their grievance was finally rejected at Board level in June 2011. By that stage the outstanding issue was their continued objection to delegating, supervising and/or supporting staff to participate in and provide care to patients throughout the termination process. The hospital took the view that this did not constitute providing one to one care to patients and that the petitioners could be required to do it. The petitioners then brought judicial review proceedings challenging the decision letters received as a result of the grievance procedure. They were unsuccessful before the Lord Ordinary, Lady Smith, but successful before an Extra Division of the Inner House (Lord Mackay of Drumadoon, Lady Dorrian, and Lord McEwan). The Inner House granted a declarator that: the petitioners entitlement to conscientious objection to participation in treatment for termination of pregnancy and feticide all in terms of section 4(1) of the Abortion Act 1967 includes the entitlement to refuse to delegate, supervise and/or support staff in the provision of care to patients undergoing termination of pregnancy or feticide throughout the termination process save as required of the petitioners in terms of section 4(2) of the said Act. The Opinion of the Court, delivered by Lady Dorrian, expanded upon this at para 38: The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. (emphasis supplied) The employers appeal to this Court. Two distractions There was some discussion, at an earlier stage in these proceedings, of the relevance of the petitioners rights under article 9 of the European Convention on Human Rights. This protects the right to freedom of thought, conscience and religion, including the freedom to manifest his religion or belief, in worship, teaching, practice and observance. It is our duty, under section 3(1) of the Human Rights Act 1998, to read and give effect to legislation, whenever it was passed, in a way which is compatible with the Convention rights, so far as it is possible to do so. However, the article 9 right is a qualified right, which may be subject to such limitations as are prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Refusing for religious reasons to perform some of the duties of a job is likely (following the decision of the European Court of Human Rights in Eweida v United Kingdom (2013) 57 EHRR 213) to be held to be a manifestation of a religious belief. There would remain difficult questions of whether the restrictions placed by the employers upon the exercise of that right were a proportionate means of pursuing a legitimate aim. The answers would be context specific and would not necessarily point to either a wide or a narrow reading of section 4 of the 1967 Act. The better course, therefore, is for this court to decide what that section means according to the ordinary principles of statutory construction. That will then set a limit to what an employer may lawfully require of his employees. But a state employer has also to respect his employees Convention rights. And the Equality Act 2010 requires that any employer refrain from direct or unjustified indirect discrimination against his employees on the ground of their religion or belief. So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these. It is also not for this court to speculate upon the broader consequences of taking a wide or a narrow view of the meaning of section 4. On the one hand, the interveners have argued that to give a broad scope to the right of conscientious objection will put at risk the provision of a safe and accessible abortion service, available to all pregnant women who need and want it, in accordance both with the purpose of the 1967 Act and with a number of international instruments dealing with womens reproductive rights. Furthermore, it may encourage other employers to adopt the policy adopted by the British Pregnancy Advisory Service, of refusing to employ anyone who has any conscientious objection to abortion (on the basis that the lack of such objection is a genuine occupational qualification for the jobs they offer).This reduces the job opportunities available to highly skilled and experienced midwives whose objections may not be as extensive as those of these petitioners. Coming as they do from the Royal College of Midwives and the British Pregnancy Advisory Service, such views are obviously worthy of respect. On the other hand, the petitioners argue that to adopt a narrow interpretation of their right of conscientious objection will unreasonably restrict, not only what they say is a fundamental right, but also the job opportunities which will be available to them. Both sides, in other words, argue that adopting a wide or a narrow interpretation of section 4 will restrict the job opportunities of qualified midwives and other health care professionals and workers and in doing so may put at risk the accessibility of the service. We do not have the evidence with which to resolve those arguments. We can agree with Lord Diplock, in the Royal College of Nursing case (p 827D), that the policy of the 1967 Act was clear. It was to broaden the grounds upon which an abortion might lawfully be obtained and to ensure that abortion was carried out with all proper skill and in hygienic conditions. For my part, I would agree with the interveners that the policy was also to provide such a service within the National Health Service, as well as in approved clinics in the private or voluntary sectors. The mischief, also acknowledged by Lord Diplock, was the unsatisfactory and uncertain state of the previous law, which led to many women seeking the services of back street abortionists, which were often unsafe and, whether safe or unsafe, were offered by people who were at constant risk of prosecution and, as Lord Diplock put it, figured so commonly in the calendars of assizes in the days when I was trying crime (p 825F). The conscience clause was the quid pro quo for a law designed to enable the health care profession to offer a lawful, safe and accessible service to women who would previously have had to go elsewhere. But we are not equipped to gauge what effect either a wide or a narrow construction of the conscience clause would have upon the delivery of that service, which may well differ from place to place. Our only safe course is to make the best sense we can of what the section actually says. The construction of section 4 We have been presented with a spectrum of constructions of participating in any treatment authorised by this Act to which he has a conscientious objection. This must be read together with section 1 of the Act, which prescribes the conditions under which a pregnancy may lawfully be terminated. As was pointed out in the Royal College of Nursing case, although section 1(1) does not use the term treatment at all, the termination of pregnancy must be the treatment referred to in section 4. However, no one suggests that the conscience clause is limited to the actual ending of the pregnancy, that is, when the pregnancy comes to an end because the woman has been delivered of the foetus. In a surgical termination of pregnancy, the events are simultaneous, but in a medical termination, they are not. In a medical termination, it would make no sense to make lawful the ending of the pregnancy without also making lawful the prescribing and administration of the drugs which bring that termination about. Rather, at one end of the spectrum, the Royal College of Midwives argue that the treatment authorised by this Act is limited to the treatment which actually causes the termination, that is, the administration of the drugs which induce premature labour. It does not extend to the care of the woman during labour, or to the delivery of the foetus, placenta and membrane, or to anything that happens after that. This may be a little narrower than the guidance given by the Royal College in their 1997 position paper on conscientious objection. This states that [t]he RCM believes that the interpretation of the conscientious objection clause should only include direct involvement in the procedure of terminating pregnancy and [t]he RCM is of the opinion that the conscientious objection clause solely covers being directly involved in the procedures a woman undergoes during the termination of pregnancy whether surgically or medically induced. At the other end of the spectrum, the petitioners argue that they have the right to object to any involvement with patients in connection with the termination of pregnancy to which they personally have a conscientious objection. The exercise of conscience is an internal matter which each person must work out for herself. It is bound to be subjective. In their case, as practising Roman Catholics, their objections extend to receiving and dealing with the initial telephone call booking the patient into the Labour Ward, to the admission of the patient, to assigning the midwife to look after the patient, to the supervision of the staff looking after the patient, both before and after the procedure, as well as to the direct provision of any care for those patients, apart from that which they are required to perform under section 4(2). The appellant employers argue for an interpretation in between the other two. Treatment authorised by this Act begins with the administration of the drugs and ends with the expulsion of the products of conception foetus, placenta and membrane, from the womb. So the conscience clause does not cover making bookings or aftercare for patients who have undergone a termination. Nor does it cover fetching the drug before it is administered. Participating is limited to direct participation in the treatment involved. It does not cover administrative and managerial tasks, such as allocating ward resources and assigning staff. Nor does it cover supervisory duties which are concerned with ensuring that general nursing care of an appropriate standard is provided to women undergoing a termination. Discussion This is, as already stated, a pure question of statutory construction. Section 4(1) of the 1967 Act refers to treatment authorised by this Act but section 1(1) does not in so many words refer to treatment at all. Nevertheless, the section is headed Medical termination of pregnancy. Section 1(1) makes lawful the termination of a pregnancy by a registered medical practitioner in certain circumstances. Section 1(4) also refers to the termination of a pregnancy by a registered medical practitioner and modifies the circumstances in which it is lawful. Section 1(3) refers to any treatment for the termination of a pregnancy. Hence, as the House of Lords decided in the Royal College of Nursing case, what is authorised by the Act is the whole course of medical treatment bringing about the ending of the pregnancy. By virtue of section 5(2), any other conduct which is prohibited by sections 58 and 59 of the Offences against the Persons Act 1861 in England and Wales or by any rule of law in Scotland remains a criminal offence. Thus I would agree with the appellants that the course of treatment to which the petitioners may object is the whole course of medical treatment bringing about the termination of the pregnancy. It begins with the administration of the drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It would also, in my view, include the medical and nursing care which is connected with the process of undergoing labour and giving birth, the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient who is going through it all, the delivery of the foetus, which may require the assistance of forceps or an episiotomy, or in some cases an emergency Caesarian section, and the disposal of the foetus, placenta and membrane. In some cases, there may be specific aftercare which is required as a result of the process of giving birth, such as the repair of an episiotomy. But the ordinary nursing and pastoral care of a patient who has just given birth was not unlawful before the 1967 Act and thus was not made lawful by it. These conclusions are supported by the exception in section 4(2), which provides that the right of conscientious objection does not affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman. One would expect this duty to cover any medical and nursing care during the process of termination and delivery which was necessary for those purposes. In Janaway [1989] AC 537, 572 Lord Keith pointed out that such an interpretation would not cover the doctors forming the opinions required by 38. section 1 and signing the certificates to that effect (provided for in the Regulations made under section 2(1)(a) of the Act). These certificates have to be given before the treatment for the termination of pregnancy begins. It is in any event hard to see them as part of the treatment process. They are a necessary precondition to it. It follows that they are not covered by the conscience clause in section 4(1). Nevertheless, we understand that the contractual arrangements made by the NHS with GPs, and the employment contracts made with hospital doctors, do in practice contain such clauses. 39. of pregnancy; this is not covered by the conscience clause as interpreted above; (2) providing a detailed handover within the Labour Ward to the new Labour Ward Co ordinator coming on shift; this is not covered by the conscience clause as interpreted above (but a way round would be to refer to the allocated midwife for details); (3) appropriate allocation of staff to patients who are already on the ward at the start of the shift or who are admitted in the course of the shift; this is not covered by the conscience clause as interpreted above; (4) providing guidance, advice and support (including emotional support) to all midwives; this is only covered insofar as it relates to guidance, advice and support directly connected with the care of a particular patient undergoing a termination, such as whether to administer another round of drugs, as opposed to the ordinary monitoring of any patient on the ward; (5) accompanying the obstetricians on ward rounds; this would not be covered by the conscience clause as interpreted above, except to the patients undergoing terminations; but there would be little that a midwife with conscience objections could contribute to such a ward round for patients undergoing a termination; (6) responding to requests for assistance, including responding to the nurse call system and the emergency pull; responding by itself is not covered; it would depend upon the assistance requested whether it was part of the treatment for a termination; (7) acting as the midwifes first point of contact, if the midwife is concerned about how a patient is progressing; in itself, this is not covered; but the assistance required may be, depending upon what it is; and if assistance is required with the course of treatment leading to a termination, the Labour Ward Co ordinator should refer to someone else who does not share her conscientious objection to assisting; (8) ensuring that midwives on duty receive break relief, which may mean that the Labour Ward Co ordinator provides the break relief herself; ensuring break relief is not covered but providing it oneself is covered; (9) being present to support and assist if medical intervention is required, for example, instrumental delivery with forceps; this is covered by the conscience clause as interpreted above; (10) communicating with other professionals, eg paging anaesthetists; this is a managerial task which is not covered by the conscience clause as interpreted above; (11) monitoring the progress of patients to ensure that any deviations from normal are escalated to the appropriate staff level, eg an obstetrician; responding to and passing on the judgment of the treating midwife is an administrative task not covered by the conscience clause as interpreted above; however, forming the judgment personally would be taking part in the treatment; (12) directly providing care in emergency situations; this is covered by the conscience clause, unless falling within section 4(2) as it normally would; (13) ensuring that the family are provided with appropriate support; this is not covered by the conscience clause as interpreted above. It is not treatment authorised by the Act as it has never been unlawful. However, as with helping with arrangements after the baby is delivered, it may be reasonable to expect an employer to accommodate an employees objections, in the interests of providing the family with the most effective service. 40. Whatever the outcome of the objectors stance, it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professionals duty of care towards the patient. Once she has assumed care of the patient, she needs a good reason for failing to provide that care. But when conscientious objection is the reason, another health care professional should be found who does not share the objection. I would therefore allow this appeal and set aside the declarator made in the Inner House. I would invite further submissions on quite what, if any, order or declarator should replace it. 41. The more difficult question is what is meant by to participate in the course of treatment in question. The employers accept that it could have a broad or a narrow meaning. On any view, it would not cover things done before the course of treatment began, such as making the booking before the first drug is administered. But a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to actually taking part, that is actually performing the tasks involved in the course of treatment. In my view, the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed. The focus of section 4 is on the acts made lawful by section 1. It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. Participate in my view means taking part in a hands on capacity. It is helpful to test these principles against the agreed list of the tasks included in the petitioners role as Labour Ward Co ordinators: (1) management of resources within the Labour Ward, including taking telephone calls from the Fetal Medicine Unit to arrange medical terminations

UK-Abs

The Abortion Act 1967 (as amended) (the Act) sets out the circumstances in which the termination of a pregnancy can lawfully be brought about and requires the termination to take place in a National Health Service Hospital or approved clinic. Section 4(1) establishes a right of conscientious objection: it provides that no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection unless, pursuant to subsection (2), it is necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman. The issue arising in this appeal is the precise scope of this right. The respondents are two experienced midwives employed at the Southern General Hospital in Glasgow as Labour Ward Co ordinators. Both are practising Roman Catholics who have informed their employer of their conscientious objection to taking part in the termination of pregnancy. A small proportion of terminations take place in the Labour Ward rather than the Gynaecology Ward. A midwife will be assigned to give these patients one to one care. The Labour Ward Co ordinator will book in patients, allocate staff in the ward, and supervise and support midwives. The respondents do not wish to undertake these tasks in connection with patients undergoing terminations. They were dissatisfied with the arrangements made to accommodate their objections and raised a grievance with their employer. The hospital took the view that delegation, supervision and support did not constitute participating in the treatment and rejected the grievance. The respondents brought proceedings for judicial review challenging the decision letters received as a result of the grievance procedure. They were unsuccessful before the Lord Ordinary but succeeded before an Extra Division of the Inner House, which granted a declarator that the scope of s 4(1) included the entitlement to refuse to delegate, supervise and/or support staff in the provision of care to patients undergoing terminations save as required by s 4(2). This was a wide interpretation of the right, which was said to extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. The respondents employers appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and sets aside the declarator made in the Inner House. Lady Hale gives the only substantive judgment, with which the other justices agree. The only question in this case is one of pure statutory construction: the meaning of the words to participate in any treatment authorised by this Act to which he has a conscientious objection. It was common ground that any treatment authorised by this Act meant the process of treatment in hospital for the termination of pregnancy and that participating meant actually taking part in that process, rather than the extended meaning given to participation by the criminal law [11]. Questions of whether the respondents rights to respect for their religious beliefs protected by Article 9 of the European Convention on Human Rights have been unlawfully restricted, or whether their employers have a duty to make reasonable adjustments to the requirements of their job to take account of their religious beliefs do not fall to be decided in this case, but are better suited to resolution in the proceedings which the respondents have also brought in the employment tribunal [23 24]. Nor does the Supreme Court have the evidence from which the impact on a safe and accessible abortion service of a wide or narrow interpretation of section 4(1) could be assessed [25 27]. The course of treatment to which conscientious objection is permitted by s 4(1) is the whole course of medical treatment bringing about the termination of the pregnancy. It begins with the administration of the drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It also includes the medical and nursing care which is connected with the process of undergoing labour and giving birth the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient, the delivery of the foetus, the disposal of the foetus, placenta and membrane and any specific aftercare required as a result of the process of giving birth. But the ordinary nursing and pastoral care of a patient who has just given birth was not unlawful before the Abortion Act 1967 and thus not made lawful by it [34]. A narrow meaning of the words to participate in is more likely to have been in the contemplation of Parliament when the Act was passed, rather than the host of ancillary, administrative and managerial tasks associated with the acts being made lawful. Participate means taking part in a hands on capacity: actually performing the tasks involved in the course of treatment [37 38]. Paragraph 39 sets out the list of tasks carried out by Labour Ward Co ordinators like the respondents and indicates which specific elements will be within the scope of s 4(1). These include providing advice requested by a midwife connected with the care of a particular patient undergoing a termination (as opposed to ordinary monitoring of all patients); accompanying the obstetrician on ward visits to those patients; providing part of the treatment in response to requests for assistance from the patient or from the midwife caring for her (but not responding by itself to such requests and making a referral if necessary); providing break relief personally for those midwifes; being present if medical intervention is required in connection with the treatment; and forming judgments about the progress of these patients personally. A necessary corollary of the duty of care owed to patients by members of the health care profession is that any conscientious objector is under an obligation to refer the case to a professional who does not share the objection [40].

This appeal raises a question of contractual interpretation. Its significance lies in the fact that the contractual condition in question forms part of the Loan Market Association standard terms and conditions for par trade transactions (the LMA terms), which are a recommended set of terms published by the LMA and commonly used in the secondary loan market. There is no dispute as to the relevant legal principles. Loan agreements normally entitle the lender to charge interest on the principal sum. They may also entitle the lender to the payment of a further lump sum at the time when the principal is repaid. This is sometimes known as a payment premium. If the lender assigns his rights to an assignee for value, provision will normally be made as to whether the assignee should account to the assignor for any interest which may have accrued but be unpaid at the date of the assignment. If a payment premium is due on the repayment of the loan, a question may also arise as to whether the assignee should account to the assignor for any part of the premium which can be said to be attributable to the period prior to the assignment. That depends on the terms of the assignment. In the present case, the appellant, Tael, was one of a number of lenders under a loan agreement. During the currency of the loan, it assigned its rights in respect of part of its lending (or, in the jargon, transferred part of its participation) to the respondent, Morgan Stanley, under a contract which incorporated the LMA terms. The loan was subsequently repaid, together with a payment premium. Tael claims that, under the terms of the transfer to Morgan Stanley, it is entitled to be paid the part of the payment premium which relates to the amount transferred, to the extent that (as Tael argues) it pertains to the period prior to the date of the transfer. Whether it is so entitled depends on the construction of the LMA terms. The factual background In terms of a facility agreement concluded in 2009, Tael agreed to participate, together with a number of other lenders, in the advance of a US $100m syndicated loan to Finspace SA. The loan facility was for a period of 24 months. The facility agreement provided for payment of interest at the rate of 11.25% per annum, accruing daily but payable three monthly in arrears. also provided for a payment premium, to be paid by the borrower at the same time as prepayment or repayment of the principal of the loan, which enhanced the rate of return to the lenders to a total of either 17% or 20% per annum, depending on the circumstances in which the loan was prepaid or repaid. Clause 24 of the facility agreement permitted a lender to transfer part or all of its participation in the loan facility. In January 2010 Tael transferred US $11m, out of its total US $32m participation, to Morgan Stanley. The parties documented the transfer in a transfer certificate and a LMA trade confirmation which incorporated the LMA terms. The confirmation defined the trade date and the settlement date as being 14 January 2010. A purchase price letter was also executed on 14 January 2010 by both parties. It provided that in accordance with the LMA terms the amount payable by Morgan Stanley was agreed to be as set out in the schedule. The schedule provided that the total purchase price due to Tael from Morgan Stanley was US $11m plus accrued interest for the period between 16 October 2009 and 14 January 2010 in an amount of US $309,375. The purchase was also conditional on Taels lending US $11m to a third party. The purchase price letter did not provide for any further payment by Morgan Stanley, and in particular did not provide for any payment to be made in respect of the payment premium. In March 2010 Morgan Stanley sold its participation in the facility agreement to Spinnaker Global Strategic Fund Limited. On 16 December 2010 the borrower refinanced the loan under the facility agreement, prepaying it in full. In accordance with the facility agreement, the borrower paid the payment premium to all lenders as at that date. Those lenders included Tael, which was still a participant in the loan, and Spinnaker, but not Morgan Stanley. Tael claims that Morgan Stanley is required by the LMA terms to pay it the payment premium in respect of Taels US $11m participation in the facility agreement that was transferred to Morgan Stanley, so far as it had accrued as at 14 January 2010. Those being the facts in summary, it is necessary next to examine the relevant contractual terms. The facility agreement Clauses 10 and 11 of the facility agreement provide that interest is payable on the outstanding principal at a rate of 11.25% per annum three months in arrears. Clause 11.1(a) provides that interest accrues from the date of advance of funds. By clause 34.3: Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days . The facility agreement also provides for a payment premium, defined in clause 1 as follows: Payment Premium means, in relation to any repayment or prepayment of any Loan in full, or any repayment or prepayment of a Lenders participation in any Loan in full, an additional amount in US dollars in respect of a Lender and its share of such Loan which, together with the repayment or prepayment of principal, payment of accrued interest and payment of any applicable Break Costs at such time, if any, equates to an internal rate of return for that Lender on its share or participation in or funding of the relevant Original Loan Amount equal to the Loan IRR calculated, with respect to each Lender, from the date of disbursement by such Lender up to the date of repayment or prepayment in full . For the avoidance of doubt, (i) the applicable Payment Premium for each Lender shall be calculated based on its share or participation in or funding of the relevant Original Loan Amount and taking into account any partial repayment or prepayment of the Loan in respect thereof and (ii) in relation to any assignment or transfer of a Lenders rights pursuant to Clause 24 (Changes to the Lenders), the applicable Payment Premium for each Transferee Lender shall be equal to the proportion of the Payment Premium otherwise due to the Existing Lender which had assigned or transferred its rights to the Transferee Lender to the extent such Payment Premium is attributable to such assigned or transferred rights. The definition of Loan IRR is as follows: Loan IRR means: (a) in respect of a Lender that has not exercised the Lender Prepayment Option, 20% per annum; and (b) in respect of a Lender that has exercised the Lender Prepayment Option, 17% per annum, being in each case the applicable percentage equal to the internal rate of return with respect to the Loans for each Lender. The reference to the Lender Prepayment Option is to clause 8.2, which permits a lender to call upon the borrower to prepay that lenders share on 90 days notice. The facility agreement provides for the payment premium to be paid at the same time as, and together with, repayment of the principal of the loan in all circumstances in which the loan may come to be repaid or prepaid, including where there is acceleration by reason of default. This is the effect of clauses 6.1, 7.3(a), 8.1(b), 9.2(c) and 23.2(b), which set out the different circumstances in which a payment premium is payable. The amount of the payment premium may vary, depending on which clause is operative and when the repayment or prepayment of capital comes to be made. Clause 6.1 provides: The Borrower shall repay the Loans in full on [the date 24 months from utilisation] together with the Payment Premium relating to such amount. Clause 7.3(a) provides: . the Borrower may . prepay the whole or any part of a Loan, plus accrued and unpaid interest, if any, up to the prepayment date, together with the Payment Premium relating to such amount in the case of prepayment of the Loans in full, [upon 10 days notice]. Clause 8.1 imposes an obligation on the borrower to prepay the loan in full, including the payment premium, in the event of a change of control. Clause 8.2 contains the lender prepayment option. Such a prepayment requires payment of the payment premium pursuant to clause 9.2, but in this case it is calculated so as to give an internal rate of return of 17% per annum, rather than the 20% per annum which the lender receives in all the other circumstances in which repayment or prepayment of the principal is made. Clause 9.2 provides: Interest, Payment Premium and other amounts (a) Any prepayment (including principal and Payment Premium) under this Agreement shall be made together with accrued interest on the amount prepaid, Break Costs and all other amounts accrued under the Finance Documents. (b) In the case of any repayment or prepayment . of any Loan prior to the date falling 9 months after the Initial Utilisation Date, the Payment Premium payable shall be calculated as if such repayment or prepayment had been made on the date falling 9 months after the Initial Utilisation Date. (c) For the avoidance of doubt, the Payment Premium shall be paid by the Borrower to each relevant Lender: (i) in the case of any repayment or prepayment of the Loans in full, at the time of and together with such repayment or prepayment; and (ii) in the case of any repayment or prepayment of any Lenders participation in any Loan in full (including any prepayment pursuant to Clause 7 (Illegality and voluntary prepayment) and Clause 8 (Mandatory prepayment), at the time of and together with any such repayment or prepayment. Clause 23.2 deals with acceleration of the loan upon the occurrence of events of default. Under clause 23.2(b), the lenders are entitled on such events to the payment premium, in addition to principal and accrued and unpaid interest, Break Costs (if any) and any other amounts due under the finance documents. 22. Condition 7.3 provides: The action necessary to complete a transaction shall include the payment for the Purchased Assets on the Settlement Date . 25. Condition 11 deals with interest and fees. Condition 11.1 provides: All interest and fees referred to in this Condition 11 which are expressed to accrue by reference to time elapsed are based on the rates contained in the Credit Agreement [ie the facility agreement]. 26. Conditions 11.2, 11.3, 11.5 and 11.6 deal with each of the four bases on which, in terms of the trade confirmation, the parties can agree that the transfer should be settled. In the present case, the agreed basis was Paid on settlement date, which is addressed in condition 11.3. It will however be necessary to refer also to the other conditions in order to understand how condition 11.9 is intended to operate. 27. Condition 11.2 applies where the agreed basis is Settled without accrued interest. It provides: (a) if "Settled Without Accrued Interest" is specified in the Agreed Terms then, subject to paragraph (b) of Condition 7.2 (Delayed Settlement) if applicable, upon receipt by the Buyer of any interest or fees accrued up to but excluding the Settlement Date in respect of the Purchased Assets (other than (i) PIK Interest and (ii) the fees referred to in paragraph (b) of Condition 11.9 (Allocation of interest and fees) which are payable after the Trade Date), the Buyer shall promptly pay to the Seller an amount equal to the amount of such interest or fees. (b) If the Buyer pays any amount to the Seller in accordance with paragraph (a) above and the Buyer does not receive all or part of such amount [from the borrower] then the Seller shall promptly, after demand by the Buyer, repay to the Buyer the whole or a proportionate part of such payment. PIK interest is defined as meaning any interest, fees or other amounts which are either: (a) automatically deferred or capitalised; or (b) deferred or capitalised at the option of any Obligor, and is dealt with separately in condition 11.11. 28. Where, as in this case, the parties have specified Paid on Settlement Date in their trade confirmation, condition 11.3 provides: (a) . the Buyer shall pay to the Seller on the Settlement Date an amount equal to the amount of any interest or fees accrued up to but excluding the Settlement Date in respect of the Purchased Assets (other than (i) PIK Interest and (ii) the fees referred to in paragraph (b) of Condition 11.9 (Allocation of interest and fees) which are payable after the Trade Date). (b) . if, on or after the Settlement Date, any interest or fees accrued up to but excluding the Settlement Date in respect of the Purchased Assets are paid to the Seller, the Seller shall promptly after receipt pay a corresponding amount to the Buyer. (c) The Buyer shall have no right of recourse to the Seller in relation to any amounts paid to the Seller in accordance with paragraph (a) above including, without limitation, in circumstances where the Buyer does not receive all or part of any interest or fees on their due date 29. Condition 11.5 provides for the situation where the parties have specified Discounted from next roll over date in the trade confirmation. It provides: any interest or fees accrued up to but excluding the Settlement Date in respect of the Purchased Assets (other than PIK Interest) but which are not payable until the next roll over date applicable under the Credit Agreement shall be discounted from such roll over date back to the Settlement Date at IBOR. 30. Condition 11.6 provides for the situation where the parties have specified N/A in the trade confirmation. It provides: subject to Condition 11.10 [sic: condition 11.11 is meant] (PIK Interest), the Buyer shall not be obliged to make any payment to the Seller in respect of accrued interest or accrued fees, either on the Settlement Date or on receipt of any such interest or fees. 31. Condition 11.9, headed Allocation of interest and fees, provides: Unless these Conditions otherwise provide . (a) any interest or fees (other than PIK Interest) which are payable under the Credit Agreement in respect of the Purchased Assets and which are expressed to accrue by reference to the lapse of time shall, to the extent they accrue in respect of the period before (and not including) the Settlement Date, be for the account of the Seller and, to the extent they accrue in respect of the period after (and including) the Settlement Date, be for the account of the Buyer; and (b) all other fees shall, to the extent attributable to the Purchased Assets and payable after the Trade Date, be for the account of the Buyer. The proceedings below 32. Tael commenced proceedings against Morgan Stanley and applied for summary judgment. Morgan Stanley responded by also applying for summary judgment. Both applications came before Popplewell J, who granted Taels application and dismissed Morgan Stanleys: [2012] EWHC 1858 (Comm); [2013] 1 CLC 879. He considered that the payment premium was similar to interest and performed an analogous function. The cost of the borrowing was more than the interest of 11.25% per annum, but only that amount required to be paid out of cash flow three monthly in arrears. The remainder of the cost of borrowing was deferred and became payable, in the form of the payment premium, whenever the loan was repaid to a particular lender or all the lenders. The payment premium was therefore part of the consideration for the loan, and was calculated by reference to the period for which the borrower had the use of the money in just the same way as was the entitlement to interest described as such. 33. Since the payment premium was incapable of quantification on 14 January 2010, it could not be said to have accrued up to that date, and therefore did not fall within condition 11.3(a) of the LMA terms. That condition was concerned with something which had accrued at an identified point of time, namely the settlement date. It was to be distinguished from condition 11.9(a), which was concerned with interest and fees which might only accrue at a later date but which accrued in respect of an earlier period. The payment premium fell in his view within the scope of condition 11.9(a), as fees which are expressed to accrue by reference to the lapse of time. The portion of the payment premium which was attributable to the US $11m transferred to Morgan Stanley, and was in respect of the period prior to 14 January 2010, was therefore due by Morgan Stanley to Tael under condition 11.9(a), since fees falling within the scope of that condition shall, to the extent they accrue in respect of the period before (and not including) the Settlement Date, be for the account of the Seller. 34. The judge reached that conclusion principally on the basis of an analysis of the language of the LMA terms. In his view, accrual, in the sense in which the term (or its cognates) are employed in conditions 11.3(a) and 11.9(a), is concerned with the vesting of rights. A fee accrued, in his view, when there was a vested right to an ascertained or ascertainable sum. The fee could accrue notwithstanding that it was payable at a future date which was uncertain. It could not however accrue if the existence of the right to payment, or the amount payable, was contingent upon an uncertain future event. In response to the argument that, adopting that approach, the payment premium could not be said to accrue by reference to the lapse of time, the judge stated that those words were apposite to describe a right to payment of a sum which is earned to some extent from day to day but at a rate which cannot be calculated until a future event which then vests the right to payment of a sum calculated by reference to that period of time. The judge also observed that, if condition 11.9(a) was to add anything to condition 11.3(a), it must cover a wider range of fees and interest: It must therefore envisage that something may accrue by reference to the lapse of time and accrue in respect of the period prior to the settlement date, but not have accrued up to the settlement date. The two conditions must be construed as using the word accrue in the same sense and giving the word its natural meaning of the vesting of rights. It follows that condition 11.9(a) must treat accrual by reference to the lapse of time as addressing the nature of the right which accrues, rather than its time of vesting. (original emphasis) 35. An appeal against that decision was allowed by the Court of Appeal: [2013] EWCA Civ 473; [2013] 1 CLC 879. Longmore LJ, with whose judgment Rimer and Tomlinson LJJ agreed, observed that the words which are expressed to accrue by reference to the lapse of time, in condition 11.9(a), echo the introductory condition 11.1, which provides that the interest and fees which are expressed to accrue by reference to time elapsed are based on the rates contained in the credit agreement (in this case, the facility agreement). Like the judge, Longmore LJ considered that the payment premium was an amount which was expressed to accrue by reference to time elapsed, since it was an additional amount which together with [other sums] equates to an internal rate of return equal to the Loan IRR calculated from the date of disbursement up to the date of payment or prepayment. 36. Longmore LJ considered however that condition 11.9(a) did not confer any additional entitlement beyond what was said to be payable in condition 11.3(a): the words expressed to accrue by reference to the lapse of time were merely words of description designed to encompass the interest and fees that were payable by reference to those parts of condition 11 which imposed obligations. Condition 11.9(a) was headed Allocation of interest and fees and, in contrast to other conditions of the LMA terms, did not use the words shall pay, payment, be payable or paid, but used the phrase shall . be for the account of . That phrase was in his view apt to describe how sums already payable, by reason of obligations imposed by other conditions, should be dealt with in any accounting exercise undertaken by the parties. In that connection, Longmore LJ observed that, if condition 11.9(a) were intended to confer an extra entitlement in respect of sums not accrued by the settlement date but only accruing thereafter (albeit accruing by reference to a period before the settlement date), the contract specified no mechanism for the implementation of such an entitlement. It so happened that, in the present case, Tael retained part of the loan it originally made, and therefore knew when the loan was repaid. If Tael had sold the whole of the loan, it would not have known when the loan was repaid. It would be necessary to imply into the sale and purchase agreement a term that the buyer would inform the seller when the loan was repaid; otherwise the seller would not know when he could make a claim for the payment premium. If, moreover, as in the present case, 37. the buyer had disposed of the whole loan to another party (such as Spinnaker), one would have not only to imply a term into that sub sale contract to the same effect but also a further term into the Tael/Morgan Stanley agreement that Morgan Stanley would enforce the implied term in their own sub sale contract. It was, in his view, difficult to think that this series of implications could have been intended. This of itself militated against condition 11.9(a) constituting an entitlement to sums not accrued at the settlement date. 38. A further difficulty, in his view, was that the payment premium might not in fact be paid at the termination of the loan, for example because there was an earlier default or because the borrower had insufficient funds to pay when payment was due. On Taels argument, the payment premium would be due and would to some extent have accrued in respect of the period before the settlement date. It would then be for the account of the Seller. If that phrase meant that the buyer must pay it when it fell due, the buyer would be accountable for (and would have to pay out) money he had never received. That consequence could be avoided only if there were some implication that the words for the account of the Seller extended only to sums if and when they were received by the Buyer. But it was more natural not to read the words of condition 11.9(a) as giving rise to any entitlement beyond that which was conferred by condition 11.3(a), rather than as giving rise to an entitlement which then had to be restricted by some implication. 39. Longmore LJ acknowledged that, on his reading of condition 11.9(a), it probably added little or nothing to the rights conferred on the seller by condition 11.3(a), but observed that that was not altogether surprising in a 20 page document of some complexity. In the light of the difficulties resulting from the alternative construction, he did not regard the argument from redundancy as particularly compelling. Discussion 40. Although the arguments presented in the appeal ranged somewhat more widely than the judgments of the courts below, the most important points remain those which were discussed in those judgments. I can therefore proceed directly to a discussion of those points. 41. The starting point is the words the parties have used in condition 11.9(a): any interest or fees (other than PIK interest) which are payable under the Credit Agreement in respect of the Purchased Assets and which are expressed to accrue by reference to the lapse of time shall, to the extent they accrue in respect of the period before (and not including) the Settlement Date, be for the account of the Seller and, to the extent they accrue in respect of the period after (and including) the Settlement Date, be for the account of the Buyer . There is room for argument as to whether the payment premium would naturally be described, in the context of this agreement, as interest or fees, or whether it might fall within the definition of PIK interest. What appears to me to be clear, however, is that it is not expressed to accrue by reference to the lapse of time. It is true that a period of time enters into the calculation of the amount of the payment premium. Counsel for Tael argued that that was sufficient: expressed to accrue by reference to the lapse of time should, he submitted, be understood as meaning calculated by reference to the lapse of time. But that is not what the condition says; and it is not the natural meaning of what it says. 42. The word accrue is generally used to describe the coming into being of a right or an obligation (as, for example, in Aitken v South Hams District Council [1995] 1 AC 262), so that the person in question then has an accrued right, or is subject to an accrued liability, as the case may be. That is the meaning which accrual usually bears, in particular, in relation to interest and other payments. The amount to which there is an entitlement may not be payable until a future date, but an entitlement may nevertheless have accrued. For example, under section 2 of the Apportionment Act 1870, rents, annuities, dividends and other periodical payments may be considered as accruing from day to day, although they may be payable at longer intervals (In re Howell [1895] 1 QB 844); and a bequest of an accruing dividend carried the dividend for the period during which the death occurred, although the dividend was not declared until a later date (In re Lysaght [1898] 1 Ch 115). Situations can readily be envisaged in which interest or fees might accrue, in that sense, by reference to the lapse of time: indeed, interest invariably accrues by reference to the lapse of time, as do recurring fees such as commitment fees. This is not however such a situation. An entitlement to a payment premium under the facility agreement accrues on a defined event. It can of course be said that the purpose of the payment premium is to reward the lender for the borrowers use of the money over a period of time. But that does not mean that the payment premium is expressed to accrue by reference to the lapse of time. It is expressed as an amount equal to the difference between the total of several other amounts, on the one hand, and an amount 43. equal to interest calculated at a given rate, on the other hand. So interest, and therefore time, enter into the calculation. That being so, there is a sense in which it might be said that part of the payment premium relates to the period before the settlement date. That does not however mean that the payment premium can be regarded, retrospectively, as having notionally accrued over that period. The method of calculation of the payment premium should not be confused with the accrual of the right to the premium. 44. That conclusion, derived from the text of condition 11.9(a), is reinforced by the commercial context, and in particular by the first of the considerations to which Longmore LJ referred (para 37 above). The LMA terms are intended for use in a market in which loans are traded. A loan may be traded many times, between many different parties, over a number of years. One would not readily infer that a contract for the sale of a loan in a market of that nature was intended to create continuing rights and obligations between the parties to that contract, in respect of payment, which might exist over a substantial period of time. In that regard, it is significant that the LMA terms do not make provision for any mechanism enabling the holder of the putative right to a payment premium, following the sale of his interest in the loan, to know when his right has vested, or in what amount. Unless he happened to have retained some participation in the loan in question, as in the present case, he would not normally know when he had become entitled to payment, or how much he was entitled to be paid. It would be more natural, in such circumstances, to expect the potential value of the right to receive the payment premium to be reflected in the consideration for which the loan was transferred. 45. That conclusion is sufficient to dispose of the appeal. It leaves open, however, two related questions which may be of significance. First, does this construction of condition 11.9(a) render it redundant? In my view, it does not. As I shall explain, condition 11.9(a) can be seen to have a purpose if it is read together with the provision made as to the payment of interest and fees in conditions 11.2, 11.3, and 11.9(b). Secondly, does condition 11.9(a) provide a right to payment, additional to that conferred by the other provisions of condition 11? In my view, it does not. It is necessary to note, in the first place, that fees falling within condition 11.9(b) are expressly excluded from the scope of conditions 11.2(a) and 11.3(a). Condition 11.9(b) is however dependent on condition 11.9(a): it applies to all other fees which are payable after the trade date: that is to say, the date when the contract for the transfer of the loan is concluded. Other fees are fees other than those falling within the scope of condition 11.9(a). 46. 47. Condition 11.2(a) therefore requires the buyer to pay to the seller, promptly on receipt, any interest or fees accrued prior to the settlement date, other than (i) PIK interest and (ii) fees not falling within condition 11.9(a), which are payable after the date when the contract was concluded. Condition 11.3(a) requires the buyer to pay to the seller, on the settlement date, any interest or fees accrued prior to the settlement date, subject to the same exceptions. The result is that conditions 11.2(a) and 11.3(a) (and also condition 11.4) can only be applied together with conditions 11.9(a) and (b). The conditions have to be taken together in order to determine the amount or amounts to be paid in respect of interest and fees. 48. This can be illustrated by taking condition 11.9 as the starting point. It divides interest and fees between those which are for the account of the seller and those which are for the account of the buyer. In the former category are any interest and fees (other than PIK interest) which are expressed to accrue by reference to the lapse of time, to the extent that they accrue in respect of the period prior to the settlement date (condition 11.9(a)). Any such interest and fees which accrue in respect of the period on or after the settlement date, and all other fees which are payable after the trade date, are for the account of the buyer (conditions 11.9(a) and (b)). This must be intended to be an exhaustive allocation (other than in respect of PIK interest). Putting the matter broadly, the practical effect is that interest and recurring fees (other than PIK interest) which accrue prior to the settlement date are for the account of the seller, whereas if they accrue in a later period they are for the account of the buyer. All other fees payable after the trade date (other than PIK interest) are for the account of the buyer. 49. That allocation under condition 11.9 is reflected in the provisions as to payment. Where condition 11.2(a) applies, its practical effect is to require the buyer to pay the seller, on receipt, an amount equal to any interest or fees accrued prior to the settlement date, other than PIK interest and non recurring fees which are payable after the trade date. The practical effect of condition 11.3 is similar, except that the buyer pays the relevant amount on the settlement date and bears the risk that he may not receive that amount from the borrower. Condition 11.5 provides a variant on the same principle. Condition 11.6 applies where the parties have opted for no payments to be made by the buyer in respect of accrued interest or fees, and therefore has the practical effect of discharging the buyer from any liability which might otherwise have arisen. Is it however possible for condition 11.9(a) to confer a right to payment of an amount to which there is no right to payment under conditions 11.2(a) or 11.3(a)? That question arises because of the difference in wording between accrued up to the Settlement Date (the words used in conditions 11.2(a) 50. and 11.3(a)), and accrue in respect of the period before the Settlement Date (the words used in condition 11.9(a)). Notwithstanding that difference in wording, the language used elsewhere in condition 11.9 suggests that it is not intended to confer an additional right to payment. It allocates interest and fees (as the heading indicates) as being for the account of one party to the transaction or the other. Other conditions then impose an obligation to pay in accordance with that account (or, in the case of condition 11.6, make it clear that no such obligation is imposed). The absence from condition 11.9 of any provision for payment is therefore one indication that it is not intended to impose such an obligation. The absence of any provisions addressing the possibility of default by the borrower, such as one finds in conditions 11.2(b) and 11.3(c), is a further indication that it is not intended to confer a right to additional payment. Conclusion 51. I would therefore uphold the decision of the Court of Appeal, although for somewhat different reasons, and dismiss the appeal. The Break Costs referred to in clauses 9.2 and 23.2(b) are defined to comprise the difference between (a) interest at 11.25% per year for the remainder of any three month period since the last interest payment, and (b) the amount the lender would earn on deposit in the relevant interbank market for the remainder of that interest period. It follows that the total cost of borrowing, and the return to a lender, may vary in amount depending on the circumstances in which repayment or prepayment falls to be made. There are three variables in particular. One is that if the lender prepayment option under clause 8.2 is exercised, the applicable total rate of return will be 17% per annum rather than the 20% per annum payable in other circumstances. The second is that if the prepayment or repayment occurs in the first nine months, the rate of return is calculated over a nine month period (clause 9.2(b)). Thirdly, some of the circumstances giving rise to repayment or prepayment involve the payment of break costs. The calculation of the payment premium falls to be undertaken after such break costs have been taken into account. The calculation of the payment premium is therefore only capable of being performed by applying the internal rate of return of 17% or 20% respectively to figures which are ascertainable by reference to the events giving rise to the repayment or prepayment. The LMA terms 23. Condition 7.1 provides: The transaction shall be settled on the Settlement Date by the taking of all necessary action to complete the transaction.

UK-Abs

This appeal raises a question of contractual interpretation that is of significance because the condition in question forms part of the Loan Market Association (LMA) standard terms for par trade transactions. It concerns payment by a borrower to a lender of a lump sum at the time when a loan is repaid, sometimes known as a payment premium. The appellant, Tael One Partners Limited (Tael), was one of a number of lenders under an agreement concluded in 2009 by which US $100m was advanced to the borrower. From 30 November 2009, Taels contribution to the loan was US $32m (known as its participation). During the currency of the loan, it assigned its rights in respect of US $11m of its participation to the respondent, Morgan Stanley, under a contract incorporating the LMA terms. Morgan Stanley in turn sold its participation in the loan agreement to a third party. The loan was subsequently repaid by the borrower, together with the payment premium. Tael claims that, under the terms of the transfer to Morgan Stanley, it is entitled to be paid the part of the payment premium which relates to the amount transferred, to the extent that (as Tael argues) it pertains to the period prior to the date of the transfer. The purchase price letter did not provide expressly for any payment to be made by Morgan Stanley in respect of the payment premium. Condition 11 of the LMA terms deals with interest and fees. Conditions 11.2, 11.3, 11.5 and 11.6 deal with the payment of interest or fees by the buyer to the seller, and with each of the four bases on which the parties can agree that the transfer should be settled. In the present case, the agreed basis was paid on settlement date, addressed in condition 11.3. Tael relied on Condition 11.9(a) of the LMA terms. Condition 11.9, Allocation of interest and fees states: Unless these Conditions otherwise provide (a) Any interest or fees (other than PIK Interest) which are payable under the Credit Agreement in respect of the Purchased Assets and which are expressed to accrue by reference to the lapse of time shall, to the extent they accrue in respect of the period before (and not including) the Settlement Date, be for the account of the Seller and, to the extent they accrue in respect of the period after (and including) the Settlement Date, be for the account of the Buyer (b) All other fees shall, to the extent attributable to the Purchased Assets and payable after the Trade Date, be for the account of the Buyer. Tael applied for summary judgment against Morgan Stanley, who responded by also applying for summary judgment. Popplewell J granted Taels application and dismissed Morgan Stanleys. An appeal against that decision was allowed by the Court of Appeal. Tael appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Reed gives a judgment with which Lord Neuberger, Lord Kerr, Lord Toulson and Lord Hodge agree. The starting point is the words the parties used in condition 11.9(a). There is room for argument as to whether the payment premium would be interest or fees or whether it might fall within the definition of PIK interest. It is clear, however, that it is not expressed to accrue by reference to the lapse of time. It is true that a period of time is one of the elements that enter into the calculation of the amount of the premium, but condition 11.9(a) does not say, calculated by reference to the lapse of time and that is not its natural meaning. [41] The word accrue is generally used to describe the coming into being of a right or an obligation. The amount to which there is an entitlement may not be payable until a future date, but an entitlement may nevertheless have accrued. Situations can readily be envisaged in which interest or fees might accrue, in that sense, by reference to the lapse of time. This is not however such a situation. An entitlement to a payment premium under the loan agreement accrues on a defined event. [42] The payment premium is expressed as an amount equal to the difference between the total of several other amounts, on the one hand, and an amount equal to interest calculated at a given rate, on the other hand, so it might be said that part of the premium relates to the period before the settlement date. That does not however mean that the premium can be regarded, retrospectively, as having notionally accrued over that period. The method of calculation of the premium should not be confused with the accrual of the right to it. [43] The textual conclusion is reinforced by the commercial context. The LMA terms are intended for use in a market in which loans are traded: a loan may be traded many times, between many parties, over a number of years. One would not readily infer that a contract for the sale of a loan in a market of that nature was intended to create continuing rights and obligations between the parties to that contract. Further, the LMA terms do not make provision for any mechanism enabling the holder of the putative right to a payment premium, following the sale of his interest in the loan, to know when his right has vested or in what amount. Unless he happened to have retained some participation in the loan, as in the present case, he would not normally know when he had become entitled to payment, or how much he was entitled to be paid. Therefore, it would be more natural to expect the potential value of the right to receive the premium to be reflected in the consideration for which the loan was transferred. [44] Though that conclusion is sufficient to dispose of the appeal it leaves open two related questions. First, does this construction of condition 11.9(a) render it redundant? It does not: condition 11.9(a) can be seen to have a purpose if read together with the provision made as to the payment of interest and fees in conditions 11.2, 11.3 and 11.9(b). [45] Second, does condition 11.9(a) provide a right to payment additional to that conferred by the other provisions of condition 11? It does not. The language used elsewhere in condition 11.9 suggests that it is not intended to confer an additional right to payment. Rather it allocates interest and fees as being for the account of one party or the other, and other conditions then impose an obligation to pay in accordance with that account. [45, 50]

This appeal concerns accessory liability in tort. The appellant, Sea Shepherd UK, is an English company. The other defendants, Sea Shepherd Conservation Society and Mr Paul Watson, have no presence in the UK. The appellant is therefore the anchor defendant for the purpose of the English court having jurisdiction to entertain the action. The claim is for loss and damage allegedly suffered by the claimant, Fish and Fish Limited, in an incident in the Mediterranean Sea on 17 June 2010 when conservationists mounted an operation designed to disrupt the bluefin tuna fishing activities of the claimant. The appeal arises from the determination of a preliminary issue as to whether the incident was directed and/or authorised and/or carried out by the appellant, its servants or agents, and whether the appellant was liable, directly or vicariously, for any damage sustained by the claimant. After a trial which included oral evidence, Hamblen J decided the issue in favour of the appellant and dismissed the claim against it: [2012] EWHC 1717 (Admlty), [2012] 2 Lloyds Rep 409. He also directed that service of the proceedings on the other defendants out of the jurisdiction be set aside. Hamblen Js decision was overturned by the Court of Appeal (Mummery, McCombe and Beatson LJJ) for reasons set out in the judgment of Beatson LJ: [2013] EWCA Civ 544, [2013] 1 WLR 3700. The court gave the following answer in its order to the question raised by the preliminary issue: On the assumption that the incident on 17 June 2010 was tortious, [Sea Shepherd UK] is liable for any alleged damage to the tuna fish cage and/or the release of the fish on the ground that it joined with the [other] [d]efendants in a common design to carry out such acts (and not on any other basis. Background The claimant operates a fish farm off Malta. On the day of the incident it was using two vessels to transport a catch of tuna in fish cages when they allegedly came under attack from a vessel, the Steve Irwin, under the command of the defendant Mr Watson. It is alleged that a cage was rammed and divers from the Steve Irwin tore it open, enabling the fish inside to escape. Mr Watson is a Canadian environmentalist and US citizen. He is dedicated to the cause of marine wildlife conservation. In 1977 he broke away from Greenpeace and formed the defendants Sea Shepherd Conservation Society (SSCS), now based in the state of Washington, USA. SSCS has since become the parent of a network of national Sea Shepherd entities including the appellant. In his evidence Mr Watson described himself as the organisational leader with overall strategic control of the parent organisation. He is also a director of its subsidiaries including the appellant. The appellant is a company limited by guarantee and is a registered charity. According to the Charity Commissions website, its activities include raising funds for campaigns to protect marine wildlife and ecosystems worldwide. Its charitable objects include promoting the conservation and preservation of marine and freshwater living organisms. At the time of the incident the appellant had only one employee, Mr Darren Collis, who gave evidence at the trial. The appellants financial statements for the year ended 30 June 2010 included a trustees report approved by the board on 7 December 2010. The report summarised the charitys objectives and principal activities as follows: The charitys objectives as set out in the Memorandum of Association are to conserve and protect the worlds marine wilderness ecosystems and marine wildlife species. The organisation endeavours to accomplish these goals through public education, investigation, documentation and, where appropriate and where legal authority exists under international law or under agreement of national governments, enforcement of violations of the international treaties, laws and conventions designed to protect the oceans. All of Sea Shepherds campaigns are guided by the United Nations World Charter for Nature. The trustees report went on to refer to a number of international campaigns in 2010, including a campaign in the Mediterranean to protect the critically endangered bluefin tuna. Under Plans for the future the report stated that the appellants primary objective remained the provision of funds to support the aims and objectives of our international organisation the Sea Shepherd Conservation Society. There are international regulations, introduced by the International Conference for the Conservation of Atlantic Tuna and by the European Council, which are supposed to control the fishing of Atlantic bluefin tuna. There are quotas, restrictions on the size of fish which may be caught and limits to the fishing season. In 2010 SSCS launched a campaign because of its concern that poor law enforcement in the Mediterranean was allowing widespread violation of the regulations, threatening the future of the species. It chose the title Operation Bluerage. It announced the campaign by a posting on its website dated 23 January 2010. This stated that The objective will be to intercept and oppose the illegal operations of bluefin tuna poachers and Sea Shepherd intends to confront the poachers and will not back down to threats and violence from the fishermen. There are issues between the parties about what exactly happened in the incident on 17 June 2010 and whether the claimant was engaged in illegal fishing, but they are not relevant to this appeal. Decision at first instance Hamblen J found that in conducting the operation, as master of the Steve Irwin, Mr Watson was not acting for the appellant but only for SSCS. The vessel was registered in the name of the appellant but it held a bare legal title. The vessel was beneficially owned and operated by SSCS. On the issue of accessory liability Hamblen J summarised the relevant legal principles as follows: 20. In respect of the common design issue, persons may be joint tortfeasors when their respective shares in the commission of a tort are done in furtherance of a common design: The Koursk [1924] P 140 at p 156 per Scrutton LJ; CBS Songs v Amstrad [1988] AC 1013 at p 1058. 21. The nature of a common design was explained by Mustill LJ in Unilever v Gillette [1989] RPC 583, at p 609: I use the words common design because they are readily to hand but there are other expressions in the cases, such as concerted action or agreed on common action which will serve just as well. The words are not to be construed as if they formed part of a statute. They all convey the same idea. This idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements. 22. The joint tortfeasor needs to join or share in the commission of the tort which generally means some act which at least facilitates its commission. 23. As explained by Hobhouse LJ in his judgment in Credit Lyonnais v ECGD [1998] 1 Lloyds Rep 19 there is no tortious liability for aiding and abetting or facilitating the commission of a tort, even knowingly. There may, however, be such a liability if that is done pursuant to a common design. He treated this as an example of liability based on agency. 24. In considering whether there is any such liability it is relevant to consider whether the person has been so involved in the commission of the tort as to make the infringing act his own. As stated by Peter Gibson LJ in Sabaf v Meneghetti [2002] EWCA Civ 976; [2003] RPC 264, para 59: The underlying concept for joint tortfeasance must be that the joint tortfeasor has been so involved in the commission of the tort as to make himself liable for the tort. Unless he has made the infringing act his own, he has not himself committed the tort. That notion seems to us what underlies all the decisions to which we were referred. If there is a common design or concerted action or otherwise a combination to secure the doing of the infringing acts, then each of the combiners has made the act his own and will be liable. The claimant alleged that the appellant was party to a common design with the other defendants to carry out Operation Bluerage and that this was to involve violent intervention of the kind which allegedly occurred. It relied particularly on a mailshot soliciting payments to the appellant in support of the operation. Under the heading OPERATION BLUERAGE and subheading 2010 MEDITERRANEAN BLUEFIN TUNA DEFENSE CAMPAIGN the mailshot stated We intend to seize, cut, confiscate and destroy every illegal tuna fish net we find. As to the appellants role, the claimant alleged that it facilitated the commission of the tort by making the vessel available for the campaign, recruiting volunteers, paying the crew and obtaining financial contributions. Hamblen J accepted that the appellant approved of the campaign and was aware that it envisaged the possibility of violent intervention against property, but he added that this was not the object of the campaign. The campaign involved a preparedness to use violent action, but it was not necessarily the case that such action would be taken. As to the part played by the appellant, Hamblen J rejected the suggestion that it made the vessel available for use in the campaign, since it was at all times in the possession and control of SSCS. He also found that there was no evidence that the appellant recruited any volunteers for the campaign or paid the crew to take part in it. The most significant part of the case against the appellant concerned the mailshot and the raising of campaign finance. As I read Hamblen Js findings, he accepted the evidence of Mr Collis that the appellant played no active part in soliciting campaign contributions. Although the mailshot gave the appellants name, address and bank details, it was not issued by the appellant. It was designed, organised and paid for by SSCS. Copies were posted in the UK, but not by or on the instructions of the appellant. The mailshot resulted in the receipt by the appellant of payments totalling 1,730, for which it accounted to SSCS. Hamblen J concluded: In summary, it is apparent that none of the matters relied upon by the claimant were of any real significance to the commission of the tort. The main thrust of the claimants pleaded case was that the attack was directed or authorised or carried out by [the appellant]. Once it is found that Watson and the crew were not acting on behalf of [the appellant] the claimant has to rely on participation which is remote in time and place. Whether considered individually or collectively I find that the matters so relied upon are of minimal importance and played no effective part in the commission of the tort. Decision of the Court of Appeal In his thoughtful and clearly reasoned judgment, Beatson LJ reviewed the authorities before concluding that Hamblen J erred in not finding that the use of violent confrontation by cutting fishing nets was part of a common design in which the appellant joined, and that he erred in his approach in the passage set out in the previous paragraph. The court held that it was sufficient that the appellant did something more than de minimis in support of the common design, and that it was not necessary that what the appellant did should have been of any real significance to the commission of the tort. The purpose of scrutinising what the appellant did was simply to decide whether it was possible to infer a common design. Analysis Joint liability in tort may arise in a number of ways. Two or more defendants may act as principal tortfeasors, for example by jointly signing and publishing a defamatory document. A defendant may incur joint liability by procuring the commission of a tort by inducement, incitement or persuasion (CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013, 1058, per Lord Templeman). A defendant may incur vicarious joint liability for a tort committed by an agent or employee. We are not concerned in this appeal with any of those heads of liability. We are concerned with a different category in which the defendant, D, has allegedly assisted the principal tortfeasor, P, in the commission of tortious acts. It might have been expected that the law of tort would mirror the criminal law on aiders and abettors, but that is not how the law has developed, as the House of Lords has recognised (CBS v Amstrad at p 1059 and Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486, 500). Beatson LJ referred in his judgment to the criticisms which some scholars have made about the law in this respect, and to some of the policy considerations which might be considered relevant, but it is not a topic which the parties have raised. It is common knowledge that the criminal law in this area has caused considerable problems, and Beatson LJ quotes Weir, Economic Torts (1997) p 32, n 31 for the statement, indeed understatement, that accessory liability in the criminal law has not been joyous. There is much to be said for keeping the law in this area as simple as possible. The main authorities were referred to by Hamblen J. To establish accessory liability in tort it is not enough to show that D did acts which facilitated Ps commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. I do not consider it necessary or desirable to gloss the principle further. The principle was expressed crisply in the statement in Clerk and Lindsell on Torts, 7th ed, p 59, that Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design, which was cited by all the members of the Court of Appeal in The Koursk [1924] P 140, 151, 156, 159. The subsequent cases are, as Mustill LJ said in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583, 608, little more than illustrations of the application of the principle which he valuably summarised in the passage cited by Hamblen J in para 21 of his judgment (see para 12 above). Peter Gibson LJ was not putting forward a different principle in the passage in Sabaf SpA v Meneghetti SpA [2002] EWCA Civ 976, [2003] RPC 264, cited by Hamblen J in para 24 of his judgment, but was expressing the underlying concept that the defendant must have involved himself in the commission of the tort in such a way as to justify the conclusion that he combined with the other tortfeasor(s) to commit the tort. That is another way of expressing what Mustill LJ referred to as the parties combin[ing] to secure the doing of acts which in the event prove to be [tortious]. It follows that there was no error in Hamblen Js summary of the legal principles, nor in his considering whether the matters relied on by the claimant had any significance to the commission of the tort. It was another way of considering whether the appellant had combined to secure the doing of acts which proved (if they should prove) to be tortious. There is no formula for determining that question and it would be unwise to attempt to produce one, as Bankes LJ said in The Koursk at p 151: It would be unwise to attempt to define the necessary amount of connection. Each case must depend upon its own circumstances. 27. I would allow the appeal and restore the order made by Hamblen J. Conclusion 28. LORD SUMPTION: (dissenting) 29. I regret that I am unable to agree with the view of the majority that this appeal should be allowed. The difference between us is of little moment since it turns entirely on a question of fact peculiar to this case. The law of joint liability, on the other hand, on which we are substantially agreed, is of much wider significance. I shall therefore say rather more fully what I conceive it to be. 30. Sea Shepherd Conservation Society (SSCS) is a US based conservation charity whose mission, by its own account, is to end the destruction of habitat and slaughter of wildlife in the world's oceans in order to conserve and protect ecosystems and species. Sea Shepherd uses innovative direct action tactics to investigate, document, and take action when necessary to expose and confront illegal activities on the high seas. Operation Bluerage was the name given to its campaign against the over fishing of bluefin tuna in the Mediterranean in the summer of 2010. The campaign involved using a ship, the Steve Irwin, to confront those whom it regarded as poachers and if necessary to cut their nets and release their catch. The claimants were operators of a fish farm in Malta. According to the particulars of claim, in June 2010 they were using two tugs to drag to Malta a metal cage containing tuna in netting, which they had purchased from fishermen. They were attacked by the Steve Irwin, which rammed the cage, forced it open, cut the nets and released the fish, fighting off the claimants crew with liquid filled bottles and a gun firing rubber bullets. The claimants say that their fish were within the legal quotas and properly documented. 31. The sole question on the appeal is whether, assuming that the claimants allegations are proved, SSCSs associated United Kingdom charity Sea Shepherd UK (SSUK) is liable to them as a joint tortfeasor. The Court of Appeal held that it was. In my view they were right, for substantially the reasons given by Beatson LJ. The facts 32. SSCS has established a number of associated entities in other countries. SSUK, the United Kingdom associate, is a company limited by guarantee which was registered as a charity shortly after its incorporation in 2005. It was originally called Sea Shepherd Conservation Society, like its parent organisation, but later changed its name to Sea Shepherd UK. The judge found that there was a close relationship between the various Sea Shepherd entities worldwide, but that SSCS (the US charity) was the global organisation which utilises the resources of other SS entities when it is convenient to do so. He found that the relationship between them was accurately reflected in the report of the trustees of SSUK (the UK charity), which stated that The primary objective of Sea Shepherd UK remains the provision of funds to support the aims and objectives of our international organisation, the Sea Shepherd Conservation Society. 33. The judge found that while SSUK was involved in supporting the activities of SSCS in general, its involvement in the particular events which led to the damage done to the claimants property and the loss of their catch was limited to its participating in fundraising for Operation Bluerage and recruiting two volunteers. 34. The facts about the fundraising can be shortly stated. Operation Bluerage was announced in January 2010 on SSCSs website, which declared its intention to intercept and oppose those whom it regarded as poachers. It would not back down to threats and violence from the fishermen, it said. On 3 March 2010 SSCS emailed SSUK for a local mailshot appealing for funds for Operation Bluerage from our supporters from within the UK. As the email shows, the main reason for involving SSUK was to make use of bulk mailing services within the United Kingdom, and to enable donors to contribute through sterling cheques to be handled by SSUK, sterling bank transfers to SSUKs account, or sterling credit card transfers through merchant facilities to be acquired by SSUK. The mailshot was designed, organised and paid for by SSCS but in the name of and with the consent of SSUK, whose name and UK address appear at the foot of the face page. Whatever SSCS did must be regarded as having been done on behalf of SSUK. The text (so far as relevant) is as follows: OPERATION BLUERAGE 2010 MEDITERRANEAN BLUEFIN TUNA CAMPAIGN We intend to seize, cut, confiscate and destroy every illegal tuna fish net we find! YES, PAUL! You and the Sea Shepherd crew can count on my continued support as you head back into battle, this time in the Mediterranean. Please put my donation to immediate use to secure the fuel, charts, communications systems, oil, parts, supplies, and food for the crew all vital to the success of this mission. ( ) 5 ( ) 10 ( ) 15 ( ) Other The leaflet asked for contributions by cheque, bank transfer or credit card. Cheques were to be payable to Sea Shepherd Conservation Society, that being the former name of SSUK which was still on its UK bank account. The sort code and account number of that account was given for direct bank transfers. A form of credit card authorisation slip was printed on the reverse, which enabled funds to be received into merchant accounts of SSUK. While contributions were coming in, email correspondence of SSCS copied to SSUK, reported on the start of the Mediterranean campaign in terms which bore out the initial prospectus. We anticipate a violent defence by the poachers but that is a violence we can defend ourselves from, Mr Watson wrote on 10 June 2010. The mailshot generated receipts of 1,730, which was in due course paid over to SSCS. 35. Turning to the recruitment of volunteers, the judge found that Mr Collis (an employee of SSUK) passed on the names of those who contacted him about volunteering. One of them sourced a pump for the Steve Irwin and he and another drove to the south of France with it and did a days work on the vessel. 36. Finally, it is necessary to refer to the statutory Trustees Report filed with the Charity Commission for the year ended 30 June 2010 in which the relevant activities took place. This document identifies SSUKs charitable objects as being to conserve and protect the marine environment. Under the heading Public Benefit, it describes how it advances those objects. The methods include participating in campaigns, including Operation Bluerage, and in particular raising funds for the international programmes of SSCS through its growing UK supporter base. The elements of liability as a joint tortfeasor 37. The legal elements of liability as a joint tortfeasor must necessarily be formulated in general terms because it is based on concepts whose exact ambit is sensitive to the facts. The classic statements are those of Scrutton LJ in The Koursk [1924] P 140, 156 and Mustill LJ in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583, 608 609. In The Koursk, Scrutton LJ, adopting the definition in Clerk and Lindsell on Torts, said that Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end. Expanding on this formulation in Gillette, Lord Mustill observed that the test was whether (a) there was a common design between [the primary and secondary parties] to do acts which amounted to infringements, and (b) [the secondary party] has acted in furtherance of that design. I use the words common design because they are readily to hand but there are other expressions in the cases, such as concerted action or agreed on common action which will serve just as well. The words are not to be construed as if they form part of a statute. They all convey the same idea. This idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements. 38. The effect of these statements is that the defendant will be liable as a joint tortfeasor if (i) he has assisted the commission of the tort by another person, (ii) pursuant to a common design with that person, (iii) to do an act which is, or turns out to be, tortious. It is now well established that if these requirements are satisfied the accessorys liability is not for the assistance. He is liable for the tortious act of the primary actor, because by reason of the assistance the law treats him as party to it: Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486, 495 500. This does not, however, mean that the accessory must have joined in doing the very act constituting the tort. Liability as a joint tortfeasor is more commonly an accessory liability. As Lord Neuberger observed in Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] 1 WLR 1556 at para 34, in order for a defendant to be party to a common design, she must share with the other party, or parties, to the design, each of the features of the design which make it wrongful. If, and only if, all those features are shared, the fact that some parties to the common design did only some of the relevant acts, while others did only some other relevant acts, will not stop them all from being jointly liable. Thus a person may incur liability as a joint tortfeasor by assisting in the organisation or preparation of acts of physical destruction (Monsanto Plc v Tilly [2000] Env LR 313 (CA) at paras 45 46); or by helping the primary actor to find the victim whom he intended to attack (Shah v Gale [2005] EWHC 1087 (QB)); or by using the prospect of unlawfully downloading streamed copyright material to attract users to the defendants website (Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] 3 CMLR 328). In some of these cases, the evidence of common design may fairly be regarded as thin, but they are unexceptionable as statements of the kind of accessory support which may give rise to liability as a joint tortfeasor. 39. The principal concern of the law in this area is to recognise a liability for assisting the commission by the primary actor of a tort, while ensuring that the mere facilitation of the tort will not give rise to such a liability, even when combined with knowledge of the primary actors intention. This limitation has sometimes been criticised as anomalous, because a broader basis of liability is recognised in other areas of law: see, for example, P Davies, Accessory liability for assisting torts (2011) 70 CLJ 353. For my part, I doubt whether the criticism is justified. Criminal liability attaches to any positive act of assistance with knowledge of the circumstances constituting the offence. It is not necessary to prove intention that the offence should be committed: National Coal Board v Gamble [1959] 1 QB 11. This is, however, because in the criminal law aiding and abetting the commission of an offence is itself an offence distinct from the primary offence. Knowledge that the primary offence is being aided and abetted is therefore sufficient mens rea. Equity imposes liability for knowing assistance in a breach of trust, but this is not in reality a broader basis of liability. This is because in this context knowing assistance is a species of fraud, and knowledge is relevant only to establish dishonesty: see Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, 392. In reality, the limitations which the courts have placed upon the scope of liability as a joint tortfeasor are founded on a pragmatic concern to limit the propensity of the law of tort to interfere with a persons right to do things which are in themselves entirely lawful. In both England and the United States, the principles have been worked out mainly in the context of allegations of accessory liability for the tortious infringement of intellectual property rights. There is, however, nothing in these principles which is peculiar to the infringement of intellectual property 40. rights. The cases depend on ordinary principles of the law of tort. Thus the law declines to treat as tortious the manufacture or sale of equipment which its purchasers are likely to use to infringe copyrights, simply because the manufacturer or seller is aware of its likely use. This is a long standing legal principle which in England dates back at least as far as Townsend v Haworth (1875) 48 LJ Ch 770. It was applied in Dunlop Pneumatic Tyre Co Ltd v David Moseley & Sons Ltd [1904] 1 Ch 164, [1904] 1 Ch 612 and in Belegging en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59. 41. The fullest modern discussion of the principle is that of Lord Templeman, delivering the leading speech in CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013. Lord Templeman saw the distinctive factors which justified the imposition of liability as a joint tortfeasor in the combination of concerted action and common design. At p 1057B C, he said: My Lords, joint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement. In the present case there was no common design. Amstrad sold a machine and the purchaser or the operator of the machine decided the purpose for which the machine should from time to time be used. The machine was capable of being used for lawful or unlawful purposes. All recording machines and many other machines are capable of being used for unlawful purposes but manufacturers and retailers are not joint infringers if purchasers choose to break the law. Since Amstrad did not make or authorise other persons to make a record embodying a recording in which copyright subsisted, Amstrad did not entrench upon the exclusive rights granted by the Act of 1956 to copyright owners and Amstrad were not in breach of the duties imposed by the Act. Where the manufacturer or seller had no control over the use of the equipment after he has parted with it, liability would have to be founded on mere knowledge of its likely use, and mere knowledge is not tantamount to a common design. Lord Templeman went on to deal with a distinct submission that there was an independent tort of incitement to commit a tort. He pointed out that the facts would not necessarily support an allegation of incitement even if such a tort existed. In that context, he said, at p 1058G H: Buckley LJ observed in Belegging en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd, at p 65, that Facilitating the doing of an act is obviously different from procuring the doing of the act. Sales and advertisements to the public generally of a machine which may be used for lawful or unlawful purposes, including infringement of copyright, cannot be said to procure all breaches of copyright thereafter by members of the public who use the machine. Generally speaking, inducement, incitement or persuasion to infringe must be by a defendant to an individual infringer and must identifiably procure a particular infringement in order to make the defendant liable as a joint infringer. I do not think that in this passage Lord Templeman was seeking to limit liability as a joint tortfeasor to cases of inducement or procurement, as opposed to assistance. When read with his general statement of the elements of liability as a joint tortfeasor, it is clear that he was intending to limit it to cases of common intent. Inducing or procuring a tort necessarily involves common intent if the tort is then committed. Mere assistance may or may not do so, depending on the circumstances. The mere supply of equipment which is known to be capable of being used to commit a tort does not suggest intent. Other circumstances may do so. 42. The point was I think well made by Hobhouse LJ in his judgment in the Court of Appeal in Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [1998] 1 Lloyds Rep 19, 46: Mere assistance, even knowing assistance, does not suffice to make the secondary party jointly liable as a joint tortfeasor with the primary party. What he does must go further. He must have conspired with the primary party or procured or induced his commission of the tort (my first category); or he must have joined in the common design pursuant to which the tort was committed (my third category). (emphasis added) 43. In Sony Corporation of America v Universal City Studios Inc 464 US 417 (1984), the United States Supreme Court reached the same conclusion, holding that the mere supply of equipment for copying video cassettes did not give rise to joint liability in tort for copyright infringement. In doing so the court made the same distinction between mere knowledge at the point of sale and action combined with common intention: see pp 438 439. In Metro Goldwyn Mayer Studios Inc v Grokster Ltd 545 US 913 (2005), the court pointed out (at p 931) that this was because 44. with no evidence of stated or indicated intent to promote infringing uses, the only conceivable basis for imposing liability was on a theory of contributory infringement arising from its sale of VCRs to consumers with knowledge that some would use them to infringe. The court in Metro Goldwyn Mayer held, distinguishing Sony, that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties (p 919) (emphasis added). It followed that the creators of a file sharing website were held liable for copyright infringement, even though the site was capable of lawful use, because it was found on the evidence that the defendants not only assisted the infringements but intended them as an effective way of increasing the use of its website. Intent in the law of tort is commonly relevant as a control mechanism limiting the ambit of a persons obligation to safeguard the rights of others, where this would constrict his freedom to engage in activities which are otherwise lawful. The economic torts are a classic illustration of this. The cases on joint torts have had to grapple with the same problem, and intent performs the same role. What the authorities, taken as a whole, demonstrate is that the additional element which is required to establish liability, over and above mere knowledge that an otherwise lawful act will assist the tort, is a shared intention that it should do so. The required limitation on the scope of liability is achieved by the combination of active co operation and commonality of intention. It is encapsulated in Scrutton LJs distinction between concerted action to a common end and independent action to a similar end, and between either of these things and mere knowledge of the consequences of ones acts. Application to the present case 45. Since most of the activities of SSCS are on any view lawful, it is clear that SSUK cannot incur liability as a joint tortfeasor simply by assisting its activities in general. If they are to incur such liability at all, it must be on the ground that they have specifically assisted its tortious activities. This means that the present enquiry must be confined to SSUKs participation in fundraising and recruitment of volunteers in the United Kingdom for Operation Bluerage. It is sufficient for present purposes to address SSUKs participation in the fundraising campaign, which is the more significant of the two and about 46. which detailed findings have been made. The question is whether in participating in the fundraising campaign in the United Kingdom, SSUK had a common intention with SSCS that the latter should cut the nets of fishermen and forcibly release their catch. The only possible answer to that question is that they did. Manifestly, that was the main object of Operation Bluerage. As the fundraising leaflet made clear, funds were being collected on the basis that we intend to seize, cut, confiscate and destroy every illegal tuna fish net we find. The prospect that this would happen was presented as the main reason for contributing financially to the operation. 47. The judge held that SSUK did not share a common purpose of committing tortious acts because the Operation Bluerage would not necessarily involve violence. He put the matter in this way: In relation to the campaign it is correct that SSUK was aware and generally approved of the Bluerage campaign and that the campaign envisaged the possibility of violent intervention against property, such as cutting fishing nets. However, that was not the purpose or object of the campaign. The purpose or object of the campaign was to seek to investigate, document, and take action when necessary to expose and confront illegal activities in relation to bluefin tuna fishing. That involved a preparedness to use violent intervention, but it did not necessarily mean that any such action would be taken. The campaign could and indeed very nearly did take place without any confrontation occurring. Investigating, documenting and exposing illegal activities does not involve violent intervention. Confronting such activities may do so, but not necessarily. 48. In my opinion, this is unrealistic. The object of the operation, as the judge found, was not just to investigate, document and expose what they considered to be illegal fishing, but when necessary to confront it. It is true that the Steve Irwin would not necessarily find fishermen whom they regarded as illegal poachers. But if they did find them, they intended to seize, cut, confiscate and destroy their nets, thereby releasing their catch. It was theoretically possible that the fishermen might submit gracefully, thereby making it unnecessary to use or threaten force against them. But this was hardly probable and SSUK knew that it was not what SSCS anticipated. Deliberately to damage or destroy the property of other persons at sea without their consent is tortious. The purpose of SSUK in participating in the fundraising was to further the common design of SSCS and SSUK that the nets of any fishermen whom they considered to be poachers should be damaged and destroyed by the crew of the Steve Irwin, if they should be found and did not submit. They were found and they did not submit. Conditional intent is nevertheless intent: R v Saik [2007] 1 AC 18, at para 5, per Lord Nicholls of Birkenhead. If two parties co operate in a common design to commit a tort in a certain eventuality, and that eventuality occurs and the tort is committed, it is irrelevant that they both appreciated and perhaps even hoped that it would not occur. I do not regard this conclusion as in any way inconsistent with the judges findings. In my view he failed to appreciate the legal significance of those findings. No doubt both SSCS and SSUK thought that they were entitled to act in this way. But if it is found at a trial of the remaining issues that their acts were tortious, then subject to one reservation, the conclusion that they were joint tortfeasors is inescapable. 49. The reservation concerns the significance of SSUKs participation in the fundraising and the recruitment of volunteers in the context of the scheme as a whole. Was this enough to constitute assistance in furtherance of the common design? The assistance which is said to further the common design must be material, but that means no more than that it must be more than de minimis. There is no justification in principle for requiring more than this, for example that the assistance should have been indispensable to the commission of the tort or commensurate with the responsibility of the primary actor. The ordinary response of the law to differences between the culpability of joint tortfeasors or between the causal efficacy of their contributions is an award of contribution. 50. The judge regarded SSUKs contribution to Operation Bluerage as of minimal importance and said that it played no effective part in the commission of the tort. It was certainly minor by comparison with the contribution of SSCS and possibly by comparison with SSCSs French associate. But if the judge meant that it was de minimis then I cannot agree. De minimis non curat lex is a necessarily imprecise principle. Most of the judges who have discussed it have done so in terms of synonyms which are not much less imprecise. But they nevertheless convey the flavour of the concept. Negligible and trivial are probably the commonest: see Cartledge v Jopling & Sons Ltd [1963] AC 758, 771 772, per Lord Reid, and Rothwell v Chemical and Insulating Co Ltd [2008] AC 281 at paras 44 47, per Lord Hope. [T]rivialities, matters of little moment, of a trifling and negligible nature was the more expansive formulation proposed by Sellers LJ in Margaronis Navigation Agency Ltd v Henry W Peabody & Co of London [1965] 2 QB 430, 443 444. What all of these expressions are designed to convey is that the maxim is concerned with extremes. It refers to some fact which is in principle legally relevant but is so trivial or negligible as to be no fact at all in the eyes of the law. 51. The sum collected by the mailshot was 1,730, which was no doubt a very small proportion of the total costs of Operation Bluerage. But its contribution to the venture was not so small as to be legally equivalent to nothing. Moreover, I do not think it right to judge the significance of the appeal for funds solely by reference to its outcome. SSCS, although its affairs appear to be directed from Washington State USA, operates internationally with the support of associated national organisations and an international supporter base. It may well be that the individual contributions of any one associated entity are small, but it is clear from the terms of SSCSs email of 3 March 2010 that the efficient mobilisation of financial and logistical support internationally through campaigns managed by the associated national organisations was important to SSCS, even if it was not indispensable. In my view, SSUK was jointly liable with SSCS for whatever tortious damage may be found to have been inflicted on the claimants in the course of the attack on them off Malta. I would therefore have dismissed the appeal. 52. LORD NEUBERGER: 53. The essential facts giving rise to this appeal are set out in paras 32 to 36 of Lord Sumptions judgment, and further relevant information is contained in paras 5 to 18 of Lord Toulsons judgment. 55. 54. The claimant contends that it has suffered damage as a result of a tort committed by one person, the primary tortfeasor, and that another party, the defendant, who did not directly join with the primary tortfeasor in actually committing the tort, and was not the primary tortfeasors agent or employee, is also liable for the tort, because he assisted the primary tortfeasor to commit the tort. It seems to me that, in order for the defendant to be liable to the claimant in such circumstances, three conditions must be satisfied. First, the defendant must have assisted the commission of an act by the primary tortfeasor; secondly, the assistance must have been pursuant to a common design on the part of the defendant and the primary tortfeasor that the act be committed; and, thirdly, the act must constitute a tort as against the claimant. As Lord Toulson says, this analysis is accurately reflected in the statement of the law in Clerk and Lindsell on Torts, 7th ed, p 59, cited by all members of the Court of Appeal in The Koursk [1924] P 140, 151, 156, 159. 56. Because this type of tortious liability is so fact sensitive and needs to be kept within realistic bounds, there is a danger that further analysis of these three requirements will serve to confuse. Bankes LJ made that point in The Koursk at p 151, when he said that It would be unwise to attempt to define the necessary amount of connection, and that each case must depend on its own circumstances. To the same effect, Mustill LJ in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583, 608, warned against over analysis of the cases on this topic. The wisdom of those observations is borne out by the subsequent cases on this area of law, which are discussed by Lord Toulson and Lord Sumption. However, it is, I think, worth saying a little about each of the three conditions. 57. So far as the first condition is concerned, the assistance provided by the defendant must be substantial, in the sense of not being de minimis or trivial. However, the defendant should not escape liability simply because his assistance was (i) relatively minor in terms of its contribution to, or influence over, the tortious act when compared with the actions of the primary tortfeasor, or (ii) indirect so far as any consequential damage to the claimant is concerned. Nor does a claimant need to establish that the tort would not have been committed, or even that it would not have been committed in the precise way that it was, without the assistance of the defendant. I agree with Lord Sumption that, once the assistance is shown to be more than trivial, the proper way of reflecting the defendants relatively unimportant contribution to the tort is through the courts power to apportion liability, and then order contribution, as between the defendant and the primary tortfeasor. 58. As to the second condition, mere assistance by the defendant to the primary tortfeasor, or facilitation of the tortious act, will not do, as explained by Lord Templeman in CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013, 1057B C, and 1058G H, and by Hobhouse LJ in Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyds Rep 19, 46. There must be a common design between the defendant and the primary tortfeasor that the tortious act, that is the act constituting or giving rise to the tort, be carried out, as suggested in Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] 1 WLR 1556, para 34. 59. A common design will normally be expressly communicated between the defendant and the other person, but it can be inferred, a point which is clear from Lord Mustills reference to agreed on common action and tacit agreement in Unilever at p 609. I have some concerns about the notion that the defendant has to [make the tortious act] his own, as Peter Gibson LJ put it in Sabaf SpA v Meneghetti SpA [2003] RPC 264, para 59. While it can be said that it rightly emphasises the requirement for a common design, this formulation is ultimately circular and risks being interpreted as putting a potentially dangerous gloss on the need for a common design. 60. As to the third condition, it is unnecessary for a claimant to show that the defendant appreciated that the act which he assisted pursuant to a common design constituted, or gave rise to, a tort or that he intended that the claimant be harmed. But the defendant must have assisted in, and been party to a common design to commit, the act that constituted, or gave rise to, the tort. It is not enough for a claimant to show merely that the activity, which the defendant assisted and was the subject of the common design, was carried out tortiously if it could also perfectly well be carried out without committing any tort. However, the claimant need not go so far as to show that the defendant knew that a specific act harming a specific defendant was intended. I do not detect any significant difference between this analysis of the law and the rather fuller analyses advanced in the judgments of Lord Sumption and Lord Toulson, and I doubt that there is anything significant in the lucid and interesting analysis in paras 40 to 58 of the judgment of Beatson LJ in the Court of Appeal with which I would disagree. 61. 62. The present appeal provides a good opportunity to illustrate some of these points. The claimant can rely on two factors, in the light of the now unchallenged primary findings of fact made by Hamblen J in his full and clear judgment, to justify its contention that Sea Shepherd UK (SSUK) is liable for the damage suffered as a result of the alleged tort committed during Operation Bluerage (the operation) carried out by Sea Shepherd Conservation Society (SSCS). 63. At trial, the claimant also, indeed primarily, relied on the fact that the vessel used by SSCS to carry out the operation, the Steve Irwin, was registered in the name of SSUK, but the Judge found that the vessel was at all times beneficially owned and controlled by SSCS. Rightly, the claimant no longer relies on that aspect. The claimant also relied on the general approval which SSUK published for SSCSs activities and in particular for the protection of bluefin tuna (as mentioned by Lord Toulson in para 9). However, the most that does is to render it more likely than it might otherwise be that SSUK would assist the operation, but, otherwise, as I see it, that aspect takes matters no further. Accordingly, I turn to the two factors which the claimant can rely on. 64. The first factor is that, knowing that SSCS intended that the operation would involve wrongful attacks on a third partys property, SSUK recruited people to work for SSCS in connection with the operation. It appears that SSUK did not in fact recruit anyone other than two people, one of whom located a pump for the Steve Irwin, and both of whom transported the pump to the vessel and performed a days work on board when she was in port. Secondly, the 65. claimant relies on the fact that SSUK was involved in raising money to support the operation. By approving the sending out of the mailshot (whose contents are set out by Lord Sumption in para 34) in its name, and by accepting and paying over to SSCS the resultant public donations totalling 1,730, it is said that SSUK assisted SSCS in carrying out the activities described in the mailshot, which plainly included the acts which the claimant in this case alleges to have been tortious. If the only evidence of the intentions of SSCS was that they would be doing all that they could to impede intensive fishing of bluefin tuna in the Mediterranean, a defendant, who shared that intention as a common design and assisted in that activity by recruiting people and/or raising money to enable it to proceed, would not be liable to a claimant who suffered damage as a result of SSCS carrying out any of those activities tortiously. The fact that the defendant in such a case might believe, or could reasonably be expected to believe, that it was possible that SSCS would act tortiously when carrying out its projected activities would not be sufficient to render the defendant liable to a claimant who suffered damage as a result of SSCS having so acted. In such a case, the defendant would not be party to a design to commit an act which proved to be tortious. 66. However, if the evidence established that the defendant appreciated that it was SSCSs intention to commit tortious acts in carrying out their activities, or even that it was, in practical terms, inevitable that SSCS would seek to commit tortious acts if they came across a ship intensively fishing for bluefin tuna, then the defendant could not escape liability. The fact that SSCSs intention could be characterised as conditional (as they may not encounter any such ship, or may not have the opportunity to act tortiously) and untargeted (as the precise victim could not be identified in advance) would not assist the defendant. Nor would the fact (if it were a fact) that the defendant did not appreciate that the acts in question would be tortious. In this case, it seems to me to be clear that the claimant did establish that SSUK had sufficient knowledge that tortious acts were contemplated, indeed were intended, by SSCS, particularly in the light of the statement in the mailshot that SSCS intended to seize, cut, confiscate and destroy every illegal tuna fish net we find. 67. 68. More controversially, it also seems to me to be clear that this was part of a common design between SSCS and SSUK. To that extent, I agree with the Court of Appeal, and I disagree with the Judge, who considered that it was no part of SSUKs intention that SSCS should act tortiously. The Judge said that, although SSUK generally approved of SSCSs campaign, it was not necessarily the case that the campaign would involve tortious acts, although it was envisaged as a possibility. As I have already indicated, general approval, even if published, could not, save on very unusual facts, amount on its own to assistance. However, in my view, at least in the absence of further exculpatory facts, a defendant who assists a primary tortfeasor in carrying out activities, which he is told are intended or expected to include tortious acts, cannot escape accessory liability by saying that, although he supported the activities generally, he did not support the carrying out of tortious acts. 69. Normally, at any rate, once the defendant is a party to a design which has been communicated to him (normally, but not necessarily, by the primary tortfeasor), he cannot excise from the scope of the design aspects which he knows are included in it, but does not support. That would be so, as I see it, even if he had communicated his opposition to those aspects to the primary tortfeasor. Normally, the scope of the design (or the communicated design) will, as in this case, be determined by the primary tortfeasor. Of course, there will be exceptions: thus, if SSUK had said to SSCS that it would only assist if SSCS agreed that it would not carry out tortious acts, and, as a result of the ensuing discussions, SSUK had honestly believed that SSCS would not commit torts, it seems to me that there would be a powerful case for saying that SSUK should escape liability. 70. However, although SSUK did things which assisted SSCS in connection with the operation, and although SSUK and SSCS shared a common design that the tort of which the claimant complains be carried out, the Judge concluded that SSUKs contribution to the operation, and therefore to the commission of the tort alleged by the claimant, was of minimal importance and that SSUK played no effective part in the commission of the tort. That was a question of judgement or assessment which is fact sensitive, as Lord Mance says. In cases of this sort, there will be cases where the facts found by the judge are such that only one conclusion is possible, but there will also be cases where the facts are such that reasonable judges could reasonably differ as to whether the assistance provided was trivial. Accordingly, the question for us as an appellate court is not whether we would have reached that decision, but whether the Judge was entitled to conclude that the extent to which SSUK assisted SSCS was too trivial to bring SSUK within the scope of the tort. I have concluded, in disagreement with the Court of Appeal, that he was so entitled. 71. As I have already suggested, the claimant can only rely on the facts that SSUK successfully recruited volunteers to work for SSCS in connection with the operation, and that SSUK was involved in raising funds from the public to support the operation. Consideration of these factors is not assisted by the fact that the Judge dealt with the matter very shortly. It is only fair to add that this is not intended to be an adverse criticism: as already mentioned, the evidence and argument before him concentrated very much on other factors, particularly the use of the Steve Irwin, which have now fallen away. In my view, as an appellate court, when considering whether the assistance provided by SSUK was trivial, we should approach the primary evidence with a view to assessing whether it could have justified his conclusion that the assistance was trivial. By the same token, I do not believe that we should make our own assessment of the evidence, and, as I read his judgment, Lord Mance takes the same view as to the applicable approach. 72. So far as SSUKs involvement in recruitment for the operation was concerned, it was, to my mind, insignificant, although, if SSUK had been more successful in recruiting volunteers to work on board the Steve Irwin during the operation, my view may well have been different. As already mentioned, SSUKs actions resulted in two individuals doing two small things, namely locating and transporting a pump to the vessel and carrying out a days work on board. As already mentioned small is not enough for SSUKs purposes, but in my view this aspect of its contribution to the tortious activity was de minimis. Any connection to the operation was tenuous, as there was no evidence that the pump or the work was connected to the operation in particular, as opposed to the seaworthiness of the vessel generally. More importantly, even taking the two aspects of the contribution (providing the pump and two people working on board for a day) together, they were trivial in the context of the operation as a whole. 73. As for the fund raising, the evidence as to the precise nature of SSUKs activities is sparse, no doubt because this was (understandably) not the main focus of the claimants case until after the judgment of Hamblen J. The statement of agreed facts for the purpose of this appeal records that SSCS designed, organised and paid for [the] mailshot, but it said nothing in terms about who posted the mailshot to people in the United Kingdom. This reflects what was in the finding made in para 57 of Hamblen Js judgment. However, the verbs used by the Judge are perfectly capable of covering the posting of the mailshot, and, indeed, in the absence of good reason to the contrary, I would have thought that they did so. The Judge referred to the mailshot having been sent out by SSUK in para 47, and, although the sentence in question can be read as if he was saying that it had been, it was in the context of a paragraph in which he was setting out the claimants case. It seems to me clear therefore that we must proceed on the basis SSCS, not SSUK, designed, organised and paid for the preparation mailshot, but I accept the position is not so clear in relation to the actual sending out of the mailshot. However, in that connection, it appears to me that the cross examination of 74. 75. 76. 77. Mr Collis of SSUK provides a clear answer. He denied that the mailshots were sent out by [SSUK], and said that the mailshots were designed and put together by [SSCS] in the USA and were printed with their funds and they were submitted by [SSCS] in the USA. He also said that the only parts that [SSUK] had involvement with was we processed donations that came to us. It is fair to say that there was evidence in the form of (i) an email showing that SSCS encouraged SSUK to be involved in sending out the mailshot in the UK, (ii) a phrase in a sentence in Mr Colliss witness statement which could be said to suggest some unspecified SSUK involvement in the sending of the mailshots, (iii) some general statements as to the relationship between SSCS and national Sea Shepherd entities such as SSUK, and (iv) oral testimony about gift aid recovery, which could be invoked to suggest greater SSUK involvement. However, it seems to me that the oral evidence of Mr Collis on this issue was clear and there is no good reason to doubt it, especially as none of these four points were put to him. The email was a request or proposal from SSCS to SSUK, and there is no evidence, other than inference, that it was complied with, and it would be inappropriate to make such an inference in the light of Mr Colliss evidence. The phrase in Mr Colliss statement was that some leaflets were sent from the UK, but he did not say that they were sent or paid for by SSUK. The general statements are of no assistance, and the gift aid recovery evidence cuts both ways, and in any event is far too indirect to assist the claimants case on this issue. In these circumstances, it appears to me that the furthest the claimant can go in relation to the mailshot itself, is to say that SSUK adopted the sending it out in its name by not objecting to its publication, and retrospectively adopted it by accepting payments from members of the public. In relation to the 1,730, the claimant can rely on the fact that SSUK accepted that money and paid it out of its bank account to SSCS to support the operation. In my opinion, it is important to bear in mind that the mailshot was conceived of, written, reproduced, circulated and paid for by SSCS not by SSUK, and so the money had been solicited by SSCS. From the claimants point of view, SSUK was at best a sort of sleeping partner so far as the mailshot itself was concerned. As to the 1,730, it seems to have been paid direct into SSUKs bank account by members of the public, who plainly intended that it should go to SSCS for the purpose of the operation, not that it should be retained by SSUK. Particularly as there was an unlawful dimension to the purpose for which the money was paid, I would not go so far as to say that the 1,730 was held on trust by SSUK for SSCS, but one is close to that territory in practical terms. It would not have been open to SSUK to retain the money, or indeed to use it for any purpose other than the operation. 78. 79. 80. I have considered whether it could have been argued that SSCS were somehow acting as SSUKs agents when preparing and sending out the mailshots. Apart from being a somewhat counter intuitive analysis, it would not, in my view, be open to this court so to hold. In the first place, the Judge said that, although there was a close connection between the various SS entities worldwide, the different entities are separate legal bodies and the operational reality is that SSCS is the global organisation which utilises the resources of other SS entities when it is convenient to do so, and, to put it at its lowest, there is no reason to think that this observation did not apply to the mailshot. Secondly, the argument that SSCS should be treated as SSUKs agent was not raised by the claimant at trial, and, even without the Judges finding I have just quoted, it would not seem to me to be right to determine an appeal on that ground, given that the trial judges view on the point would have been important. I would probably have agreed with Lord Sumption and Lord Mance that the sum of 1,730, though very small, could not be regarded as de minimis in itself, so that, if SSUK had, pursuant to its own initiative and at its own expense, prepared and sent out the mailshot, and had then collected the money and paid it to SSCS, they could not have escaped liability, although it would have been important to know what the trial judge had thought if those were the facts. However, all that SSUK did in advance of receiving the money was not to object to the use of its name and bank account in the mailshot, and all that it did after receiving the small (in the context of the operation) sum of 1,730, was to pay the money over to the person for whom it was intended. I understand why Lord Mance and Lord Sumption have arrived at a different conclusion, but, in my view the Judge was entitled to conclude that SSUKs contribution to the operation, and therefore to the commission of the tort alleged by the claimant, was of minimal importance and that SSUK played no effective part in the commission of the tort. 81. Accordingly, I would allow this appeal. LORD KERR: 82. The single issue in this appeal can be simply expressed: on the findings made by Hamblen J, was it open to him to conclude that SSUKs facilitation of SSCSs alleged tortious activity amounted to no more than a de minimis contribution. 84. 83. Two species of activity have been identified as constituting the contribution which SSUK made. The first was to recruit two volunteers one of whom located and both of whom transported a pump to the Steve Irwin and carried out a days work on the vessel. The second involved a mailshot appealing for funds for Operation Bluerage. As to the second of these, the reason for involving SSUK was to take advantage of its bulk mailing services and to allow SSUK to receive sterling contributions which it then transferred to SSCS. This raised 1,730 which SSUK transferred to SSCS. It is assumed that this was a very small proportion of the costs of Operation Bluerage. It is, I believe, important to keep in mind that SSUK, although it knew and may be taken to have implicitly approved of the mailshot, had not itself produced it. Nor did it, as an organisation, actively seek donations. It was a willing participant in the scheme to the extent that it knew in advance that donations were being solicited by SSCS and that those donations would find their way to SSCS through SSUKs account. It also knew that it would be expected to transmit the received donations to SSCS and it was clearly willing to do so. This was the extent of their involvement in the fund raising activities, or certainly, the extent of involvement established by the evidence. Their willingness to adopt this passive role is, of course, only one side of the story. It is interesting to reflect on whether, if the donations that had in fact been received and transmitted by SSUK had been substantial, say the major proportion of the funding of the campaign, its contribution could be said to be more than de minimis. One can perhaps recognise an argument that, if SSUK was in fact the cipher through which most of the funding for the campaign had been raised, it could not escape the taint of having made a more than minimal contribution to the commission of the alleged tort. I tend to agree with Lord Sumption, therefore, that the maxim de minimis non curat lex is concerned with extremes. Those extremes are to be measured, however, not only as a matter of how they are conceived as a possible contribution to the commission of a tort but also how they have in fact contributed. It is therefore relevant to have regard not only to the potential contribution that SSUKs participation might have made but also to what it actually achieved. In the event, SSUKs contribution in hard, practical terms was not significant. 86. Leaving aside all these considerations, however, ultimately, in the present case I believe that the central question is concerned with the level of restraint that an appellate court should apply in reviewing the decision of a first instance judge which involves the exercise of judgment on the findings of fact that he has made. This issue was considered by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911. At para 60 Lord Neuberger said: 85. it is not possible to lay down any single clear general rule as to the proper approach for an appeal court to take where the appeal is against an evaluation: see also in this connection Robert Walker LJ in In re Reef Trade Mark [2003] RPC 1, para 26, May LJ in Dupont de Nemours (EI) & Co v ST Dupont [2006] 1 WLR 2793, para 94, and Laws LJ in Subesh v Secretary of State for the Home Department [2004] Imm AR 112, para 44. Accordingly, as already explained, even where the issue raised is not one of law, the reasons which justify a very high hurdle for an appeal on an issue of primary fact apply, often with somewhat less force, in relation to an appeal on an issue of evaluation. 87. Applying this approach, one should not lose sight of the fact that the donations made in response to the mailshot were at all times money raised by SSCSs efforts and at their expense. SSUK had no direct or immediate involvement in this. They allowed SSCS to use their resources but their role was essentially a passive, back seat one throughout the process. The question which this court has to answer, therefore, is whether Hamblen Js finding that SSUKs receiving and transferring funds belonging to SSCS played no effective part in the commission of the alleged tort of cutting fishing nets is insupportable. That judgment must be made on the somewhat less rigorous basis than that applied to a review by an appellate court of primary findings of fact. But I consider that the judge was plainly justified in finding that SSUKs role did not meet the more than de minimis contribution required, or, at least, that it cannot be said that it was plainly not open to him so to find. 88. SSUK had facilitated sterling based transactions. Even if it could be argued that the money which passed through its account made a more than de minimis contribution to the alleged torts, it cannot be said that merely passing on funds constituted concerted action to a common end, it is in essence an ancillary role, lending minor help to the actions of another. Of course, it can be said that SSUKs role could be appropriately described as falling into one of the categories of accessory liability seen in crime rather than that of primary liability known to the law of tort. But for the reasons given, particularly by Lord Toulson and Lord Sumption, the distinction between the two contexts has a solid foundation and should be preserved. 89. The other basis on which SSUKs contribution might have been argued to be more than minimal, viz recruiting two volunteers to source and supply a pump and to carry out work on the ship will not avail. This cannot sensibly be regarded, without, at least, significantly more detailed evidence, as having made a more than de minimis contribution to the enterprise. The judge was therefore entitled to find that the full extent of SSUKs participation had no more than a minimal or peripheral input. Certainly, in my opinion, it was not open to an appellate court to interfere with Hamblen Js judgment to that effect. 90. For these reasons and those given by Lord Neuberger and Lord Toulson, I would allow the appeal and restore the order made by Hamblen J. LORD MANCE: (dissenting) 91. At the end of the day, the difference of opinion in the court about the outcome of this appeal derives from a difference not about the legal principles which it involves, but about their application to the facts, and, in particular, about whether such assistance as SSUK rendered pursuant to the common design which it shared with SSCS to further Operation Bluerage can and should be regarded as de minimis. 92. Ultimately this is a matter of judgment, though any judgment is complicated by a degree of obscurity about the facts relating to the mailshot. The reason for obscurity about the mailshot, as Lord Neuberger has pointed out, is that the matters now relied upon as assistance were at best a very peripheral part of the respondents case at first instance before Hamblen J. This may go to costs, but it cannot relieve us of the difficulty of determining the right answer on the facts. 93. Hamblen J said in para 47 of his judgment that Fish & Fish relies in particular on a mailshot sent out by SSUK which sought and obtained donations for the campaign. Fish & Fish had indeed pleaded in its amended reply, para 6(3), that SSUK sought campaign contributions from the public. Hamblen Js statement in para 47 might look as if he was accepting that SSUK sent out the mailshot (which is, indeed, what he had put to SSUKs counsel in final speeches). But later, in para 57, he recounted that the evidence of Mr Collis, SSUKs witness (and sole employee at the relevant time), was that SSUK did not itself seek campaign contributions for the Bluerage campaign, and he continued: There was the mailshot referred to above. This was designed, organised and paid for by SSCS, although SSUKs address and bank details were included in respect of UK recipients of the mailshot to make it easier for them to donate in Sterling. SSUK processed the funds (to a total of 1,730) and sent them to SSCS. 94. The cross examination of SSUKs witness, Mr Collis, had in fact elicited denials, which were not further tested, of almost any involvement in the mailshot, save for the processing and forwarding to SSCS of the 1,730 or so received as its result. But it is, I consider, also clear that SSUK at least knew in advance that the mailshot was going to be sent out in its name, inviting donations to it. There was evidence from SSCS, in para 29 of the witness statement of Mr Paul Watson of SSCS, who was also called as a witness, that: When SSCS are planning a campaign, we reach out to all Sea Shepherd organisations for their support. Such support can be provided financially or by way of logistical help, for example. 95. Mr Collis in his witness statement, in para 61, said: I should mention that there were donations provided in relation to Operation Bluerage to the UK charity. This was a mailshot that was requested by SSCS, and I believe that it was replicated across the globe. The majority of the funds were raised through SSCSs website. However a certain number of leaflets were sent from the UK, and provide the UK address, being the closest Sea Shepherd office. We gathered the donations which totalled 1,730 and we sent the money to SSCS along with other monies from the SSUK charity funds. 96. This might be taken to indicate that SSUK actually took part in sending out the mailshot. There is also an email dated 3 March 2010 which would suggest that, at least at that date, SSCS was proposing that SSUK should do this. However, there is no clear finding to that effect, and I shall proceed on the basis that SSCS sent out or arranged the sending out of the mailshot. Nonetheless, it was sent out in SSUKs name, and it is reasonably clear from the evidence of both Mr Watson and Mr Collis, as well as from the inherent probabilities, that SSUK was aware that this was taking place, and were not therefore surprised by the donations it elicited, which they duly processed in the ordinary course. If it does not mean that SSCS requested SSUK to send out the mailshot, then Mr Colliss statement that the mailshot was requested by SSCS must at least mean that SSCS requested the ability to send out a mailshot in SSUKs name. In these circumstances, my mind has wavered as to whether any assistance provided could reasonably be described as de minimis. The judge described it as minimal. For the reason given by Lord Neuberger, I would regard the assistance involved in the recruitment of two volunteers as insignificant, and 97. 98. 99. as adding nothing to such assistance as was provided by the mailshot. But, basically for the reasons given by Lord Sumption, I find myself ultimately unable to accept that the assistance provided by the mailshot can appropriately be described as minimal in the sense of de minimis. In my view, the right analysis, assuming that the mailshot was sent out by SSCS, is that it was sent out in the name of and so far as appeared to the public and as a matter of law on behalf of SSUK which, having been requested to allow this, expressly or implicitly authorised it in advance. If the mailshot had yielded nothing or only a tiny sum, I would agree that, despite such authorisation, the mere despatch of the mailshot could not be regarded as rendering any actually significant assistance. But 1,730 was a not insignificant sum. It is even less insignificant when viewed as one of several collections of donations received by SSCS from its various national branch organisations, in accordance with the procedure described by Mr Watson (para 94 above). Every little helps. 100. I do not therefore see any incongruity in a conclusion that SSUK lent material assistance to SSCS in this case, and is potentially liable accordingly. On the basis that its role in the direction of any tort was non existent or negligible and the assistance it gave was in the event very limited, that will as Lord Sumption has said be potentially relevant to contribution as between SSUK and SSCS. 101. In those circumstances, I consider that the Court of Appeal reached the right conclusion, and I would dismiss this appeal. On the facts, the only point of substance in the claimants case was based on the funding arrangements. The appellant played no active role in fundraising. All that it did on the judges finding was to account to the parent organisation for a relatively small amount solicited by the parent organisation. Hamblen J concluded that the role played by the appellant in the commission of the tort was of minimal importance, and in my view that conclusion was properly open to him. If I had considered that Hamblen J was wrong not to find that the first element of accessory liability was established, that is, that the appellant assisted SSCS in the commission of acts which may prove to have been tortious, I would have held that the second element was also established, that is, that the acts were done in pursuance of a common design shared by SSCS and the appellant. It would be sufficient for this purpose that the acts were done in pursuit of a campaign of which the appellant approved with the knowledge that the campaign involved a preparedness, if need be, to use violent intervention. Hamblen J observed that it was not necessarily the case that such action would take place, but a plan can include a conditional element. If D organises with P the doing of acts on Vs land, whether V consents or not, it would be no answer to a claim in trespass against D that it was possible that V would consent. But Hamblen J examined the role actually played by the appellant and judged it minimal. On that basis the conduct element of accessory liability was not established.

UK-Abs

The Respondent operates a fish farm in Malta. On 17 June 2010, it was transporting tuna in fish cages when its vessel was attacked by a ship, named the Steve Irwin. One of the fish cages was rammed and divers from the Steve Irwin forced it open, releasing the fish. The Respondents crew were fought off with liquid filled bottles and rubber bullets. This incident was carried out by the Sea Shepherd Conversation Society (SSCS) as part of a campaign, called Operation Blue Rage, to intercept and oppose the overfishing of Bluefin tuna in the Mediterranean. SSCS was formed in 1997 in the state of Washington, USA, where it is still based, for the purpose of conserving and protecting ecosystems and species. Since then, a network of SSCS subsidiaries, such as the Appellant, have formed in various different countries. The Appellant, one such subsidiary, is a company limited by guarantee and a registered charity based in the UK. Its general objectives are to conserve and protect the worlds marine wilderness ecosystems and marine wildlife species. In 2010, its primary objective was to provide funds and support the aims and objectives of its parent organisation, SSCS. The Appellant had purportedly contributed in two main ways to the incident on 17 June 2010. It had: (i) participated in the fundraising for Operation Blue Rage; and, (ii) recruited two volunteers. In relation to the fundraising, SSCS involved the Appellant to make use of its bulk mailing services within the UK and so that UK donors could contribute through sterling cheques or transfers. As such, SSCS sent the Appellant a mailshot appealing for funds for Operation Blue Rage. This mailshot was designed, organised and paid for by SSCS but was sent out in the name of, and with (at least) the knowledge of, the Appellant, but not by or on the instructions of the Appellant. The subsequent donations, amounting to 1,730, were paid to the Appellant who then transferred this to SSCS. In relation to the recruitment of volunteers, the Appellant passed on the names of those who had contacted it about volunteering. One of the volunteers sourced a pump for the Steve Irwin. He and the other volunteer then transported the pump to the Steve Irwin and did a days work on board. The Respondent brought a claim in the English courts in tort against the Appellant for the loss and damage it had suffered. A preliminary issue was whether the Appellant could be held liable, directly or vicariously, for this damage. At trial, Hamblen J dismissed the claim finding that the Appellant could not be held liable. The Court of Appeal disagreed and allowed the Respondents appeal. The Supreme Court allows the appeal by a majority of three to two. Although all five Justices agree on the test for liability, they disagree as to the application of the test to the facts of this case. Lord Toulson delivers the lead judgment. Lord Neuberger and Lord Kerr give concurring judgments. Lord Sumption and Lord Mance give dissenting judgments. The test for liability Lord Toulson reasons that a defendant will be jointly liable for the tortious acts of the principal if the defendant: (i) acts in a way which furthers the commission of the tort by the principal; and, (ii) does so in pursuance of a common design to do or secure the doing of the acts which constitute the tort [21]. Lord Sumption agrees that a defendant will be jointly liable if: (i) he has assisted the commission of the tort by another person; (ii) it is pursuant to a common design; and, (iii) an act is done which is, or turns out to be, tortious [37]. Lord Neuberger agrees with these statements of the law [55], [61]. It is unwise to attempt to define the necessary amount of connection between the defendant and the tort; this is ultimately fact sensitive [56]. The defendants assistance must be substantial rather than minimal to be jointly liable. Once assistance is shown to be more than trivial, a defendants relatively unimportant contribution should be reflected through the courts power to apportion liability and then order contribution between the defendant and the principal [57]. Lord Kerr [90] and Lord Mance [91] agree with these formulations of the test. Application to the facts of this case Lord Toulson finds that Hamblen J correctly asked whether the Appellants contribution had any significance to the commission of the tort [25]. Hamblen J reached an entirely proper conclusion that the role played by the Appellant, based mainly on its fundraising relating to a small sum solicited by SSCS, had been of minimal importance [26]. Lord Neuberger considers that although the Appellant and SSCS shared a common design [68], the judge at first instance had been entitled to find that the Appellants contribution was minimal and played no effective part in the commission of the tort [70]. The Appellants recruitment of volunteers was trivial [72] and, in relation to the fundraising, all the Appellant did was not to object to the use of its name and bank account in the mailshot before paying the small sum over to SSCS [79]. According to Lord Kerr, it was plainly open to Hamblen J to find that the Appellant had no more than a minimal or peripheral input so that it played no effective part in the commission of the alleged tort. There was, therefore, no reason to interfere with this finding [87], [89]. Lord Sumption (dissenting) finds that the Appellant had a common intention with SSCS that SSCS should cut the nets of fishermen and forcibly release their catch if necessary [46 48]. The Appellants participation in relation to fundraising, though small, cannot be described as so trivial as to be no fact at all in the eyes of the law [50 51]. Lord Mance (dissenting) agrees with Lord Sumption that the fundraising assistance given by the Appellant to SSCS cannot be described as minimal [97]. The mailshot was sent out in the Appellants name and on its behalf, having explicitly or implicitly authorised this, and the sum raised was not insignificant [98 99].

This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit? The facts The patient, David James, was admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator. He remained in the critical care unit and dependent on ventilator support until the hearing before Peter Jackson J on 5 and 6 December 2012: [2012] EWHC 3524 (COP). His condition between May and December fluctuated. There were some severe setbacks, including a stroke, which left him with right sided weakness and contracture of his legs, and a cardiac arrest which required six minutes of advanced cardio pulmonary resuscitation (CPR) to save him. He had recurring infections, leading to septic shock and multiple organ failure. In between, there were efforts to liberate him from the ventilator and onto a lesser form of supported breathing (CPAP). A tracheostomy was performed for this purpose. At the time of the hearing, he was not on antibiotics or other medication and able to tolerate at least 12 hours of CPAP a day. He received clinically assisted nutrition and hydration through a nasogastric tube. The judge accepted the evidence of Dr Grant, a consultant in critical care medicine, on behalf of the ten consultants and senior nursing staff who had been responsible for Mr James care, as to the diagnosis and prognosis. The patient suffered from gross muscle wasting, owing to his prolonged period of near immobility, so could not sit or stand for himself. He also suffered from contractures, similar to very severe cramps, causing grimacing, raised pulse, breathing and blood pressure, indicating distress and pain. He had suffered a stroke, with severe neurological damage. He was completely dependent on artificial ventilation and required regular tube suction. His kidney function was extremely fragile, with a maximum function of 20% or so, although he had not so far required renal therapy. It was almost inevitable that he would face further infections leading to lowered blood pressure and the prospect of further multi organ failure. Daily care tasks could cause discomfort, pain and suffering. Overall, his prospects of leaving the critical care unit, let alone the hospital, were extremely low. The Official Solicitor, acting on Mr James behalf, had instructed an independent specialist, Dr Danbury, to investigate. His diagnosis and prognosis were consistent with that of the other doctors. As to Mr James mental faculties, he suffered a marked deterioration in his neurological state in July, after which he was considered to lack the capacity to make decisions about his medical treatment. A Wessex Head Injury Matrix assessment in November indicated severe neurological impairment. Nevertheless, the judge recorded the observations in November of Dr Danbury, of Ms Baker, the Official Solicitors case manager, and of the medical and nursing staff. These indicated, positively, that he recognised and was pleased to see his wife and his son when they visited; kissed his wife when she leaned into him; looked at her when she moved round the bed; mouthed what appeared to be words in answer to his wife, Ms Baker and nursing staff; turned the pages of a newspaper, smiling while he did so, although it was not clear to the doctor whether he was actually reading any of the articles or looking at the pictures; put on and took off his glasses while doing so; and appeared to enjoy watching videos on his sons phone. The judge accepted that he qualified for a diagnosis of being in a minimally conscious state. But, as Baker J had pointed out in W v M [2011] EWHC 2443, [2012] 1 WLR 1653, there is a spectrum of minimal consciousness extending from patients who are only just above the vegetative state to those who are bordering on full consciousness. Peter Jackson J added that to that extent the word minimal in the diagnostic label may mislead. Mr James current level of awareness when not in a medical crisis might more accurately be described [as] very limited rather than minimal (para 38). Mr James had been a talented professional musician, spending over 50 years in the music business. He was also a devoted family man. He and his wife had celebrated their golden wedding anniversary in September when their daughter said that he had been very alert. They have three children, three grandchildren and many friends. Family and friends visited him regularly in hospital and his daughter felt that he got a lot of enjoyment from seeing them. She herself visited for four hours every day. The proceedings In September 2012, the hospital trust issued proceedings in the Court of Protection, seeking declarations (1) that Mr James lacked capacity to consent to or refuse treatment of any kind (this was uncontentious); and (2) that it would be in his best interests for four specified treatments to be withheld in the event of a clinical deterioration. Originally, those four treatments included intravenous antibiotics for further infectious complications but the trust did not pursue that. Nor was there any suggestion that the current treatment, ventilation and clinically assisted nutrition and hydration, should be withheld. The three treatments in question, as described by the judge (para 8), were as follows: (1) Invasive support for circulatory problems. This meant the administration of strong inotropic or vasopressor drugs in order to correct episodes of dangerously low blood pressure. The process is painful, involving needles and usually the insertion of a central line. The drugs have significant side effects and can cause a heart attack. They had previously been used to treat Mr James. (2) Renal replacement therapy. This meant haemofiltration, filtering the blood through a machine to make up for the lack of kidney function. It too requires a large line to be inserted and an anti coagulant drug which brings the risk of bleeding or a stroke. It can be very unpleasant for the patient and may cause intense feelings of cold. Mr James had not so far required this treatment. (3) Cardiopulmonary resuscitation (CPR). This aims to make a heart which has stopped beating start beating again. So the decision has to be taken at once. It can take various forms, including the administration of drugs, electric shock therapy and physical compression of the chest and inflation of the lungs. To be effective, it is deeply physical and can involve significant rib fractures. CPR had successfully been given to Mr James when his heart had stopped beating in August. The unanimous view of the clinical team was that it would not be in Mr James best interests to receive these treatments, should his condition deteriorate to the extent that he needed them (that was what was meant by a clinical deterioration). The judge commented that these views were the result of careful thought and bound to carry considerable weight. Dr Danbury took the same view. But the judge did not attach additional weight to his assessment, because in his first report he had said that it was not appropriate to continue even with the current treatment, because there was no prospect of Mr James being able to function again as a musician. He later withdrew this, but the judge did not feel able to rely upon his later assessment, given what the judge regarded as this false start. The family took a different view from the clinicians. They felt that every time Mr James had had an infection he had pulled through. The gaps between episodes of infection had become wider. While he would never recover his previous quality of life, he got a lot of enjoyment from seeing his family and close friends. He had been determined to beat his cancer and the family believed that he would feel the same about his current predicament. Counsel agreed the following list of considerations both for and against treatment in the event of a deterioration (para 79). In favour were: Life itself is of value and treatment may lengthen Mr James life. He currently has a measurable quality of life from which he gains pleasure. Although his condition fluctuates, there have been improvements as well as deteriorations. It is likely that Mr James would want treatment up to the point where it became hopeless. His family strongly believes that this point has not been reached. It would not be right for him to die against a background of bitterness and grievance. Against treatment were: The unchallenged diagnosis is that Mr James has sustained severe physical and neurological damage and the prognosis is gloomy, to the extent that it is regarded as highly unlikely that he will achieve independence again; his current treatment is invasive and every setback places him at a further disadvantage. The treatment may not work. The treatment would be extremely burdensome to endure. It is not in his interests to face a prolonged, excruciating and undignified death. Despite the unanimous medical views, backed by the Official Solicitor, the judge concluded that it would not be appropriate to make the declarations sought (para 84). He was not persuaded that treatment would be futile or overly burdensome or that there was no prospect of recovery (it will be necessary later to consider the meaning he gave to these terms). The arguments in favour undervalued the non medical aspects of Mr James situation: his family life was of the closest and most meaningful kind. Care had to be taken when making declarations in circumstances which were not fully predictable or fluctuating. He recognised that leaving things as they were, for discussion and decision should the need arise, did not sit easily with an emergency decision about CPR, and for what it is worth I think it unlikely that further CPR would be in Mr James best interests. But the case for making that an absolute decision at that time did not exist (para 86). The trust appealed and the hearing took place only 15 days later, on 21 December. The trust were given permission to put in further evidence, in the shape of a letter dated 19 December from Dr Cope on behalf of the clinical team. This showed that Mr James had suffered a significant deterioration on 5 December and since 14 December had been completely dependent on mechanical ventilation. On 18 December he suffered a further dramatic deterioration such that it was difficult to achieve adequate mechanical ventilation. This was accompanied by a fall in blood pressure which required intravenous vasopressors. His renal function had deteriorated further. In this setting of progressive deterioration, attempting CPR was highly unlikely to be successful, and in that unlikely event it was likely to leave him with greater brain damage in addition to other organ damage. He was comatose, or semi comatose, but efforts to support his breathing and blood pressure on 18 December had clearly caused him great distress and discomfort. He was extremely weak and unable to move. The clinical team remained convinced that it would not be in his interests to provide the listed treatments and would cause him greater suffering whilst conveying extremely limited benefit. The Court of Appeal allowed the appeal and made a declaration in similar terms to that sought by the trust. In the early hours of 31 December 2012, Mr James suffered a cardiac arrest and he died. The Court of Appeal handed down their written reasons on 1 March 2013: [2013] EWCA Civ 65, [2013] Med LR 110. Although Mr James has died, this Court gave his widow permission to appeal, in view of the importance of the issues and the different approaches taken by the trial judge and the Court of Appeal to the assessment of the patients best interests in these sensitive and difficult cases. The law This application was made for a declaration under section 15 of the 2005 Act. Section 15(1) provides that the court may make declarations as to whether a person has or lacks capacity, either in relation to a specified decision or in relation specified matters, and as to the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Section 15(2) expressly provides that act includes an omission and a course of conduct. The application was for a declaration that it would be lawful to withhold the three specified treatments should Mr James condition deteriorate to the extent that he needed them. It is tempting therefore to approach the case as if the question is whether it would be in Mr James best interests to withhold those treatments should they become necessary in order to sustain his life. But is that in fact the right question? Whatever may be the position in relation to declarations about matters other than medical treatment, there are some basic principles relating to medical treatment which may help us to identify how these cases ought to be approached. The judge began in the right place. He was careful to stress that the case was not about a general power to order how the doctors should treat their patient. This Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity. The judge said: A patient cannot order a doctor to give a particular form of treatment, although he may refuse it. The courts position is no different (para 14). In Re J (A Minor) (Child in Care: Medical Treatment) [1991] Fam 33, at 48, Lord Donaldson MR held that the court could not require the [health] authority to follow a particular course of treatment. What the court can do is to withhold consent to treatment of which it disapproves and it can express its approval of other treatment proposed by the authority and its doctors. He repeated that view in Re J (A Minor)(Child in Care: Medical Treatment) [1993] Fam 15, at 26 27, when it was clearly the ratio decidendi of the case. To similar effect is R v Cambridge District Health Authority, ex p B [1995] 1 WLR 898, where the court would not interfere with the health authoritys decision to refuse to fund further treatment of a child with leukaemia. More recently, in R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273, Lord Phillips MR accepted the proposition of the General Medical Council that if a doctor concludes that the treatment which a patient wants is not clinically indicated he is not required (ie he is under no legal obligation) to provide it (para 50), and Ultimately, however, a patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to the patients clinical needs (para 55). Of course, there are circumstances in which a doctors common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that. Nor is that Court concerned with the legality of NHS policy or guidelines for the provision of particular treatments. Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself. However, any treatment which the doctors do decide to give must be lawful. As Lord Browne Wilkinson put it in Airedale NHS Trust v Bland [1993] AC 789, which concerned the withdrawal of artificial hydration and nutrition from a man in a persistent vegetative state, . the correct answer to the present case depends upon the extent of the right to continue lawfully to invade the bodily integrity of Anthony Bland without his consent. If in the circumstances they have no right to continue artificial feeding, they cannot be in breach of any duty by ceasing to provide such feeding (p 883). Generally it is the patients consent which makes invasive medical treatment lawful. It is not lawful to treat a patient who has capacity and refuses that treatment. Nor is it lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it: see 2005 Act, sections 24 to 26. Nor is it lawful to treat such a patient if he has granted a lasting power of attorney (under section 10) or the court has appointed a deputy (under section 16) with the power to give or withhold consent to that treatment and that consent is withheld; but an attorney only has power to give or withhold consent to the carrying out or continuation of life sustaining treatment if the instrument expressly so provides (section 11(8)) and a deputy cannot refuse consent to such treatment (section 20(5)). Those cases aside, it was recognised by the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 that where a patient is unable to consent to treatment it is lawful to give her treatment which is necessary in her best interests. Section 5 of the Mental Capacity Act 2005 now provides a general defence for acts done in connection with the care or treatment of a person, provided that the actor has first taken reasonable steps to establish whether the person concerned lacks capacity in relation to the matter in question and reasonably believes both that the person lacks capacity and that it will be in his best interests for the act to be done. However, section 5 does not expressly refer both to acts and to omissions, the giving or withholding of treatment. The reason for this, in my view, is that the fundamental question is whether it is lawful to give the treatment, not whether it is lawful to withhold it. In Bland, Lord Goff (with whose judgment Lord Keith and Lord Lowry expressly agreed) pointed out that the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of treatment (p 868). To the same effect was Lord Browne Wilkinson, at p 884: . the critical decision to be made is whether it is in the best interests of Anthony Bland to continue the invasive medical care involved in artificial feeding. That question is not the same as, Is it in Anthony Blands best interests that he should die? The latter question assumes that it is lawful to perpetuate life: but such perpetuation of life can only be achieved if it is lawful to continue to invade the bodily integrity of the patient by invasive medical care. Hence the focus is on whether it is in the patients best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it. Deciding upon best interests A person who has the capacity to decide for himself can of course make decisions which are not in his own best interests and no doubt frequently does so. Indeed, the Act provides that a person is not to be treated as unable to make a decision simply because he makes an unwise one: section 1(4). But both at common law and under the Act, those who act or make decisions on behalf of a person who lacks capacity must do so in his best interests: section 1(5). How then is it to be determined whether a particular treatment is in the best interests of the patient? The Act gives some limited guidance. Section 4 relevantly provides: (2) The person making the determination [for the purposes of this Act what is in a persons best interests] must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5) Where the determination relates to life sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. (6) He must consider, so far as is reasonably ascertainable(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of . (b) anyone engaged in caring for the person or interested in his welfare, . as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6). (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which. (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. (9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned. (10) "Life sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. (11) "Relevant circumstances" are those(a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant. This approach follows very closely the recommendations of the Law Commission in their Report on Mental Incapacity (1995, Law Com No 231) on which the 2005 Act is based. It had been suggested in Re F that it might be enough if the doctor had acted in accordance with an accepted body of medical opinion (the Bolam test for medical negligence). However, as the Court of Appeal later recognised in Re S (Adult Patient: Sterilisation) [2001] Fam 15, there can only logically be one best option. The advantage of a best interests test was that it focused upon the patient as an individual, rather than the conduct of the doctor, and took all the circumstances, both medical and non medical, into account (paras 3.26, 3.27). But the best interests test should also contain a strong element of substituted judgment (para 3.25), taking into account both the past and present wishes and feelings of patient as an individual, and also the factors which he would consider if able to do so (para 3.28). This might include altruistic sentiments and concern for others (para 3.31). The Act has helpfully added a reference to the beliefs and values which would be likely to influence his decision if he had capacity. Both provide for consultation with carers and others interested in the patients welfare as to what would be in his best interests and in particular what his own views would have been. This is, as the Explanatory Notes to the Bill made clear, still a best interests rather than a substituted judgment test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie. To take a simple example, it cannot be in the best interests to give the patient food which he does not like when other equally nutritious food is available. Section 4(5) and (10) was an addition while the Bill was passing through Parliament: in considering whether treatment which is necessary to sustain life is in the patients best interests, the decision maker must not be motivated by a desire to bring about the patients death. Like much else in the Act, this reflects the existing law. Beyond this emphasis on the need to see the patient as an individual, with his own values, likes and dislikes, and to consider his best interests in a holistic way, the Act gives no further guidance. But section 42 requires the Lord Chancellor to prepare a code or codes of practice for those making decisions under the Act. Any person acting in a professional capacity or for remuneration is obliged to have regard to the code (section 42(4)) and a court must take account of any provision in or failure to comply with the code which is relevant to a question arising in any civil or criminal proceedings (section 42(5)). The Mental Capacity Act Code of Practice was published in 2007. Lord Pannick QC, on behalf of the trust, accepts that if there is any conflict between what it says and what is said in the guidance given by the General Medical Council under section 35 of the Medical Act 1983 (Treatment and care towards the end of life: good practice in decision making, 2010) or by the British Medical Association (Withholding and Withdrawing Life prolonging Medical Treatment: Guidance for decision making, 3rd edition 2007), then the Mental Capacity Act Code must prevail. The Mental Capacity Act Code deals with decisions about life sustaining treatment in this way: 5.31 All reasonable steps which are in the person's best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life sustaining treatment, even if this may result in the person's death. The decision maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person's death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life sustaining treatment. 5.32 As with all decisions, before deciding to withdraw or withhold life sustaining treatment, the decision maker must consider the range of treatment options available to work out what would be in the person's best interests. All the factors in the best interests checklist should be considered, and in particular, the decision maker should consider any statements that the person has previously made about their wishes and feelings about life sustaining treatment. 5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life sustaining treatment where that treatment is not in the best interests of the person, even where the person's death is foreseen. Doctors must apply the best interests' checklist and use their professional skills to decide whether life sustaining treatment is in the person's best interests. If the doctor's assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person's best interests. (Emphasis supplied.) It is important to read these paragraphs as a whole. As paragraph 5.33 makes clear, doctors have to decide whether the life sustaining treatment is in the best interests of the patient. Section 4(5) does not mean that they have to provide treatment which is not in the patients best interests. Paragraph 5.31 gives useful guidance, derived from previous case law, as to when life sustaining treatment may not be in the patients best interests. Both the judge and the Court of Appeal accepted them as an accurate statement of the law and so would I. However, they differed as to the meaning of the words in italics. The Code is not a statute and should not be construed as one but it is necessary for us to consider which of them was closer to the correct approach. How the judge and the Court of Appeal interpreted the patients best interests In concluding that he was not persuaded that treatment would be futile or overly burdensome or that there was no prospect of recovery, Peter Jackson J said this: (a) In Mr James case, the treatments in question cannot be said to be futile, based on the evidence of their effect so far. (b) Nor can they be said to be futile in the sense that they could only return Mr James to a quality of life which is not worth living. (c) Although the burdens of treatment are very great indeed, they have to be weighed against the benefits of a continued existence. (d) Nor can it be said that there is no prospect of recovery: recovery does not mean a return to full health, but the resumption of a quality of life that Mr James would regard as worthwhile. The references, noted above, to a cure or a return to the former pleasures of life set the standard unduly high. In the Court of Appeal, Sir Alan Ward regarded the real question as whether the judge correctly applied the guidance and in particular whether he was right to find that the treatments could not be said to be futile. He considered that futility had to be judged against the goal which was sought to be achieved. He listed six possible goals, ending with this: The goal may be to secure therapeutic benefit for the patient, that is to say the treatment must, standing alone or with other medical care, have the real prospect of curing or at least palliating the life threatening disease or illness from which the patient is suffering. (para 35) In his view, this was the goal against which futility should be judged (para 37). The judge had adopted too narrow a view of the futility of treatment. He should have had regard, not just to its effectiveness in coping with the current crisis, but to the improvement or lack of improvement which the treatment would bring to the general health of the patient (para 38). He also took the view that the judge was wrong to conclude that the three treatments in question were not overly burdensome (para 40). Moreover, the judge had applied the wrong test of a recovery. In his view, the focus was on the medical interests of the patient. In a case where life was ebbing away, no prospect of recovery means no prospect of recovering such a state of good health as will avert the looming prospect of death if the life sustaining treatment is given (para 44). Having held that the judge had applied the wrong test, the Court of Appeal went on to reach its own decision. Sir Alan accepted that his conclusion that the treatment would be futile, overly burdensome and that there was no prospect of recovery was only one pointer. The term best interests encompassed more than merely medical issues. It included the patients welfare in the widest sense as well as his wishes and feelings. But his wishes, if they were to be the product of fully informed thought, would have to recognise the futility of treatment, its burdensome nature and the fact that he would never go home. In the overall assessment, therefore, his wishes must give way to what is best in his medical interests (para 47). Laws LJ agreed with Sir Alan Ward. Arden LJ reached the same result but by a different route. She thought that the starting point was the patients wishes. But if the court had any doubt as to an individuals wishes or as to whether treatment should be given, it should proceed on the basis that the individual would act as a reasonable person would act (para 50). Agreeing with Sir Alan Ward that the treatment would be unduly burdensome, she considered that a reasonable individual would reject it. Hence it was not in his best interests. Discussion The authorities are all agreed that the starting point is a strong presumption that it is in a persons best interests to stay alive. As Sir Thomas Bingham MR said in the Court of Appeal in Bland, at p 808, A profound respect for the sanctity of human life is embedded in our law and our moral philosophy. Nevertheless, they are also all agreed that this is not an absolute. There are cases where it will not be in a patients best interests to receive life sustaining treatment. The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts. As Hedley J wisely put it at first instance in Portsmouth Hospitals NHS Trust v Wyatt [2005] 1 FLR 21, The infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests (para 23). There are cases, such as Bland, where there is no balancing exercise to be conducted. There are cases, where death is in any event imminent, where the factors weighing in the balance will be different from those where life may continue for some time. Nevertheless, there has been some support for a touchstone of intolerability in those cases where a balancing exercise is to be carried out. In Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421, authorising an operation which was necessary to save the life of a baby with Downs syndrome, Templeman LJ said that the question was whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die, and Dunn LJ said that there was no evidence that this childs short life is likely to be an intolerable one. Taylor LJ, in Re J (Wardship: Medical Treatment) [1991] Fam 33, also adopted a test of whether life would be intolerable to the child. However, Lord Donaldson and Balcombe LJ did not see demonstrably so awful or intolerable as laying down a quasi statutory test which would apply in all circumstances. And in Portsmouth Hospitals NHS Trust v Wyatt [2005] EWCA Civ 1181, [2005] 1 WLR 3995, the Court of Appeal considered that observations on intolerability in W Healthcare NHS Trust v H [2005] 1 WLR 834 were obiter, given that the judge had correctly decided the case by a careful balance of all the factors in the welfare equation (para 84). In Re J, Lord Donaldson stated that account had to be taken of the pain and suffering and quality of life which the child would experience if life were prolonged and also of the pain and suffering involved in the proposed treatment. Here we can see a possible genesis for the references in the Code of Practice to the prospect of recovery and the overly burdensome nature of the treatment. Similarly in Bland, Lord Goff referred to the class of case where having regard to all the circumstances (including the intrusive nature of the treatment, the hazards involved in it, and the very poor quality of life which may be prolonged) it may be judged not in the best interests of the patient to initiate or continue life prolonging treatment (p 868). But he expressed no view as to the precise principles applicable to such cases, because Anthony Blands case was in a different category, where the treatment was of no benefit to him at all. Here there was no weighing operation to be performed because treatment was useless: I cannot see that medical treatment is appropriate or requisite simply to prolong a patients life when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition (p 869). Here we can see a possible genesis of the word futile in the Code of Practice and in that case it referred to treatment which was of no benefit at all to the patient. The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be. In my view, therefore, Peter Jackson J was correct in his approach. the genesis of the concepts used in the Code of Practice, he was correct to consider whether the proposed treatments would be futile in the sense of being ineffective or being of no benefit to the patient. Two of the treatments had been tried before and had worked. He was also correct to say that recovery does not mean a return to full health, but the resumption of a quality of life which Mr James would regard as worthwhile. He clearly did consider that the treatments in question were very burdensome. But he considered that those burdens had to be weighed against the benefits of a continued existence. He was also correct to see the assessment of the medical effects of the treatment as only part of the equation. Regard had to be had to the patients welfare in the widest sense, and great weight to be given to Mr James family life which was of the closest and most meaningful kind. Perhaps above all, he was right to be cautious about making declarations in circumstances which were not fully predictable or fluctuating. The judge was invited to address the question whether it would be lawful to withhold any or all of these treatments. But if he had been asked the right question, whether it would be in the patients best interests to give any or all of them should the occasion arise, his answer would clearly have been to the same effect. He would have said, as he was entitled to say that, on the evidence before him, it was too soon to say that it was not. That conclusion is quite consistent with his statement that for what it is worth he thought it unlikely that further CPR would be in the patients best interests. That is not to say that I would have reached the same conclusion as the judge in relation to each of these treatments. There was no question of withdrawing clinically supported nutrition and hydration or ventilation or other supported breathing or, by the time of the hearing, intravenous antibiotics. The treatments in question were all highly invasive. I might have drawn a distinction between them. Invasive support for circulatory problems had been used successfully in the past and the patient had rallied. Renal replacement therapy had not so far been needed and so it might be difficult to predict both its effectiveness and its impact upon the patients overall wellbeing. Cardiopulmonary resuscitation, on the other hand, although it had been used successfully in the past, is designed to restart a heart which has stopped beating or lungs which have stopped breathing, in effect to bring the patient back to life. I can understand why the judge thought it premature to say that it should not be attempted. But given the particular nature of this treatment, given its prospects of success, and particularly given the risk that, if revived, the patient would be even more seriously disabled than before, I would probably have declared that it would not be in the patients best interests to attempt it. But if the judge has correctly directed himself as to the law, as in my view this judge did, an appellate court can only interfere with his decision if satisfied that it was wrong: Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 1 WLR 1911. In a case as sensitive and difficult as this, whichever way the judges decision goes, an appellate court should be very slow to conclude that he was wrong. It follows that I respectfully disagree with the statements of principle in the Court of Appeal where they differ from those of the judge. Thus it is setting the goal too high to say that treatment is futile unless it has a real prospect of curing or at least palliating the life threatening disease or illness from which the patient is suffering. This phrase may be a partial quotation from Grubb, Laing and McHale, Principles of Medical Law (3rd edition 2010), para 10.214, where the authors suggest that Treatment can properly be categorised as futile if it cannot cure or palliate the disease or illness from which the patient is suffering and thus serves no therapeutic purpose of any kind. Earlier, they had used the words useless or pointless. Given its genesis in Bland, this seems the more likely meaning to be attributed to the word as used in the Code of Practice. A treatment may bring some benefit to the patient even though it has no effect upon the underlying disease or disability. The Intensive Care Society and the Faculty of Intensive Medicine, who have helpfully intervened in this appeal, supported the test proposed by Sir Alan Ward. But this was because they believed that it reflected clinical practice in which futility would normally be understood as meaning that the patient cannot benefit from a medical intervention because he or she will not survive with treatment. That is much closer to the definition adopted by the judge than by Sir Alan. I also respectfully disagree with the statement that no prospect of recovery means no prospect of recovering such a state of good health as will avert the looming prospect of death if the life sustaining treatment is given. At least on the evidence before the judge, this was not, as Sir Alan Ward put it, a situation in which the patient was actively dying. It was accepted in Burke (as it had been earlier) that where the patient is close to death, the object may properly be to make his dying as comfortable and as dignified as possible, rather than to take invasive steps to prolong his life for a short while (see paras 62 63). But where a patient is suffering from an incurable illness, disease or disability, it is not very helpful to talk of recovering a state of good health. The patients life may still be very well worth living. Resuming a quality of life which the patient would regard as worthwhile is more readily applicable, particularly in the case of a patient with permanent disabilities. As was emphasised in Re J (1991), it is not for others to say that a life which the patient would regard as worthwhile is not worth living. Finally, insofar as Sir Alan Ward and Arden LJ were suggesting that the test of the patients wishes and feelings was an objective one, what the reasonable patient would think, again I respectfully disagree. The purpose of the best interests test is to consider matters from the patients point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patients wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that It was likely that Mr James would want treatment up to the point where it became hopeless. But insofar as it is possible to ascertain the patients wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being. However, in my view, on the basis of the fresh evidence which was before them, the Court of Appeal were correct to allow the appeal and make the declarations they did (which were in the present tense). There had been such a significant deterioration in Mr James condition that the prospect of his regaining even his previous quality of life appeared very slim. The risk that cardiovascular resuscitation would make matters even worse appeared great. The time had indeed come when it was no longer premature to say that it would not be in his best interests to attempt to restart his heart should it stop beating. Indeed, had the judge been asked to reach a decision on the basis of the evidence then available, it seems clear on the basis of his reasoning that he would have done the same. Conclusions There are some additional comments to be made. First, the interveners have argued that to allow this appeal would be to change the law as previously understood. As I have endeavoured to show, upholding the judges view of the law does not in any way change the law as previously understood. If anything, it was the Court of Appeal which did that. Second, there is nothing in this judgment which is inconsistent with the sensible advice given by the General Medical Council in their guidance on Treatment and care towards the end of life: good practice in decision making. Third, if the clinical team are unable to reach agreement with the family or others about whether particular treatments will be in the best interests of the patient, they may of course bring the question to court in advance of those treatments being needed. But they may find that, as here, the court is unable to say that when they are needed, they will not be in the patients best interests. Fourth, it is important to be precise in framing the terms of the declarations sought. In this case, in the event of a clinical deterioration in fact meant should his condition deteriorate to the extent that they become necessary and it would have been helpful to say so. It follows that I would dismiss this appeal on the ground that the Court of Appeal reached the right result but for the wrong reasons, while the trial judge had reached a result which was open to him having correctly directed himself as to the law.

UK-Abs

This appeal is concerned with how doctors and courts should decide when it is in the best interests of a patient, who lacks the capacity to decide for himself, for him to be given, or not to be given, treatments necessary to sustain life. The respondent hospital trust (Aintree) sought a declaration under the Mental Capacity Act 2005 in respect of the appellant, Mr James, who was admitted to hospital in May 2012. Mr James acquired an infection which was complicated by the development of chronic pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator. In the ensuing months he suffered some severe setbacks, including a stroke and recurrent infections, and his condition fluctuated. After July 2012, deterioration in his neurological state meant he was considered to lack capacity to make decisions about his medical treatment. However, he appeared to recognise and take pleasure in visits from his wife and family and his friends. In September 2012 Aintree issued proceedings in the Court of Protection seeking declarations that it would be in the best interests of Mr James for specified treatments to be withheld from him in the event of a clinical deterioration. These were painful and/or deeply physical treatments such as cardiopulmonary resuscitation (CPR). Mr James family took a different view from the clinicians, believing that, while he would never recover his previous quality of life, he gained pleasure from his present quality of life and would wish it to continue. The Mental Capacity Act Code of Practice provides that it may be in the best interests of a patient in a limited number of cases not to give life sustaining treatment where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery, even if this may result in the persons death. The trial judge interpreted these words as inapplicable to treatments which would enable Mr James to resume a quality of life which he would regard as worthwhile: they did not have to return him to full health. He held that it would not be appropriate to make the declarations sought. The Court of Appeal reversed his decision on 21 December 2012, by which time Mr James condition had deteriorated further. It held that futility was to be judged by the improvement or lack of improvement which the treatment would bring to the general health of the patient, and recovery meant recovery of a state of health which would avert the looming prospect of death. Mr James suffered a cardiac arrest and died on 31 December 2012. The Supreme Court gave his widow permission to appeal notwithstanding this, in view of the importance of the issues and the different approaches taken in the courts below to the assessment of the patients best interests. The Supreme Court unanimously holds that the trial judge applied the right principles and reached a conclusion which he was entitled to reach on the evidence before him. But the Court of Appeal were right to reach the conclusion they did on the basis of the fresh evidence before them. Technically, therefore, the appeal is dismissed. Lady Hale gives the sole judgment, with which Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes agree. S 15 of the Mental Capacity Act 2005 provides that the court may make declarations as to whether a person has or lacks capacity, and as to the lawfulness of any act done or yet to be done in relation to that person. The Act is concerned with enabling the court to do for a patient what he could do for himself if of full capacity, but goes no further. A patient cannot order a doctor to give a particular form of treatment (although he may refuse it) and the courts position is no different [18]. However, any treatment which doctors do decide to give must be lawful. Generally it is the patients consent which makes invasive medical treatment lawful [19]. If a patient is unable to consent it is lawful to give treatment which is in his best interests [20]. The fundamental question is whether it is in the patients best interests, and therefore lawful, to give the treatment, not whether it is lawful to withhold it [21]. The starting point is the strong presumption that it is in a persons best interests to stay alive [35]. In considering the best interests of a particular patient at a particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude is or would be likely to be; and they must consult others who are looking after him or interested in his welfare [39]. The judge was right to consider whether the proposed treatments would be futile in the sense of being ineffective or being of no benefit to the patient. He was right to weigh the burdens of treatment against the benefits of a continued existence, and give great weight to Mr James family life, which was of the closest and most meaningful kind [40]. He was right to be cautious in circumstances which were fluctuating [41]. A treatment may bring some benefit to a patient even if it has no effect upon the underlying disease or disability [43]. It was not futile if it enabled a patient to resume a quality of life which the patient would regard as worthwhile [44]. The Court of Appeal had been wrong to reject the judges approach. It had also been wrong to suggest that the test of the patients wishes and feelings was an objective one, namely what the reasonable patient would think. Insofar as it was possible to ascertain the patients wishes and feelings, his beliefs and values or the things which were important to him, these should be taken into account because they were a component in making the choice which was right for him as an individual human being [45]. However, by the time of the appeal there had been such a significant deterioration in Mr James condition that the time had indeed come when it was no longer in his best interests to provide the treatments. The prospect of his regaining even his previous quality of life was by then very slim. The Court of Appeal had therefore been correct to allow Aintrees appeal [46].

Nadine Montgomery gave birth to a baby boy on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire. As a result of complications during the delivery, the baby was born with severe disabilities. In these proceedings Mrs Montgomery seeks damages on behalf of her son for the injuries which he sustained. She attributes those injuries to negligence on the part of Dr Dina McLellan, a consultant obstetrician and gynaecologist employed by Lanarkshire Health Board, who was responsible for Mrs Montgomerys care during her pregnancy and labour. She also delivered the baby. Before the Court of Session, two distinct grounds of negligence were advanced on behalf of Mrs Montgomery. The first concerned her ante natal care. It was contended that she ought to have been given advice about the risk of shoulder dystocia (the inability of the babys shoulders to pass through the pelvis) which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section. The second branch of the case concerned the management of labour. It was contended that Dr McLellan had negligently failed to perform a caesarean section in response to abnormalities indicated by cardiotocograph (CTG) traces. The Lord Ordinary, Lord Bannatyne, rejected both grounds of fault: [2010] CSOH 104. In relation to the first ground, he based his decision primarily on expert evidence of medical practice, following the approach laid down by the majority in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. He also concluded that, even if Mrs Montgomery had been given advice about the risk of serious harm to her baby as a consequence of shoulder dystocia, it would have made no difference in any event, since she would not have elected to have her baby delivered by caesarean section. That decision was upheld by the Inner House (Lord Eassie, Lord Hardie and Lord Emslie): [2013] CSIH 3; 2013 SC 245. The appeal to this court has focused on the first ground of fault. The court has been invited to depart from the decision of the House of Lords in Sidaway and to re consider the duty of a doctor towards a patient in relation to advice about treatment. The court has also been invited to reverse the findings of the Lord Ordinary in relation to causation, either on the basis that his treatment of the evidence was plainly wrong, or on the basis that, instead of applying a conventional test of but for causation, he should instead have applied the approach adopted in the case of Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. Before considering those issues, we shall explain in greater detail the relevant facts and the approach adopted by the courts below. The facts Mrs Montgomery studied molecular biology at Glasgow University and graduated with a BSc. She then worked for a pharmaceutical company as a hospital specialist. She was described by the Lord Ordinary as a clearly highly intelligent person. Her mother and sister are both general medical practitioners. In 1999 Mrs Montgomery was expecting her first baby. She is of small stature, being just over five feet in height. She suffers from insulin dependent diabetes mellitus. Women suffering from diabetes are likely to have babies that are larger than normal, and there can be a particular concentration of weight on the babies shoulders. Because of her diabetes, Mrs Montgomerys was regarded as a high risk pregnancy requiring intensive monitoring. She therefore attended the combined obstetric and diabetic clinic at Bellshill Maternity Hospital, under the care of Dr McLellan, throughout her pregnancy. The widest part of a babys body is usually the head. If the head successfully descends through the birth canal, in a normal birth the rest of the body will descend uneventfully. Since the widest part of the body of a baby whose mother is diabetic may be the shoulders the head may descend but the shoulders can be too wide to pass through the mothers pelvis without medical intervention. This phenomenon, known as shoulder dystocia, is the prime concern in diabetic pregnancies which proceed to labour. It was described by Dr Philip Owen, an expert witness who gave evidence on behalf of the Board, as a major obstetric emergency associated with a short and long term neonatal and maternal morbidity [and] an associated neonatal mortality. That evidence is consistent with guidance issued by the Royal College of Obstetricians and Gynaecologists, which states that there can be a high perinatal mortality and morbidity associated with the condition, even when it is managed appropriately. Maternal morbidity is also increased: in 11% of cases of shoulder dystocia there is postpartum haemorrhage, and in 3.8% fourth degree perineal tears. The guidance advises that help should be summoned immediately when shoulder dystocia occurs. When the mother is in hospital this should include assistance from midwives, an obstetrician, a paediatric resuscitation team and an anaesthetist. According to the evidence in this case, about 70% of cases of shoulder dystocia can be resolved by what is known as a McRoberts manoeuvre. This involves two midwives or nurses taking hold of the mothers legs and forcing her knees up towards her shoulders, so as to widen the pelvic inlet by means of hyperflexion. An attempt can also be made to manoeuvre the baby by suprapubic pressure. This procedure involves the doctor making a fist with both hands and applying pressure above the mothers pubis, in order to dislodge the babys shoulder and push the baby down into the pelvis. Another procedure which may be attempted is a Zavanelli manoeuvre. This involves pushing the babys head back into the birth canal, to the uterus, so as to be able to perform an emergency caesarean section. Another possible procedure is a symphysiotomy. This is a surgical procedure which involves cutting through the pubic symphysis (the joint uniting the pubic bones), so as to allow the two halves of the pelvis to be separated. According to Dr McLellans evidence, in some cases the mother may be entirely unaware that shoulder dystocia has occurred. It is clear, however, that when shoulder dystocia happens and the mother knows of it, dealing with it is, at least, an unpleasant and frightening experience for her. It also gives rise to a variety of risks to her health. Shoulder dystocia also presents risks to the baby. The physical manoeuvres and manipulations required to free the baby can cause it to suffer a broken shoulder or an avulsion of the brachial plexus the nerve roots which connect the babys arm to the spinal cord. An injury of the latter type may be transient or it may, as in the present case, result in permanent disability, leaving the child with a useless arm. The risk of a brachial plexus injury, in cases of shoulder dystocia involving diabetic mothers, is about 0.2%. In a very small percentage of cases of shoulder dystocia, the umbilical cord becomes trapped against the mothers pelvis. If, in consequence, the cord becomes occluded, this can cause the baby to suffer from prolonged hypoxia, resulting in cerebral palsy or death. The risk of this happening is less than 0.1%. Mrs Montgomery was told that she was having a larger than usual baby. But she was not told about the risks of her experiencing mechanical problems during labour. In particular she was not told about the risk of shoulder dystocia. It is agreed that that risk was 9 10% in the case of diabetic mothers. Unsurprisingly, Dr McLellan accepted that this was a high risk. But, despite the risk, she said that her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia. She explained that this was because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small. She considered, therefore, that if the condition was mentioned, most women will actually say, Id rather have a caesarean section. She went on to say that if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and its not in the maternal interests for women to have caesarean sections. During her fortnightly attendances at the clinic, Mrs Montgomery underwent ultrasound examinations to assess foetal size and growth. The final ultrasound examination was on 15 September 1999, at 36 weeks gestation. Dr McLellan decided that Mrs Montgomery should not have a further ultrasound examination at 38 weeks, because she felt that Mrs Montgomery was becoming anxious as a result of the information revealed by the scans about the size of her baby. That sense of anxiety related to her ability to deliver the baby vaginally. Based on the 36 weeks ultrasound, Dr McLellan estimated that the foetal weight at birth would be 3.9 kilograms. She made that estimate on the assumption that the baby would be born at 38 weeks. This is important because Dr McLellan gave evidence that, if she had thought that the babys weight was likely to be greater than 4 kilograms, she would have offered Mrs Montgomery a caesarean section. In keeping with general practice Dr McLellan would customarily offer a caesarean section to diabetic mothers where the estimated birth weight is 4.5 kilograms. She decided to reduce that threshold to 4 kilograms in Mrs Montgomerys case because of her small stature. As Dr McLellan was aware, estimating birth weight by ultrasound has a margin of error of plus or minus 10%. But she decided to leave this out of account, stating that if you do that you would be sectioning virtually all diabetics. By the time of the 36 week examination, Dr McLellan had already made arrangements for Mrs Montgomerys labour to be induced at 38 weeks and 5 days. She accepted in evidence that she should have estimated the babys birth weight as at 38 weeks and 5 days, rather than 38 weeks, and that the estimated birth weight would then have been over 4 kilograms which was, of course, beyond the threshold that she herself had set. In the event, the baby was born on the planned date and weighed 4.25 kilograms. At the 36 week appointment, Dr McLellan noted that Mrs Montgomery was worried about [the] size of [the] baby. In her evidence, she accepted that Mrs Montgomery had expressed concern at that appointment about the size of the foetus and about the risk that the baby might be too big to be delivered vaginally. Dr McLellan also accepted that it was possible that Mrs Montgomery had expressed similar concerns previously. Certainly, she said, such concerns had been mentioned more than once. She stated that Mrs Montgomery had not asked her specifically about exact risks. Had Mrs Montgomery done so, Dr McLellan said that she would have advised her about the risk of shoulder dystocia, and also about the risk of cephalopelvic disproportion (the babys head becoming stuck). In the absence of such specific questioning, Dr McLellan had not mentioned the risk of shoulder dystocia, because, as we have already observed, it was her view that the risk of serious injury to the baby was very slight. In accordance with her practice in cases where she felt (in her words) that it was fair to allow somebody to deliver vaginally, Dr McLellan advised Mrs Montgomery that she would be able to deliver vaginally, and that if difficulties were encountered during labour then recourse would be had to a caesarean section. Mrs Montgomery accepted that advice. But if she had requested an elective caesarean section, she would have been given one. Mrs Montgomery said in evidence that if she had been told of the risk of shoulder dystocia, she would have wanted Dr McLellan to explain to her what it meant and what the possible risks of the outcomes could be. If she had considered that it was a significant risk to her (and, in light of what she had subsequently learned, she would have assessed it as such) she would have asked the doctor to perform a caesarean section. As we have explained, Dr McLellan gave evidence that diabetic patients who had been advised of the risk of shoulder dystocia would invariably choose the alternative of delivery by caesarean section. She also gave evidence that Mrs Montgomery in particular would have made such an election: since I felt the risk of her baby having a significant enough shoulder dystocia to cause even a nerve palsy or severe hypoxic damage to the baby was low I didnt raise it with her, and had I raised it with her then yes, she would have no doubt requested a caesarean section, as would any diabetic today. Mrs Montgomerys labour was induced by the administration of hormones, as Dr McLellan had planned. After several hours, labour became arrested. The strength of the contractions was then augmented by the administration of further hormones over a further period of several hours, so as to overcome whatever was delaying progress towards vaginal delivery. When the babys head nevertheless failed to descend naturally, Dr McLellan used forceps. At 5.45 pm the babys shoulder became impacted at a point when half of his head was outside the perineum. Dr McLellan had never dealt with that situation before. She described it as very stressful for Mrs Montgomery and for all the staff in theatre, including herself. Mr Peter Stewart, an expert witness led in support of Mrs Montgomerys case, described the situation as every obstetricians nightmare. An anaesthetist gave Mrs Montgomery a general anaesthetic so as to enable the Zavanelli manoeuvre (ie pushing the baby back into the uterus, in order to perform an emergency caesarean section) to be attempted. Dr McLellan decided however that she had no other option but to try to complete the delivery. She pulled the babys head with significant traction to complete the delivery of the head. In order to release the shoulders, she attempted to perform a symphysiotomy, and succeeded to some extent in cutting through the joint. No scalpels with fixed blades were available, however, and the blades she used became detached before the division of the joint had been completed. Eventually, with just a huge adrenalin surge, Dr McLellan succeeded in pulling the baby free, and delivery was achieved at 5.57 pm. During the 12 minutes between the babys head appearing and the delivery, the umbilical cord was completely or partially occluded, depriving him of oxygen. After his birth, he was diagnosed as suffering from cerebral palsy of a dyskinetic type, which had been caused by the deprivation of oxygen. He also suffered a brachial plexus injury resulting in Erbs palsy (ie paralysis of the arm). All four of his limbs are affected by the cerebral palsy. If Mrs Montgomery had had an elective caesarean section her son would have been born uninjured. Mr Stewart gave evidence that Dr McLellans failure to inform Mrs Montgomery of the risk of shoulder dystocia was contrary to proper medical practice, whether or not Mrs Montgomery had asked about the risks associated with vaginal delivery. In cross examination, however, counsel for the defender put the following question to him: And if Dr McLellan had said your baby appears to be on the 95th centile or whatever, so its borderline large, it's the top end of the normal size, its largish We know that you are diabetic. We know you are whatever height you are, we've estimated the size as best we can all the way through, there are risks but I don't think the baby is so big that vaginal delivery is beyond you and I think we should try for vaginal delivery and if anything comes up we will go to caesarean section. Now if that was the general tenor of the discussion, could you criticise that? I know it's very vague and it's very difficult because it's another hypothesis, Mr Stewart and I appreciate that but yes I would . are you able to answer that question? Mr Stewart replied that he was able to go along with that, with the caveat that you would then say to the patient, Are you happy with that decision?. Professor James Neilson, another expert witness led in support of Mrs Montgomerys case, gave evidence that, if she expressed concerns about the size of her baby, then it was proper practice to discuss the potential problems that could arise because of the babys size. That discussion would have included the risk of shoulder dystocia, and the option of an elective caesarean section. Dr Owen gave evidence that what had been said by Dr McLellan was an adequate response to Mrs Montgomerys expressions of concern about the size of her baby and her ability to deliver vaginally. Another expert witness led on behalf of the Board, Dr Gerald Mason, considered that it was reasonable not to have discussed shoulder dystocia with Mrs Montgomery, as the risks of a serious outcome for the baby were so small. Like Dr McLellan, he considered that, if doctors were to warn women at risk of shoulder dystocia, you would actually make most women simply request caesarean section. He accepted however that if a patient asked about risks then the doctor was bound to respond. The judgments of the courts below The Lord Ordinary was invited by counsel to accept that Mrs Montgomery should have been informed of the risk of shoulder dystocia if vaginal delivery was proposed and that she should have been advised about the alternative of delivery by caesarean section. He rejected that contention. Following the approach in Sidaway, he decided that whether a doctors omission to warn a patient of inherent risks of proposed treatment constituted a breach of the duty of care was normally to be determined by the application of the test in Hunter v Hanley 1955 SC 200, 206 or the equivalent Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587). It therefore depended on whether the omission was accepted as proper by a responsible body of medical opinion. In light of the expert evidence given on behalf of the Board (and Dr Stewarts evidence in cross examination), which could not be rejected as incapable of standing up to rational analysis (cf Bolitho v City and Hackney Health Authority [1998] AC 232, 241 243), that test was not met. The Lord Ordinary accepted, following the speech of Lord Bridge in Sidaway, that there might be circumstances, where the proposed treatment involved a substantial risk of grave adverse consequences, in which a judge could conclude, notwithstanding any practice to the contrary, that a patients right to decide whether to consent to the treatment was so obvious that no prudent medical practitioner could fail to warn of the risk, save in an emergency or where there was some other cogent clinical reason for non disclosure. The Lord Ordinary was referred to the way in which the matter had been put by Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53, para 21: was there a significant risk which would affect the judgment of a reasonable patient? That did not, in the Lord Ordinarys judgment, alter the test in Sidaway because he considered that, in order to be significant, a risk must be a substantial risk of grave adverse consequences. The circumstances of the present case did not in his view fall within the scope of that exception. Although there was a significant risk of shoulder dystocia, that did not in itself require a warning, since in the vast majority of . cases . shoulder dystocia was dealt with by simple procedures and the chance of a severe injury to the baby was tiny. The Lord Ordinary declined to follow the approach adopted in Jones v North West Strategic Health Authority [2010] EWHC 178 (QB), [2010] Med LR 90, a case on similar facts where it had been held that the risk of shoulder dystocia was in itself sufficiently serious for the expectant mother to be entitled to be informed. The Lord Ordinary also accepted, again following the speech of Lord Bridge in Sidaway, that a doctor must, when questioned specifically by a patient about risks involved in a particular treatment proposed, answer truthfully and as fully as the questioner requires. He held however that there had been no breach of that duty. He rejected Mrs Montgomerys evidence that she had asked Dr McLellan about the risks inherent in vaginal delivery and about other options. He accepted that Mrs Montgomery had raised concerns with Dr McLellan about her ability to deliver such a large baby vaginally: indeed, that was not in dispute. But the expression of such concerns did not in his opinion result in any duty to explain the risks involved. In order for a duty to explain the risks to arise, Mrs Montgomery would have had to have raised questions of specific risks involved in vaginal delivery. In her appeal to the Inner House of the Court of Session, Mrs Montgomery again argued that she ought to have been informed of the risk of shoulder dystocia, and should have been offered and advised about the alternative of delivery by caesarean section. The reclaiming motion was refused for reasons set out in an opinion delivered by Lord Eassie. Lord Eassie rejected the argument that there had been, in recent judicial authority (in particular, Pearce v United Bristol Healthcare NHS Trust), a departure from the approach adopted in Sidaway, so as to require a medical practitioner to inform the patient of any significant risk which would affect the judgment of a reasonable patient. The decision in Sidaway was understood by Lord Eassie as normally requiring only of a doctor, in advising a patient of risks, to follow the practice of a responsible body of medical practitioners. He accepted, in the light of the opinion of Lord Bridge in Sidaway, and the later case of Bolitho v City and Hackney Health Authority [1998] AC 232, that there might be exceptional cases in which the court should not regard as determinative medical practice as to what should be conveyed to the patient where the risk was so obviously substantial that the court could say that no practitioner could reasonably omit to warn the patient. This was not such a case, however. The relevant risk was not the possibility of shoulder dystocia occurring but the much smaller risk of a grave adverse outcome. The second limb of Mrs Montgomerys case in relation to the advice that she should have received was founded, as we have explained, on the observation of Lord Bridge in Sidaway that when questioned specifically by a patient about risks, it is the doctors duty to answer truthfully and as fully as the questioner requires. The Lord Ordinary had rejected Mrs Montgomerys evidence that she had repeatedly asked Dr McLellan about the risks of vaginal delivery. But it was argued on her behalf that her undisputed expression to her doctor of concerns about the size of her baby, and her ability to deliver the baby vaginally, was in substance a request for information about the risks involved in her delivering the baby vaginally, and was equally apt to trigger a duty to advise of the risks. This argument was also rejected. Lord Eassie stated that communication of general anxieties or concerns, in a manner which does not clearly call for the full and honest disclosure of factual information in reply, falls short of qualifying under Lord Bridge's observation. Mrs Montgomerys concerns had been of a general nature only. Unlike specific questioning, general concerns set no obvious parameters for a required response. Too much in the way of information . may only serve to confuse or alarm the patient, and it is therefore very much a question for the experienced practitioner to decide, in accordance with normal and proper practice, where the line should be drawn in a given case. Since the Lord Ordinary and the Extra Division both found that Dr McLellan owed no duty to Mrs Montgomery to advise her of any risk associated with vaginal delivery, the question of how Mrs Montgomery might have reacted, if she had been advised of the risks, did not arise. Both the Lord Ordinary and the Extra Division nevertheless dealt with the matter. The relevant question, as they saw it, was whether Mrs Montgomery had established that, had she been advised of the very small risks of grave adverse consequences arising from shoulder dystocia, she would have chosen to have a caesarean section and thus avoided the injury to the baby. The Lord Ordinary described the evidence in relation to this matter as being in fairly short compass, and said that it is as follows. He then quoted the passage in Mrs Montgomerys evidence which we have narrated at para 18. Mrs Montgomery was not challenged on this evidence. Notwithstanding that, the Lord Ordinary did not accept her evidence. He considered that because (1) the risk of a grave adverse outcome from shoulder dystocia was minimal, (2) the risks of an elective caesarean section would also have been explained to her, (3) Dr McLellan would have continued to advocate a vaginal delivery, and (4) Mrs Montgomery said in evidence that she was not arrogant enough to demand a caesarean section when it had not been offered to her, she would not have elected to have that procedure, even if she knew of the risks of shoulder dystocia. Before the Extra Division, counsel pointed out that the Lord Ordinary had purported to narrate the entire evidence bearing on this issue, but had omitted any reference to the evidence given by Dr McLellan that had she raised the risk of shoulder dystocia with Mrs Montgomery, then yes, she would have no doubt requested a caesarean section, as would any diabetic today. Lord Eassie considered however that this evidence was given in the context of a discussion about professional practice in the matter of advising of the risks of shoulder dystocia, rather than a focused consideration of the likely attitude and response of the pursuer as a particular individual. The fact that the Lord Ordinary did not refer to this evidence did not, in Lord Eassies view, betoken a failure to take into account material and significant evidence. As Lord Simonds had observed in Thomas v Thomas 1947 SC (HL) 45, 61; [1947] AC 484, 492, an appellate court was entitled and bound, unless there is compelling reason to the contrary, to assume that [the trial judge] has taken the whole of the evidence into his consideration. An alternative argument was advanced on behalf of Mrs Montgomery on the issue of causation. It was submitted that the response which the patient would have given to advice about risks, had she received it, should not be determinative. It was sufficient that a risk of grave adverse consequences, of which there was ex hypothesi a duty to advise, had in fact materialised. This submission was based on the House of Lords decision in Chester v Afshar. That was a case where the patient had undergone elective surgery which carried a small risk of cauda equina syndrome, about which she had not been advised. She developed the condition. The judge at first instance found that, had the claimant been advised of the risk, as she ought to have been, she would have sought advice on alternatives and the operation would not have taken place when it did. She might have agreed to surgery at a future date, in which event the operation would have involved the same small risk of cauda equina syndrome. The House of Lords held by a majority that causation was established. The Lord Ordinary declined to apply the approach adopted in Chester v Afshar, on the basis that the instant case was materially different on its facts. Lord Eassie also distinguished Chester from the present case. The birth of a baby could not be deferred: one was not in the area of truly elective surgery. Moreover, there was a specific, positive finding that Mrs Montgomery would not have elected to undergo a caesarean section if she had been warned about the risk of shoulder dystocia. Sidaway In Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, 638, the House of Lords approved the dictum of Lord President Clyde in Hunter v Hanley 1955 SC 200, 205, that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether she has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. Lord Scarman, in a speech with which the other members of the House agreed, stated (ibid): A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper. In that part of his speech, Lord Scarman followed the approach adopted in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, a case concerned with advice as well as with diagnosis and treatment, where McNair J directed the jury that a doctor was not guilty of negligence if she had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular article The question whether the same approach should be applied (as it had been, in Bolam itself) in relation to a failure to advise a patient of risks involved in treatment was considered by the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital which was, of course, decided in 1985, two years after the Maynard decision. In Sidaways case this question was approached by the members of the House in different ways, but with a measure of overlap. At one end of the spectrum was Lord Diplock, who considered that any alleged breach of a doctors duty of care towards his patient, whether it related to diagnosis, treatment or advice, should be determined by applying the Bolam test: The merit of the Bolam test is that the criterion of the duty of care owed by a doctor to his patient is whether he has acted in accordance with a practice accepted as proper by a body of responsible and skilled medical opinion . To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctors comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied. (pp 893, 895) Lord Diplock provided some reassurance to members of the judiciary: But when it comes to warning about risks, the kind of training and experience that a judge will have undergone at the Bar makes it natural for him to say (correctly) it is my right to decide whether any particular thing is done to my body, and I want to be fully informed of any risks there may be involved of which I am not already aware from my general knowledge as a highly educated man of experience, so that I may form my own judgment as to whether to refuse the advised treatment or not. No doubt if the patient in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know . (p 895) There was on the other hand no obligation to provide patients with unsolicited information about risks: The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. (p 895) At the other end of the spectrum was the speech of Lord Scarman, who took as his starting point the patients right to make his own decision, which may be seen as a basic human right protected by the common law (p 882). From that starting point, he inferred: If, therefore, the failure to warn a patient of the risks inherent in the operation which is recommended does constitute a failure to respect the patients right to make his own decision, I can see no reason in principle why, if the risk materialises and injury or damage is caused, the law should not recognise and enforce a right in the patient to compensation by way of damages. (pp 884 885) In other words, if (1) the patient suffers damage, (2) as a result of an undisclosed risk, (3) which would have been disclosed by a doctor exercising reasonable care to respect her patients right to decide whether to incur the risk, and (4) the patient would have avoided the injury if the risk had been disclosed, then the patient will in principle have a cause of action based on negligence. Lord Scarman pointed out that the decision whether to consent to the treatment proposed did not depend solely on medical considerations: The doctor's concern is with health and the relief of pain. These are the medical objectives. But a patient may well have in mind circumstances, objectives, and values which he may reasonably not make known to the doctor but which may lead him to a different decision from that suggested by a purely medical opinion. (pp 885 886) 47. 48. material, the doctor will not be liable if upon a reasonable assessment of his patient's condition he takes the view that a warning would be detrimental to his patient's health. 50. Lord Bridge of Harwich, with whom Lord Keith of Kinkel agreed, accepted that a conscious adult patient of sound mind is entitled to decide for herself whether or not she will submit to a particular course of treatment proposed by the doctor. He recognised the logical force of the North American doctrine of informed consent, but regarded it as impractical in application. Like Lord Diplock, he emphasised patients lack of medical knowledge, their vulnerability to making irrational judgments, and the role of clinical judgment in assessing how best to communicate to the patient the significant factors necessary to enable the patient to make an informed decision (p 899). 51. Lord Bridge was also unwilling to accept without qualification the distinction drawn by the Supreme Court of Canada, in Reibl v Hughes [1980] 2 SCR 880, between cases where the question is whether the doctor treated the patient in accordance with acceptable professional standards and cases concerned with the patients right to know what risks are involved in undergoing treatment. In Lord Bridges view, a decision what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgment (p 900). It followed that the question whether non disclosure of risks was a breach of the doctors duty of care was an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test (p 900; emphasis supplied). 52. Nevertheless, his Lordship qualified his adherence to the Bolam test in this context in a way which narrowed the gap between his position and that of Lord Scarman: But even in a case where, as here, no expert witness in the relevant medical field condemns the non disclosure as being in conflict with accepted and responsible medical practice, I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the ten per cent risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes, 114 DLR (3d) 1. In such a case, in the absence of some cogent 53. clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient's right of decision, could hardly fail to appreciate the necessity for an appropriate warning. (p 900) In relation to this passage, attention has tended to focus on the words a substantial risk of grave adverse consequences; and, in the present case, it was on those words that both the Lord Ordinary and the Extra Division concentrated. It is however important to note that Lord Bridge was merely giving an example (The kind of case I have in mind would be ) to illustrate the general proposition that disclosure of a particular risk [may be] so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. In relation to that proposition, it is also important to note, having regard to the last sentence in the passage quoted, that the standard is that of a doctor who recognises and respects his patients right of decision and is exercising reasonable care (ie is reasonably prudent). Reading the passage as a whole, therefore, the question for the judge is whether disclosure of a risk was so obviously necessary to an informed choice on the part of the patient that no doctor who recognised and respected his patients right of decision and was exercising reasonable care would fail to make it. So understood, Lord Bridge might be thought to arrive at a position not far distant from that of Lord Scarman. 54. Lord Bridge also said (at p 898): I should perhaps add at this point, although the issue does not strictly arise in this appeal, that, when questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor's duty must, in my opinion, be to answer both truthfully and as fully as the questioner requires. 55. Lord Templeman implicitly rejected the Bolam test, and approached the issue on the basis of an orthodox common law analysis. He noted, like Lord Diplock and Lord Bridge, the imbalance between the knowledge and objectivity of the doctor and the ignorance and subjectivity of the patient, but accepted that it was the right of the patient to decide whether or not to submit to treatment recommended by the doctor, and even to make an unbalanced and irrational judgment (p 904). In contract, it followed from the patients right to decide whether to accept proposed treatment that the doctor impliedly contracts to provide information which is adequate to enable the patient to reach a balanced judgment, subject always to the doctors own obligation to say and do nothing which the doctor is satisfied will be harmful to the patient (p 904). The obligation of the doctor to have regard to the best interests of the patient but at the same time to make available to the patient sufficient information to enable the patient to reach a balanced judgment (pp 904 905) also arose as a matter of a duty of care. Lord Templemans formulation of the doctors duty was, like Lord Scarmans, not confined to the disclosure of risks: the discussion of the possible methods of treatment (p 904), and therefore of reasonable alternatives to the treatment recommended, is also necessary if the patient is to reach a balanced judgment. 56. Lord Templeman thus arrived, by a different route, at an outcome not very different from that of Lord Scarman. Although Lord Scarman drew on the language of human rights, his reasoning was in substance the same as Lord Templemans: the doctors duty of care followed from the patients right to decide whether to undergo the treatment recommended. It would therefore be wrong to regard Sidaway as an unqualified endorsement of the application of the Bolam test to the giving of advice about treatment. Only Lord Diplock adopted that position. On his approach, the only situation, other than one covered by the Bolam test, in which a doctor would be under a duty to provide information to a patient would be in response to questioning by the patient. 57. 58. The significance attached in Sidaway to a patients failure to question the doctor is however profoundly unsatisfactory. In the first place, as Sedley LJ commented in Wyatt v Curtis [2003] EWCA Civ 1779, there is something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about. It is indeed a reversal of logic: the more a patient knows about the risks she faces, the easier it is for her to ask specific questions about those risks, so as to impose on her doctor a duty to provide information; but it is those who lack such knowledge, and who are in consequence unable to pose such questions and instead express their anxiety in more general terms, who are in the greatest need of information. Ironically, the ignorance which such patients seek to have dispelled disqualifies them from obtaining the information they desire. Secondly, this approach leads to the drawing of excessively fine distinctions between questioning, on the one hand, and expressions of concern falling short of questioning, on the other hand: a problem illustrated by the present case. Thirdly, an approach which requires the patient to question the doctor disregards the social and psychological realities of the relationship between a patient and her doctor, whether in the time pressured setting of a GPs surgery, or in the setting of a hospital. Few patients do not feel intimidated or inhibited to some degree. 59. There is also a logical difficulty inherent in this exception to the Bolam test, as the High Court of Australia pointed out in Rogers v Whitaker (1992) 175 CLR 479, 486 487. Why should the patients asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patients desire for the information, even if made known to the doctor, does not alter medical opinion. The exception, in other words, is logically destructive of the supposed rule. Medical opinion might of course accept that the information should be disclosed in response to questioning, but there would then be no exception to the Bolam test. 60. Lord Bridges other qualification of the Bolam test achieves an uneasy compromise, describing the issue as one to be decided primarily by applying the Bolam test, but allowing the judge to decide that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it, the reasonably prudent medical man being a doctor, recognising and respecting his patients right of decision. 61. Superficially, this resembles the qualification of the Bolam test subsequently stated by Lord Browne Wilkinson in Bolitho v City and Hackney Health Authority [1998] AC 232, 243: that notwithstanding the views of medical experts, the court may conclude that their opinion is incapable of withstanding logical analysis. Lord Browne Wilkinson however expressly confined his observations to cases of diagnosis and treatment, as distinct from disclosure of risk. In cases of the former kind, the court is concerned with matters of medical skill and judgment, and does not usually find a doctor guilty of negligence if she has followed a practice accepted as proper by a responsible body of doctors skilled in the relevant field. That is however subject to Lord Browne Wilkinsons qualification where the court is satisfied that the professional practice in question does not meet a reasonable standard of care. In cases concerned with advice, on the other hand, the application of the Bolam test is predicated on the view that the advice to be given to the patient is an aspect of treatment, falling within the scope of clinical judgment. The informed choice qualification rests on a fundamentally different premise: it is predicated on the view that the patient is entitled to be told of risks where that is necessary for her to make an informed decision whether to incur them. 62. The inherent instability of Lord Bridges qualification of the Bolam test has been reflected in a tendency among some judges to construe it restrictively, as in the present case, by focusing on the particular words used by Lord Bridge when describing the kind of case he had in mind (a substantial risk of grave adverse consequences), and even on the particular example he gave (which involved a 10% risk of a stroke), rather than on the principle which the example was intended to illustrate. The subsequent case law 63. In the present case, as in earlier cases, the Court of Session applied the Bolam test, subject to the qualifications derived from Lord Bridges speech. In England and Wales, on the other hand, although Sidaways case remains binding, lower courts have tacitly ceased to apply the Bolam test in relation to the advice given by doctors to their patients, and have effectively adopted the approach of Lord Scarman. 64. The case of Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 is particularly significant in this context. The case concerned an expectant mother whose baby had gone over term. Her consultant obstetrician took the view that the appropriate course was for her to have a normal delivery when nature took its course, rather than a caesarean section at an earlier date, and advised her accordingly. In the event, the baby died in utero. The question was whether the mother ought to have been warned of that risk. In a judgment with which Roch and Mummery LJJ agreed, Lord Woolf MR said (para 21): In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt. 65. In support of that approach, the Master of the Rolls referred in particular to the passage from Lord Bridges speech in Sidaway which we have quoted at para 52. In Lord Bridges formulation, as we have explained, the question for the judge was whether disclosure of a risk was so obviously necessary to an informed choice on the part of the patient that no doctor who recognised and respected his patients right of decision and was exercising reasonable care would fail to make it. In our view, the Master of the Rolls was correct to consider that a significant risk which would affect the judgment of a reasonable patient would meet that test. Lord Woolfs approach is also consistent with that adopted in Sidaway by Lord Templeman (information which is adequate to enable the patient to reach a balanced judgment), as well as with the test favoured by Lord Scarman (that a reasonable person in the patient's position would be likely to attach significance to the risk). It does not, on the other hand, have anything to do with the Bolam test. 66. The Extra Division correctly pointed out in the present case that Lord Woolf spoke of a significant risk, whereas Lord Bridge, when describing the kind of case he had in mind, had referred to a substantial risk. In so far as significant and substantial have different shades of meaning, significant is the more apt adjective. Lord Bridge accepted that a risk had to be disclosed where it was obviously necessary to an informed choice; and the relevance of a risk to the patients decision does not depend solely upon its magnitude, or upon a medical assessment of its significance. 67. The point is illustrated by the case of Wyatt v Curtis [2003] EWCA Civ 1779, which concerned the risk of around 1% that chickenpox during pregnancy might result in significant brain damage. The Court of Appeal applied the law as stated in Pearce, observing that it was no less binding on the court than Sidaway. Sedley LJ stated: Lord Woolfs formulation refines Lord Bridge's test by recognising that what is substantial and what is grave are questions on which the doctor's and the patient's perception may differ, and in relation to which the doctor must therefore have regard to what may be the patient's perception. To the doctor, a chance in a hundred that the patient's chickenpox may produce an abnormality in the foetus may well be an insubstantial chance, and an abnormality may in any case not be grave. To the patient, a new risk which (as I read the judge's appraisal of the expert evidence) doubles, or at least enhances, the background risk of a potentially catastrophic abnormality may well be both substantial and grave, or at least sufficiently real for her to want to make an informed decision about it. (para 16) 68. It is also relevant to note the judgments in Chester v Afshar. The case was concerned with causation, but it contains relevant observations in relation to the duty of a doctor to advise a patient of risks involved in proposed treatment. Lord Bingham of Cornhill said that the doctor in question had been under a duty to warn the patient of a small (1% 2%) risk that the proposed operation might lead to a seriously adverse result. The rationale of the duty, he said, was to enable adult patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies (para 5). Lord 69. Steyn cited with approval para 21 of Lord Woolf MRs judgment in Pearce. Lord Walker of Gestingthorpe referred to a duty to advise the patient, a warning of risks being an aspect of the advice (para 92). He also observed at para 92 that during the 20 years which had elapsed since Sidaways case, the importance of personal autonomy had been more and more widely recognised. He added at para 98 that, in making a decision which might have a profound effect on her health and well being, a patient was entitled to information and advice about possible alternative or variant treatments. In more recent case law the English courts have generally treated Lord Woolf MRs statement in Pearce as the standard formulation of the duty to disclose information to patients, although some unease has on occasion been expressed about the difficulty of reconciling that approach with the speeches of Lord Diplock and Lord Bridge in Sidaways case (see, for example, Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB)). Significantly, the guidance issued by the Department of Health and the General Medical Council has treated Chester v Afshar as the leading authority. Comparative law 70. The court has been referred to case law from a number of other major common law jurisdictions. It is unnecessary to discuss it in detail. It is sufficient to note that the Supreme Court of Canada has adhered in its more recent case law to the approach adopted in Reibl v Hughes, and that its approach to the duty of care has been followed elsewhere, for example by the High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479 and subsequent cases. 71. The judgment of Mason CJ, Brennan, Dawson, Toohey and McHugh JJ in Rogers v Whitaker identifies the basic flaw involved in approaching all aspects of a doctors duty of care in the same way: Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. (pp 489 490: original emphasis) 72. The High Court of Australia in Rogers also reformulated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. (p 490) 73. That is undoubtedly right: the doctors duty of care takes its precise content from the needs, concerns and circumstances of the individual patient, to the extent that they are or ought to be known to the doctor. In Rogers v Whitaker itself, for example, the risk was of blindness in one eye; but the plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks. Expressions of concern by the patient, as well as specific questions, are plainly relevant. As Gummow J observed in Rosenberg v Percival (2001) 205 CLR 434, 459, courts should not be too quick to discard the second limb (ie the possibility that the medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it) merely because it emerges that the patient did not ask certain kinds of questions. Conclusions on the duty of disclosure 74. The Hippocratic Corpus advises physicians to reveal nothing to the patient of her present or future condition, for many patients through this cause have taken a turn for the worse (Decorum, XVI). Around two millennia later, in Sidaways case Lord Templeman said that the provision of too much information may prejudice the attainment of the objective of restoring the patients health (p 904); and similar observations were made by Lord Diplock and Lord Bridge. On that view, if the optimisation of the patients health is treated as an overriding objective, then it is unsurprising that the disclosure of information to a patient should be regarded as an aspect of medical care, and that the extent to which disclosure is appropriate should therefore be treated as a matter of clinical judgment, the appropriate standards being set by the medical profession. 75. Since Sidaway, however, it has become increasingly clear that the paradigm of the doctor patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services. In addition, a wider range of healthcare professionals now provide treatment and advice of one kind or another to members of the public, either as individuals, or as members of a team drawn from different professional backgrounds (with the consequence that, although this judgment is concerned particularly with doctors, it is also relevant, mutatis mutandis, to other healthcare providers). The treatment which they can offer is now understood to depend not only upon their clinical judgment, but upon bureaucratic decisions as to such matters as resource allocation, cost containment and hospital administration: decisions which are taken by non medical professionals. Such decisions are generally understood within a framework of institutional rather than personal responsibilities, and are in principle susceptible to challenge under public law rather than, or in addition to, the law of delict or tort. 76. Other changes in society, and in the provision of healthcare services, should also be borne in mind. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular significance because it is required by laws premised on the ability of the citizen to comprehend the information provided. It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation, as Lord Diplock implicitly acknowledged by making an exception for highly educated men of experience. To make it the default assumption on which the law is to be based is now manifestly untenable. 77. These developments in society are reflected in professional practice. The court has been referred in particular to the guidance given to doctors by the General Medical Council, who participated as interveners in the present appeal. One of the documents currently in force (Good Medical Practice (2013)) states, under the heading The duties of a doctor registered with the General Medical Council: Work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients right to reach decisions with you about their treatment and care. 78. Another current document (Consent: patients and doctors making decisions together (2008)) describes a basic model of partnership between doctor and patient: The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice. The patient weighs up the potential benefits, risks and burdens of the various options as well as any non clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which one. (para 5) In relation to risks, in particular, the document advises that the doctor must tell patients if treatment might result in a serious adverse outcome, even if the risk is very small, and should also tell patients about less serious complications if they occur frequently (para 32). The submissions on behalf of the General Medical Council acknowledged, in relation to these documents, that an approach based upon the informed involvement of patients in their treatment, rather than their being passive and potentially reluctant recipients, can have therapeutic benefits, and is regarded as an integral aspect of professionalism in treatment. 80. 79. Earlier editions of these documents (Good Medical Practice (1998), and Seeking patients consent: The ethical considerations (1998)), in force at the time of the events with which this case is concerned, were broadly to similar effect. No reference was made to them however in the proceedings before the Court of Session. In addition to these developments in society and in medical practice, there have also been developments in the law. Under the stimulus of the Human Rights Act 1998, the courts have become increasingly conscious of the extent to which the common law reflects fundamental values. As Lord Scarman pointed out in Sidaways case, these include the value of self determination (see, for example, S (An Infant) v S [1972] AC 24, 43 per Lord Reid; McColl v Strathclyde Regional Council 1983 SC 225, 241; Airedale NHS Trust v Bland [1993] AC 789, 864 per Lord Goff of Chieveley). As well as underlying aspects of the common law, that value also underlies the right to respect for private life protected by article 8 of the European Convention on Human Rights. The resulting duty to involve the patient in decisions relating to her treatment has been recognised in judgments of the European Court of Human Rights, such as Glass v United Kingdom (2004) EHRR 341 and Tysiac v Poland (2007) 45 EHRR 947, as well as in a number of decisions of courts in the United Kingdom. The same value is also reflected more specifically in other international instruments: see, in particular, article 5 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, concluded by the member states of the Council of Europe, other states and the European Community at Oviedo on 4 April 1997. 81. The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a 82. person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patients entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctors role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved. 83. The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctors advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patients entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non medical considerations). Responsibility for determining the nature and extent of a persons rights rests with the courts, not with the medical professions. 84. Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients. 85. A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter. Deciding whether a person is so disinclined may involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. But the skill and judgment required are not of the kind with which the Bolam test is concerned; and the need for that kind of skill and judgment does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor. That is not to say that the doctor is required to make disclosures to her patient if, in the reasonable exercise of medical judgment, she considers that it would be detrimental to the health of her patient to do 86. so; but the therapeutic exception, as it has been called, cannot provide the basis of the general rule. It follows that the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctors duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test. It is unsurprising that courts have found difficulty in the subsequent application of Sidaway, and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar. There is no reason to perpetuate the application of the Bolam test in this context any longer. 87. The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77 73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patients position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. 88. The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patients health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions. 89. Three further points should be made. First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact sensitive, and sensitive also to the characteristics of the patient. 90. Secondly, the doctors advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctors duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form. 91. Thirdly, it is important that the therapeutic exception should not be abused. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests. 92. There are, of course, arguments which can be advanced against this approach: for example, that some patients would rather trust their doctors than be informed of all the ways in which their treatment might go wrong; that it is impossible to discuss the risks associated with a medical procedure within the time typically available for a healthcare consultation; that the requirements imposed are liable to result in defensive practices and an increase in litigation; and that the outcome of such litigation may be less predictable. 93. The first of these points has been addressed in para 85 above. In relation to the second, the guidance issued by the General Medical Council has long required a broadly similar approach. It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562 was no doubt received in a similar way by the manufacturers of bottled drinks. The approach which we have described has long been operated in other jurisdictions, where healthcare practice presumably adjusted to its requirements. In relation to the third point, in so far as the law contributes to the incidence of litigation, an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, in the event of an adverse outcome, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred. In relation to the fourth point, we would accept that a departure from the Bolam test will reduce the predictability of the outcome of litigation, given the difficulty of overcoming that test in contested proceedings. It appears to us however that a degree of unpredictability can be tolerated as the consequence of protecting patients from exposure to risks of injury which they would otherwise have chosen to avoid. The more fundamental response to such points, however, is that respect for the dignity of patients requires no less. The disclosure of risks in the present case 94. Approaching the present case on this basis, there can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section. The Court of Session focused upon the consequent risk that the baby might suffer a grave injury, a risk which was relatively small. The risk of shoulder dystocia, on the other hand, was substantial: on the evidence, around 9 10%. Applying the approach which we have described, the exercise of reasonable care undoubtedly required that it should be disclosed. Quite apart from the risk of injury to the baby (a risk of about 1 in 500 of a brachial plexus injury, and a much smaller risk of a more severe injury, such as cerebral palsy, or death), it is apparent from the evidence (summarised at paras 8 12 and 21 above) that shoulder dystocia is itself a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health. No woman would, for example, be likely to face the possibility of a fourth degree tear, a Zavanelli manoeuvre or a symphysiotomy with equanimity. The contrast of the risk involved in an elective caesarean section, for the mother extremely small and for the baby virtually non existent, is stark and illustrates clearly the need for Mrs Montgomery to be advised of the possibility, because of her particular circumstances, of shoulder dystocia. This conclusion is reinforced by Dr McLellans own evidence (summarised at paras 13 and 19 above), that she was aware that the risk of shoulder dystocia was likely to affect the decision of a patient in Mrs Montgomerys position, and that Mrs Montgomery herself was anxious about her ability to deliver the baby vaginally. 95. There is no question in this case of Dr McLellans being entitled to withhold information about the risk because its disclosure would be harmful to her patients health. Although her evidence indicates that it was her policy to withhold information about the risk of shoulder dystocia from her patients because they would otherwise request caesarean sections, the therapeutic exception is not intended to enable doctors to prevent their patients from taking an informed decision. Rather, it is the doctors responsibility to explain to her patient why she considers that one of the available treatment options is medically preferable to the others, having taken care to ensure that her patient is aware of the considerations for and against each of them. Causation 96. As we have explained, the Lord Ordinary found that, even if Mrs Montgomery had been informed of the risk of shoulder dystocia and had been told of the alternative of a caesarean section, she would not have elected to undergo that procedure. That finding was upheld by the Extra Division. 97. This court has reiterated in a number of recent cases, including McGraddie v McGraddie [2013] UKSC 58; 2014 SC (UKSC) 12; [2013] 1 WLR 2477 and Henderson v Foxworth Investments Ltd [2014] UKSC 41; 2014 SLT 775; [2014] 1 WLR 2600, that appellate courts should exercise restraint in reversing findings of fact made at first instance. As was said in Hendersons case at para 67, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified. It is in addition only in comparatively rare cases that this court interferes with concurrent findings of fact by lower courts. As Lord Jauncey of Tullichettle explained in Higgins v J & C M Smith (Whiteinch) Ltd 1990 SC (HL) 63, 82: Where there are concurrent findings of fact in the courts below generally this House will interfere with those findings only where it can be shown that both courts were clearly wrong. 98. As has been observed in the Australian case law, the issue of causation, where an undisclosed risk has materialised, is closely tied to the identification of the particular risk which ought to have been disclosed. In the present case, the Lord Ordinary focused on the risk of a severe injury to the baby, and said, in relation to causation: I have already said that the real risk of grave consequences arising should shoulder dystocia occur were very small indeed. Given the very small risks the first question must be for the court: has the pursuer established on the basis of the but for test, a link between the failure to advise her of said risks and damage to the child. Or to put the matter another way, has the pursuer established that had she been advised of the said risks she would have chosen a caesarean section and thus avoided the damage to the child? (emphasis supplied) 99. As we have explained, the Lord Ordinary described the evidence in relation to that matter as being in short compass, and said that it is as follows. He then quoted the passage in Mrs Montgomerys evidence which we have narrated at para 18. Having rejected that evidence as unreliable, he accordingly found that causation had not been established. 100. Like the Lord Ordinary, the Extra Division approached the question of causation on the basis that the relevant issue was what [Mrs Montgomery] would have done if advised of the risk of grave consequences arising should shoulder dystocia occur, rather than what she would have done if advised of the risk of shoulder dystocia, and of the potential consequences of that complication. As we have explained, counsel pointed out that the Lord Ordinary had purported to narrate the entire evidence bearing on the issue, but had omitted any reference to the evidence given by Dr McLellan that had she raised the risk of shoulder dystocia with Mrs Montgomery, then yes, she would have no doubt requested a caesarean section, as would any diabetic today (para 19 above). The Extra Division observed that that evidence had been given in the context of a discussion about professional practice in relation to advising of the risks of shoulder dystocia, rather than a focused consideration of the likely attitude and response of Mrs Montgomery. 101. That particular piece of evidence did not however stand alone. It was consistent with the evidence given by Dr McLellan to the effect that diabetic women in general would request an elective caesarean section if made aware of the risk of shoulder dystocia (para 13 above). Her position was that it was precisely because most women would elect to have a caesarean section if informed of the risk of shoulder dystocia (contrary, in her view, to their best interests), that she withheld that information from them. That was also consistent with the evidence of the Boards expert witness, Dr Gerald Mason, that if doctors were to warn women at risk of shoulder dystocia, you would actually make most women simply request caesarean section (para 25 above). 102. The Lord Ordinarys failure to refer to any of this evidence does not in our view fall within the scope of Lord Simondss dictum in Thomas v Thomas 1947 SC (HL) 45, 61, that an appellate court is entitled and bound, unless there is compelling reason to the contrary, to assume that [the trial judge] has taken the whole of the evidence into his consideration. That is an important observation, but it is subject to the qualification, unless there is compelling reason to the contrary. In the present case, the Lord Ordinary not only failed to refer to any of this evidence, but also made the positive statement that The evidence in relation to the [issue of causation] is in fairly short compass. It is as follows before quoting only the passage from the evidence of Mrs Montgomery. The apparent implication of that statement was that there was no other relevant evidence. Those circumstances constitute a compelling reason for concluding that there was a failure by the Lord Ordinary to consider relevant evidence; a failure which also affected the decision of the Extra Division. 103. More fundamentally, however, the consequence of our holding that there was a duty to advise Mrs Montgomery of the risk of shoulder dystocia, and to discuss with her the potential implications and the options open to her, is that the issue of causation has to be considered on a different footing from that on which it was approached by the Lord Ordinary and the Extra Division. They had in mind the supposed reaction of Mrs Montgomery if she had been advised of the minimal risk of a grave consequence. The question should properly have been addressed as to Mrs Montgomerys likely reaction if she had been told of the risk of shoulder dystocia. On that question, we have Dr McLellans unequivocal view that Mrs Montgomery would have elected to have a caesarean section. The question of causation must also be considered on the hypothesis of a discussion which is conducted without the patients being pressurised to accept her doctors recommendation. In these circumstances, there is really no basis on which to conclude that Mrs Montgomery, if she had been advised of the risk of shoulder dystocia, would have chosen to proceed with a vaginal delivery. 104. Approaching the issue of causation in that way, we have therefore concluded that the evidence points clearly in one direction. We have mentioned the passages in the evidence of Mrs Montgomery, Dr McLellan and Dr Mason in which the likely response of Mrs Montgomery, or of women in her position in general, if advised of the risk of shoulder dystocia, was discussed. We have also mentioned Dr McLellans evidence that Mrs Montgomery had been anxious about her ability to deliver the baby vaginally, and had expressed her concerns to Dr McLellan more than once. Although the Lord Ordinary expressed serious reservations about the extent to which Mrs Montgomerys evidence had been affected by hindsight, he had no such misgivings about Dr McLellan: she was found to be an impressive witness in relation to the informed consent aspect of the case, and her evidence was credible and reliable. In the light of that assessment, and having regard to her evidence in particular, the only conclusion that we can reasonably reach is that, had she advised Mrs Montgomery of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, Mrs Montgomery would probably have elected to be delivered of her baby by caesarean section. It is not in dispute that the baby would then have been born unharmed. 105. It is unnecessary in these circumstances to consider whether, if Mrs Montgomery could not establish but for causation, she might nevertheless establish causation on some other basis in the light of Chester v Afshar. Conclusion 106. For these reasons, we would allow the appeal. LADY HALE: 107. In the third (2010) edition of their leading work on Principles of Medical Law, Andrew Grubb, Judith Laing and Jean McHale confidently announced that a detailed analysis of the different speeches of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 was no longer necessary. A combination of the 2008 Guidance provided by the General Medical Council, the decision of the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 and the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134 meant that it could now be stated with a reasonable degree of confidence that the need for informed consent was firmly part of English law (para 8.70). This case has provided us with the opportunity, not only to confirm that confident statement, but also to make it clear that the same principles apply in Scotland. 108. It is now well recognised that the interest which the law of negligence protects is a persons interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body (the unwanted pregnancy cases are an example: see Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309). Thus, as Jonathan Herring puts it in Medical Law and Ethics (2012), 4th ed, p 170), the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patients right of autonomy. 109. An important consequence of this is that it is not possible to consider a particular medical procedure in isolation from its alternatives. Most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done: see the approach of the General Medical Council in Consent: patients and doctors making decisions together (2008), para 5, quoted by Lord Kerr and Lord Reed at para 77 and approved by them at paras 83 to 85. 110. Pregnancy is a particularly powerful illustration. Once a woman is pregnant, the foetus has somehow to be delivered. Leaving it inside her is not an option. The principal choice is between vaginal delivery and caesarean section. One is, of course, the normal and natural way of giving birth; the other used to be a way of saving the babys life at the expense of the mothers. Now, the risks to both mother and child from a caesarean section are so low that the National Institute for Health and Clinical Excellence (NICE clinical guideline 132, [new 2011] [para 1.2.9.5]) clearly states that For women requesting a CS, if after discussion and offer of support (including perinatal mental health support for women with anxiety about childbirth), a vaginal birth is still not an acceptable option, offer a planned CS. 111. That is not necessarily to say that the doctors have to volunteer the pros and cons of each option in every case, but they clearly should do so in any case where either the mother or the child is at heightened risk from a vaginal delivery. In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any after effects. One of the problems in this case was that for too long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth. 112. It was well recognised in 1999 that an insulin dependent diabetic mother could have a larger than average baby. This brings with it a 9 to 10% risk of mechanical problems in labour, either that the babys head will fail to descend or, worse still, that it will descend but the babys shoulders will be too broad to follow the head through the birth canal and will therefore get stuck. Desperate manoeuvres are then required to deliver the baby. As the Royal College of Obstetricians and Gynaecologists state in their Guideline No 42 on Shoulder Dystocia (2005), There can be a high perinatal mortality and morbidity associated with the condition, even when it is managed appropriately. Maternal morbidity increased, is also particularly postpartum haemorrhage (11%) and fourth degree perineal tears (3.8%), and their incidence remains unchanged by the manoeuvres required to effect delivery. No one suggests that this was not equally well known in 1999. The risk of permanent injury to the baby is less than the risk of injury to the mother, but it includes a very small risk of catastrophic injury resulting from the deprivation of oxygen during delivery, as occurred in this case. 113. These are risks which any reasonable mother would wish to take into account in deciding whether to opt for a vaginal delivery or a caesarean section. No doubt in doing so she would take serious account of her doctors estimation of the likelihood of these risks emerging in her case. But it is not difficult to understand why the medical evidence in this case was that, if offered a caesarean section, any insulin dependent pregnant woman would take it. What could be the benefits of vaginal delivery which would outweigh avoiding the risks to both mother and child? 114. We do not have a full transcript of the evidence, but in the extracts we do have Dr McLellan referred to explaining to a mother who requested a caesarean section why it may not be in the mothers best interest and later expressed the view that its not in the maternal interests for women to have caesarean sections. Whatever Dr McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter. Giving birth vaginally is indeed a unique and wonderful experience, but it has not been suggested that it inevitably leads to a closer and better relationship between mother and child than does a caesarean section. 115. In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear, as Lord Kerr and Lord Reed conclude at para 85, that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the natural and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide (St Georges Healthcare NHS Trust v S [1999] Fam 26). There is no good reason why the same should not apply in reverse, if she is prepared to forgo the joys of natural childbirth in order to avoid some not insignificant risks to herself or her baby. She cannot force her doctor to offer treatment which he or she considers futile or inappropriate. But she is at least entitled to the information which will enable her to take a proper part in that decision. 116. As NICE (2011) puts it, Pregnant women should be offered evidence based information and support to enable them to make informed decisions about their care and treatment (para 1.1.1.1). Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being. 117. These additional observations, dealing with the specific example of pregnancy and childbirth, are merely a footnote to the comprehensive judgment of Lord Kerr and Lord Reed, with which I entirely agree. Were anyone to be able to detect a difference between us, I would instantly defer to their way of putting it. I would allow this appeal. This is an important point. The relative importance attached by patients to quality as against length of life, or to physical appearance or bodily integrity as against the relief of pain, will vary from one patient to another. Countless other examples could be given of the ways in which the views or circumstances of an individual patient may affect their attitude towards a proposed form of treatment and the reasonable alternatives. The doctor cannot form an objective, medical view of these matters, and is therefore not in a position to take the right decision as a matter of clinical judgment. In Lord Scarmans view, if one considered the scope of the doctor's duty by beginning with the right of the patient to make her own decision whether she would or would not undergo the treatment proposed, it followed that the doctor was under a duty to inform the patient of the material risks inherent in the treatment. A risk was material, for these purposes, if a reasonably prudent patient in the situation of the patient would think it significant. The doctor could however avoid liability for injury resulting from the occurrence of an undisclosed risk if she could show that she reasonably believed that communication to the patient of the existence of the risk would be detrimental to the health (including the mental health) of her patient. It followed from that approach that medical evidence would normally be required in order to establish the magnitude of a risk and the seriousness of the possible injury if it should occur. Medical evidence would also be necessary to assist the court to decide whether a doctor who withheld information because of a concern about its effect upon the patients health was justified in that assessment. The determination of the scope of the doctors duty, and the question whether she had acted in breach of her duty, were however ultimately legal rather than medical in character. 49. Lord Scarman summarised his conclusions as follows (pp 889 890): To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient's position would be likely to attach significance to the risk. Even if the risk be

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The appellant, Nadine Montgomery, gave birth on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire. As a result of complications during delivery, her baby was born with serious disabilities. Mrs Montgomery sought damages on behalf of her son alleging negligence of the respondent Boards employee, Dr McLellan, who was responsible for her care during her pregnancy and labour. Mrs Montgomery has diabetes. Women with diabetes are more likely to have large babies and there is a 9 10% risk of shoulder dystocia during vaginal delivery (the babys shoulders being too wide to pass through the mothers pelvis). Though this may be resolved by emergency procedures during labour, shoulder dystocia poses various health risks to the woman and baby. Mrs Montgomery had raised concerns about vaginal delivery but Dr McLellans policy was not routinely to advise diabetic women about shoulder dystocia as, in her view, the risk of a grave problem for the baby was very small, but if advised of the risks of shoulder dystocia women would opt for a caesarean section, which was not in the maternal interest. Following the decision of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985], the Lord Ordinary held that whether a doctors omission to warn a patient of risks of treatment was a breach of her duty of care was normally to be determined by the application of the Bolam test (Bolam v Frierm Hospital Management Committee [1957] i.e., whether the omission was accepted as proper by a responsible body of medical opinion, which could not be rejected as irrational. Given the expert medical evidence for the Board, the Bolam test was not met. The Lord Ordinary accepted that where treatment involves a substantial risk of grave adverse consequences, in some cases a judge could conclude that a patients right to decide whether to consent to that treatment was so obvious that no prudent doctor could fail to warn of the risk. In the Lord Ordinarys view, the risk of shoulder dystocia, though significant, did not in itself require a warning since in most cases shoulder dystocia was dealt with by simple procedures and the chance of a severe injury to the baby was tiny. Following Sidaway, he also noted that if a patient asks about specific risks, the doctor must answer, but did not accept that Mrs Montgomery asked such questions. The Inner House of Session refused Mrs Montgomerys reclaiming motion and upheld the Lord Ordinarys conclusion. Since both courts held that no duty owed was to her, the issue of causation did not arise. Both nonetheless held that Mrs Montgomery had not shown that, had she been advised of the risk, she would have elected to undergo a caesarean, thus avoiding the risks to the baby. The Supreme Court unanimously allows the appeal. Lord Kerr and Lord Reed give the lead judgment with which Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson and Lord Hodge agree. Lady Hale gives a concurring judgment. Lord Kerr and Lord Reed find that since Sidaway, it has become clear that the paradigm of the doctor patient relationship implicit in the speeches in that case has ceased to reflect reality. It would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on information from doctors. This is reflected in the General Medical Councils guidance. Courts are also increasingly conscious of fundamental values such as self determination. [74 80] Societal and legal changes point towards an approach to the law which treats patients so far as possible as adults capable of understanding that medical treatment is uncertain of success and may involve risks, of accepting responsibility for risks affecting their lives, and of living with the consequences of their choices. This entails a duty on doctors to take reasonable care to ensure that a patient is aware of material risks inherent in treatment. Further, because the extent to which a doctor may be inclined to discuss risks with patients is not determined by medical learning or experience, applying the Bolam test to this question is liable to result in the sanctioning of differences in practice attributable not to divergent schools of thought in medicine, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients. [81 85] Lord Kerr and Lord Reed reason that an adult of sound mind is entitled to decide which, if any, of the available treatments to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in proposed treatment, and of reasonable alternatives. A risk is material if a reasonable person in the patients position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that their patient would be likely to attach significance to it. Three further points emerge: first, assessing the significance of a risk is fact sensitive and cannot be reduced to percentages. Second, in order to advise, the doctor must engage in dialogue with her patient. Third, the therapeutic exception is limited, and should not be abused. [86 91] In the present case, Dr McLellan ought to have advised Mrs Montgomery of the substantial risk of shoulder dystocia. The Court of Session focused on the relatively small consequent risk of grave injury to the baby. However, shoulder dystocia itself is a major obstetric emergency; the contrast with the tiny risks to the woman and baby involved in an elective caesarean is stark. [94] On causation, the courts below had in mind the supposed reaction of Mrs Montgomery if advised of the minimal risk to the baby of a grave injury consequent on shoulder dystocia. The lower courts should have focused on her likely reaction if advised of the risk of shoulder dystocia itself. Dr McLellans unequivocal view was that Mrs Montgomery would choose a caesarean if so advised; indeed that is precisely why she withheld that information. [101, 103] The Lord Ordinary considered the doctor to be an impressive witness. The only reasonable conclusion is that had Dr McLellan discussed dispassionately with Mrs Montgomery the risk of shoulder dystocia, the potential consequences, and the alternatives, she probably would have elected for a caesarean section. [104] Lady Hale reasons that it is impossible to consider a particular procedure in isolation from its alternatives. Pregnancy is a powerful illustration. Where either mother or child is at heightened risk from vaginal delivery, doctors should volunteer the pros and cons of that option compared to a caesarean. We are concerned not only with risks to the baby, but also risks to the mother. [109 114] Dr McLellans view that caesareans are not in maternal interests is a value judgment; once the argument departs from purely medical considerations, the Bolam test is inapposite. A patient is entitled to take into account her own values and her choices must be respected, unless she lacks capacity. She is at least entitled to information enabling her to take part in the decision. [114 115]

The Architects Registration Board ("ARB") The Solicitors Regulation Authority ("SRA") The Bar Standards Board ("BSB") The Farriers Registration Council The Law Society The Bar Council The Local Government Association Her Majesty's Treasury LORD MANCE: (with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Toulson agree) 1. The appellants, who I shall call Westminster City Council, are the licensing authority for sex establishments (including sex shops) in Westminster under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982. The respondents have at all material times been licensees in respect of some sex shops in Westminster. 2. The agreed statement of facts and issues records that an applicant for the grant or renewal of a sex establishment licence for any year had to pay a fee made up of two parts, one related to the administration of the application and non returnable, the other (considerably larger) for the management of the licensing regime and refundable if the application was refused. By way of example, for the year 2011/12 the total fee was 29,102, of which 2,667 related to the administration of the licence and was non returnable, while 26,435 related to the management of the licensing regime and was refundable if the application was refused. Refundable in this context clearly meant refundable in law. 3. The respondents, during the course of the proceedings before the Supreme Court, appeared to the court to be throwing some doubt on the agreed fact that the second part of the fee was refundable. However, not only was that agreed in the statement of facts and issues, but it was accepted by both courts below: see Keith Js judgment dated 16 May 2012, [2012] PTSR 1676, para 32 and the Court of Appeals judgment dated 24 May 2013, [2013] PTSR 1377, para 32. Further, the practice of refunding the second part of such a fee was recorded as long ago as 1985 in R v Westminster City Council, Ex p Hutton, tried and reported with R v Birmingham City Council, Ex p Quietlynn Ltd (1985) 83 LGR 461, 517. It is one which sex shop operators like the respondents must, on the face of it, have been aware of and have been able to enforce as a matter of public law. I see no basis in these circumstances for proceeding on any other basis. 4. The central issue is whether it was legitimate under domestic and/or European Union law for Westminster City Council to charge the 26,435 in 2011/12, or similarly refundable sums in other years. The respondents contend that it was not, essentially on the basis that these sums were, although refundable in the case of unsuccessful applicants, payable on account of the costs of enforcement of the licensing scheme which were unrelated to the costs of processing applications and should have been borne out of Westminster City Councils general funds and/or were, although payable on application by all applicants, sums which could only benefit successful applicants. I note that this was, of course, why they were refundable. 5. In domestic law, Westminster City Council relies upon paragraph 19 of Schedule 3 to the 1982 Act as authorising such fees. Paragraph 19 provides that: An applicant for the grant, renewal or transfer of a licence under this Schedule shall pay a reasonable fee determined by the appropriate authority. 6. Under this provision, it was established domestically some 30 years ago that a fee could be charged under paragraph 19 to reflect the costs not only of processing of applications but also of inspecting premises after the grant of licences and for what might be called vigilant policing in order to detect and prosecute those who operated sex establishments without licences: R v Westminster City Council, Ex p Hutton (1985) 83 LGR 516, quoted in the Court of Appeals judgment, para 13. 7. The correctness of this case law, as and when decided, is in my view unquestionable. I also have no doubt that it is, as a matter of domestic law, open to a licensing authority under paragraph 19 of Schedule 3 to require an applicant for the grant or renewal of a licence to pay a fee to cover the running and enforcement costs of a licensing scheme, and to make this fee payable either (a) outright, as and when the licence is actually granted pursuant to the application or (b) on a refundable basis, at the time when the application is lodged. The respondents contrary submission reads the wording of paragraph 19 over restrictively. 8. However, the respondents submit that, even if paragraph 19 is so read, the position has changed as a result of the making, under section 2 of the European Communities Act 1972, of the Provision of Services Regulations 2009 (SI 2009/2999) to give effect to Directive 2006/123/EC on services in the internal market. Regulation 18 of the 2009 Regulations provides: (2) Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must not (a) be dissuasive, or (b) unduly complicate or delay the provision of the service. (3) Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must be easily accessible. (4) Any charges provided for by a competent authority which applicants may incur under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities. Under regulation 4: authorisation scheme means any arrangement which in effect requires the provider or recipient of a service to obtain the authorisation of, or to notify, a competent authority in order to have access to, or to exercise, a service activity Paragraphs (2), (3) and (4) of regulation 18 implement article 13(2) of the Directive. Despite their reformulation, no one suggests that these paragraphs have any wider or different effect than article 13(2). Article 13(2) reads: Authorisation procedures and formalities shall not be dissuasive and shall not unduly complicate or delay the provision of the service. They shall be easily accessible and any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures. Article 13(2) is part of section 1, headed Authorisations in Chapter III of the Directive. Article 9, the first article in section 1, reads: Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied: (a) the authorisation scheme does not discriminate against the provider in question; (b) the need for an authorisation scheme is justified by an over riding reason relating to the public interest; (c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective. Article 4(6) contains this definition: authorisation scheme means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof Section 2 of Chapter III of the Directive, headed Requirements prohibited or subject to evaluation, specifies in article 14 various prohibited requirements, to compliance with which Member States may not make access to, or the exercise of, a service activity in their territory subject. One is an obligation to provide or participate in a financial guarantee or to take out insurance from a provider in their territory, but it is expressly provided that this shall not exclude a requirement to have insurance or a financial guarantee, or participate in a collective compensation scheme. Section 2 thus suggests that conditions attaching to the actual exercise of a service activity, once any necessary authorisation has been obtained, are a separate matter from the authorisation scheme and authorisation procedures and formalities. Similarly, Chapter IV, headed Free movement of services provides that Member States may not make access to or the exercise of a service activity in their territory subject to compliance with any requirements which do not respect general principles of non discrimination, necessity and proportionality set out in article 16(1) or which involve certain requirements set out in article 16(2). Again, this suggests that the actual regulation of access to or the exercise of a service activity is a distinct matter from any prior authorisation scheme and its procedures, with which section 1 of Chapter III is concerned. The courts below regarded article 13(2) as covering charges made to successful as well as unsuccessful applicants, and as preventing a licensing authority from charging those granted licences as well as unsuccessful applicants with the cost of investigating and prosecuting persons operating sex establishments in Westminster without a licence. On this basis, unsuccessful applicants could only be charged with the costs of dealing with their application (including investigating their suitability), while successful applicants could only be charged with similar costs, and, on any renewal, with the costs of monitoring and enforcing their compliance with their licence in the past. This would, inevitably, leave the licensing authority out of pocket in operating and enforcing the licensing scheme for the benefit of those obtaining licences, since the authority would have no recourse against any applicant for the costs of enforcing the scheme against the operators of unlicensed sex establishments, even though such enforcement was for the benefit of licensed operators. The authority would have to have recourse to any general funds which it might have, ie those raised in the case of Westminster City Council from rate or council tax payers or received from central government. What the remedy would be in the case of other regulatory or professional bodies which might have no general funds and no ability to raise funds in any such way is not clear. The Supreme Court has not only had the benefit of fuller and more refined arguments from the parties. It has also had the benefit of interventions by HM Treasury and a considerable number of regulatory or professional bodies, concerned about their ability to recover fees for enforcing other regulatory schemes, which might be regarded as similar to that presently under consideration. Westminster City Councils case has been put in two alternative ways. The first way is that the concept of authorisation procedures and formalities in article 13(2) can be interpreted widely enough to cover all aspects of the licensing scheme, including the costs of its enforcement against unlicensed operators. The second way is that article 13(2) (and so regulation 18) is concerned and concerned only with charges made in respect of authorisation procedures and their cost. The refundable charges which accompany any licence application do not relate to authorisation procedures or their cost. They relate to the running and enforcement of the licensing scheme for the benefit of those whose applications are successful; it is for that reason they are refundable to those whose applications are unsuccessful. I have no hesitation in rejecting the first way in which Westminster City Council puts its case. Article 13(2) is only concerned with authorisation procedures and formalities at the stage when a person is seeking permission to access or exercise a service activity. That is its natural meaning, read with the definition of authorisation scheme in article 4. Article 13(2) is not concerned with fees which may be required to be paid (eg annually) for the possession, retention or renewal of a licence, once the authorisation stage is satisfactorily past. The charges which the applicants may incur from their application to which article 13(2) refers cannot sensibly embrace fees of this nature payable by successful applicants for the licence or its retention or renewal after the authorisation stage. Nor can they in other language versions eg the French, where les charges qui peuvent en dcouler refers to charges arising from the procedures and formalities, and the German, where eventuelle dem Antragsteller mit dem Antrag entstehende Kosten refers to costs associated with the application. The respondents do not, as the court understands their position, quarrel with the conclusion expressed in para 15. It is also consistent with recitals 39 to 49 to the Directive, which are admissible as aids to its construction. These recitals include the following: (39) The concept of authorisation scheme should cover, inter alia, the administrative procedures for granting authorisations, licences, approvals or concessions, and also the obligation, in order to be eligible to exercise the activity, to be registered as a member of a profession or entered in a register, roll or database, to be officially appointed to a body or to obtain a card attesting to membership of a particular profession. Authorisation may be granted not only by a formal decision but also by an implicit decision arising, for example, from the silence of the competent authority or from the fact that the interested party must await acknowledgement of receipt of a declaration in order to commence the activity in question or for the latter to become lawful. (42) The rules relating to administrative procedures should not aim at harmonising administrative procedures but at removing overly burdensome authorisation schemes, procedures and formalities that hinder the freedom of establishment and the creation of new service undertakings therefrom. (43) One of the fundamental difficulties faced, in particular by SMEs (small and medium sized enterprises), in accessing service activities and exercising them is the complexity, length and legal uncertainty of administrative procedures. For this reason, following the example of certain modernising and good administrative practice initiatives undertaken at Community and national level, it is necessary to establish principles of administrative simplification, inter alia through the limitation of the obligation of prior authorisation to cases in which it is essential and the introduction of the principle of tacit authorisation by the competent authorities after a certain period of time elapsed. Such modernising action, while maintaining the requirements on transparency and the updating of information relating to operators, is intended to eliminate the delays, costs and dissuasive effects which arise, for example, from unnecessary or excessively complex and burdensome procedures, the duplication of procedures, the red tape involved in submitting documents, the arbitrary use of powers by the competent authorities, indeterminate or excessively long periods before a response is given, the limited duration of validity of authorisations granted and disproportionate fees and penalties. Such practices have particularly significant dissuasive effects on providers wishing to develop their activities in other Member States and require coordinated modernisation within an enlarged internal market of 25 Member States. Recital (49) also expressly contemplates that there can be fees of a supervisory body. It follows from paras 15 and 16 above that article 13(2) (and so regulation 18) is concerned and concerned only with charges made in respect of authorisation procedures and their cost, and that nothing in article 13(2) precludes a licensing authority from charging a fee for the possession or retention of a licence, and making this licence conditional upon payment of such fee. Any such fee would however have to comply with the requirements, including that of proportionality, identified in section 2 of Chapter III and section 1 of Chapter IV. But there is no reason why it should not be set at a level enabling the authority to recover from licensed operators the full cost of running and enforcing the licensing scheme, including the costs of enforcement and proceedings against those operating sex establishments without licences. In over long written submissions submitted after the hearing in response to a letter from the Court, the respondents have, however, emphasised that they do not accept that this enables a licensing authority to stipulate for the payment of such a fee on the grant or renewal of a licence in or as part of the application for a licence. Although the respondents did not develop their case in this way or identify any such typology, the logic of the respondents case must, as I understand it, be that article 13(2) precludes a licensing authority from operating a scheme of either of the following types: Type A: Applications for licences are made on terms that the applicant must pay: i) on making the application, the costs of the authorisation procedures and formalities, and on the application being successful, a further fee to cover the costs of the running and enforcement of the licensing scheme. ii) Type B: Applications for licences are made on terms that the applicant must pay: i) on making the application, the costs of the authorisation procedures and formalities at the same time, but on the basis that it is refundable if the application is unsuccessful, a further fee to cover the costs of the running and enforcement of the licensing scheme. ii) Westminster City Council has until now operated a scheme of type B, as set out in paras 2 and 3 above. The respondents case is that, under both types of scheme (A and B), the requirement to pay the further fee mentioned in sub paras (ii) above is an aspect of the authorisation scheme within the meaning of the Directive. In the case of a type A, I have no doubt that it is not. It is a mere provision that, if and when authorisation is successfully obtained, the actual grant or renewal of a licence will be subject to payment of a fee to cover enforcement costs. Once it is accepted (paras 15 to 17 above) that article 13(2) permits a licensing authority to levy on a successful applicant, in respect of the possession or retention of a licence, charges enabling the authority to recover the full cost of running and enforcing the scheme, it would be incongruous if an application could not refer to or include a requirement to pay such charges on the application being successful. The inclusion in the application of a requirement to pay a licence fee for the possession or retention of a licence, if the application is successful, does not turn that requirement into an authorisation procedure or formality or into a charge incurred from the application. It remains a licence fee incurred for the possession or retention of the licence. That leaves for consideration whether article 13(2) permits a scheme of type B. In the view of at least some members of the Court, this is more problematic. Under a scheme of type B, every applicant is required to pay up front even though on a refundable basis a sum which is referable not to the costs of handling the application, but to costs which will be incurred for the benefit only of successful applicants. This is a requirement which attaches to the application, not to its success. The question is whether it infringes article 13(2). The argument for treating article 13(2) as applicable to the requirement to pay the further fee mentioned in (ii) under a scheme of type B starts with the proposition that the requirement amounts to an authorisation procedure or formality. It is not suggested that the requirement could or would unduly complicate or delay the provision of the service. But, as the argument developed before the Supreme Court, two other points emerged: i) First, the respondents submit that a requirement to make even a refundable payment could have a potentially dissuasive effect on applicants. ii) Second, they submit that even a refundable payment constitutes a charge, and that such a charge infringes article 13(2) because it exceeds the cost, understood as the cost to Westminster City Council, of the procedures. The first point was not the subject of any submissions, evidence or investigation in the courts below, where the arguments were put more broadly. Whether something is dissuasive is on the face of it a question of fact and judgment. The refundable part of the fee payable on application is quite substantial, but sex shops are no doubt profitable or there would be no applicants, and the refundable part is a sum which anyone applying for a licence must be willing and able to pay for a licence. The Supreme Court was also informed by Mr Kolvin QC, counsel for the respondents, that it takes typically two months for an application to be decided, with the refund being then made if the application is refused; and that, if such a refusal is challenged by judicial review, any refund will await the outcome of the judicial review, which takes about six months. There is, on the material before the Supreme Court, no factual or evidential basis for a conclusion that a requirement to accompany an application with a payment refundable if the application fails could or would be likely to dissuade these or any other applicants from making any application for a sex establishment licence. I would not therefore accept the respondents submission on the first point. As to the second point, I agree that the reference in article 13(2) to the cost of the procedures means their cost to Westminster City Council. The question is therefore whether the requirement to make a payment refundable on failure of an application is a charge. When the application succeeds, the payment becomes due unconditionally. When the application fails, the payment is refundable and refunded. But is it a charge to have to advance the payment, in order to await one or other of these occurrences? Again, so far as this is a question of fact, there is no evidence that it cost these respondents, or any other applicants for sex establishment licences, anything to put up and make such payments during the period while any application was being considered. If the onus is on the respondents to establish that making such a payment on a refundable basis cost them anything, they have not done so. On the other hand, there might sometimes be a cost attached, eg by way of borrowing costs or even loss of interest. The questions thus arising are (1) whether the requirement to pay a fee including the second refundable part means, as a matter of law and without more, that the respondents incurred a charge from their applications which was contrary to article 13(2) in so far as it exceeded any cost to Westminster City Council of processing the application, or (2) whether a conclusion that such a requirement should be regarded as involving a charge or, if it is so to be regarded, a charge exceeding the cost to Westminster City Council of processing the application depends on the effect of further (and if so what) circumstances, for example: (a) any evidence establishing that the payment of the second refundable part involved or would be likely to involve an applicant in some cost or loss, (b) any saving in the costs to Westminster City Council of processing applications (and so in their non refundable cost) that would result from requiring an up front fee consisting of both parts to be paid by all applicants. No authority addressing these questions was cited to the Supreme Court, and the answers to them are in my view unclear. Accordingly, it is, I consider, necessary for the Court to make a reference to the Court of Justice in Luxembourg on this point. The respondents sought to raise further objections going outside their case under article 13(2) on the requirement to make up front a refundable payment on account of the costs of running and enforcing a licensing scheme for the benefit of licensed operators of sex establishments. The new objections are that to charge licensed operators with such costs was and is, as a matter of principle and/or on the facts of this case, disproportionate and/or contrary to articles 9(1)(c) and/or 16 of the Directive and/or contrary to articles 49 and/or 56 TFEU. These are new and wider allegations involving issues of fact and law, which could and should have been raised for consideration and adjudication in the courts below, and which are not now open to the respondents. I need say no more about them. It follows from the above that Westminster City Councils appeal should in my view succeed to an extent entitling it to a declaration that a scheme of type A is and would be consistent with regulation 18 of the Regulations and article 13(2) of the Directive. The question whether and when a scheme of type B is as a matter of law consistent with article 13(2) should be referred to the Court of Justice. I would invite the parties to make any proposals they may wish for any reformulation of the above questions within 14 days for the Supreme Courts consideration.

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In order to trade, sex shops in Westminster need a licence from Westminster City Council (Westminster) under schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, paragraph 19 of which provides that an applicant for the grant, renewal or transfer of a licenceshall pay a reasonable fee determined by the appropriate authority [1]. European Union law has placed limits upon the licence fees which can be charged. Article 13(2) of Directive 2006/123/EC, given domestic effect by regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999, provides that the authorisation procedures and formalities for applicants shall not be dissuasiveand any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures. Mr Hemming runs sex shops in the Westminster area under the name Simply Pleasure Ltd. Westminster has over past years required applicants for sex shop licences to pay with their applications a substantial sum (29,435 in 2011/12), broken down into a smaller amount (2,667 in 2011/12) relating to the processing of the application and a larger amount (26,435 in 2011/12) relating to the cost of administering and enforcing the licensing regime as a whole. The larger amount was refundable whenever an application failed [2]. Mr Hemming claims that this system was illegitimate under domestic and EU law. His primary case has been that there is no basis for requiring successful or unsuccessful applicants to meet the costs of administering and enforcing the regime. But he has also developed a secondary case, that there was no basis for requiring such costs to be paid with the applications, even on a refundable basis. The courts below agreed with Mr Hemmings primary case, holding that such costs had to be funded by an authority such as Westminster out of its general rates or other funds [4]. Westminster appeals to the Supreme Court, submitting that: (1) Under domestic law, paragraph 19 is wide enough to cover the fees it charged. (2) Under EU law, article 13(2) and regulation 18(4) are concerned only with charges made in respect of authorisation procedures and their cost. The refundable amounts are not a cost of the application but a cost of the application succeeding. (3) Alternatively, if that is wrong, then the authorisation procedures and formalities to which article 13(2) refers can be interpreted widely enough to include all aspects of the licensing scheme, including the costs of enforcing the scheme against unlicensed operators, so that the total sum required to be paid with applications can be regarded as a cost of such procedures and formalities. The Supreme Court, Lord Mance giving its unanimous judgment, allows the appeal in part but, on the critical question of whether it was lawful to require payment of the larger refundable amounts with the applications, makes a reference to the Court of Justice in Luxembourg. The Court concludes that: (1) Paragraph 19 of schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 enables a licencing authority to impose on an applicant a fee for the grant or renewal of a licence which covers the running and enforcement costs of the licensing scheme, to be payable either (a) at the time when the licence is granting; or (b) on a refundable basis, at the time when the application is lodged [7]. (2) Article 13(2) of Directive 2006/123/EC deals only with authorisation procedures and fees relating to applications for permission to access or exercise a service activity, such as operating a sex shop. It does not prevent the imposition on those who receive licences of proportionate charges to fund the cost of administering and enforcing the licensing regime [15] [17]. (3) As to the legitimacy of Westminsters system, it is helpful to distinguish between two types of scheme. Under Type A, applications for licences are made on terms that the applicant must, upon their application being granted, pay a fee to cover the cost of administering and enforcing the licensing regime. Under Type B, which represents the scheme actually adopted by Westminster, applications for licences are made on terms that the applicant must, at the time of making the application, pay a fee, refundable in the event that the application fails, to cover the cost of administering and enforcing the licensing regime [18]. (4) Type A schemes are permissible under regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999 and article 13(2) of Directive 2006/123/EC, because they permit a licensing authority to charge a successful applicant with a proportionate part of the cost of administering and enforcing the licensing regime as a whole [19]. (5) Whether article 13(2) also permits Type B schemes is more problematic, because payment is required to be made by every applicant, albeit on a potentially refundable basis, at the time when the application is made. There was no evidence that a Type B scheme could or would have a potentially dissuasive effect upon applicants but it remains unclear whether it involves in law a charge incurred from the application, contrary to article 13(2) [20] [24]. (6) A reference to the Court of Justice is therefore required on whether and when a Type B scheme is consistent with article 13(2). The parties are invited to make proposals on the wording of the question to be referred [25].

The central issue in this appeal is whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within the meaning of article 1(1) of the 1954 Convention relating to the Status of Stateless Persons) he was a person who is not considered as a national by any state under the operation of its law. If this issue is decided against him he also seeks to argue that the decision was disproportionate and therefore unlawful under European law. Background The appellant was born in Vietnam in 1983 and thus became a Vietnamese national. In 1989, after a period in Hong Kong, the family came to the UK, claimed asylum and were granted indefinite leave to remain. In 1995 they acquired British citizenship. Although none of them has ever held Vietnamese passports, they have taken no steps to renounce their Vietnamese nationality. The appellant was educated in this country and attended college in Kent. At 21 he converted to Islam. Between December 2010 and July 2011 he was in the Yemen, where, according to the security services but denied by him, he is said to have received terrorist training from Al Qaida. It is the assessment of the security services that at liberty he would pose an active threat to the safety and security of this country. That assessment has not yet been subject to judicial examination. On 22 December 2011 the Secretary of State served notice of her decision to make an order under section 40(2) of the British Nationality Act 1981 depriving the appellant of his British citizenship, being satisfied that this would be conducive to the public good. She considered that the order would not make him stateless (contrary to section 40(4)) because he would retain his Vietnamese citizenship. The order was made later on the same day and served on the appellant, followed by notice of her decision to deport him to Vietnam. Thereafter, the Vietnamese government has declined to accept him as a Vietnamese citizen. The United States of America have asked for him to be extradited to stand trial in that country. The Home Secretary certified that the request of the USA for the extradition of the appellant was valid. The appellant challenged the request before District Judge Nicholas Evans over several dates during July and October 2013. The District Judge rejected all grounds of challenge in a judgment handed down on 26 November 2013. The Home Secretary made her decision to order the extradition of the appellant on 22 January 2014 and the appellant appealed. The hearing before Aikens LJ and Simon J took place on 15 and 16 July 2014. The parties made further written submissions on 17 and 24 November 2014 and 1 December 2014. The Administrative Court gave its judgment on 12 December 2014, dismissing the appeal ([2014] EWHC 4167 (Admin). At para 91 Aikens LJ held that the issue of the appellants citizenship makes no difference to his relevant article 6 rights. The Administrative Court refused to certify a question of general public importance on 30th January 2015. Under the relevant provisions of the Extradition Act 2003, the appellant must be extradited within 28 days, that is, no later than 26 February 2015. The appeal proceedings On 13 January 2012 he appealed against the decision to remove his British citizenship on legal and factual grounds. His grounds of appeal asserted (inter alia) that he was married to a British citizen with a child, that he was of good character and was not linked to terrorism as claimed, and that the decision was incompatible with his rights under the European Convention on Human Rights. He also claimed that deprivation of British citizenship was prohibited by section 40(4) because it would render him stateless. This was on the grounds that Vietnamese law did not permit dual nationality, and accordingly his Vietnamese citizenship had been lost when he became a British citizen. The Secretary of State had certified (under section 40A(2)) that her decision had been taken in part in reliance on information, disclosure of which would be contrary to the public interest. His appeal accordingly lay to the Special Immigration Appeals Commission (SIAC): Special Immigration Appeals Commission Act 1997, section 2B. By section 4 of that Act the panel may consider not only whether the decision was in accordance with law, but also whether any discretion exercised by the Secretary of State should have been exercised differently. In June 2012 SIAC held a hearing to determine, as a preliminary issue, the issue of statelessness. On 29 June 2012 the panel allowed the appeal, holding that the effect of the Secretary of State's decision would be to render him stateless. On 24 May 2013 that decision was reversed by the Court of Appeal ([2013] EWCA Civ 616: Jackson, Lloyd Jones and Floyd LJJ), which remitted the case to SIAC for further consideration of the other grounds of appeal. SIAC had given a fully reasoned decision on the statelessness issue in an open judgment. As the Court of Appeal noted, it had supplemented its open decision with a separate short closed judgment, which the Court of Appeal had read at the request of the Secretary of State. Although the panel indicated that an appellate court would need to refer to the closed judgment fully to understand the reasons for our decision (para 2), the Court of Appeal found nothing in it which affected their conclusions in the case (para 22, per Jackson LJ). In this court neither party has invited us to look at the closed judgment nor suggested that the closed material contains anything which might affect our conclusions on the questions we have to decide. Consideration by SIAC SIAC noted the course of dealings between the British and Vietnamese governments in connection with the decision made in December 2011. Although there was evidence of discussions between the two governments beginning in October 2011, the panel found that no information about the identity, date and place of birth or alleged activities of the appellant was communicated to the Vietnamese government until 22 December. It continued: It is not suggested that the Vietnamese government then had any view about the status of the appellant. There have been extensive discussions between the British and Vietnamese governments about him since then, the relevant parts of which are analysed in the closed judgment. It is a fact that, despite being provided with those details, the Vietnamese government has not expressly accepted that the appellant is (and was on 22 December 2011) a Vietnamese citizen. For reasons explained in the closed judgment, we are satisfied that this omission is deliberate There is no evidence or suggestion that the Vietnamese government has taken any action since 22 December 2011 to deprive the appellant of Vietnamese citizenship. (paras 7 8) They were shown extracts of the relevant Vietnamese laws, and heard evidence from two Vietnamese lawyers, Ambassador Binh for the appellant and Dr Nguyen Thi Lang for the Secretary of State. It is unnecessary to do more than summarise the main points, which are not now in dispute. Following the end of the Vietnam war, North and South Vietnam were reunited in 1975, eight years before the appellant was born. At that time nationality was governed by Order 53, dating from 1945, which continued in force until 1988. Under that order children born in Vietnam automatically acquired Vietnamese citizenship. The order also provided (with one irrelevant exception) that a Vietnamese citizen would lose that nationality on acquiring foreign nationality, thus in effect prohibiting dual nationality. That order was replaced by the 1988 Nationality Law, which remained in force until 1998, and was therefore the operative law when the appellant acquired British citizenship in 1995. Article 3 of the 1988 Law provided: Recognition of a single nationality for Vietnamese citizens. The State of the Socialist Republic of Vietnam recognizes Vietnamese citizens as having only one nationality being Vietnamese. Unlike Order 53 the 1988 law did not in terms prohibit dual nationality. SIAC rejected the appellants submission that it did so by implication (para 10). It found further (para 17) that the possibility of dual citizenship was expressly acknowledged by a 1990 decree by the Council of Ministers, which made specific provision for Vietnamese citizens who concurrently hold another nationality. Ambassador Binh, who had played a part in drafting the 1988 legislation, gave evidence of the then policy to encourage the return of Vietnamese citizens who had left the country for political or economic reasons (para 15). Article 8 of the 1988 Law provided that a citizen might lose Vietnamese nationality in four defined circumstances: (1) being permitted to relinquish Vietnamese nationality, (2) being deprived of that nationality, (3) losing that nationality as a result of international treaties, or (4) losing Vietnamese nationality in other cases as provided for in this Law. Articles 9, 10, 12 and 14 provided further details of the four categories. Article 15 of the 1988 Law provided: 1. The Council of Ministers shall determine in all cases the granting, relinquishing, restoration, depriving and revoking of decisions to grant Vietnamese nationality. 2. Procedures for deciding all questions of nationality shall be determined by the Council of Ministers. The 1988 law was replaced by a new 1998 Nationality Law with effect from January 1999 (para 12). It contained similar provisions in respect of the loss of nationality. The State President was given sole power to determine nationality questions in individual cases. That law was replaced in turn by the 2008 Nationality Law with effect from July 2009. As the panel found (para 13) decision making power rested with the President; there was no provision for determination of any such issue by a court. The panel accepted, in line with the evidence of the expert for the Secretary of State, that on the basis of the legislative texts alone the appellant remained a Vietnamese citizen: None of the laws since 1988 have provided for automatic loss of Vietnamese citizenship on the acquisition of foreign citizenship. All contained provision for relinquishment with permission or deprivation. In each case, the Vietnamese state would play a determinative part: granting or withholding permission to relinquish and making a decision to deprive. Further, article 2 of the 1990 Decree expressly acknowledges the possibility of holding dual citizenship. There being no provision for automatic loss on acquiring foreign citizenship, the natural conclusion is that the effect of article 3 is only that the Vietnamese state will not recognise the foreign citizenship of a Vietnamese national.(para 17) However, in their view the issue could not be determined principally by reference to the text of the law. They accepted Ambassador Binhs evidence, from which they drew the following conclusions: The true position is that stated by Ambassador Binh: the 1988 law was deliberately ambiguous so as to permit the Executive to make whatever decisions it wished. It has, consistently, wished to encourage the return of prosperous and talented individuals of Vietnamese origin, for economic purposes and may even in recent years have encouraged the return of those with strong family connections. It has not, however, lost the ability, as a matter of Vietnamese law and/or state practice, to decline to acknowledge, as Vietnamese citizens, individuals of Vietnamese origin whose return it wishes to avoid. Now that the Vietnamese government has received adequate information about the appellant, we are satisfied that it does not consider him to be a Vietnamese national under the operation of its law. Its decision may to western eyes appear arbitrary. Nevertheless, for reasons which are more fully explained in the closed judgment, we are satisfied that that is the stance of the Vietnamese government. Given that both Vietnamese law and state practice give it that power, we must accept that it is effective. Accordingly, the answer to the preliminary question is that the decision of the Secretary of State to deprive the appellant of his citizenship on 22 December 2011 did make him stateless and so is not permitted under section 40(4) of the 1981 Act. (paras 18 19) On its face this was a conclusion about the position taken by the Vietnamese government subsequent to the relevant decision of the Secretary of State. On that basis, the decision of the Secretary of State would not itself have rendered him stateless at the time it was taken. To understand how the panel related their conclusion to the time of that decision, it is necessary to refer to an earlier passage where they explained their understanding of the issue before them: The precise question which we have to answer is whether, as at 22 December 2011, the state of Vietnam did or not consider the appellant to be a Vietnamese national under the operation of its law. That is not a question which can sensibly be answered by reference only to the inadequate information available to the Vietnamese government as at that date. On the facts of this case, the question must be answered by determining what the settled attitude of the Vietnamese government is to the appellants status now that it has all the information which it needs to form its view. (para 7) They considered and dismissed a submission by Mr Tam QC for the Secretary of State that if, under the relevant law, the appellant was a Vietnamese citizen on 22 December 2011, a subsequent decision by the Vietnamese government not to recognise that citizenship would mean that he was not de jure stateless when the deprivation order was made. They said: We do not accept that submission. We prefer and have applied the formulation set out above: to determine what the settled view of the Vietnamese government is, now that it knows the facts, and to apply it to the stance that it would have taken if it had known them on 22 December 2011. There is a reasonably close analogy with what might happen in a more conventional case. If, under the law of a state, nationality status was doubtful but was subsequently determined by a court of that state, SIAC would be bound to accept that the courts determination applied as at the date of deprivation even if, at that date, the position was unclear. (para 8) 19. The Court of Appeal The sole substantive judgment was given by Jackson LJ, with whom the other members of the court agreed. He discussed at some length the relevant legislative and non legislative materials relating to the 1954 Convention relating to the Status of Stateless Persons, including papers and reports produced in connection with a meeting of experts convened by the UNHCR in Prato, Italy in 2010. As will be seen, the availability to us of more up to date guidance from the UNHCR makes it unnecessary to comment in detail on his review of the earlier reports. Jackson LJs principal reasoning is found in paras 88 92 of the judgment: 88. The position under Vietnamese nationality law is tolerably clear. Mr Pham retained his Vietnamese nationality through all the events of the 1980s and the 1990s. The 2008 Law did not change Mr Pham's legal status. The fact that in practice the Vietnamese Government may ride roughshod over its own laws does not, in my view, constitute the operation of its law within the meaning of article 1.1 of the 1954 Convention. I accept that the executive controls the courts and that the courts will not strike down unlawful acts of the executive. This does not mean, however, that those acts become lawful. 91. The Vietnamese Government has now, apparently, decided to treat Mr Pham as having lost his Vietnamese nationality. They have reached this decision without going through any of the procedures for renunciation, deprivation or annulment of Vietnamese nationality as set out in the 2008 Law and its predecessors. I do not accept that this can be characterised as the position under domestic law as that phrase is used in para 18 of the Prato Report. 92. If the relevant facts are known and on the basis of those facts and the expert evidence it is clear that under the law of a foreign state an individual is a national of that state, then he is not de jure stateless. If the Government of the foreign state chooses to act contrary to its own law, it may render the individual de facto stateless. Our own courts, however, must respect the rule of law and cannot characterise the individual as de jure stateless. If this outcome is regarded as unsatisfactory, the remedy is to expand the definition of stateless persons in the 1954 Convention or in the 1981 Act, as some have urged. The remedy is not to subvert the rule of law. The rule of law is now a universal concept. It is the essence of the judicial function to uphold it. Statelessness 20. It is common ground that the term stateless in section 40(4) has the same meaning as in article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, which reads (in the English version): For the purpose of this Convention, the term stateless person means a person who is not considered as a national by any State under the operation of its law. As the introduction to the Convention makes clear, the French and Spanish versions are equally authentic to the English text. They read respectively: Aux fins de la prsente Convention, le terme apatride dsigne une personne qu'aucun tat ne considre comme son ressortissant par application de sa lgislation. A los efectos de la presente Convencin, el trmino aptrida designar a toda persona que no sea considerada como nacional suyo por ningn Estado, conforme a su legislacin. 21. As Jackson LJ explained (para 26ff), academic texts and international instruments on this subject have drawn a distinction between de jure and de facto statelessness: that is, between those who have no nationality under the laws of any state, and those who have such nationality but are denied the protection which should go with it. It is common ground that the definition in article 1 corresponds broadly to the former category, but equally that it is the words of the article itself which are determinative. Under the 1969 Vienna Convention on the Law of Treaties article 31(1), those words must be read in good faith and in the light of [the] object and purpose of the treaty. 22. The UN High Commissioner for Refugees (UNHCR) has a special role, as the designated body (under article 11 of the 1961 Convention on the Reduction of Statelessness) to which a person claiming the benefit of the Convention may apply for examination of the claim and for assistance in presenting it to the appropriate authority. The Court of Appeal referred to a report by its senior legal adviser, Hugh Massey, for a meeting of experts convened by the UNHCR in Prato in 2010, and to the report (Prato Report) which emerged from that meeting. However the Court of Appeal was not apparently referred to the guidelines published by the UNHCR in February 2012, following the Prato Report, nor to the guidance issued in May 2013 by the Secretary of State herself, based to a large extent on the UNHCR guidelines. 23. A further meeting of experts in Tunisia, convened by the UNHCR in autumn 2013, emphasised the need to respect the decision of the state whose nationality is in issue: 6. A Contracting State must accept that a person is not a national of a particular State if the authorities of that State refuse to recognize that person as a national. A Contracting State cannot avoid its obligations based on its own interpretation of another State's nationality laws which conflicts with the interpretation applied by the other State concerned. 24. We have the advantage of even more recent guidance from the UNHCR in the form of a handbook issued in June 2014, which draws on the results of the expert meetings and the earlier guidance. The following passage appears under the heading not considered as a national . under the operation of its law: Meaning of law The reference to law in article 1(1) should be read broadly to encompass not just legislation, but also ministerial decrees, regulations, orders, judicial case law (in countries with a tradition of precedent) and, where appropriate, customary practice. When is a person not considered as a national under a State's law and practice? Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual's case in practice and any review/appeal decisions that may have had an impact on the individual's status. This is a mixed question of fact and law. Applying this approach of examining an individual's position in practice may lead to a different conclusion than one derived from a purely formalistic analysis of the application of nationality laws of a country to an individual's case. A State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to law in the definition of statelessness in article 1(1) therefore covers situations where the written law is substantially modified when it comes to its implementation in practice. (paras 22 24) 25. A similar passage had appeared in the 2012 Guidelines (paras 15 17). This, we were told by Mr Tam on instructions, was the basis of the following paraphrase in the Secretary of States 2013 guidance: Establishing whether an individual is not considered as a national under the operation of its law requires an analysis of how a State applies its nationality laws in practice and has applied them to the individual, taking account of any review/appeal decisions that may have had an impact on the individual's status. The reference to by the operation of its law in the definition of a stateless person in article 1(1) is intended to refer to those situations where State practice does not follow the letter of the law. (p 10) If this wording was intended to imply that there is something in the word operation which justifies departure from the letter of the law, it is not to my mind an accurate reflection of the passage in the UNHCR text. That passage, as I read it, is suggesting, not that the law of the country is irrelevant, but 27. 28. rather that, having regard to the purpose of the article, the term law should be interpreted broadly as encompassing other forms of quasi legal process, such as ministerial decrees and customary practice. 26. The contrast is brought out in a later passage of the UNHCR handbook dealing specifically with the Impact of appeal/review proceedings: In instances where an individual's nationality status has been the subject of review or appeal proceedings, whether by a judicial or other body, its decision must be taken into account. In States that generally respect the rule of law, the appellate/review body's decision typically would constitute the position of the State regarding the individual's nationality for the purposes of article 1(1) if under the local law its decisions are binding on the executive. Thus, where authorities have subsequently treated an individual in a manner inconsistent with a finding of nationality by a review body, this represents an instance of a national's rights not being respected rather than the individual not being a national. A different approach may be justified in countries where the executive is able to ignore the positions of judicial or other review bodies (even though these are binding as a matter of law) with impunity. This may be the case, for example, in States where a practice of discriminating against a particular group is widespread through State institutions. In such cases, the position of State authorities that such groups are not nationals would be decisive rather than the position of judicial authorities that might uphold the nationality rights of such groups. (paras 47 48, emphasis added) In the first case, where a finding of nationality in respect of an individual has been made by a competent body under the relevant law, his status under the article is not affected by the fact that the finding may be ignored by the state authorities. The position is different, as in the second case, where there is a practice of discriminating against a particular group, regardless of the strict legal position. Such a practice, it seems, should be treated as equivalent to the operation of law under the article. I do not with respect find some of the UNHCR guidance easy to reconcile with the wording of the article itself, especially when regard is had to the equivalent expressions in the French or Spanish versions. The Spanish version in particular seems to indicate, perhaps even more clearly than the English or French versions, the need for conformity with a law of some kind. Furthermore, the reference to its law seems to imply that the starting point, at least, is the relevant national law where one exists. Thus in the present case, the relevant Vietnamese law since 1998 has taken the form of a detailed framework for decisions on the acquisition and loss of nationality. Admittedly decision making power has been conferred on the executive, and is not subject to court review. But it was expressed in article 15 of the 1988 Law, not as a general discretion, but as a power relating to the granting, relinquishing, restoration, depriving and revoking of decisions, thus apparently following the pattern of the more detailed provisions in the preceding articles. It is difficult to see how a process of consideration by the state which pays no regard at all to this legal framework could be said to be by operation of its law. 29. However, Mr Tam, as I understand him, does not seek on behalf of the Secretary of State to question the authority of the UNHCR guidance, nor to rely on any possible difference of emphasis between the three official versions of the text. It is appropriate therefore to take the guidance into account in considering the facts of the present case, without necessarily expressing a concluded view on its accuracy as a legal interpretation of the article. 30. Finally under this section I should note a submission of the intervener (the Open Society Justice Initiative) relying on international jurisprudence relating to human rights. It is sufficient to refer to one of the three cases cited, a decision of the European Court of Human Rights: Kuri v Slovenia (2012) 56 EHRR 20. It concerned Yugoslav citizens resident in Slovenia at the time of independence, but who failed to acquire Slovenian citizenship and whose names were erased from the register of permanent residents, thus making them stateless. It was not in dispute that the erasure and its repercussions amounted to an interference with the private or family life of the applicants under article 8 of the Convention (para 339). It was held that the domestic legal system had failed to regulate clearly the consequences of the erasure, and that it involved an interference which was not in accordance with the law as required by article 8(2) (para 346). This decision, unsurprising in its own context, was not concerned with the definition of statelessness in the The issues 31. The issues for this court, as set out in the agreed statement, are: i) When determining whether a person is considered as a national of a State under the operation of its law (as that phrase is used in article 1(1) of the 1954 Convention): a) Whether that question is to be decided by reference to the text of the nationality legislation of the State; or b) Whether the operation of the law of that State is to be taken to include the practice of the government to make decisions which cannot be challenged effectively in the courts. ii) When considering if it would be lawful to deprive a person of his British citizenship when that deprivation would entail loss by him of citizenship of the EU, whether such consideration falls within the ambit of EU law and whether any (and if so what) consideration must be given to the question of proportionality. iii) If so, whether it would necessarily be disproportionate and therefore unlawful under EU law to deprive the appellant of his British citizenship for the sole reason that the Vietnamese government does not consider the appellant to be a Vietnamese national under the operation of Vietnamese law, in circumstances in which the appellant has no other nationality. 32. Although these issues have been agreed by counsel for both parties, there is a question whether issues (ii) and (iii), involving reference to European law, are properly within the scope of the preliminary issue as directed by SIAC: that is, whether the Secretary of States decision was made in breach of section 40(4) of the British Nationality Act 1981. Issue (i) Interpretation of the 1954 Convention 33. Mr Southey QC for the appellant criticises the reasoning of Jackson LJ as being unduly influenced by concerns regarding the rule of law, and the lack of any process for court review of the decision of the executive in Vietnam. Such concerns, he says, were directly contrary to the approach advocated by the UNHCR guidance quoted above. That indicates that operation of its law in article 1(1) refers not to the letter of the law as such, but rather to its operation in practice, even in states where ordinary principles of the rule of law are ignored. 34. In the light of the guidance now available to us, but not to the Court of Appeal, these criticisms have some validity. It is clear that, as understood by the UNHCR at least, the term law is to be interpreted broadly as including ministerial decrees or practices, even if not subject to court review, and even where they appear to depart from the substance of the domestic law. Familiar principles of the rule of law, as it would be understood in this country, are not the governing consideration. 35. As I have said, the relevance of the UNHCR guidance is not in dispute. However, even the broadest interpretation suggested by those passages does not in my view provide sufficient support for SIACs reasoning. In the first place, all the various formulations imply, to my mind, that the state in some form has adopted a position or practice, either in the individual case, or in cases of an identifiable category of which it is part. There is nothing in the evidence relied on by SIAC which goes so far. The 1988 Law was deliberately ambiguous on the issue of dual nationality, to allow the Executive to make whatever decisions it wished. It was not suggested that, as at the date of the Secretary of States decision itself, the Vietnamese government had any view about the status of the appellant; nor was there any evidence or suggestion that that government had taken any action since 22 December 2011 to deprive the appellant of Vietnamese citizenship. All that could be said was that, despite being provided with the necessary information, the Vietnamese government has not expressly accepted that the appellant is (and was on 22 December 2011) a Vietnamese citizen, and that its omission to do so was deliberate. It is true that SIACs final conclusions as to the position of the Vietnamese government (para 19) were expressed rather in more positive terms: the panel was satisfied that it does not consider him to be a Vietnamese national under the operation of its law; that was referred to as its decision, albeit arbitrary to western eyes; and it was found to be the stance of the Vietnamese government, for reasons more fully explained in the closed judgment. I would normally hesitate to depart from such a finding without seeing the closed judgment on which it is said to be at least partly based. However, as already mentioned, the Court of Appeal having read the closed judgment found nothing of significance, nor were we invited by counsel for either party to look at the closed materials. The earlier findings by SIAC, summarised above, indicate that the appellant did not automatically lose his Vietnamese citizenship on acquiring British nationality, and that no action has been taken by the Vietnamese government, before or since 22 December 2011 to deprive him of that citizenship. Nor is there any evidence that the government issued a ministerial decree, or adopted any other form of practice or position which could be treated as equivalent to law, even in the broadest sense used by the UNHCR. Rather the implication is that it has simply 36. declined, no doubt for policy reasons, to make any formal decision on the appellants status, whether under the operation of its own nationality law or at all. 37. There is a further problem with the panels reasoning. It recognised that it was directly concerned with the position as at the date of the Secretary of States decision, by which time (on its own findings) no position of any kind could be attributed to the Vietnamese government. It sought to fill that gap by substituting the settled attitude of the government on that issue once it had the necessary information. It drew an analogy with a subsequent decision of a court on such status, which would take effect retrospectively. With respect to the panel, that comparison is misplaced. A court may indeed be given the function of determining status as at a particular date in the past. But there is nothing in the Vietnamese law to suggest that such a power was given to the executive under article 15 or its successors, nor in any event that it was purporting to make such a retrospective determination in this case. In conclusion on issue (i), I would accept that the question arising under article 1(1) of the 1954 Convention in this case is not necessarily to be decided solely by reference to the text of the nationality legislation of the state in question, and that reference may also be made to the practice of the government, even if not subject to effective challenge in the courts. However, there is in my view no evidence of a decision made or practice adopted by the Vietnamese government, which treated the appellant as a non national by operation of its law, even adopting the broadest view of those words as interpreted by the UNHCR; nor in any event of one which was effective at the date of the Secretary of States decision. The appeal under this ground must accordingly be dismissed. 38. Issues (ii) and (iii) application of European law 39. These issues raise a new question as to whether the Secretary of States decision fell with the ambit of European law, given that its effect would be to deprive him not only of British citizenship, but also of citizenship of the European Union; and if so what if any consideration must be given to the proportionality of the Secretary of States action under well established principles of European law. Ability to rely on European law would also, it is said, offer significant procedural advantages identified in ZZ (France) v Secretary of State for the Home Department [2013] QB 1136, which would not be available under domestic law. 40. The appellants case on proportionality, if it arises, can be shortly stated. As Mr Southey submits, it cannot be proportionate to deprive a person of their EU citizenship, in circumstances in which no other state will recognise them as a national so that they will be denied all the benefits of any citizenship anywhere. They are denied their right to rights. Further, the proportionality principle will be violated if there are less onerous means of achieving the same aim. Where no other state will accept the appellant as a national, there is no reason to think that the objective of removing him from this country will be achieved. The risk to national security is better addressed by other powers available to the Secretary of State to manage the risk, such as under the Terrorism Prevention and Investigation Measures Act 2011. 41. We were told by Mr Southey that these issues were not raised before the Court of Appeal, because they were thought to be foreclosed by the decision of the latter court in R (G1) v Secretary of State for the Home Department [2013] QB 1008. Although Mr Tam had not objected to their inclusion in the agreed statement, he submitted that, not having been identified by SIAC as issues for the preliminary hearing, they were not strictly open for consideration by us on this appeal. Furthermore, the issue of principle should not be considered in isolation from the factual issues relevant to proportionality, including the strength of the national security case. The intervener supports the appellants case on these issues, and further submits that if we are left in any doubt on the application of EU law we should make a reference to the Court of Justice. European citizenship Rights under the treaties 42. European citizenship is a relatively new concept, dating only from the entry into force of the Maastricht treaty in 1993. Its present statutory source is article 9 of the Treaty of the European Union (TEU) (replacing article 17(1), or before amendment article 8, of the EC Treaty), which provides: Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. Further provision is made by article 20 of the Treaty on the Functioning of the European Union (TFEU): 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. By TFEU article 20(2) citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. These rights include, inter alia, (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. Mr Southey also draws our attention to the rights conferred on European citizens by the Charter of Fundamental Rights of the European Union. European and domestic authorities 43. The relationship of European and national citizenship was considered by the European court in R v Secretary of State for the Home Department, Ex p Kaur (Case C192 99) [2001] All ER (EC) 250. The background was that, on its accession to the treaty in 1972, and again in revised form in 1982, the United Kingdom had made declarations as to the meaning of the term national as it was to be applied to this country. In 1992, for the purposes of the then Treaty on European Union, which first introduced the concept of EU citizenship, the Conference of the Representatives of the Governments of the Member States, adopted Declaration No 2, annexed to the Final Act of the Treaty: The Conference declares that, wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned 44. In Kaur the applicant was a Kenyan citizen of Asian origin, who had become a citizen of the United Kingdom and Colonies under the British Nationality Act 1948, but was not within the categories recognised as having a right of residence in this country under the Immigration Act 1971 or the British Nationality Act 1981, the terms of which were in this respect reflected respectively in the 1972 and 1982 declarations. It was held by the court that article 8 of the then treaty, under which any person holding the nationality of a Member State became a citizen of the Union, had to be interpreted taking account of the declarations. 45. The court referred to its decision in Micheletti v Delegacin del Gobierro en Cantabria (Case 369/90) [1992] ECR I 4239, para 10, in which it had held that, under international law, it was for each member state, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. Applying that principle, it was held that the 1972 declaration had been intended to clarify the scope ratione personae of the Community provisions which were the subject of the Accession Treaty and to define the United Kingdom nationals who would benefit from those provisions and, in particular, from the provisions relating to the free movement of persons. The UK declarations did not have the effect of depriving any person of rights to which that person might be entitled under community law; their consequence rather was that such rights never arose in the first place (paras 23 26). 46. This decision was distinguished in Case C 135/08 Rottmann v Freistaat Bayern [2010] ECR I 1449, [2010] QB 761, on which Mr Southey principally relies. In that case the applicant had automatically lost his original Austrian nationality when he moved to Germany and acquired nationality there by naturalisation, but he was subsequently deprived of the latter nationality because it had been obtained by deception. The question for the European court was whether the fact that the decision also deprived him of European citizenship meant that it had to be made in accordance with European principles, including that of proportionality. 47. The Advocate General recognised that, if the scope of the Treaty was not to be widened, national provisions relating to the acquisition and loss of nationality could not come within the scope of Community law solely on the ground that they may lead to the acquisition or loss of Union citizenship. However, he thought that a case would come within the scope of Community law if it involved a foreign element, that is, a cross border dimension. The present case, in his view, involved such a link with Community law because his loss of Austrian nationality arose from his exercise of rights of Union citizenship by moving to Germany (paras 10, 13). 48. The court agreed with the Advocate Generals conclusion that European law was engaged, but without so explicitly relying on the cross border element. The court reiterated the principle, established by Micheletti and other cases, that it was for each member state having due regard to Community law to lay down the conditions for the acquisition and loss of nationality (para 39); but this did not alter the fact that in situations covered by European Union law, the national rules concerned must have due regard to the latter (para 41). It continued: 42 It is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by article 17 EC and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law. 43 As the Court has several times stated, citizenship of the Union is intended to be the fundamental status of nationals of the Member States 44 Article 17(2) EC attaches to that status the rights and duties laid down by the Treaty, including the right to rely on article 12 EC in all situations falling within the scope ratione materiae of Union law . 45 Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law 46 In those circumstances, it is for the Court to rule on the questions referred by the national court which concern the conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status. 48 The proviso that due regard must be had to European Union law does not compromise the principle of international law previously recognised by the Court . that the Member States have the power to lay down the conditions for the acquisition and loss of nationality, but rather enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation such as that at issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law. 49. The court distinguished the case of Kaur on the grounds that, since she had not met the definition of a national of the United Kingdom, she could not be deprived of rights which he had never enjoyed; by contrast Dr Rottmann had unquestionably held Austrian and then German nationality and has, in consequence, enjoyed that status and the rights attaching thereto. (para 49) It held that withdrawal of naturalisation on account of deception was not objectionable in principle, but that it was for the national court to consider whether the decision in the particular case observes the principle of proportionality in respect of its consequences under both European and national law (para 55): 56 Having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality. 57 With regard, in particular, to that last aspect, a member state whose nationality has been acquired by deception cannot be considered bound, pursuant to article 17EC, to refrain from withdrawing naturalisation merely because the person concerned has not recovered the nationality of his member state of origin. 58 It is, nevertheless, for the national court to determine whether, before such a decision withdrawing naturalisation takes effect, having regard to all the relevant circumstances, observance of the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his member state of origin. 50. In R (G1) v Secretary of State the Secretary of State had made an order under section 40(2) depriving the appellant of British citizenship. He appealed to SIAC, but also brought judicial review proceedings (inter alia) alleging procedural unfairness under domestic and European Union law. Only the last point is relevant to the present appeal. As in this case, Mr Southey QC had relied on the judgment of the European court in Rottmann to justify importing procedural principles of EU law. Counsel for the Secretary of State argued that Rottmann was concerned with cross border movement, whereas the present case concerned a wholly internal situation (para 36). 51. Laws LJ (giving the leading judgment) found some difficulties with the reasoning in that case, in particular as to whether the cross border element was essential to the decision (para 37). This uncertainty betrayed a deeper difficulty which he explained as follows: 38. The distribution of national citizenship is not within the competence of the European Union. So much is acknowledged in Rottmann itself (para 39, cited by Advocate General Sharpston in her Opinion in Zambrano, para 94), as is the principle of international law . that the Member States have the power to lay down the conditions for the acquisition and loss of nationality (Rottmann para 48). Upon what principled basis, therefore, should the grant or withdrawal of State citizenship be qualified by an obligation to have due regard to the law of the European Union? It must somehow depend upon the fact that since the entry into force of the Maastricht Treaty in 1993 EU citizenship has been an incident of national citizenship, and citizenship of the Union is intended to be the fundamental status of nationals of the Member States (Rottmann para 43 and cases there cited). 39. But this is surely problematic. EU citizenship has been attached by Treaty to citizenship of the Member State. It is wholly parasitic upon the latter. I do not see how this legislative circumstance can of itself allocate the grant or withdrawal of State citizenship to the competence of the Union or subject it to the jurisdiction of the Court of Justice. Article 17(2) of the EC Treaty (Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby), referred to at para 44 of the Rottmann judgment, does not purport to have any such consequence. A generalised aspiration to the enjoyment of a fundamental status can surely carry the matter no further. In the result I am none the wiser as to the juridical basis of an obligation to have due regard to the law of the European Union in matters of national citizenship. 52. He found difficulty also in understanding the implications of the proposition (Rottmann para 48) that such decisions are amenable to judicial review carried out in the light of European Union law, in particular whether (as implied by paras 53, 55) this referred only to general principles of EU law, such as proportionality and the avoidance of arbitrary decision making, or as argued by Mr Southey included provisions of black letter EU law (para 40). He also referred to a citation from a more recent case, McCarthy v Secretary of State for the Home Department (Case C 434/09) [2011] All ER (EC) 729, para 45, that EU rules governing freedom of movement cannot be applied to situations which are confined in all relevant respects within a single Member State. 53. He concluded (with the agreement of his colleagues) that Rottmann could not be read as importing any part of Mr Southey's panoply of black letter EU law into the process of the appellant's appeal under section 40A, so that the effectiveness of the appellants remedies must be judged by reference to the standards of the common law (para 42). 54. Finally he raised an issue of competence under the EU treaty: The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution; for they identify the constitution's participants. If it appeared that the Court of Justice had sought to be the judge of any procedural conditions governing such matters, so that its ruling was to apply in a case with no cross border element, then in my judgment a question would arise whether the European Communities Act 1972 or any successor statute had conferred any authority on the Court of Justice to exercise such a jurisdiction. We have not heard argument as to the construction of the Acts of Parliament which have given the Court of Justice powers to modify the laws of the United Kingdom. Plainly we should not begin to enter upon such a question without doing so. That in my judgment is the course we should have to adopt if we considered that the Court of Justice, in Rottmann or elsewhere, had held that the law of the European Union obtrudes in any way upon our national law relating to the deprivation of citizenship in circumstances such as those of the present case. (para 43) I have quoted from the judgment at some length because it raises issues of general importance and some difficulty, which in agreement with Laws LJ I do not think are satisfactorily resolved by the judgment in Rottmann itself. Mr Southey relies also on more recent decisions of the European court (Zambrano v Office National de lemploi (Case C 34/09) [2011] ECR I 1177, Dereci v Bundesministerium fr Inneres (Case C 256/11) [2011] ECR I 11315) for the general proposition (citing Rottmann) that TFEU article 20 precludes national measures which have the effect of depriving citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union. This formulation, as he says, is not expressly limited to cross border rights. However, as Mr Eicke notes, the scope of Zambrano remains a matter of controversy in domestic case law (see, for example, Harrison v Home Secretary [2012] EWCA Civ 1736). It is sufficient for present purposes to say that none of the more recent European authorities provides clear answers to the questions raised by Laws LJ in G1. 55. Discussion 56. Issues (ii) and (iii) raise a number of difficult issues, which may require detailed consideration either in this court or in Europe. However, the prior question is whether the European law aspects are properly before us at all for decision. In my view they are not. The scope of the present appeal is limited by reference to the preliminary issue defined by SIAC by its order of 1 February 2012, which was confined to the narrow question of statelessness under section 40 of the 1981 Act, and made no mention of issues of European law. It is noteworthy that the grounds of appeal (dated 13 January 2012) raised questions of proportionality under the Convention on Human Rights, but made no mention of EU law. That omission cannot be ascribed to the decision of the Court of Appeal in G1 which came some months later (4 July 2012). Even at that stage, although SIAC may have been bound by the Court of Appeal decision as a matter of domestic law, that would not necessarily have precluded a request to it to make a reference itself to the European court to determine the application of European law if it thought it material to the resolution of the case (see R v Plymouth Justices, Ex p Rogers [1982] QB 863, 869 871). It seems clear that the issue of EU law would raise difficult issues, even before reaching the question of a reference to the European court. I see considerable force in the criticisms made by Laws LJ of some of the reasoning in Rottmann. In particular he raises the more fundamental issue of competence (para 54 above): that is, in his words, whether the European Communities Act 1972 or any successor statute had conferred any authority on the Court of Justice to exercise such a jurisdiction. In the light of his judgment, this is an issue which would need to be considered, in the Court of Appeal or this court, before it would become appropriate to consider a reference to the European court. 59. However, before that stage is reached, in my view, it is important that SIAC, as the tribunal of fact, should first identify the respects, if any, in which a decision on these legal issues might become necessary for disposal of the present case. Mr Southey relies in general terms on the EU requirement of proportionality, but he has not shown how (whatever its precise scope in EU law) it would differ in practice in the present case from the issue of proportionality already before SIAC under the European Convention, or indeed from principles applicable under domestic law. 57. 58. 60. In Kennedy v Charity Commission [2014] UKSC 20, [2014] 2 WLR 808, a majority of this court endorsed a flexible approach to principles of judicial review, particularly where important rights are at stake (see especially per Lord Mance, at paras 51 55). As Lord Mance said (para 51): The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so called Wednesbury principle. The nature of judicial review in every case depends on the context. The judgment also endorsed (para 54) Professor Paul Craigs conclusion (in The Nature of Reasonableness (2013) 66 CLP 131) that both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision makers view depending on the context. Those considerations apply with even greater force in my view in a case such as the present where the issue concerns the removal of a status as fundamental, in domestic, European and international law, as that of citizenship. 61. Mr Southey has suggested that the appellant might be able to take advantage of procedural safeguards available under EU law. It is true that in ZZ (France) v Secretary of State [2013] QB 1136 the European court lay down strict rules for limiting disclosure on grounds of national security. However, it is impossible for this court to judge in the abstract what practical effect that might have in this case, as compared to disclosure available under domestic or Convention law. That is best considered by SIAC, with access to all relevant material open and closed. 62. For these reasons, I would decline to answer the questions raised by issues (ii) and (iii). If an issue of proportionality under EU law is properly raised before SIAC by amendment of the present grounds of appeal, it would in my view be appropriate and helpful for SIAC to reach a view on its merits, even if only on a hypothetical basis. That would ensure that any future consideration by the higher courts will be informed by a clear understanding of the practical differences if any (substantive or procedural) from the remedies otherwise available. Conclusion 63. For these reasons I would dismiss the appeal and confirm the order of the Court of Appeal remitting the case to SIAC. LORD MANCE: (with whom Lord Neuberger, Lady Hale and Lord Wilson agree) Article 1(1) of the 1954 Convention 64. Under the British Nationality Act 1981 the Secretary of State may by order deprive a person of a citizenship status if satisfied that deprivation is conducive to the public good (section 40(2)), but may not make [such] an order if satisfied that the order would make a person stateless (section 40(4)). It is common ground that statelessness under section 40(4) must be equated with the concept as used in the Convention on the Status of Stateless Persons 1954, which binds the United Kingdom at the international level. The Secretary of State made an order purporting to deprive the appellant of his British citizenship under section 40(2) on 22 December 2011. The first question on this appeal is therefore whether on that date the appellant was, in the terms of article 1(1) of the 1954 Convention, a person who is not considered as a national by the state of Vietnam under the operation of its law or, to take the equally authentic French and Spanish versions par application de sa lgislation and conforme a su legislacon. 65. As Lord Carnwath points out (paras 22 29), the terms in which the UNHCR and the Secretary of State have given guidance about the meaning of these provisions do not fit easily with any of the authentic versions. Customary practice in the interpretation and application of the law may in some circumstances shape the content of the law itself. The guidance appears to go further, and to contemplate situations in which a state acts contrary to any conceivably legitimate interpretation of the law. 66. However, it is, as Lord Carnwath indicates (para 29), unnecessary on this appeal to express any concluded view on whether or how far practice may supersede law in relation to the concept of statelessness under article 1(1). The position under the terms of the relevant Vietnamese Nationality Law of 2008 is, I agree, clear: the appellant had Vietnamese nationality as at 22 December 2011. All that happened is that the Vietnamese Government has, when subsequently informed by the British Government of its intention to deport the appellant, declined to accept that he was or is a Vietnamese national. 67. Even if it could be said to have been the practice of the Council of Ministers to treat article 15 of the 2008 Law as enabling it, whenever it wishes, to override or ignore the four categories of situation in which that Law provides for loss of Vietnamese citizenship, that does not establish any practice covering individuals in the appellants position. SIAC was also wrong to consider that the Vietnamese Governments subsequent attitude could in some way feed back in time, to determine whether the appellant had Vietnamese citizenship on 22 December 2011. European citizenship 68. The appellant submits that we should address the significance of his citizenship of the European Union, which he will on the face of it lose if the Secretary of States order depriving him of British citizenship is valid. Article 20(1) TFEU provides that Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. The natural corollary is that loss of British citizenship entails loss of Union citizenship. 69. The appellant was effectively precluded below from relying on his Union citizenship, by reason of the Court of Appeals decision in R (G1) v Secretary of State for the Home Department [2013] QB 1008. The appellant submits that this decision was wrong; that the Secretary of States decision to (in effect) remove his Union citizenship falls within the scope of Union law; and that Union law imposes a pre condition of proportionality. He also submits that Union law offers another potentially relevant procedural benefit, indicated by the Court of Justices decision in (Case C 300/11) ZZ (France) v Secretary of State for the Home Department [2013] QB 1136. In that case, the Court of Justice held that, notwithstanding the special advocate procedure, the Secretary of State, when she proposes to exclude a person from the United Kingdom on grounds of national security, must communicate to that person the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence (para 69). The appellant argues that the same principle must govern the more severe sanction of withdrawal of citizenship. He submits, finally, that, if the Supreme Court is not prepared to accept his case on these points, it should and must at least make a reference to the Court of Justice for them to be clarified. 70. The Secretary of State takes issue with these submissions. She contends that Union citizenship depends on national citizenship, in the acquisition or loss of which the Union has no role. Further, she contends that, even when considering rights derived from Union citizenship, there must be some cross border element before Union law is engaged or gives rise to any such rights. In this latter respect, she points to the conclusion reached by this Court in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] 1 AC 271, para 59, that the core rights listed in article 20(2) TFEU (set out in para 84 below) all have a supra national element. 71. For reasons which will appear, I consider that it is unnecessary and inappropriate at least at this stage to resolve the disagreement between the parties about Union law, or to consider making any reference to the Court of Justice relating to it. The right course is to remit the matter to SIAC, with an indication that it should address the issues in the case on alternative hypotheses, one that the Court of Appeals decision in R (G1) v Secretary of State is correct, the other that it is incorrect. 72. My reasoning is as follows. The appellants case on Union law rests on two premises: the first is that Union law applies in some relevant respect to a decision by the Secretary of State to remove the appellants British citizenship and, second, assuming that it does, that it offers advantages over the relevant domestic law which could make the difference between upholding and setting aside the Secretary of States decision. 73. As to the first premise, the appellants case rests upon decisions by the Court of Justice indicating that, even though a case may not involve any cross border element, a decision may be contrary to Union law, if it would have the effect of depriving the relevant individual of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union: (Case C 34/09) Ruiz Zambrano v Office national demploi, para 42 and (Case C 434/09) McCarthy v Secretary of State for the Home Department [2011] ECR I 3375, para 47. This was explained in Case C 256/11 Dereci v Bundesministerium fr Inneres [2011] ECR I 11315, para 66 as referring to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national, but also the territory of the Union as a whole. 74. None of these cases was concerned with withdrawal of Union citizenship, as opposed to the rights attaching to such citizenship while it subsists. However, (Case C 135/08) Rottmann v Freistaat Bayern [2010] QB 761, decided a year before any of them, was concerned with a situation in which withdrawal of newly acquired German citizenship would lead to loss of Union citizenship, because Dr Rottmanns previously held Austrian citizenship would not automatically revive. In Rottmann the court said that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (para 43); it held that a Member State can withdraw national citizenship even though the effect was to withdraw Union citizenship, but that the decision to withdraw must have due regard to European Union law (para 45) and that any such withdrawal is conditional upon observance of the principle of proportionality (paras 55 and 59). The appellant relies on this as a general statement, establishing that withdrawal of national citizenship, at least because or if it would oblige him to leave the territory of the Union as a whole, is permissible only if and so far as would be compatible with principles of Union law, particularly proportionality and the procedural rule mentioned in para 69 above. In R (G1) Laws LJ, in reasons with which the whole court agreed, questioned the Court of Justices interpretation of the Treaties and left open its competence to restrict Member States control over those possessing their nationality in this way. He said (para 43): 75. The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution; for they identify the constitution's participants. If it appeared that the Court of Justice had sought to be the judge of any procedural conditions governing such matters, so that its ruling was to apply in a case with no cross border element, then in my judgment a question would arise whether the European Communities Act 1972 or any successor statute had conferred any authority on the Court of Justice to exercise such a jurisdiction. We have not heard argument as to the construction of the Acts of Parliament which have given the court powers to modify the laws of the United Kingdom. Plainly we should not begin to enter upon such a question without doing so. That in my judgment is the course we should have to adopt if we considered that the Court of Justice, in the Rottmann case or elsewhere, had held that the law of the European Union obtrudes in any way upon our national law relating to the deprivation of citizenship in circumstances such as those of the present case. 76. Laws LJs remarks in R (G1) recognise, correctly, that the question he raised is for a United Kingdom court, ultimately one of construction of a domestic statute, the European Communities Act 1972. That follows from the constitutional fact that the United Kingdom Parliament is the supreme legislative authority within the United Kingdom. European law is part of United Kingdom law only to the extent that Parliament has legislated that it should be. 77. When construing a domestic statute, United Kingdom courts apply a strong presumption that Parliament intends legislation enacted to implement this countrys European Treaty obligations to be read consistently with those obligations: see eg Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471. But it is not axiomatic that consistency is either always achievable or what Parliament intended or did achieve. 78. Advocate General Cruz Villalns recent Opinion in (Case C 62/14) Gauweiler v Deutscher Bundestag, 14 January 2015, paras 30 69 suggests that i) European law does not leave it open to any national court to adopt a criterion or benchmark for assessing the vires of a European act (which, presumably, would include a Court of Justice decision) different from that of the Court of Justice (para 53); ii) any reservation of identity, independently formed and interpreted by the competent often judicial bodies of the Member States would very probably leave the EU legal order in a subordinate position, at least in qualitative terms (para 60). 79. That looks at the matter from one angle. However, Advocate General Villaln added (para 61) that: a clearly understood, open, attitude to EU law should in the medium and long term give rise, as a principle, to basic convergence between the constitutional identity of the Union and that of each of the Member States. This recognises, perhaps, that Europe has not yet reached a situation where it is axiomatic that there is constitutional identity between the Union and its Members. 80. For a domestic court, the starting point is, in any event, to identify the ultimate legislative authority in its jurisdiction according to the relevant rule of recognition. The search is simple in a country like the United Kingdom with an explicitly dualist approach to obligations undertaken at a supranational level. European law is certainly special and represents a remarkable development in the worlds legal history. But, unless and until the rule of recognition by which we shape our decisions is altered, we must view the United Kingdom as independent, Parliament as sovereign and European law as part of domestic law because Parliament has so willed. The question how far Parliament has so willed is thus determined by construing the 1972 Act. 81. Sections 2(1) and 3(1) of the 1972 Act read: 2(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression enforceable EU right and similar expressions shall be read as referring to one to which this subsection applies. 3(1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court). 82. The breadth of sections 2(1) and 3(1) of the 1972 Act is notable. On one reading, they leave the scope of the Treaty within the sole jurisdiction of the Court of Justice as a question as to its meaning or effect. Nevertheless, this court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, paras 207 208 recognised the potential which exists for jurisdictional limits on the extent to which these sections confer competence on the Court of Justice over fundamental features of the British constitution. Questions as to the meaning and effect of Treaty provisions are in principle capable of being distinguished from questions going to the jurisdiction conferred on the European Union and its court under the Treaties: compare in a domestic context, the decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. The principle that the orders of a superior court of record are valid until set aside is not necessarily transposable to an issue of construction concerning the scope of sections 2(1) and 3(1) of the 1972 Act or the Treaty provisions and conferral competence referred to in those provisions. 83. The Treaty on European Union enshrines the principle of conferral at its outset in articles 4 and 5: Article 4 1. In accordance with article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State. Article 5 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. 84. In the present context, it is clearly very arguable that there are under the Treaties jurisdictional limits to European Union competence in relation to the grant or withdrawal by a Member State of national citizenship. Fundamental though its effects are where it exists, citizenship of the Union is under the Treaties a dependant or derivative concept it depends on or derives from national citizenship. That is clear from article 9 TEU and article 20 TFEU, providing: Article 9 In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. Article 20 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. 85. There is nothing on the face of the Treaties to confer on the EU, or on a Union institution such as the Court of Justice, any power over the grant or withdrawal by a Member State of national citizenship, even though such grant or withdrawal has under the Treaties automatic significance in terms of European citizenship. If further confirmation were necessary of the exclusive role of Member States in relation to such a grant or withdrawal, it is amply present in governmental declarations and a Council decision associated with the history and making of the Treaties. The relevance of such declarations and decision as an aid to construction of the Treaties was recently confirmed by the Court of Justice in its Opinion 2/13 dated 18 December 2014 on the draft agreement on the accession of the EU to the European Convention on Human Rights. 86. When the original Treaty on European Union was adopted and first introduced the concept of Union citizenship in 1992, the Conference of the Representatives of the Governments of Member States agreed by Declaration No 2 annexed to the Final Act (quoted by Lord Carnwath in para 43 above) that: wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. 87. This was reinforced also in 1992 by Council Decision concerning certain problems raised by Denmark on the Treaty of European Union (OJ 1992 C348, p 1). The Decision stated that: Citizenship The provisions of Part Two of the Treaty establishing the European Community relating to citizenship of the Union give nationals of the Member States additional rights and protection as specified in that Part. They do not in any way take the place of national citizenship. The question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned. Although the provisions of this Decision were stated to be arrangements which apply exclusively to Denmark and not to other existing or acceding Member States, it is difficult to regard a categorical statement about the interpretation of the Treaty as a mere arrangement or as irrelevant as an additional aid, if necessary, to understanding the limits of the competence conferred on the Community, or now Union. In any event, the position was again confirmed by United Kingdom Declaration No 63 annexed to the Final Act adopting the Treaty of Lisbon, which shaped the present Treaties. This stated that: 88. 63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term nationals In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term nationals with the exception that the reference to British Dependent Territories Citizens shall be read as meaning British overseas territories citizens. 89. The 1982 Declaration provided that the terms nationals, nationals of Member States or nationals of Member States and overseas countries and territories wherever used in the then European Treaties were to be understood as references to British citizens, British subjects by virtue of the British Nationality Act 1981 with a right of abode in the United Kingdom and citizens of British Dependant Territories whose citizenship was acquired from a connection with Gibraltar. 90. A domestic court faces a particular dilemma if, in the face of the clear language of a Treaty and of associated declarations and decisions, such as those mentioned in paras 86 89, the Court of Justice reaches a decision which oversteps jurisdictional limits which Member States have clearly set at the European Treaty level and which are reflected domestically in their constitutional arrangements. But, unless the Court of Justice has had conferred upon it under domestic law unlimited as well as unappealable power to determine and expand the scope of European law, irrespective of what the Member States clearly agreed, a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements, including in the case of the 1972 Act what jurisdictional limits exist under the European Treaties and upon the competence conferred on European institutions including the Court of Justice. It will be a very rare case indeed where any problem arises in this connection, and the recipe for avoiding any problem is that all concerned should act with mutual respect and with caution in areas where Member States constitutional identity is or may be engaged particularly so where, as in the present context, great care has been taken to emphasise this by declarations accompanying the relevant Treaty commitments. That reflects the spirit of co operation of which both the Bundesverfassungsgericht and this court have previously spoken. In the light of all these considerations the question posed by Laws LJ may well, at some future date, have to be considered and answered, in order to determine whether the first premise of the appellants case is correct. But I am satisfied that this is not the occasion to attempt any such task, unless and until the second premise is established and involves a conclusion that Union law not only offers advantages over the relevant domestic law governing removal of the appellants citizenship, but offers advantages which are or at least may be critical to the success of the appellants case. 92. 91. Proportionality and procedural benefit under Union law 93. I turn to the second premise that Union law offers potentially decisive advantages over domestic law, if and so far as it requires that (a) any withdrawal of citizenship having the effect of removing European citizenship and requiring the person affected to leave the Union should be measured against a yardstick of proportionality, and that (b) such withdrawal would also only be permissible in the case of removal of citizenship on grounds of national security if the person affected had been informed of and was able to address the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence. 94. In a judgment in Kennedy v Charity Commission [2014] UKSC 20, [2014] 2 WLR 808, paras 55 56, with which Lord Neuberger and Lord Clarke agreed, and with the reasoning in which I understand Lord Toulson also to have agreed (para 150), I concluded that there would be no real difference in the context of that case between the nature and outcome of the scrutiny required under common law and under article 10 of the Convention on Human Rights, if applicable. The judgment noted (para 51) that: The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so called Wednesbury principle. The nature of judicial review in every case depends on the context. 95. The judgment also endorsed (in para 54) Professor Paul Craigs conclusion (in The Nature of Reasonableness (2013) 66 CLP 131) that both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision makers view depending on the context and continued: The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law. Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context. In the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved. 96. In short, proportionality is as Professor Dr Lbbe Wolff (former judge of the Bundesverfassungsgericht which originated the terms modern use) put it in The Principle of Proportionality in the case law of the German Federal Constitutional Court (2014) 34 HRLJ 12, 16 17 a tool directing attention to different aspects of what is implied in any rational assessment of the reasonableness of a restriction, just a rationalising heuristic tool. She went on: Whether it is used as a tool to intensify judicial control of the state acts is not determined by the structure of the test but by the degree of judicial restraint practised in applying it. Whether under EU, Convention or common law, context will determine the appropriate intensity of review: see also Kennedy, para 54. 97. The present appeal concerns a status which is as fundamental at common law as it is in European and international law, that is the status of citizenship. Blackstone (Commentaries on the Laws of England Book I, p 137) states the position as follows: A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence. But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile, and transportation, are punishments at present unknown to the common law; The last two sentences of this passage were cited and approved by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, paras 43 44. In the same case, para 70, Lord Bingham identified the relevant principles by the following quotations, in terms with which the Secretary of State did not quarrel: Sir William Holdsworth, A History of English Law (1938), vol X, p 393, states: The Crown has never had a prerogative power to prevent its subjects from entering the kingdom, or to expel them from it. Laws LJ, in para 39 of his Bancoult (No 1) judgment which the Secretary of State accepted, cited further authority: For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen's dominions of which he is a citizen. Sir William Blackstone says in Commentaries on the Laws of England ,15th ed (1809), vol 1, p 137: 'But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal.' Compare Chitty, A Treatise on the law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject (1820), pp 18, 21. Plender, International Migration Law, 2nd ed (1988), ch 4, p 133 states: 'The principle that every state must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute ' and cites authority of the European Court of Justice in Van Duyn v Home Office (Case 41/74) [1975] Ch 358, 378 379 in which the court held that 'it is a principle of international law that a state is precluded from refusing its own nationals the right of entry or residence'. Dr Plender further observes, International Migration Law, p 135: 'A significant number of modern national constitutions characterise the right to enter one's own country as a fundamental or human right', and a long list is given. The same authorities were recently cited and applied by this court in Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604. 98. Removal of British citizenship under the power provided by section 40(2) of the British Nationality Act 1981 is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of judicial review must apply to any exercise of the power contained in section 40(2), and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy v Charity Commission, be both available and valuable for the purposes of such a review. If and so far as a withdrawal of nationality by the United Kingdom would at the same time mean loss of European citizenship, that is an additional detriment which a United Kingdom court could also take into account, when considering whether the withdrawal was under United Kingdom law proportionate. It is therefore improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law. On these points, I agree with what Lord Carnwath says in paras 59 60 of his judgment, as well as with what Lord Sumption says in paras 108 109 of his judgment. 99. As to the appellants case that Union law would or might entitle him to particulars of the essence of the case against him which he would not be able to obtain at common law, that raises both the question whether domestic law would also entitle him to whatever measure of protection Union law might entitle him and a potential question, if any difference exists, whether it could have any practical significance in this case. These questions should, at least in the first instance, only be addressed, if they arise, in the course of full consideration of the facts and issues by SIAC. Again, I agree with what Lord Carnwath says in para 61 of his judgment. 100. For these reasons, I too would dismiss the appeal and confirm the Court of Appeals order remitting the case to SIAC. LORD SUMPTION: (with whom Lord Neuberger, Lady Hale and Lord Wilson agree) 101. I agree that this appeal should be dismissed. I am not convinced that practice can stand for law in article 1(1) of the 1954 Convention, nor that any relevant practice was proved in this case. But I think that the answer to this appeal is simpler than that. Under section 40(4) of the British Nationality Act the Home Secretary was precluded from withdrawing Mr Phams British nationality only if he would thereby have been rendered stateless. That depends on whether he had Vietnamese nationality on 22 December 2011 when his British nationality was withdrawn. Since Mr Pham unquestionably had Vietnamese citizenship at the time of his birth in Vietnam, he must still have had it on 22 December 2011 unless something had happened to take it away. The government of Vietnam was entitled to withdraw his nationality, but no one suggests that they had done so, at any rate by the relevant date. In those circumstances, Mr Phams case on appeal depends upon the proposition that the statements of Vietnamese officials to British diplomats after 22 December 2011 (when the British government was hoping to deport him to Vietnam) were tantamount to a legally definitive declaration about his status on that date, with substantially the same effect as if it had been a declaration pronounced by a court of law. There is, however, a world of difference between saying that no court of law was in a position to control the Vietnamese governments statements or acts, and saying that the Vietnamese government was a court of law or was like one. There is some evidence for the former proposition but not for the latter. The statements did not purport to do anything other than state the Vietnamese governments position. They amounted to a refusal to treat Mr Pham as a Vietnamese citizen. Even if one were to assume that these statements conclusively determined Mr Phams nationality at the time that they were made, there is no basis on which they could relate back to an earlier date when the Vietnamese government knew nothing about Mr Pham and had no position one way or the other about his status. The judge may well have been right to say that they are good evidence of what the Vietnamese governments position would have been on 22 December 2011 if they had been asked on that date. But if they were not a court of law or like a court of law, and it is clear that they were not, that is irrelevant. It follows that if anyone has rendered Mr Pham stateless, it is not the Home Secretary on 22 December 2011 but the Vietnamese government thereafter. 102. I also agree that having determined that the Home Secretarys decision did not render Mr Pham stateless, this court should not deal with the remaining issues, but should remit them to SIAC. Not only are those issues no part of the preliminary issue which SIAC directed, but they are unsuitable for determination by this court in the absence of any of the relevant findings of fact and without the judgment of either court below. 103. I add a judgment of my own in order to address a point which was raised with counsel in the course of the hearing but not developed in argument, and which appears to me to be of some importance. One of the questions to be remitted to SIAC is the impact (if any) of EU law on the remaining issues raised by Mr Phams application. The main reason why this is said to matter is that if the withdrawal of Mr Phams British nationality was within the ambit of EU law it will be necessary to apply to the decision the principle of proportionality. This assumes that the principle of proportionality as it applies in EU law is liable to produce a different result in a case like this by comparison with ordinary principles of English public law. I question whether this is necessarily correct. 104. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at p 410, Lord Diplock envisaged the possibility that English law might adopt proportionality from continental systems of public law as an additional ground of review. In fact, the courts have applied a proportionality test to acts of public authorities said to contravene principles of European Union law and or to interfere with rights protected by the European Convention on Human Rights, both of which incorporate proportionality as an integral part of their test for legal justification. But they have not adopted proportionality generally as a principle of English public law. With the progressive enlargement of the range of issues which are affected by EU law or the Convention (or, increasingly, by both), this has produced some rather arbitrary distinctions between essentially similar issues, depending on the source of law which is invoked as a ground of challenge. The present case is a particularly striking illustration of this problem. If a person could be deprived of European citizenship as such, a test of proportionality would in principle have to be applied. On the other hand, if the matter turns wholly on domestic law and only the three traditional grounds of review recognised in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 are applied, then no test of proportionality would be applied. In fact, European citizenship is acquired or lost as the incidental consequence of acquiring or losing British citizenship. The Home Secretarys decision therefore affects Mr Phams status in both respects. It is hardly satisfactory to apply a proportionality test to the decision so far as it affects his European citizenship but not so far as it affects his British nationality when the decision is a single indivisible act. An alternative approach would be to regard European citizenship as a mere attribute of national citizenship. That would be consistent with the fact that it is wholly parasitic on national citizenship. But it is not consistent with some of the wider dicta of the Court of Justice of the European Union treating European citizenship as fundamental. 105. However, although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law. Starting with the decision of the House of Lords in Bugdaycay v Secretary of State for the Home Department [1987] AC 514 it has recognised the need, even in the context of rights arising wholly from domestic law, to differentiate between rights of greater or lesser importance and interference with them of greater or lesser degree. This is essentially the same problem as the one to which proportionality analysis is directed. The solution adopted, albeit sometimes without acknowledgment, was to expand the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality. 106. This approach was originally adopted in dealing with rights protected by the Convention, at a time when it did not have the force of law and the courts were unwilling to apply any presumption that domestic legislation was intended to be construed consistently with it. Many of these rights had been recognised at common law for many years, in some cases since the famous opening chapter of Blackstones Commentaries (The Rights of Persons). In Bugdaycay, the House of Lords recognised that a more exacting standard of review was required when the decision of a public authority interfered with a fundamental right. That case concerned the right to life, which is perhaps the most fundamental of all rights. But I doubt whether it is either possible or desirable to distinguish categorically between ordinary and fundamental rights, applying different principles to the latter. There is in reality a sliding scale, in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference. As Lord Bridge of Harwich observed in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, at pp 748 749, the courts are perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. In R v Ministry of Defence, Ex p Smith [1996] QB 517, the Court of Appeal adopted the following statement of principle from the argument of counsel (Mr David Pannick QC) at p 554: The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision maker. But in judging whether the decision maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above. This is in substance a proportionality test, but with the important difference that the court declined to judge for itself whether the decision was proportionate, instead asking itself whether a rational minister could think that it was. This is why when the case came before the European Court of Human Rights (Smith and Grady v United Kingdom (1999) 29 EHRR 493, at para 138) it was held that the test applied by the English courts was not sufficient to protect human rights. 107. The differences between proportionality at common law and the principle applied under the Convention were considered by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, at paras 27 28. In a passage with which the rest of the House of Lords associated itself, he identified three main differences: (i) a proportionality test may require the court to form its own view of the balance which the decision maker has struck, not just decide whether it is within the range of rational balances that might be struck; (ii) the proportionality test may require attention to be directed to the relative weight accorded to competing interests and considerations; and (iii) even heightened scrutiny at common law is not necessarily enough to protect human rights. The first two distinctions are really making the same point in different ways: balance is a matter for the decision maker, short of the extreme cases posited in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. But it may be questioned whether it is as simple as this. It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision maker was called on to make given the subject matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome. 108. Although the full facts have not yet been found, it seems likely that the outcome of this case will ultimately depend on the approach which the court takes to the balance drawn by the Home Secretary between Mr Phams right to British nationality and the threat which he presented to the security of the United Kingdom. A persons right in domestic law to British nationality is manifestly at the weightiest end of the sliding scale, especially in a case where his only alternative nationality (Vietnamese) is one with which he has little historical connection and seems unlikely to be of any practical value even if it exists in point of law. Equally, the security of this country against terrorist attack is on any view a countervailing public interest which is potentially at the weightiest end of the scale, depending on how much of a threat Mr Pham really represents and what (if anything) can effectually be done about it even on the footing that he ceases to be a British national. The suggestion that at common law the court cannot itself assess the appropriateness of the balance drawn by the Home Secretary between his right to British nationality and the relevant public interests engaged, is in my opinion mistaken. In doing so, the court must of course have regard to the fact that the Home Secretary is the statutory decision maker, and to the executives special institutional competence in the area of national security. But it would have to do that even when applying a classic proportionality test such as is required in cases arising under the Convention or EU law, a point which I sought to make in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] 3 WLR 1404, at paras 31 34. 109. Thus in Daly itself the Appellate Committee accepted that legal professional privilege in respect of documents in a prisoners cell might have to be qualified in the interest of allowing searches for the purpose of maintaining order and suppressing crime but it held the particular searches to be unlawful. This was because it thought that the concerns of the service were exaggerated and did not accept the evidence of the prison service that they were necessary: see Lord Bingham at paras 18 19. The result, as Lord Bingham pointed out, was the same in that case as if the Human Rights Act had been in force. Correspondingly, in other cases the strength of the justification or the breadth of the decision makers margin of judgment may be such that the facts would satisfy either test of proportionality. In Brind, restrictions on the broadcasting of statements by persons representing proscribed organisations were held to be lawful because of what the Appellate Committee regarded as the limited character of the restrictions by comparison with the important public interest in combatting terrorism. Professor Paul Craig has persuasively argued that a similar approach to rationality review is implicit in a substantial body of domestic case law extending over half a century, whether the rights engaged originate in domestic law or in EU or the Convention: The Nature of Reasonableness Review (2013) 66 CLP 131. As Lord Mance recently observed in Kennedy v Charity Commission [2014] 2 WLR 808, at para 51, the common law no longer insists on a single, uniform standard of rationality review based on the virtually unattainable test stated in Wednesbury. 110. I agree with the observations of Lord Mance and Lord Carnwath, which are to the same effect, and I understand a majority of the court to take the same view. For these reasons, it would assist the future course of these proceedings if in dealing with the remaining issues SIAC were to take the common law test as its starting point and then say in what respects (if any) its conclusions are different applying article 8 of the Human Rights Convention or EU law. It may well turn out that in the light of the context and the facts, the juridical source of the right made no difference. 111. I also agree with the important reservations which Lord Mance has expressed about the relevance of EU law to questions of national citizenship. LORD REED: 112. I agree with the judgment of Lord Carnwath. There is also much in the judgments of Lord Mance and Lord Sumption with which I agree, including Lord Mances observations about EU law and British nationality. I add some observations on the question of the relationship between reasonableness and proportionality as principles of domestic administrative law, as I would prefer to express my thoughts on that issue in my own words. It should be made clear at the outset that this important and difficult question has not been the subject of detailed argument. In the circumstances, I shall say no more than is necessary to assist SIAC when the case returns to that tribunal. 113. It may be helpful to distinguish between proportionality as a general ground of review of administrative action, confining the exercise of power to means which are proportionate to the ends pursued, from proportionality as a basis for scrutinising justifications put forward for interferences with legal rights. 114. In the first context, there are a number of authorities in which a finding of unreasonableness was based upon a lack of proportionality between ends and means. Examples include Hall & Co Ltd v Shoreham by Sea Urban District Council [1964] 1 WLR 240 and R v Barnsley Metropolitan Borough Council, Ex p Hook [1976] 1 WLR 1052. There are also authorities which make it clear that reasonableness review, like proportionality, involves considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision makers view depending on the context. The variable intensity of reasonableness review has been made particularly clear in authorities, such as R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, and R v Ministry of Defence, Ex p Smith [1996] QB 517, concerned with the exercise of discretion in contexts where fundamental rights are at stake. The rigorous approach which is required in such contexts involves elements which have their counterparts in an assessment of proportionality, such as that an interference with a fundamental right should be justified as pursuing an important public interest, and that there should be a searching review of the primary decision makers evaluation of the evidence. 115. That is not to say that the Wednesbury test, even when applied with heightened or anxious scrutiny, is identical to the principle of proportionality as understood in EU law, or as it has been explained in cases decided under the Human Rights Act 1998. In R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, Lord Steyn observed at para 26, with the agreement of the other members of the House of Lords, that there was a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality in cases where Convention rights were at stake. In Brind, the House of Lords declined to accept that proportionality had become a distinct head of review in domestic law, in the absence of any question of EU law. This is not the occasion to review those authorities. 116. Nevertheless, the application of a test of reasonableness may yield the same outcome as the application of a test of proportionality. Lord Slynn, a former Advocate General and Judge at the European Court of Justice, observed in R v Chief Constable of Sussex, Ex p International Traders Ferry Ltd [1999] 2 AC 418, 439: In R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696 the House treated Wednesbury reasonableness and proportionality as being different. So in some ways they are though the distinction between the two tests in practice is in any event much less than is sometimes supposed. The cautious way in which the European Court usually applies this test, recognising the importance of respecting the national authoritys margin of appreciation, may mean that whichever test is adopted, and even allowing for a difference in onus, the result is the same. 117. As Lord Slynns observations indicate, and as was explained in Bank Mellat v Her Majestys Treasury (No 2) [2014] AC 700, paras 69 72, proportionality is not a monolithic principle, expressed and applied in a uniform way in different legal systems and in different contexts. In particular, the intensity of review, whether under the Human Rights Act or under EU law, depends on a variety of factors, including the nature of the right which is involved, the seriousness of the interference with that right, and the nature of the justification for that interference: see, for example, in relation to EU law, Tridimas, The General Principles of EU Law, 2nd ed (2006), chapters 3 and 5. 118. The cases which I mentioned in para 114 might be contrasted with others concerned with the scrutiny of justifications advanced for interferences with legal rights. In a number of cases concerned with important rights, such as the right of access to justice and legal professional privilege, the court has interpreted statutory powers to interfere with those rights as being subject to implied limitations, and has adopted an approach amounting in substance to a requirement of proportionality, although less formally structured than under the Human Rights Act. Examples include R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198 and R (Daly) v Secretary of State for the Home Department. In the former case, the legislation was interpreted, against the background of the European Convention on Human Rights, as authorising the minimum intrusion into correspondence passing between a prisoner and a solicitor which was objectively established as being necessary to fulfil the aim of ensuring that the correspondence was bona fide legal correspondence. In a similar context, it was held in Daly that the infringement of prisoners rights to maintain the confidentiality of their privileged legal correspondence was greater than was shown to be necessary to serve the legitimate public objectives identified. 119. One can infer from these cases that, where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality. 120. The present case concerns the Secretary of States power under section 40(2) of the British Nationality Act 1981 to deprive a person of a citizenship status if satisfied that deprivation is conducive to the public good. Given the fundamental importance of citizenship, it may be arguable that the power to deprive a British citizen of that status should be interpreted as being subject to an implied requirement that its exercise should be justified as being necessary to achieve the legitimate aim pursued. Such an argument has not however been advanced at the hearing of this appeal, and it would be inappropriate to express any view upon it. 121. If the question of proportionality under EU law is raised before SIAC, it may well be that the answer is the same as it would be under domestic law, applying either the approach to reasonableness which I have discussed in paras 114 to 116, or the approach to vires which I have discussed at paras 118 to 120. That will however be for SIAC to determine. 1954 Convention, and in my view (like the two other human rights cases cited by the intervener) throws no light on the issues we have to decide.

UK-Abs

The central issue in this appeal is whether the respondent was precluded from making an order depriving the appellant of his British citizenship because to do so would render him stateless. This turns on whether he was considered as a national by Vietnam under the operation of its law (article 1(1) of the 1954 Convention relating to the Status of Stateless Persons). Alternatively, the appellant argues that the decision was disproportionate under European Union law. The appellant was born in Vietnam in 1983. In 1989 his family came to the UK, claimed asylum and were granted indefinite leave to remain. In 1995 he acquired British citizenship. The appellant took no steps to renounce his Vietnamese nationality. On 22 December 2011 the Home Secretary deprived him of his British citizenship under section 40(2) of the British Nationality Act 1981 because she suspected that the appellant was involved in terrorist activities. Vietnamese officials have since declined to acknowledge that Mr Pham is a national of Vietnam. He appealed against the respondents decision to the Special Immigration Appeals Commission (SIAC) on various grounds, including that he had lost his Vietnamese citizenship and therefore the decision made him stateless, contrary to section 40(4) of the 1981 Act. On a preliminary hearing on this issue, SIAC allowed the appeal on the basis that in practice it was the Vietnamese executive who made nationality decisions, and Mr Pham would not have been considered to be a Vietnamese national by the executive on 22 December 2011 had it been asked at that point. The Court of Appeal allowed the Secretary of States appeal and held that Mr Pham was a Vietnamese national on the relevant date under the text of Vietnamese laws. The Supreme Court unanimously dismisses the appeal and remits to SIAC to decide the remaining issues in the appeal. Lord Carnwath gives the lead judgment. Lord Mance, Lord Sumption and Lord Reed give concurring judgments. Lord Neuberger, Lady Hale and Lord Wilson agree with Lord Carnwath, Lord Mance and Lord Sumption. Lord Carnwath observes that the question under article 1(1) is not necessarily to be decided solely by reference to the text of the nationality law of the state in question. to the governments practice, even if not subject to effective challenge in the courts. However, even on the broad interpretation suggested by the UN High Commissioner for Refugees in its guidance, there is no evidence of a decision or practice of the Vietnam government which treated the appellant as a non national by operation of its law. Nor in any event was there evidence of a decision that was effective at the date of the Home Secretarys decision of 22 December 2011; unlike a court, the decision of the executive cannot take effect retrospectively. [34 38] On the further issues of EU law, in the judgment of the Court of Justice of the European Union in Rottman [2010] ECR I 1449, the Court did not explicitly state that a Member States decision as to the acquisition or loss of national citizenship, without any cross border element, is outside the scope of EU law. [48] Lord Carnwath observes that this raises issues of general importance; however, the European point was not properly before the court for decision in this appeal as the preliminary issue defined by SIAC was confined to the question of statelessness. [55 56] Lord Carnwath sees force in criticisms of some of the reasoning in Rottman. The issue would need to be considered by the domestic courts before it would be appropriate to consider a reference to the CJEU. However, before that stage is reached it is important that the tribunal of fact, SIAC, should first identify the respects in which a decision on these legal issues might be necessary for disposal of the case, including how the EU requirement of proportionality would differ in practice in the present case from proportionality under the European Convention on Human Rights, an issue already before SIAC, or from applying domestic law principles. [58 59] Lord Carnwath, Lord Mance and Lord Sumption agree that in this case, the nature and intensity of review may not differ whether under domestic law or EU law. [59 60, 98, 109 110] As to whether EU law offers greater procedural safeguards than domestic law, Lord Carnwath states that it is impossible to judge in the abstract what practical effect that might have and this is best considered by SIAC. [59 61, 100] Lord Mance agrees it is unnecessary at this stage to resolve the dispute about EU law. [71] It is very arguable that there are under the Treaties jurisdictional limits to EU competence in relation to the grant or withdrawal by a Member State of national citizenship. [84] A national court must ultimately decide for itself what is consistent with its domestic constitutional arrangements, including what jurisdictional limits exist on the competence of EU institutions. [90] Lord Mance further notes that proportionality could in principle be an appropriate standard of review at common law for a decision removing a status as fundamental as citizenship. [98] Lord Sumption adds that a different test for EU or human rights issues than for domestic issues produces arbitrary distinctions which depend on which source of law is invoked as a ground of challenge: in the present case, it would be rather unsatisfactory to apply a proportionality test to the decision so far as it affects Mr Phams EU citizenship but not his British citizenship. [104 105] Lord Reed notes that proportionality as a general ground of review of administrative action is distinguishable from proportionality as a basis for scrutinising justifications for interferences with legal rights. In the first sense, the domestic test of reasonableness has been held not to be identical to proportionality in EU or human rights law. Nevertheless, the tests may sometimes yield the same outcome. [112 116] As to the second sense, in a number of cases concerned with statutory powers to interfere with important common law rights, the court has interpreted the powers as subject to implied limits, adopting in substance a requirement of proportionality, though less formally structured than that under the Human Rights Act 1998. [118 119] Given the fundamental importance of citizenship, arguably the power to remove it should be subject to that implied limit; Lord Reed reserves his view on this as it was not argued. [120]

From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (IPP). This is another case in which courts have had to address the practical and legal issues resulting from this innovation. To impose a sentence of IPP the court had (inter alia) to be of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by [the offender] of further specified offences (Criminal Justice Act 2003, section 225(1)(b)). When imposing it, the court was required to specify a minimum period (the tariff period) after the expiry of which the prisoner was eligible for review by the Parole Board who could direct his release on licence (Powers of Criminal Courts (Sentencing) Act 2000, section 82A). The Parole Board was required not to direct release unless satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (Crime (Sentences) Act 1997, section 28(6)(b)). The case is before the Supreme Court as an application for permission to appeal, with the appeal to follow if permission be granted. Having heard the submissions, I consider that it raises issues of importance which merit the Courts consideration and would therefore grant permission. On that basis, there are two grounds of appeal before the Supreme Court. The first focuses on the relationship between the criteria for the court to impose a sentence of IPP and for the Parole Board to direct release on licence. The appellant submits that they must, though differently worded, be read as involving the same substantive test. The Parole Board and the Secretary of State submit that the difference in wording represents a difference in substance. The second ground of appeal is that, even if the criteria differ in substance, the Parole Board in fact applied a wrong test when deciding whether to order the appellants release. Although Mr Hugh Southey QC for the appellant accepts that this ground is now largely, if not entirely, academic in view of the appellants release, he submits that the court should address it to clarify the test for release. For reasons which follow, I would dismiss the appeal on both grounds. The factual background During an altercation outside a public house on 19 May 2006 the appellant, then aged 28, punched a man, who fell backwards, struck his head on the ground and died on the next day. The appellant was convicted of manslaughter. The judge, HHJ Findlay Baker, concluded that the appellant was dangerous. He was forceful and physically very strong, had indicated that he regarded it as his right to respond with violence to any tendered or threatened towards him, had uncontrolled heavy drinking and cocaine taking problems, and had shown no commitment to change these. Accordingly, on 31 January 2007 the judge imposed a sentence of IPP, with a tariff of 2 years 108 days, which expired on 19 May 2009. He said that, had it not been appropriate to impose IPP, a sentence of six years imprisonment would have been appropriate. Deducting half of that, and the time spent on remand, gave the tariff. A Parole Board review took place only on 10 May 2010, when the Board concluded that Mr Sturnham had made significant progress, but still presented a low risk of re offending and a medium risk of serious harm. It declined to order release, but recommended transfer to open conditions which took place on 12 August 2010. Mr Sturnham issued proceedings for judicial review, claiming that the Parole Board had applied the wrong test and also claiming damages for the delay in holding the review. These proceedings were the subject of judgments given by Mitting J on 14 March 2011, [2011] EWHC 938 (Admin), and the Court of Appeal on 23 February 2012, [2012] EWCA Civ 452; [2012] 3 WLR 476. The claim for damages was ultimately disposed of in the Supreme Court by decision on 1 May 2013, [2013] UKSC 23; [2013] 2 WLR 1157, restoring Mitting Js award at first instance of 300 damages for six months undue delay. The former claim is now before the court, having been dismissed by both Mitting J and the Court of Appeal. The result of the present appeal no longer has direct significance for Mr Sturnhams detention. He was released on licence pursuant to a Parole Board decision dated 7 September 2011. But it had a live general significance for the Parole Board at the date when the appeal was considered by the Court of Appeal (23 February 2012) and it may have a continuing significance in other cases, including potentially for prisoners serving life sentences. The legislation IPP was a child of the Criminal Justice Act 2003. Section 225(1) to (3) of that Act identified the circumstances in which IPP was appropriate (until 13 July 2008 without, but thereafter subject to, any residual discretion on the sentencers part) by differentiating those in which it required a discretionary life sentence to be imposed. Release after the tariff period was provided for by the insertion into the Crime (Sentences) Act 1997 of a reference to IPP so as to make IPP subject to the same statutory regime of review by and release by direction of the Parole Board as applicable to mandatory and discretionary life sentences. As enacted and in force when Mr Sturnham was sentenced, section 225 read, so far as material: 225 Life sentence or imprisonment for public protection for serious offences (1) This section applies where (a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and (b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. (2) If (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life. (3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection. (4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences. (5) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law. Section 225 falls to be read with section 224 and Schedule 15. Section 224 provided, so far as material: 224 Meaning of specified offence etc (1) An offence is a specified offence for the purposes of this Chapter if it is a specified violent offence or a specified sexual offence. (2) An offence is a serious offence for the purposes of this Chapter if and only if (a) it is a specified offence, and (b) it is, apart from section 225, punishable in the case of a person aged 18 or over by (i) imprisonment for life, or (ii) imprisonment for a determinate period of ten years or more. (3) In this Chapter relevant offence has the meaning given by section 229(4); serious harm means death or serious personal injury, whether physical or psychological; specified violent offence means an offence specified in Part 1 of Schedule 15; specified sexual offence means an offence specified in Part 2 of that Schedule. Schedule 15 contained a very substantial list of over 150 different offences, starting with manslaughter, kidnapping, false imprisonment, threats to kill and malicious wounding. Notably, however, it did not include murder, for the obvious reason that murder would carry a mandatory life sentence. Section 229 explains the concept of risk (or dangerousness) relevant under section 225: 229 The assessment of dangerousness (1) This section applies where (a) a person has been convicted of a specified offence, and (b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences. (2) If at the time when that offence was committed the offender had not been convicted in any part of the United Kingdom of any relevant offence or was aged under 18, the court in making the assessment referred to in subsection (1)(b) (a) must take into account all such information as is available to it about the nature and circumstances of the offence, (b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and (c) may take into account any information about the offender which is before it. (4) In this Chapter relevant offence means (a) a specified offence. As to release by the Parole Board on licence, sections 28 and 34 of the Crime (Sentences) Act 1997 read, so far as material: 28 Duty to release certain life prisoners (1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoners sentence is a reference to the part of the sentence specified in the order. (5) As soon as (a) a life prisoner to whom this section applies has served the relevant part of his sentence, (b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence. (6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless (a) the Secretary of State has referred the prisoners case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. (7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time (a) after he has served the relevant part of his sentence; and (b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and (c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one half of that sentence; and in this subsection previous reference means a reference under subsection (6) above or section 32(4) below. (8A) In this section minimum term order means an order under (a) subsection (2) of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum term in respect of life sentence that is not fixed by law), or (b) subsection (2) of section 269 of the Criminal Justice Act 2003 (determination of minimum term in respect of mandatory life sentence). 34 Interpretation of Chapter II (1) In this Chapter life prisoner means a person serving one or more life sentences; (2) In this section life sentence means any of the following imposed for an offence, whether committed before or after the commencement of this Chapter, namely (a) a sentence of imprisonment for life; (b) a sentence of detention during Her Majestys pleasure or for life under section 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000; and (c) a sentence of custody for life under section 93 or 94 of that Act, (d) a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 Section 225 accordingly applied whenever the sentencing court was of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by [the offender] of further specified offences. It offered two mutually exclusive courses in such a case. Under section 225(2) the court was required to pass a sentence of imprisonment for life if (a) the offence was one in respect of which the offender would apart from section 225 be liable to imprisonment for life, and (b) it considered that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life. Alternatively, if either of (a) or (b) was not satisfied, the court was obliged to impose a sentence of IPP. The case law background Prior to the 2003 Act, the criteria for imposition of a discretionary life sentence consisted, broadly, of the commission of a very serious offence and a conclusion that the offender was a serious danger to the public and likely to remain so for an indeterminate period. In R v Hodgson (1967) 52 Cr App R 113, 114 the Court of Appeal put the matter as follows: When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. Further guidance was given by Lord Lane CJ in R v Wilkinson (1983) 5 Cr App R (S) 105, 108 109. He said that a discretionary life sentence should be reserved for the most exceptional circumstances, and for the most part for offenders who were incapable of being dealt with under the Mental Health Act 1959, yet who are in a mental state which makes them dangerous to the life or limb of members of the public and in respect of whom It is sometimes impossible to say when that danger will subside. The reference in Hodgson to future offending being likely was read in a mathematical sense of more probable than not by counsel for the appellant and it seems the Divisional Court in R v Parole Board, Ex p Bradley [1991] 1 WLR 134, 143F, 144H, 145F G and (in particular) 146A C. But likely is a word of open meaning, and I regard any attempt to state or apply a test of mathematical probability in this context as inappropriate. The formulation good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence was, in my view rightly, preferred in the later case of Attorney Generals Reference No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R(S) 261, 264. By the same token, the Court of Appeal was right, in the context of IPP, to regard it as wholly unhelpful to attempt to redefine significant risk in terms of numerical probability, whether as more probable than not or by any other percentage of likelihood: R v Pedley [2009] EWCA Crim 840, [2009] 1 WLR 2517, para 19. Other authority also indicates that the criteria for imposing a discretionary life sentence are in some measure inter related. In R v Chapman [2000] 1 Cr App R 77, 85 Lord Bingham CJ approved Whittaker and said: In most of those cases there was no express departure from the criteria laid down in R v Hodgson, and certainly no doubt has to our knowledge ever been cast on the authority of that decision, which was very recently re affirmed in Attorney General's Reference No 32 of 1996 (R v Whittaker). In Attorney General's Reference No 34 of 1992 (R v Oxford) (1993) 15 Cr App R(S) 167, R v Hodgson was indeed specifically relied on as laying down principles which were described as not in dispute. It is in our judgment plain, as the court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the court, the likelihood of further offending, and the gravity of further offending should such occur. The more likely it is that an offender will offend again, and the more grave such offending is likely to be if it does occur, the less emphasis the court may lay on the gravity of the original offence. There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in R v Hodgson, re affirmed, as we say, in the more recent Attorney General's Reference No 32 of 1996 (R v Whittaker). It moreover seems to this court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed. We accordingly find ourselves in sympathy with all the submissions made by Mr Fitzgerald, which are as we conclude soundly based in law. That being the common law position relating to the imposition of a discretionary life sentence, the next question is the effect of section 225(2) and (3). In R v Lang [2005] EWCA Crim 2864; [2006] 1 WLR 2509, para 8 Rose LJ said: It is not clear whether Parliament, when referring in sections 225(2)(b) and 226(2)(b) to the seriousness of an offence or offences being such as to justify imprisonment or detention for life, thereby making such a sentence mandatory, was intending to adopt this court's criteria for the imposition of a discretionary life sentence; see R v Chapman [2000] 1 Cr App R(S) 377, or was seeking to introduce a new, more restrictive, criterion for seriousness relating it solely to the offence rather than, also, to the dangerousness of the offender. On the basis that Parliament is presumed to know the law, we incline to the former view. The point did not however arise for decision. Subsequently in R v Kehoe [2008] EWCA Crim 819; [2009] 1 Cr App R(S) 41, para 17 the Court of Appeal expressed the view that: When, as here, an offender meets the criteria of dangerousness, there is no longer any need to protect the public by passing a sentence of life imprisonment for the public are now properly protected by the imposition of the sentence of imprisonment for public protection. In such cases, therefore, the cases decided before the Criminal Justice Act 2003 came into effect no longer offer guidance on when a life sentence should be imposed. We think that now, when the court finds that the defendant satisfies the criteria for dangerousness, a life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave. It is neither possible nor desirable to set out all those circumstances in which a life sentence might be appropriate, but we do not think that this unpremeditated killing of one drunk by another, at a time when her responsibility was diminished, and after she was provoked, can properly be said to be so grave that a life sentence is required or even justified. Accordingly, we quash the life sentence and substitute a sentence of imprisonment for public protection. To the extent that this passage in Kehoe suggests that section 225(2) involves a raising of the threshold for imposition of a discretionary life sentence, it is difficult to see in what that can really have consisted. But it is on any view clear that, in cases of significant risk to the public of serious harm by the commission of further specified offences, section 225(3) introduced a new form of indeterminate sentence, based on actual offending which was either of a kind for which a life sentence was not available or not of such seriousness as to justify the imposition of a life sentence. The amendments made to the Crime (Sentences) Act 1997 had the effect of fitting the new form of sentence of IPP into a pre existing framework established for mandatory or discretionary life sentences. In the light of decisions such as Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 and Stafford v United Kingdom (2002) 35 EHRR 1121 and R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284, the role of considering whether it was no longer necessary for the protection of the public that the prisoner should be confined after the expiry of the tariff period (or minimum term) fell upon the Parole Board under section 28(6)(b) in relation to all these types of sentence. Two clear differences did however exist between sentences of IPP and life sentences: the licence period in respect of an IPP could be brought to an end ten years after release (section 31A of the Crime (Sentences) Act 1997, as inserted by Schedule 18, paragraph 2, to the Criminal Justice Act 2003); and a minimum term of whole life could not be imposed in respect of IPP (Schedule 18, paragraph 4, to the 2003 Act). Since sentences of IPP were fitted into a larger framework, it is relevant to consider how that framework operated. The Criminal Justice Act 1967, section 61(1) provided merely that the Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life. In R v Secretary of State for the Home Department, Ex p Benson (The Independent, 16 November 1988) and in Ex p Bradley, the Divisional Court considered the nature and level of risk by reference to which the Parole Board should measure whether continuing detention was justified. In Benson Lloyd LJ said that the decision whether to recommend or release on licence depended on whether there was a risk of repetition of the sort of offence for which the life sentence was originally imposed, in other words risk to life or limb, including in that category a non violent rape. In Bradley the court was concerned with the extent of the risk relevant to sentencing and to release on licence. In rejecting Mr Edward Fitzgeralds submission that the two must equate, the court said (p 145F H): the sentencing court recognises that passing a life sentence may well cause the accused to serve longer, and sometimes substantially longer, than his just deserts. It must thus not expose him to that peril unless there is compelling justification for such a course. That compelling justification is the perception of grave future risk amounting to an actual likelihood of dangerousness. But of course the courts perception of that future risk is inevitably imprecise. It is having to project its assessment many years forward and without the benefit of a constant process of monitoring and reporting such as will be enjoyed by the Parole Board. When at the post tariff stage the assessment comes to be made by that board they are thus much better placed to evaluate the true extent of the risk which will be posed by the prisoners release. And they are a more expert body, custom built by Parliament for the purpose. Given those considerations, and given too that their recommendation for release on licence, if accepted by the Secretary of State, will have immediate effect in terms of endangering public safety quite unlike the decision of the trial judge whose sentence would in any event have protected society for an appreciable time it seems to us perfectly appropriate for the Parole Board to apply some lower test of dangerousness, i.e. one less favourable to the prisoner. The court went on to say of the level of risk relevant at the release stage, that it must indeed be substantial , but this can mean no more than that it is not merely perceptible or minimal, that it must be unacceptable in the subjective judgment of the Parole Board and that the Parole Board must have in mind all material considerations, scrutinising ever more anxiously whether the level of risk is unacceptable, the longer the time the offender has spent in prison post tariff (p 146D F, and see R v Parole Board, Ex p Wilson [1992] QB 740, 747E G). In Ex p Wilson Mr Fitzgerald sought initially to renew the submission, rejected in Ex p Bradley, that the test which the Parole Board should apply for continuing detention should be likelihood of re offending. On reflection, he abandoned the challenge and accepted the correctness of Ex p Bradley, and the Court of Appeal commented that in its judgment he was right to do so (p 747A). Section 34(4)(b) of the Criminal Justice Act 1991 introduced a statutory definition of the Parole Boards function in relation to release of a discretionary life prisoner, using language subsequently reproduced in section 28(6)(b) of the Crime (Sentences) Act 1997. The Parole Board was not to give a direction with respect to a discretionary life prisoner unless satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The approach established at common law by Ex p Bradley and Ex p Wilson was, in R v Parole Board, Ex p Lodomez (1994) 26 BMLR 162, held applicable under the statutory test introduced by section 28(6)(b). Leggatt LJ in the Divisional Court in Ex p Lodomez recorded his view that it was unhelpful to invent alternative versions of the statutory test (p 184). The first ground In the present case, the Court of Appeal applied to sentences of IPP the approach taken in Ex p Bradley with regard to discretionary life sentences. The appellants first ground of appeal is that IPP is distinguishable in principle from a life sentence and that it was wrong to apply Ex p Bradley to IPP. Alternatively, if that submission be rejected, then it is submitted Ex p Bradley was wrong and should be over ruled. The appeal has been conducted on both sides on the basis that a substantial distinction exists between the test of significant risk to members of the public applicable under section 225(1)(b) and the test no longer necessary for the protection of the public as understood and applied to discretionary life sentences by Ex p Bradley. But I have already indicated my view that Ex p Bradley went too far in equating significant risk with mathematical likelihood and that good grounds would represent a more acceptable elaboration. As to the phrase no longer necessary for the protection of the public, the Divisional Court considered that the level of risk which it involved must remain undefined, but offered two observations. First, it seemed inevitable that the risk must be substantial, which the Divisional Court thought can mean no more than that it is not merely perceptible or minimal (p 146). Second, it must be sufficient to be judged unacceptable in all the circumstances in the subjective judgment of the Parole Board, and, third, in exercising their judgment as to the level of risk acceptable the Parole Board must have in mind all relevant considerations. A possible difficulty about the Divisional Courts first observation is that the equation of substantial risk with any risk that is not merely perceptible or minimal tends to change the focus or starting point in a way which may influence the conclusion. It is preferable to concentrate on the statutory language and not to paraphrase. This applies to the assessment both of significant risk under section 225(1)(b) of the 2003 Act and of whether detention is no longer necessary for the protection of the public under section 28(6)(b) of the 1997 Act. In relation to the first ground of appeal, Mr Southey relies upon the exceptional nature of a life sentence, imposed, the Divisional Court said in Ex p Bradley, only where there was compelling justification [consisting in] the perception of grave future risk amounting to an actual likelihood of dangerousness (p 145). However, as indicated in paragraphs 14 and 21 above, the distinction under section 225 between circumstances calling for a discretionary life sentence and for IPP may depend more upon the seriousness of the offence actually committed than upon any difference in the offenders assessed dangerousness. The threshold criterion of dangerousness for the purposes of applying section 225 (significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences) was the same in each case. Mr Southey argues that discretionary life sentences and IPP are or may also be different in two other respects. One is that it was wrong to speak of an onus on an offender serving IPP to disprove his dangerousness. Although the default position is that detention will continue unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined, the Parole Board is an investigative body which will make up its own mind on all the material before it: see R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, para 16, per Lord Bingham, and In re McClean [2005] UKHL 46; [2005] UKHRR 826, paras 74 78, per Lord Carswell. Mr Southey suggests that the position may be different in relation to an offender serving a life sentence, while at the same time wishing to reserve the argument that it should not be. If there is in this respect a difference (which I doubt), I regard it as immaterial to the issues which the Supreme Court has to decide on this appeal. The other respect turns on reasoning of the Supreme Court in R v Smith (Nicholas) [2011] UKSC 37, [2011] 1 WLR 1795. This is relied upon as establishing that, when considering whether to impose a sentence of IPP, the sentencing court was not making a predictive judgment of risk at the expiry of the tariff period. If that is right, then there was a marked distinction between the criteria governing imposition of a discretionary life sentence (as hitherto understood) and a sentence of IPP. The reasoning in Ex p Bradley relies at least in part upon the predictive assessment in relation to the post tariff period which a sentencing court makes when considering whether to impose a discretionary life sentence, and the distinction between that assessment and the contemporary evaluation of the Parole Board at the post tariff review stage. Counsel for the Parole Board and for the Secretary of State did not in their written cases or oral submissions take issue with the reasoning in R v Smith. But I am far from satisfied that it can be regarded as the last word. There is nothing in the language of section 225(1)(b) to suggest any distinction between the nature of the assessment required for the purposes of considering whether to impose a discretionary life sentence and a sentence of IPP. On the contrary, the same kind of assessment of risk was on the face of it required for both, with the distinction between them for the purposes of the section focusing, according to section 225(2) and (3), on the seriousness of the actual offence committed. Further, in a number of other cases, the predictive approach appears to have been assumed to be correct in relation to the imposition of a sentence of IPP. In R v Johnson [2006] EWCA Crim 2486, [2007] 1 WLR 585, Sir Igor Judge P said (para 10) that It does not automatically follow from the absence of actual harm caused by the offender to date [i.e. to the date of sentencing], that the risk that he will cause serious harm in the future is negligible. More clearly, in R (Walker) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553, Lord Judge CJ referred repeatedly to the predictive assessment to be made when sentencing as to the risk of dangerousness at the expiry of the tariff period: see paras 102, 103 and 108. Citing Sir Igor Judges words in para 10 in Johnson, Hughes LJ in R v Pedley [2009] EWCA Crim 840, [2009] 1 WLR 2517 also referred to the imposition of a sentence of IPP as depending upon an assessment of future risk: see paras 16, 20 and 21. In R v Smith (Nicholas), the primary issue was whether it was legitimate to pass a sentence of IPP for armed robbery and possession of a firearm on a career criminal who had already been recalled to prison to serve the remainder of a previous life sentence also imposed for armed robbery and having a firearm with intent. The submission was that, because he could not be released from that life sentence unless and until the Parole Board was satisfied that it was no longer necessary for the protection of the public that he should be detained, there could not be said to be any significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences so as to justify IPP. Counsel supported this submission by arguing that the sentencing judges duty was to consider whether he [the offender] will pose a significant risk when he has served his sentence (para 14). Lord Phillips, giving the judgment of the court, addressed the submission on the same basis, and rejected it, saying: 15. If this is the correct construction of section 225(1)(b) it places an unrealistic burden on the sentencing judge. Imagine, as in this case, that the defendants conduct calls for a determinate sentence of 12 years. It is asking a lot of a judge to expect him to form a view as to whether the defendant will pose a significant risk to the public when he has served six years. We do not consider that section 225(1)(b) requires such an exercise. Rather it is implicit that the question posed by section 225(1)(b) must be answered on the premise that the defendant is at large. It is at the moment that he imposes the sentence that the judge must decide whether, on that premise, the defendant poses a significant risk of causing serious harm to members of the public. It is notable that, although Pedley was cited in argument (though not in the judgment), Walker does not appear to have been referred to in Smith at all. Nor does the reasoning in Smith address the relationship between discretionary life sentences and IPP or consider what basis there could be for requiring a different approach to the assessment of risk under the latter, when compared with the former. An important part of the rationale of a discretionary life sentence is, on the authorities, an assessment of future risk; such a sentence may be appropriate because It is sometimes impossible to say when that danger will subside; or the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence" (see Wilkinson and Whittaker, cited in paras 16 and 17 above). While the Divisional Court in Ex p Bradley placed too much emphasis in my view on mathematical probability, it was unquestionably right to consider that a sentencing judge deciding whether to impose a discretionary life sentence was required to assess risk on a predictive basis. The natural inference would be that a parallel approach was expected to be applied to the new sentence of IPP, when fitted into the pre existing framework governing discretionary life sentences. There is nothing unrealistic about asking a sentencing judge to assess whether an offender presents a risk for a period which cannot reliably be estimated and may well continue after the tariff period. Logically, it is also difficult to see why it was necessary at all in Smith to address the question whether the sentencing judges assessment was of present risk or predictive. If the fact that the offender was in prison was relevant at all, it would exclude any present as much as any future risk of the offences to which he was evidently prone. The point which required decision was that, when deciding whether to order IPP, any concurrent prison sentence was to be ignored and the offender was to be assumed to be at liberty. More generally, unless the judgment required in the case of IPP is predictive, it must logically follow that, even though the fixed (tariff) period would in the judges view be sufficient to eliminate any further future risk before the tariff expired, the judge would still be required (even after the time when the imposition of IPP became discretionary) to impose a sentence of IPP, although convinced that there was no point in doing so. The concept of a long determinate sentence sufficient to eliminate future risk would be largely superseded. In these circumstances, I have grave reservations about the reasoning in para 15 in Smith even in relation to sentences of IPP. But, since it was not challenged on this appeal and is not in my opinion ultimately decisive, I say no more on this. In support of the appellants case on the first ground, Mr Southey is able to point to a number of statements in the cases. In R (Bayliss) v Parole Board [2008] EWHC 3127 (Admin); [2009] EWCA Civ 1016, Cranston J and the Court of Appeal were content to proceed on the basis accepted by counsel that the test for release from IPP mirrored the test for imposition of a sentence of IPP. In Pedley Hughes LJ held that a sentence of IPP was Convention compatible, because inter alia it was proportionate to the risk of serious harm, particularly since when the tariff sentence attributable to the instant offence has been served, the system provides for release once that significant risk no longer exists (para 22). In Ex p Walker when that case was in the Court of Appeal, [2008] EWCA Civ 30; [2008] 1 WLR 1977, Lord Phillips CJ described the primary object of IPP as being to detain in prison serious offenders who pose a significant risk to members of the public of causing serious harm by further serious offences until they no longer pose such a risk (para 35). None of these statements was however based on any detailed examination of the present issue, and I have come to the conclusion that they are wrong, so far as they suggest that the test which the Parole Board must apply when considering whether to direct release from IPP is precisely the same as that which the sentencing judge had to apply in order to pass a sentence of IPP in the first place. I set out my reasons in the following paragraphs. On the same basis, as well as in the light of what I have said in para 36 above, I also reject the submission that Ex p Bradley was wrongly decided. First, the two tests are, both in their terms and in their default position, substantially different. Imposition depends upon the court being positively satisfied of a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. Release depends upon the Parole Board being satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Second, the test for release applied under the 2003 Act to a sentence of IPP was the test for discretionary life sentences encapsulated in statutory form first in section 34(4)(b) of the 1991 Act, and later in section 28(6)(b) of the 1997 Act, and since also applied to mandatory life sentences. Those drafting and enacting the 1991 Act must be taken to have been aware of the decision in Ex p Bradley (decided on 4 April 1990). Those drafting and enacting the 1997 Act must be taken to have been aware of and accepted the line of authority consisting of Ex p Bradley, Ex p Wilson and Ex p Lodomez. Parliament therefore accepted a difference in the tests for imposing and for release from a discretionary life sentence. In introducing a sentence of IPP into the same framework for release as applies to discretionary life sentences, Parliament must on the face of it have intended to apply to sentences of IPP the same test for release as for discretionary life sentences, again even though that differed from the test for imposition. Third, the phrase no longer necessary for the protection of the public in the test for release does not import any reference to the threshold risk justifying the imposition of the sentence. The sentence imposed will itself operate as a complete protection of the public against any real risk during the tariff period. The phrase does no more than raise the question whether continued detention, after the tariff period, is any longer necessary to achieve that protection. Fourth, I see no inconsistency or incongruity in a scheme involving a higher initial threshold of risk for the imposition of a life sentence or a sentence of IPP, but requiring a somewhat lower risk to be established in order for the convicted offender to be eligible for release. This is so even if a sentencing judge deciding whether to impose a sentence of IPP was not engaged in the predictive exercise held in Ex p Bradley to be required when a court considers whether to impose a discretionary life sentence. Those who cross the initial threshold have notice from the case law that they are at peril of being held to protect the public against a more general and lesser level of risk. The threshold consists of the commission of a serious offence coupled with the existence of a significant risk of the commission of further specified offences. A person who has not committed a serious offence cannot be detained, even if he presents a significant risk of the commission of specified offences: that is because the threshold has not been crossed. But where the threshold is crossed, it does not follow that the objective of detention beyond the tariff period is confined to the elimination of any significant risk (whether that means whatever significant risk was identified when the sentence of IPP was imposed or any significant risk which may at the end of the tariff period be thought to exist). The objective may well be the more general protection of the public for as long as necessary. This, on the face of it, is also what the statutory test for release under section 28(6)(b) states. Fifth, the appellants case is that an offender serving a sentence of IPP should not continue to be detained after the tariff period, if he can show that there is no significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. The appellant does not carry the logic of his case to the point of suggesting that the risk must be of the commission of the same kind of specified offences as those for which he was originally sentenced. But, assuming that the test for release were to be whether there was or was not a risk of further specified offences of whatever kind, even though not of the same kind as those for which he was originally sentenced, still it would appear to follow that an offender who was known to present a risk to his partners life because of her unfaithfulness during his imprisonment could not continue to be detained. This is because murder is not a specified offence, which is because it carries a mandatory life sentence. That in turn reflects the fact that the schedule of specified offences was designed to meet the requirements for imposition of a sentence of IPP. It was not intended to operate as part of the test for release from IPP. What matters when release is being considered is whether the prisoner presents a continuing risk to life or limb, including a non violent rape, from which the public needs protection by way of his continuing detention (see para 23 above). Sixth, it would seem logically also to follow by extension, on the appellants case, that an offender serving a life sentence should not continue to be detained after the tariff period, if he can show that there no longer exists the same severe risk of serious re offending that justified the life sentence in the first place. That would mean that an offender serving a life sentence would be entitled to release despite a risk of re offending that would justify an offender serving IPP continuing to be detained. If this difficulty is sought to be avoided by distinguishing between offenders serving life sentences and those serving sentences of IPP, that brings the argument back to the second point. It is implausible to think that any such distinction was intended. Seventh, I do not accept Mr Southeys submission that the provisions of the European Convention on Human Rights require a different interpretation to be put on the statutory language to that which would otherwise apply. The submission is that the Convention requires that any decision to maintain detention becomes illegitimate if based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives: Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 40, M v Germany (2009) 51 EHRR 976, para 88 and James v United Kingdom (2012) 56 EHRR 399, para 195. In the last case, the European Court accepted in para 198 that there was a sufficient causal connection between the imposition of a sentence of IPP, because the offender was considered to pose a risk to the public, and his deprivation of liberty in the post tariff period, when his release was contingent on [him] demonstrating to the Parole Boards satisfaction that [he] no longer posed such a risk. It was not concerned with the question whether the minimum level of risk at each stage was required to be identical in order to comply with the Convention. In principle, I see no reason why it should be. There was and is no reason why the objectives of the statutory scheme should not involve a high threshold for imposition of a discretionary life sentence or sentence of IPP, but a high level of security against risk for release (in other words, a lower threshold for continuing detention) after the tariff period. The provisions whereby IPP was introduced into law and related to or assimilated with the position regarding discretionary life sentences must be read as a whole. So read, in my view, the natural conclusion is that this is what Parliament intended. I see nothing in the Convention inconsistent with such an approach. I would therefore dismiss this appeal on the first ground. The second ground The second ground arises from a complaint by Mr Sturnham that the Parole Board in determining whether to direct his release took into account a direction by the Secretary of State to the effect that the appropriate test was whether the Board was satisfied that his level of risk was no more than minimal. In R (Girling) v Parole Board [2006] EWCA Civ 1779; [2007] QB 783 the Court of Appeal held that the Secretary of State had no power to give such a direction, and accordingly it was wrong of the Parole Board to act on it. Mitting J was shown a copy of an internal Parole Board document dated July 2010, in which the Parole Board had itself adopted the more than minimal test internally in guidance issued to its members. He recorded that there was no direct challenge to that guidance bearing in mind its date. But he added that, if the Board had followed it, he would not be prepared to say that it was an unlawful test, but that Beyond that it would not be wise for me to go, given that the issue has not been fully ventilated (para 32). He dismissed the actual ground of appeal on the basis that there was nothing to show that the Board had taken that part of the Secretary of States direction into account. The Court of Appeal upheld the judges decision on the latter ground. Before the Supreme Court, Mr Southey barely addressed the complaint that the Parole Board wrongly guided itself by reference to directions which the Secretary of State had no power to give, and has not established any reason for this court to do other than uphold the decisions below on that aspect. The appeal on the second ground should therefore also be dismissed. In so far as Mr Southey invited us to try to define more closely the meaning of section 28(6)(b), I would decline the invitation and repeat that it is preferable to concentrate on the statutory language, rather than to seek to paraphrase it. Conclusion Having granted permission to appeal as stated in paragraph 3, I would therefore dismiss the appellants appeal on both grounds as stated in paragraphs 49 and 52.

UK-Abs

This case concerns the proper test to be applied by the Parole Board when determining whether to direct the release of a person subject to a sentence of imprisonment for public protection (IPP). On 19 May 2006 the appellant punched a man during a fight outside a pub. The man fell backwards, struck his head on the ground and died the next day. The appellant was duly convicted of manslaughter. The judge concluded that the appellant was dangerous; he was forceful, physically strong and considered that he had the right to respond with violence to any tendered or threatened towards him. Accordingly the judge decided to impose a sentence of imprisonment for public protection on the basis that there was a significant risk to members of the public of serious harm occasioned by the commission by [the offender] of further specified offences (Criminal Justice Act 2003, section 225(1)(b)). The judge fixed a minimum term (tariff period) of 2 years 108 days. The tariff period expired on 19 May 2009. Following the expiry of this tariff period it was the responsibility of the Parole Board to decide whether the appellant should be released on licence. In conducting this assessment the Parole Board are required not to order release unless satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (Crime (Sentences) Act 1997, section 28(6)(b)). The Parole Board review took place on 10 May 2010. The Parole Board concluded that the appellant had made significant progress but continued to present a low risk of re offending and a medium risk of serious harm. As a result the Parole Board declined to order release. The appellant issued proceedings for judicial review, claiming (a) that the Parole Board had applied the wrong test; and (b) damages for the delay of almost one year in holding the review. The claim for damages was disposed of by the Supreme Court by judgment dated 1 May 2013, [2013] UKSC 23. Consequently, only the claim that the wrong test was applied remains for determination. Subsequent to the commencement of the judicial review proceedings, the Parole Board directed that the appellant be released on licence. As a result the present appeal has no direct significance for the appellants detention. Nonetheless, the matter was of significance for the Parole Board when it came before the Court of Appeal and may have a continuing significance in future cases. Consequently, the appellant seeks permissions to appeal to the Supreme Court. The Supreme Court grants permission to appeal but unanimously dismisses the appeal. The judgment of the Court is given by Lord Mance. Section 225(3) of the Criminal Justice Act 2003 (the 2003 Act) introduced a new form of indeterminate sentence, imprisonment for public protection, based on offending which was either of a kind for which a life sentence was not available or not of such seriousness as to justify a life sentence [21]. Sentences of IPP were fitted into the pre existing framework established for mandatory or discretionary life sentences [22], under which the criteria for imposition of a discretionary life sentence were, broadly, the commission of a very serious offence and a conclusion that the offender was a serious danger to the public and likely to remain so for an indeterminate period. In imposing a discretionary life sentence the court makes, at least in part, a predictive judgment as to the risk the offender will pose in the post tariff period [32]. Nothing in section 225(1)(b) of the 2003 Act suggests a distinction between the approach required when imposing a discretionary life sentence and when imposing a sentence of IPP [33]. It is difficult to square the reasoning in R v Smith (Nicholas) [2011] UKSC 37 that no such predictive judgment is involved when imposing a sentence of IPP with other case law or to see why Smith needed to address that point. The reasoning in Smith is thus questionable, but since it was not challenged on this appeal and is not ultimately decisive, no more need be said about it. [34 38]. The suggestion in R v Parole Board, Ex parte Bradley [1991] 1 WLR 134, 143F, 144H, 145F G and 146A C that the reference to future offending being likely involves a test of mathematical probability is unsound. It is not helpful to define significant risk in terms of numerical probability, whether as more probable than not or by any other percentage of likelihood [17]. A test of good grounds is more appropriate [28]. The test to be applied by the Parole Board when considering whether to direct release on licence from IPP is not the same as the test applied by the sentencing judge when imposing the sentence of IPP in the first place [39]. The two tests are, both in their terms and in their default position, substantially different [41]. By introducing a sentence of IPP into the framework applicable to discretionary life sentences, Parliament must on the face of it have intended that release from a sentence of IPP should be subject to the like test as release from a discretionary life sentence [42]. There is no reason why the statutory scheme should not involve a high threshold for imposition of a sentence of IPP than for continuing detention post tariff [44, 48]. The European Convention on Human Rights does not require a different result. Strasbourg case law accepts a sufficient causal connection between the imposition of a sentence of IPP and the deprivation of the offenders liberty in the post tariff period when release is contingent on him demonstrating to the Parole Board that he no longer poses a risk [48]. There was not basis for interfering with the decisions below that the appellant had not established that the Parole Board wrongly took into account directions by the Secretary of State on the test to apply, which the Secretary of State had no power to give [50 53].

This is an appeal by Dorset County Council (the council) from an order of the Court of Appeal (Maurice Kay LJ, who is Vice President of the Court of Appeal, Black LJ and Rafferty LJ), [2013] EWCA Civ 553; [2013] PTSR 987, allowing an appeal by the respondents from an order of Supperstone J (the judge) dated 2 October 2012, [2012] EWHC 2634 (Admin); [2013] PTSR 302, in which he dismissed an application for judicial review of the decision of the council to reject five applications made under section 53(5) of and Schedule 14 to the Wildlife and Countryside Act 1981 ("the 1981 Act") for modification orders to a definitive map and statement ("the DMS"). The claim concerns five routes over which the respondents say that the public enjoy vehicular public rights of way (including with mechanically propelled vehicles) which were not recorded on the DMS. The first issue in this appeal and the principal issue which was considered in the courts below is whether, for the purposes of paragraph 1 of Schedule 14 to the 1981 Act as applied by section 67(6) of the Natural Environment and Rural Communities Act 2006 (the 2006 Act), a map which accompanies an application made under section 53(5) of the 1981 Act is drawn to the prescribed scale only if it is derived from a map originally so drawn without being enlarged or reduced in any way. The judge answered that question in the affirmative but the Court of Appeal disagreed. In this appeal the council seeks the restoration of the order made by the judge. If the appeal succeeds, any public rights of way which were the subject of the five applications will have been extinguished. In this judgment I will focus on the first issue. There is a second issue, which only arises if the councils appeal on the first issue fails. The applications were submitted by Mr Jonathan Stuart, who is a member of the Friends of Dorset's Rights of Way (FDRW). The first respondent, the Trail Riders Fellowship (TRF), took over the conduct of the applications from FDRW in October 2010. The second respondent, Mr David Tilbury, is a member of FDRW. The council is the surveying authority, as defined in section 66(1) of the 1981 Act, for the area in which the proposed ''byways open to all traffic" ("BOATs") are located. The intervener, Mr Graham Plumbe, represents the interests of the Green Lanes Protection Group and affected land owners. He supports the councils appeal. The legal framework Section 53 of the 1981 Act imposes a duty on a surveying authority to keep a DMS of the public rights of way in its area under continuous review. So far as material, it provides: (2) As regards every definitive map and statement, the surveying authority shall (a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3); and (b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence, on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event. (3) The events referred to in subsection (2) are as follows . (c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows . (i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies; (ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; or (iii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification. (5) Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection. As the judge put it in his para 6, there are three categories of public highway: footpaths, bridleways, and byways open to all traffic, known as BOATs. Section 66 of the 1981 Act defines a BOAT as a highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used. Schedule 14 to the 1981 Act provides: 1. Form of Applications An application shall be made in the prescribed form and shall be accompanied by (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates; and (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application. 2. Notice of Applications (1) Subject to sub paragraph (2), the applicant shall serve a notice stating that the application has been made on every owner and occupier of any land to which the application relates. (3) When the requirements of this paragraph have been complied with, the applicant shall certify that fact to the authority. (4) Every notice or certificate under this paragraph shall be in the prescribed form. 3. Determination by authority (1) As soon as reasonably practicable after receiving a certificate under paragraph 2(3), the authority shall (a) investigate the matters stated in the application; and (b) after consulting with every local authority whose area includes the land to which the application relates, decide whether to make or not to make the order to which the application relates. 5. Interpretation (1) In this Schedule 'prescribed' means prescribed by regulations made by the Secretary of State. The material regulations made by the Secretary of State are the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (the 1993 Regulations), which provide: 2. Scale of definitive maps A definitive map shall be on a scale of not less than 1:25,000 but where the surveying authority wishes to show on a larger scale any particulars required to be shown on the map, in addition, an inset map may be used for that purpose. 6. Provisions supplementary to regulations 4 and 5 Regulations 2 and 3 above shall apply to the map contained in a modification or reclassification order as they apply to a definitive map. 8. Application for a modification order (1) An application for a modification order shall be in the form set out in Schedule 7 to these Regulations or in a form substantially to the like effect, with such insertions or omissions as are necessary in any particular case. (2) Regulation 2 above shall apply to the map which accompanies such an application as it applies to the map contained in a modification or reclassification order. The form of application set out in Schedule 7 provides for an applicant who wishes, for example, to add a BOAT to the DMS (whether by upgrading an existing path shown on the map or by adding the path for the first time) to identify the points from and to which the proposed BOAT runs and its route as shown on the map accompanying this application. Section 67 of the 2006 Act provides: Ending of certain existing unrecorded public rights of way (1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement (a) was not shown in a definitive map and statement, or (b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway. But this is subject to subsections (2) to (8). (3) Subsection (1) does not apply to an existing public right of way over a way if (a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic, (b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or (c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles (i) was reasonably necessary to enable that person to obtain access to the land, or (ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only. (4) 'The relevant date' means (a) in relation to England, 20th January 2005; (6) For the purposes of subsection (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act. Section 130(1) of the Highways Act 1980 provides: It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it. The factual background and procedural history I take this from the agreed statement of facts and issues. The following five applications were made for modification orders under section 53(5). (1) On 14 July 2004 application T338 was made in relation to a route at Bailey Drove so as to add a BOAT to part of the route and to upgrade to a BOAT on two other parts of the route, which were at the time shown as a footpath (to the west) and a bridleway (to the east). (2) On 25 September 2004 application T339 was made in relation to a route consisting of two bridleways in the parishes of Cheselbourne and Dewlish so as to upgrade them to a BOAT. (3) On 21 December 2004 application T350 was made in relation to a route in the parish of Tarrant Gunville so as to add a BOAT to part of the route and to upgrade to a BOAT the remainder of the route, which at the time was shown as a bridleway. (4) On 21 December 2004 application T353 was made in relation to a route in the parish of Beaminster so as to upgrade the same to a BOAT from its existing status of bridleway. (5) On 21 December 2004 application T354 was made in relation to a route in the parish of Beaminster so as to add a BOAT to two parts of the route not shown on the DMS and to upgrade to a BOAT two further parts of the route which were at the time shown as bridleways. Accompanying each application was a map showing the route in question. Each map was produced using a computer software program entitled Anquet and digitally encoded maps which derived originally from OS maps drawn to a scale of l:50,000. The computer software program allowed the user to view or print out maps (or parts of maps) at a range of scales. In my opinion importantly, it was expressly agreed in the statement of facts and issues that the enlarged maps that were reproduced as a result of this process were all to a presented scale of 1:25,000 or larger, in that measurements on the maps corresponded to measurements on the ground by a fixed ratio whereby a measurement of 1 cm on the map corresponds to a measurement of no more than 250 metres on the ground. It does not appear that the council had any difficulty in considering the applications. Each of the applications was acknowledged by the council by early 2005 and there was no indication that the applications were defective until 2009. The council made no complaint about them until 7 October 2010, when, perhaps because of objections to the applications on their merits, a meeting took place of the councils Roads and Rights of Way Committee, at which it rejected all five applications on the ground that they were accompanied by computer generated enlargements of OS maps and not by maps drawn to a scale of not less than 1:25,000. As the judge noted at his para 13, under the heading Reasons for Recommendation, the following was recorded: For the transitional provisions in the Natural Environment and Rural Communities Act 2006 to apply so that public rights of way for mechanically propelled vehicles are not extinguished the relevant application must have been made before 20 January 2005 and must have been made in strict compliance with the requirements of Schedule 14 to the Wildlife and Countryside Act 1981. The applications in question were accompanied by computer generated enlargements of OS maps and not by maps drawn to a scale of not less than 1:25,000. In each case none of the other exemptions in the 2006 Act are seen to apply and so the applications should be refused. On 2 November 2010 the council communicated its decision to Mr Tilbury, who appealed to the Secretary of State on behalf of TRF but the Secretary of State declined to determine the appeals on the basis of lack of jurisdiction. Subsequently permission to apply for judicial review seeking an order that the decision of 2 November 2010 be quashed and that a mandatory order be granted requiring the council to determine the applications was refused on paper. It was however subsequently granted after an oral hearing before Edwards Stuart J and the matter was fully argued before the judge, who on 2 October 2012 upheld the decision of the council on the ground that the application map did not comply with the legal requirements. He further held that the extent of the non compliance was not within the scope of the principle de minimis non curat lex. The judge refused permission to appeal to the Court of Appeal. Permission to appeal was granted on the first point by Sullivan LJ. It was however refused on the de minimis point. As stated above, on 20 May 2013, the Court of Appeal reversed the decision of the judge on the first point. However, it refused an application for permission on the de minimis point on the basis that, if the appeal had failed on the first point, the non compliance could not sensibly be described as de minimis. The parties agreed that the first question can be stated as follows. Does a map which accompanies an application and is presented at a scale of no less than 1:25,000 satisfy the requirement in paragraph 1(a) of Schedule 14 of being drawn to the prescribed scale in circumstances where it has been "digitally derived from an original map with a scale of 1:50,000? Discussion This is a short point. It involves the construction of two particular provisions which I have already set out. By paragraph 1 of Schedule 14 to the 1981 Act, an application for a modification order must be made in the prescribed form and must be accompanied by a map (a) which was drawn to the prescribed scale, (b) which was not less than 1:25,000 and (c) which showed the way or ways to which the application related. No distinction has been drawn between the five applications. They either all complied or they all failed to comply. It is accepted that they were each accompanied by a map. It is I think also accepted that each of the maps showed the way or ways to which the application related. The question is therefore whether each of the maps was drawn to a scale of not less than 1:25,000. On the face of it that question must be answered in the affirmative. Paragraph 1 of Schedule 14 provides that the map must be drawn to the prescribed scale and by paragraph 5 prescribed means prescribed by the 1993 Regulations. By regulation 2 of those Regulations, A definitive map shall be on a scale of not less than 1:25,000 and, by regulation 8(2), regulation 2 applies to a map accompanying an application. As I read these provisions, no distinction is drawn between a map drawn to the prescribed scale and a map on a scale of not less than 1:25,000. On the ordinary and natural meaning of these provisions it appears to me that the map referred to in paragraph 1(a) of Schedule 14 is the map which must be drawn to the prescribed scale. Only one map accompanied each application. In each case it was the map produced as described above to a presented scale of 1:25,000 or larger, in that measurements on the map corresponded to measurements on the ground by a fixed ratio whereby a measurement of 1 cm on the map corresponds to a measurement of no more than 250 metres on the ground. Thus each such map was on a scale of not less than 1:25,000 and, in my opinion, satisfied regulations 2 and 8(2) of the 1993 Regulations. In my opinion each such map also satisfied paragraph 1(a) of Schedule 14 on the basis that it was drawn to the same scale. To my mind only one map had to comply with the prescribed criteria in each case, namely the map which accompanied the application, which I will call the application map. So far as I am aware no one has suggested that the application map was not a map, whether it was a photocopy of an existing map or an enlargement of a map. In any event I would hold that it was plainly a map. It was submitted on behalf of the council (and held by the judge) that, where the application map was based upon or drawn from a previous map, the relevant map was any map from which the application map was derived but not the application map itself. I agree with the Court of Appeal that there is nothing in the language of the relevant statutes or regulations to warrant that conclusion. It was also suggested that it must have been intended that the application map should be on a scale of 1:25,000 and exhibit all the detail which would appear on an OS map on that scale. Of course, it could have been so provided by statute or regulation. As Maurice Kay LJ said at his para 10, such a statutory requirement is not unknown. For example, section 1(3) of the Commons Act 1899 refers to a plan, adding that for this purpose an OS map shall, if possible, be used. More recently, regulation 5 of the Petroleum (Production) (Landward Areas) Regulations 1995, which is concerned with licence applications, requires an application to be accompanied by two copies of an OS map on a scale of 1:25,000, or such other map or chart as the Secretary of State may allow. I agree with Maurice Kay LJ that the scheme with which we are concerned is not so specific. Nor is it prescriptive as to features which must be shown on the map, apart from the requirement that it must show the way or ways to which the application relates. It is of course well known (and not in dispute) that an original OS map with a scale of 1:25,000 depicts more physical features than an original OS map of the same site with a scale of 1:50,000. However, again I agree with Maurice Kay LJ that, since paragraph 1(a) permits the use of a map which is not produced by OS (or any other commercial or public authority), it cannot be said to embrace a requirement that the application map must include the same features as are depicted on an original 1:25,000 OS map. I appreciate that, as was submitted on behalf of the council, an original OS map on a scale of 1:25,000 might well have been of more use to the council than an enlarged OS map originally produced on a scale of 1:50,000 but, for good or ill, no such requirement was included in the statutory provisions. In any event this point seems to me to have been afforded more emphasis that it merits. The council of course already has OS maps on a scale of 1:25,000 which it can readily consult. If it has any questions which are relevant to the application it can raise them with the applicant. Further, it is in my opinion important to note that the council expressly concedes in its case that in theory an applicant might himself be able to create an accurate map at 1:25,000 which nevertheless contained only such detail as an OS 1:50,000 map. Moreover, he could do so in manuscript without reference to an OS map. It seems to me to follow from that concession that, if used as the application map, such a map would comply with the statutory provisions. Moreover, that is so even if one would ordinarily expect the application map to be based on the OS 1:25,000 map. Some reliance was placed on the fact that an OS map would ordinarily be used but I do not see how that helps to construe a provision which defines what must be done but makes no reference to such a requirement. There is in evidence an extract of an online road map (not an OS map) on a scale of 1:25,000 which shows the claimed route in red but on which a number of public roads and village names are missing. It satisfies the relevant provisions notwithstanding the fact that it contains very little information. It satisfies the provisions because it is a map, because it is on a scale of not less than 1:25,000 and, critically, because it shows the way to which the application related. So far as I am aware, the council accepts that an application map so drawn is not objectionable but, even if it did not, I would so hold. If that is correct, it follows that it is not necessary that the application map should be an OS map. As Maurice Kay LJ said in his para 10, the application map may include more or fewer features than those marked on an OS map of the same scale. And, as he said at para 11, the provision that the map must show the way or ways to which the application relates is a flexible requirement; sometimes more details will be required and sometimes fewer, depending on the way in question and its location. This is I think a critical point because it shows that the application map may have very few of the details on the ordinary OS map on a scale of 1:25,000. I recognize that, without any requirement of scale, an applicant (who is quite likely to be a lay person) might produce a map of any scale. It is therefore understandable that the application map should have to be on a reasonable scale for the purposes of clarity. Any scale chosen would have an element of arbitrariness but, since the DMS has to be on a scale of not less than 1:25,000, it was no doubt thought to make practical sense for the application map to be on the same scale. It does not follow that it should have all the same features as the OS map. Some reliance is placed on the fact that the prescribed scale applies in the same terms to the application map as it does to the DMS (regulations 2 and 6) and that, whatever might be reasonable for an applicant, it would be odd if the DMS itself could be prepared on something other than an OS base. In my opinion, that argument ignores the different contexts in which the rule applies. The authority is under a public law obligation to prepare and maintain the DMS in proper form, which duty must itself imply that it should be at least professionally prepared to a quality and detail equivalent to the OS map. Given the availability of the OS map, it would be irrational for the authority not to use it. The same does not apply to a lay applicant, who has no public law duty, and whose sole function is to put the relevant material before the authority for investigation by them. Indeed the draftsman may deliberately have adopted a form of definition which is sufficiently flexible for both contexts. It is not, so far as I am aware, part of the councils case that the application map was not drawn within the meaning of paragraph 1(a) of Schedule 14. However, there have been some suggestions to this effect, notably by Mr Plumbe, which Maurice Kay LJ considered at paras 12 to 14. He considered in para 12 whether the words drawn to a scale of not less than 1:25,000 mean that the application map in question must have been originally drawn to that scale rather than enlarged or reproduced to it. He said that he could see no good reason for giving the requirement such a narrow construction. What was important was the scale of the application map. The word drawn did not need to imply a reference to the original creation but was more sensibly construed as being synonymous with produced or reproduced. He said at para 13 that he reached that conclusion on the basis of conventional interpretation but that he was fortified by an approach which takes account of technological change. He referred to R (Quintavalle) v Human Fertilisation and Embryology Authority [2003] 2 AC 687 at para 9, where Lord Bingham said that courts had frequently had to grapple with the question whether a modern invention or activity falls within old statutory language, and approved the decision of Walton J in Grant v Southwestern and County Properties Ltd [1975] Ch 185, where he held that a tape recording fell within the expression document in the Rules of the Supreme Court. Maurice Kay LJ concluded in para 14: All this leads me to the view that, whilst I am confident that drawn was never intended to be construed as being confined to originally drawn, it should also now be given a meaning which embraces later techniques for the production of maps. For practical purposes, when a computer is used to translate stored data into a printed map, it can properly be said that the computer and the printer are, on human command, drawing the map which emerges to the scale which has been selected. I find no difficulty in this approach in circumstances in which the requirements do not prescribe that the submitted map depicts the features which are depicted on an original 1:25,000 OS map. I agree. Finally, some reliance was placed upon evidence provided by OS at the request of the council. They were asked this question: Where: 1.1 digital raster mapping is originally produced by the OS at 1:50,000 scale (the Original Product); 1.2 an image is taken from the Original Product and enlarged to a 1:25,000 scale; and 1.3 a facsimile copy of that enlarged image is produced in printed form (the Map) Is the Map properly to be regarded as being at a scale of 1:50,000 or 1:25,000? The answer was as follows: As described in the question the map would be properly to be regarded as a 1:50,000 scale OS map enlarged to 1:25,000. It was submitted on behalf of the council that the scale of the maps as presented by the respondents was indeed (larger than) 1:25,000, but this was only because they had all been enlarged from their original scale. It was submitted that the answer to the issue posed in para 2 above, namely whether an application map is drawn to the prescribed scale only if it is derived from a map originally so drawn without being enlarged or reduced in any way, is no. In my opinion the true answer to that question was yes. The Map is a reference to the application map. It was conceded that the scale of the map as presented was larger than 1:25,000. Since, as I see it, the question is what was the scale of the map as presented, ie the application map, it follows that the map complied with the statutory requirements. For the reasons given above, the fact that it was taken from a map on a smaller scale is irrelevant. For all these reasons I would dismiss the appeal on the first issue. The question posed in para 17 above was this. Does a map which accompanies an application and is presented at a scale of no less than 1:25,000 satisfy the requirement in paragraph 1(a) of Schedule 14 of being drawn to the prescribed scale in circumstances where it has been "digitally derived from an original map with a scale of 1:50,000"? I would answer the question yes, provided that the application map identifies the way or ways to which the application relates. The second issue Since Lord Carnwath and Lord Toulson answer the first question in the same way, it follows that the appeal will be dismissed and the second question will not arise. I am sympathetic to Lord Carnwaths general approach to the construction of provisions like section 67(3) of the 2006 Act and I am doubtful whether Parliament can have intended such a narrow approach as was approved by the Court of Appeal in Maroudas v Secretary of State for the Environment, Food and Rural Affairs [2010] EWCA Civ 280 to which he refers at para 65. However, I am conscious that we heard no submissions on the correctness of Maroudas and I see the force of the conclusions expressed by the other members of the Court. In these circumstances, since it is not necessary to do so, I prefer to express no view upon the second question unless and until it arises on the facts of a particular case. LORD TOULSON: On the question whether the applications submitted by Mr Stuart to the council satisfied the statutory requirements, I agree with Lord Clarke and the Court of Appeal. Paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981 required applications for the modification of a definitive map and statement to be in the prescribed form and accompanied by (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates (emphasis added), and (b) any documentary evidence on which the applicant wished to rely. Prescribed means prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (the Regulations). Regulation 8(1) required each application to be in the form set out in Schedule 7 to the Regulations or in a form substantially to the like effect; and regulation 8(2) provided that regulation 2 should apply to the map which accompanied the application in the same way as it applied to the map contained in a modification order. Regulation 2 provided that a definitive map shall be on a scale of not less than 1/25,000 (emphasis added). I do not construe the words drawn to the prescribed scale as meaning more than be on a scale of not less than 1/25,000. More particularly, I do not see the word drawn as mandating a particular method of production. I agree with Maurice Kay LJ that linguistically drawn may sensibly be regarded as synonymous with produced. But the construction of a statute is not simply a matter of grammar, and the question arises whether in the particular context the expression drawn to the prescribed scale should be given a narrower interpretation in order to serve its statutory purpose. While I respect the arguments of Lord Neuberger and Lord Sumption, I am not persuaded by them. I regard the OS as a red herring. It does not feature in the Regulations. I do not see a proper basis for the admission of the evidence given by the OS, and I do not consider it legitimate to use the OS as a tool in construing the Regulations. As Maurice Kay LJ pointed out, the application for a modification order triggers an investigation. It is the start of a process. The natural purpose of the requirement placed on the applicant is to enable the council properly to understand and investigate the claim. For that purpose one would expect a plan on a 1/25,000 scale as presented to be sufficient, and this case provides an illustration. (On receipt of the applications in 2005, an officer prepared maps in the usual way for the Roads and Rights of Way Committee, but the applications had not been considered by the committee when the R (Warden and Fellows of Winchester College) v Hampshire County Council [2009] 1 WLR 138 case was decided.) The reason for requiring a plan showing the way or ways to which the application related is self evident. As to the purpose underlying the prescription of a scale of 1/25,000, rather than simply requiring a map, I respectfully consider that para 27 of Lord Clarkes judgment offers a sufficient and credible explanation. For those reasons, which I am conscious are no more than a summary of the reasons given by Lord Clarke and Maurice Kay LJ, I agree with their conclusion. The issue regarding the effect of section 67(6) of the Natural Environment and Rural Communities Act 2006 therefore does not arise for decision, but it has been fully argued and I have come ultimately to agree with Lord Neuberger and Lord Sumption. The context of the 2006 Act was that off road use of motorised vehicles had become a subject of considerable controversy in rural areas. The 2006 Act was the culmination of a lengthy process involving considerable public consultation and pre legislative parliamentary scrutiny, in the course of which a large number of applications were made for modifying definitive maps to re classify former RUPPs (roads used as public paths) as BOATs (byways open to all traffic). The publication in January 2005 of the Bill which became the 2006 Act coincided with the publication of a lengthy joint report by the Department for the Environment, Food and Rural Affairs and the Countryside Agency of a research project on the use of motor vehicles on BOATs. The purpose of the relevant part of the 2006 Act was to extinguish any unrecorded public rights of way for motor vehicles (by section 67) and to place restrictions on the creation of any fresh rights (by section 66). Section 67 is subject to certain exceptions, the relevant one being under subsection (3)(a). This exception applies to an existing right of way if before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic. The relevant date was 20 January 2005: subsection (4)(a). The obvious purpose of setting this date was to exclude applications made during the legislative process in an attempt to avoid the guillotine. Section 53(5) of the 1981 Act included the words that the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection. I have referred in para 36 to the requirement under paragraph 1 of Schedule 14 for the application to be made in the prescribed form and to be accompanied by (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates and (b) any documentary evidence on which the applicant wished to rely. Those provisions, ie section 67(3) of the 2006 Act read with section 53(5) and Schedule 14 paragraph 1 of the 1981 Act, might have been considered sufficient as an ordinary matter of construction to limit the exception created by section 67(3) to cases where an application conforming with the requirements of the 1981 Act had been made before 20 January 2005. But the drafter provided reinforcement by section 67(6): For the purposes of subsection (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act. That subsection, as it appears to me, made it clear for the removal of doubt that section 67(3) of the 2006 Act applied only to an application made in time and in compliance with the formal requirements of paragraph 1 of Schedule 14. Put in negative terms, the saving provided by section 67(3) does not include applications purportedly made before the cut off date which were substantially defective, whether or not the defects might otherwise have been cured in one way or another. It is well understandable in the circumstances in which the 2006 Act was passed that Parliament should not have wished councils to be burdened potentially with a mass of non conforming applications made in an attempt to beat the deadline. I was initially attracted by Lord Carnwaths argument for a more flexible approach, based on the precedents of the Oxfordshire City Council case and the Inverclyde District Council case which he cites, but it is a truism that every statute must be construed in its own context. On full consideration I am persuaded that Lord Neuberger and Lord Sumption are right, having regard to the language of the statute and the legislative context to which I have referred. LORD CARNWATH: Ground 1 prescribed scale My initial reaction on reading the papers in this case was that the appeal should succeed on the first ground, substantially for the reasons given by Lord Neuberger and Lord Sumption. It is an easy assumption that the draftsman must have had in mind an OS 1:25,000 map, or something of equivalent detail and quality. However, I am persuaded that this approach is too simplistic. The draftsman could have so specified but did not. Once it is accepted (as it is) that the word drawn does not connote any particular form of physical production, and that the plan need not be as detailed as an OS map (even one of 1:50,000 scale), nor professionally prepared, I see no convincing answer to the Court of Appeals analysis. The fact that in practice applicants do normally use OS maps, or that there would be no hardship in requiring them to do so, does not seem to me to assist on the question of construction. I would therefore dismiss the appeal on the first ground for the reasons given by Lord Clarke. This conclusion makes it strictly unnecessary to decide the second ground. This challenges the principle that only strict compliance will suffice to save an application under section 67(6) of the 2006 Act (as decided in R (Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431, [2009] 1 WLR 138). However, since the point has been fully argued and may be material in other cases, it may be helpful to consider it. Furthermore, as will be seen, I regard it as somewhat artificial to separate the two issues, as the courts below have had to do (being bound by the decision of the Court of Appeal in that case). At this level we are able to take a broader view. Ground 2 strict compliance The second issue turns on the construction of section 67(6) of the 2006 Act. It needs to be read in its full statutory context, as already set out by Lord Clarke. The starting point is section 53 of the 1981 Act in Part III, which imposes a duty on authorities to keep the definitive map under continuous review, and to make modifications so far as required by the occurrence of any of the events specified in subsection (3). Those events are (in summary): (a) the coming into operation of any enactment or instrument, or any other event whereby a highway is stopped up, altered or extinguished or a new way created; (b) the expiration of a period sufficient to give rise to a presumption of dedication; or (c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows (i) that a right of way which is not shown in the map and statement subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies; (ii) that a highway shown in the map and statement as a highway of a particular description ought to be there shown as a highway of a different description; . Subsection (5) allows any person to apply to the authority for an order under subsection (2) making such modifications as appear to the authority to be requisite in consequence of an event within paragraph (b) or (c) of subsection (3); and provides that: the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection. Schedule 14 paragraph 1 provides that the application is to be made in the prescribed form, and accompanied by (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates and (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application. Section 67 of the 2006 Act provides for the extinguishment, subject to defined exceptions, of hitherto unrecorded rights of way for mechanically propelled vehicles. It applied generally from the date of commencement, which for England was 2 May 2006 (defined under section 107(4)). This date applied also to the exceptions under subsection (3)(b) and (c). By contrast subsection (3)(a), which applies in this case, was related to an earlier relevant date, defined for England as 20 January 2005 (section 67(4)). As explained to Parliament, this was the date on which ministers, following consultation, announced their intention to legislate, in the form of a document The governments framework for action. That paper did not contain any proposal for a cut off date for applications prior to the commencement of the Act. That was introduced in the course of the parliamentary proceedings, in response to concerns that the authorities would be flooded by protective applications in the period before the 2006 Act took effect. The critical subsection is section 67(6), by which for these purposes an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act. In the Winchester case an application for modification had been made before the relevant date, but had not been accompanied by the supporting documentary evidence as required by Schedule 14 paragraph 1(b). In those circumstances the court held that it had not been made in accordance with that paragraph before the relevant date and therefore did not come within the exception. Dyson LJ, with whom the other members of the court agreed, said: In my judgment, section 67(6) requires that, for the purposes of section 67(3), the application must be made strictly in accordance with paragraph 1. That is not to say that there is no scope for the application of the principle that the law is not concerned with very small things (de minimis non curat lex). Indeed this principle is explicitly recognised in regulation 8(1) of the 1993 Regulations. Thus minor departures from paragraph 1 will not invalidate an application. But neither the Tilbury application nor the Fosberry application was accompanied by any copy documents at all, although it was clear from the face of the applications that both wished to adduce a substantial quantity of documentary evidence in support of their applications. In these circumstances, I consider that neither application was made in accordance with paragraph 1. (para 54) That approach was followed in Maroudas v Secretary of State for the Environment, Food and Rural Affairs [2010] EWCA Civ 280, in which the only substantive judgment was again given by Dyson LJ. The present proceedings In the present case, before Supperstone J, it was argued that the defect which he had found in relation to the scale of the plan was no more than a minor departure permissible under the Winchester principle. He rejected that submission, holding that there were material differences between the presentation of the claimed ways on the application maps and their presentation on a 1:25,000 scale map, and that there was no difficulty in compliance (paras 41 43). Permission to appeal that aspect of the judgment was refused. In this court, Mr Pay asks us to hold that the reasoning in the Winchester case was erroneous, with the consequence that failure to comply strictly with the Regulations was not necessarily fatal to the application. In short, he submits that Dyson LJ was wrong to adopt a different approach under section 67(6) than would have been applied to an application under section 53(5) apart from the 2006 Act. Under general principles, he submits, failure to comply with procedural requirements, even those of more than minor significance, does not necessarily make an application void, and so incapable of having legal effect. Under the modern law, the question depends not on whether the procedural provision is mandatory or directory, or indeed whether the defect can be described as minor or de minimis, but (as Lord Steyn explained R v Soneji [2005] UKHL 49; [2006] 1 AC 340, para 23) the emphasis is on the consequences of non compliance, . posing the question whether Parliament can fairly be taken to have intended total invalidity. Applying those principles, he submits, the alleged defects in this case were not such as to render the application void. Their consequences were of no serious significance, since the authority were given all the information they needed to identify the proposal, to prepare their own more detailed plans (as indeed they did shortly after receipt of the application), and to carry out their own investigations. It was therefore properly treated from the outset as a legally effective application for the purposes of Schedule 14 paragraph 1 of the 1981 Act, even if the authority would have been entitled to require the substitution of a compliant plan. It was thus, as at the date of its submission, made in accordance with that paragraph under section 67(6) of the 2006 Act. For the authority, Mr Laurence QC supports the Winchester decision substantially for the reasons given by the Court of Appeal (in substance accepting his own submissions on behalf of the landowners in that case). Before discussing those submissions it is necessary to look in more detail at the reasoning of Dyson LJ in the earlier cases. Dyson LJs reasoning The Winchester case involved two separate applicants. It is sufficient to refer to the facts relating to the first, Mr Tilbury. His application, made in June 2001 to the Hampshire County Council, was to modify the definitive map to upgrade a bridleway to a BOAT. The application referred to an appended list of documents, which identified some 25 maps and plans (the earliest dating back to 1739) with his comments. He did not include copies of these maps. It was treated as a valid application by the authority, which on 22 March 2006 resolved to make modifications accordingly. This decision was challenged by landowners affected by the route, on the grounds that there had been no valid application or determination within the time limits set by section 67 (inter alia) because the application had not been accompanied by copies of all the documentary evidence relied on. The application was heard in the High Court by George Bartlett QC (President of the Lands Tribunal, and a judge with great practical experience in this field), who rejected the challenge ([2007] EWHC 2786 Admin). In short he held that the requirement to submit documents was a procedural requirement which could be waived by the authority without affecting the validity of the application (paras 38 40). Alternatively, he interpreted the requirement to adduce the evidence to be relied on as not extending to evidence already before the council (para 45). In the Court of Appeal, Dyson LJ did not disagree with the judges approach in relation to the treatment of an application under section 53(5) of the 1981 Act itself. He distinguished this from the question before the court under section 67: This question is not the wider question of whether it was open to the council to treat an application which was not made in accordance with that paragraph as if it had been so made because the failure could be characterised as a breach of a procedural requirement rather than a breach which was so fundamental that (to use the judge's language) the application failed to constitute an application at all. I readily accept that the wider question is relevant and important in the context of applications made under section 53(5) generally and whether an authority has jurisdiction to make a determination pursuant to paragraph 3 of Schedule 14. But the question that arises in relation to section 67(6) is not whether the council had jurisdiction to waive breaches of the requirements of paragraph 1. It is whether the applications were made in accordance with paragraph 1 . (paras 36 37) The purpose of section 67(6), he thought, was to define the moment at which a qualifying application is made because timing is critical for the purpose of determining whether subsection (1) is disapplied (para 38) That moment was when an application was made in accordance with paragraph 1. A subsequent waiver of the obligation to accompany the application with copies of documentary evidence could not operate to treat such an application as having been made in accordance with paragraph 1 when it was not (para 38). In his view section 67(6) required strict compliance with each of the elements of paragraph 1, regardless apparently of considerations of practical utility. He rejected, for example, an argument that strict insistence that an application be accompanied by copy documents serves no real purpose and confers no obvious advantage over providing a list of the documents particularly where the authority is already in possession of, or has access to, such documents. Such considerations might be relevant to the question whether a failure to comply with paragraph 1 should be waived, but not to whether an application has been made in accordance with paragraph 1 (paras 44 45). Similarly he was unmoved by arguments that strict interpretation could lead to absurdity, for example if the application listed a number of documents but by oversight omitted some of them, the absurdity possibly being sharpened by the fact that the authority has the originals in its possession . Even a defect of that kind was relevant only to the question of waiver, not to validity for the purpose of section 67(6) (paras 48 49). The only exception he allowed was if copies were impossible to obtain, on the basis of the principle that law does not compel the impossible (para 50). The consequences of that narrow approach are strikingly illustrated by the following case, Maroudas v Secretary of State [2010] EWCA Civ 280. The court reversed the judgment of the Administrative Court ([2009] EWHC 628 (Admin), Judge Mackie QC), to which reference can be made for a fuller account of the history. The proceedings had taken the form of an application to quash the decision of the Secretary of State, made by an inspector in May 2008 following a hearing, to confirm a modification order made in response to an application originally made under section 53(5). The application had been made as long ago as February 1997, several years before the cut off date later adopted in the 2006 Act. It had not itself been signed or dated, nor accompanied by a plan showing the way in question. However the council had helpfully responded a month later enclosing a summary and plan, and asking for confirmation that the proposed reclassification extended to the whole of the identified route. The applicant replied by signed letter asking for the whole route to be included. The authority apparently proceeded to deal with it on that basis as a valid application. As far as one can judge from the reports, no objection was taken to the form of the application until the hearing before the inspector some 11 years later. By an unfortunate coincidence (from the applicants point of view) the hearing took place on 30 April 2008, the day after the promulgation of the Winchester judgment, on which the objector was thus able to rely. On these facts the judge upheld the inspectors decision to treat the application as validly made by the relevant date. As he observed, there had been nothing opportunistic about the application, made long before any hint of the proposals which led in due course to the 2006 legislation. Although he was bound by the Winchester decision, and he accepted that the defects in the original application could not be treated as minor, he was entitled to look at the substance of the matter, which was that by the time the letter of 22 April 1997 was written it was perfectly clear what the application related to. There was a map, as one sees from enclosed is a summary plan of the application in the letter of 25 March 1997, and a signature and a date. No one would, or could, have been misled about what happened after that. Mr Maroudas rightly had to accept that he would have no grounds at all for his application if, instead of the exchange of letters, the council had gone through the bureaucratic, or some would say necessary, step of returning the form to [the applicant] to sign and amend, rather than resolving the matter on an exchange of correspondence. That seems to me to move proper strictness into unnecessary bureaucracy . (para 25) The Court of Appeal disagreed. In particular, the applicants failure to sign and date the application, and his failure to submit a plan, were not cured by the subsequent exchanges: the lack of a date and signature in the application form can in principle be cured by a dated and signed letter sent shortly after the submission of the form, where the omissions are pointed out and the council is asked to treat the application as bearing the date of the letter and the signature of the author of the letter. But the lack of a date and, in particular, the lack of a signature are important omissions. The signature is necessary to prove that the application is indeed that of the person by whom it is purportedly made. If the application form remains unsigned for a substantial period of time, I would not regard that as a minor departure from the statutory requirement that it should be signed. The fact that the application was unsigned for some 10 weeks in this case is of itself a strong reason for holding that there was a substantial departure from the strict requirements of paragraph 1 of Schedule 14. The final point is that the plan enclosed with the council's letter of 25 March was not sent back by Mr Drinkwater with his letter of 22 April. Mr Drinkwater never sent an accompanying map. The absence of an accompanying map is an important omission just as is the absence of documentary evidence on which an applicant wishes to rely (as Winchester demonstrates). Mr Coppel's case is that the plan which was enclosed with the council's letter of 25 March was the accompanying map and that by his letter Mr Drinkwater was agreeing with the council that it should so treat it. But Mr Drinkwater's letter says nothing about the enclosed plan. There is nothing to indicate that he even looked at it. In view of his indifference to what the council was asking, it seems unlikely that he would have had any interest in the plan at all. (paras 36, 38) Discussion I start from the general principle that procedural requirements such as those in the 1981 Act should be interpreted flexibly and in a non technical way. There are close parallels with the provisions relating to applications to register village greens, considered by the Court of Appeal in Oxfordshire County Council v Oxford City Council [2006] Ch 43 (approved on this point by Lord Hoffmann in the House of Lords: [2006] 2 AC 674, para 61). The question there was the power to amend an application for registration, in the absence of any specific provision in the regulations permitting amendment. In giving the judgment of the Court of Appeal (paras 101 112), I cited the guidance of Lord Keith, dealing with similar arguments in a case concerning the amendment of details submitted under an outline planning permission: Inverclyde District Council v Lord Advocate (1981) 43 P & CR 375. He said: This is not a field in which technical rules would be appropriate, there being no contested lis between opposing parties. The planning authority must simply deal with the application procedurally in a way which is just to the applicant in all the circumstances. That being so, there is no good reason why amendment of the application should not be permitted at any stage, if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided upon. (p 397) The Inverclyde case has added relevance in the present context since it also involved a time limit. Conditions on the permission imposed a three year time limit for submission of details. Further, the Act in question there provided that an application for approval made after that date should be treated as not made in accordance with the terms of the permission. The general development order governing submission of details contained no specific provision for amendment. The authority accepted that amendments could be made within the three year time limit, but not after it had expired. Of that Lord Keith said simply that: an amendment which would have the effect of altering the whole character of the application, so as to amount in substance to a new application, would not be competent. Such a flexible approach is particularly appropriate in the context of an application to modify the definitive map. A developer submitting details under an outline planning permission is doing so generally for his own benefit, and it is his responsibility to make sure that the details comply with the planning permission and other requirements. In a case of any complexity, the details will generally be professionally prepared. By contrast, under section 53 of the 1981 Act the primary duty to keep the definitive map up to date and in proper form rests with the authority, as does the duty (under section 53(3)(c)) to investigate new information which comes to their attention about rights omitted from the map. An application under section 53(5), which may be made by a lay person with no professional help, does no more than provide a trigger for the authority to investigate the new information (along with other information already before them) and to make such modification as appears to [them] to be requisite. The deputy judge in the Winchester case cited the guidance given by Lord Woolf MR in R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354 (a judgment noted with approval by Lord Steyn in R v Soneji para 19). In a passage headed What should be the approach to procedural irregularities?, Lord Woolf referred to recent authority qualifying the traditional mandatory/directory test, and said: the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows. 1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.) 2. Is the non compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver. 3. If it is not capable of being waived or is not waived then what is the consequence of the non compliance? (The consequence question.) Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver. (p 362C F) I find this passage particularly helpful since it distinguishes clearly between two logically distinct issues: first, whether as a matter of construction a particular procedural rule is capable of being satisfied (fulfilled) by substantial compliance; secondly, whether even if the rule is not so satisfied a failure to comply can as a matter of discretion be waived by the relevant authority. For most practical purposes the distinction is immaterial. However, it can be significant in a case such as the present where timing is important. In my view, if the statutory rule properly construed can be satisfied by substantial compliance, it is no misuse of language to say that an application made before the relevant time, in a form which meets that standard, is made in accordance with the rule. As I understand his two judgments, Dyson LJ proceeded on the basis that any flexibility in the exercise of the section 53(5) procedure could only be explained as a matter of waiver by the authority. It therefore had no relevance to whether the application itself had been made in accordance with the statutory requirements for the purpose of section 67 at the relevant time. Indeed, in Maroudas he appears to have gone even further. The only latitude allowed was the possibility of curing the defects by a submission made shortly after the initial application. Later waiver by the authority of any procedural deficiencies, even if made long before the cut off date, would not be enough. In my view, with respect, this approach was too narrow. For the reasons I have given, this is not a context in which either statute needs to be read as requiring more than substantial compliance to achieve validity. The words in accordance with in section 67(6) do not necessarily imply anything more than compliance which would in any event be required by the terms of section 53(5) and Schedule 14. Dyson LJ appears to have attached importance to the statutory purpose of defining the moment by reference to which section 67(1) is disapplied. But the same could have been said of the planning condition in the Inverclyde case. It is not clear why that consideration should require a different approach under section 67 than under the governing section. There remains a legitimate question as to the purpose of section 67(6). If it merely reproduces the effect of section 53(5) taken with Schedule 14, why was it necessary to include it at all? Mr Pays answer is that it was probably intended to make clear that the date was to be fixed by reference only to paragraph 1 of Schedule 14, without regard to the provision (in paragraph 2) for service on landowners. I see some force in that suggestion. It can be said against it that paragraph 2 as it stands leaves no room for ambiguity on that point, since it requires in terms a notice that the application has been made. On that view section 67(6) adds nothing. However, the same point could be made of section 67(7). Even without it, there would have been no reason to read subsection (3)(c)(i) as requiring the applicant to be using, or able to use, the right of way in question. Alternatively, it may be that the purpose of section 67(6) was simply to make clear that what was required was a substantially complete application; in other words a bare application would not be sufficient, if it was not accompanied by the relevant information required by the rule (whether or not precisely in the prescribed form). It has to be remembered that section 67(3) was retrospective in effect. In the Inverclyde case there would have been no obvious hardship in tying the applicant to the three year limit set by the condition, of which he had notice at the time of the permission. By contrast, the cut off date under section 67(3) was deliberately fixed by reference to the date of the announcement of the legislation, and so as to allow no further opportunity for an applicant to improve his position. The legislative purpose no doubt was to identify for preservation genuine applications made before that date. This was understandable as a means of limiting pre emptive applications in the period before the Act came into effect. But that purpose did not justify or require subjecting them retrospectively to standards of procedural strictness which had no application at the time they were made. It is unnecessary for present purposes to determine whether the Winchester case was correctly decided on its own facts. Nor should this judgment be seen as encouragement to resurrect applications rejected in reliance on it. I would however question its extension to a case, such as Maroudas where the defects in the original application had been resolved to the satisfaction of the authority, and waived by them, long before the cut off date. I would respectfully echo the comment of the deputy judge in Maroudas that this was to move proper strictness into unnecessary bureaucracy. As was conceded, it would have been simple for the applicant, if required to do so, to have resubmitted the application in strictly correct form, but neither the authority nor anyone else thought that necessary. Without a crystal ball he would have had no reason to do so. Yet that wholly excusable failure resulted more than a decade later in the application and all that followed being declared invalid. I would have expected the draftsman to have used much clearer wording in section 67(6) if he had intended to achieve such a surprising and potentially harsh result. Conclusion As I suggested at the beginning of this judgment, there is some overlap in the two grounds of appeal. Under ground 1, for the reasons given by Lord Clarke, the wording of the definition does not on an ordinary reading bear the interpretation urged on us by the appellants. By the same token, under ground 2, the fact that the draftsman has not thought it necessary to define more precisely the form and contents of the application map can itself be taken as an indication against implying a requirement for unusually strict compliance, under either section 53 or section 67. For these reasons I would dismiss the appeal on both grounds. LORD NEUBERGER: (dissenting) Introductory The relevant facts and statutory provisions have been set out by Lord Clarke, and they need not be repeated. Two questions arise. The first is whether the applications submitted to the Dorset County Council by Jonathan Stuart on behalf of the Friends of Dorsets Rights of Way (the Applications), purportedly made under section 53(5) of the 1981 Act (section 53(5)), complied with the requirements of paragraph 1(a) of Schedule 14 to that Act (Schedule 14), in the light of the requirement in regulation 8(2) of the 1993 Regulations. The second question, which only arises if the answer to the first question is no, concerns the consequences of such non compliance in the light of the provisions of section 67 of the 2006 Act. In disagreement with Lord Clarke and the Court of Appeal, and in agreement with Supperstone J, I consider that the answer to the first question is that the Applications did not comply with the requirements of paragraph 1(a) of Schedule 14 as the accompanying map was not to the required scale, and that the answer to the second question is that the Applications were ineffective as a result of section 67, and in particular subsection (6) thereof. My reasons for these conclusions are as follows. The validity of the Applications: the 1:25,000 scale requirement The Applications were accompanied by documents which were enlarged photocopies of plans which had been prepared on a scale of 1:50,000, and which, as a result of the enlargement exercise, were on a scale of around 1:20,000. In those circumstances, the first question is whether such enlarged photocopies constituted maps drawn to the prescribed scale within paragraph 1(a) of Schedule 14, which as a result of regulation 8(2) and regulation 2 of the 1993 Regulations had to be on a scale of not less than 1:25,000. A map of a particular area is a document which shows in reduced, two dimensional form, normally with markings, symbols or annotations, what is on the ground in that area. It is almost inevitable that the map accompanying an application under section 53(5) will be a copy (either in printed form or a photocopy of a printed form) of an original map drawn by an individual, a group of individuals or a machine. The court was told that, in the experience of those involved in these proceedings, a photocopy of the appropriate section of a published copy of the relevant OS map is invariably used by applicants under section 53(5). That is entirely unsurprising, although there is no reason why the map accompanying a section 53(5) application should not be a copy of another published map, or an original plan, drawn for the purpose of the application, provided, of course, that it is drawn to the prescribed scale. Where an applicant uses a copy of an original map, the appellant council contends that the document only complies with the requirements of paragraph 1(a) of Schedule 14 if it is a copy of a map which was prepared on a scale of at least 1:25,000, whereas the respondent applicants argue that it complies with these requirements if the copy is on a scale of at least 1:25,000, even if the map from which the copy was made was on a scale of less than 1:25,000. The words used in paragraph 1 of Schedule 14 and in regulations 8(2) and 2 of the 1993 Regulations could justify either contention as a matter of pure language, although, as explained in para 90 below, I consider that the more natural meaning is that contended for by the appellant council. For that reason, but also for two other reasons, I prefer the appellants case. First, the purpose of imposing a minimum scale for the accompanying map was, in my view, because it could be expected to show a level of detail which would not normally be shown on a map prepared on a smaller scale. That would enable the council to appreciate the nature of the land and the various features close to the way in question. The only justification for the imposition of a minimum scale on the respondents case could be that a smaller scale plan would not show the way clearly, but that is a fanciful suggestion in my opinion, not least because paragraph 1(a) of Schedule 14 already contains a requirement that the way be show[n] on the plan, and that must mean clearly show[n]. It is true that applicants could draw their own map showing no detail, but that unlikely possibility is not an answer to the point that those responsible for the 1993 Regulations must have envisaged (rightly as events have turned out) that an OS map would normally be the document from which the copy map was made. Given that OS maps to a scale of 1:25,000 are easily obtainable in respect of all parts of England and Wales, it would be very eccentric for an applicant to incur the cost and time of preparing, or paying someone else to prepare, a new plan or map to that scale for the purpose of a section 53(5) application. That point is underlined by the fact, already mentioned, that applicants appear invariably to use photocopies of OS maps, and the fact that definitive maps are always based on OS maps. Secondly, it is not an entirely natural use of language to describe an enlarged photocopy of a map originally prepared on a scale of 1:50,000, as drawn on a higher scale. To my mind at any rate, a map is drawn to a certain scale if it is originally prepared to that scale. One might fairly describe a doubly magnified photocopy of a 1:50,000 map as being on a scale of 1:25,000, but I do not think that it would be naturally described as having been drawn to a scale of 1:25,000. The word drawn in paragraph 1 of Schedule 14 must, of course, be given a meaning which is appropriate in the light of modern technology and practice, but I do not see how that impinges on the natural meaning of the expression in the present case. Thirdly, the operative regulation in the present case, regulation 8(2) of the 1993 Regulations, states that regulation 2 is to apply to an application. Regulation 2 contains the express requirement A definitive map shall be on a scale of not less than 1:25,000. It appears to me therefore incontrovertible that if a map satisfies regulation 8(2), it must also satisfy regulation 2. With due respect to those who think otherwise, I do not see how regulation 2 can have one meaning in relation to a definitive map and another meaning in relation to a map accompanying an application. Bearing in mind the public importance of a definitive map, it strikes me as very unlikely that the drafter of the 1993 Regulations could have envisaged that such a map could be an enlarged photocopy of a map which had been prepared on a scale of significantly less than 1:25,000. I also note that regulation 2 is foreshadowed by section 57(2) of the 1981 Act, which refers to Regulations which can prescribe the scale on which maps are to be prepared: again, it does not seem to me to be a natural use of language to describe a doubly magnified photocopy of a 1:50,000 scale map as prepared on a scale of 1:25,000. The effect of section 67 of the 2006 Act on the Applications The status of the Applications if the maps which accompanied them failed to comply with the requirements of paragraph 1 of Schedule 14 requires a little analysis. Confining myself for the moment to the 1981 Act and the 1993 Regulations, it appears to me that the following three propositions are correct. First, the council could have treated the Applications as valid, and effectively waived the failure to comply with the map scale requirements. Secondly, if the council had taken the point that the enlarged photocopies did not comply with the requirements of paragraph 1 of Schedule 14, then the defect could not simply have been treated as if it had not existed. Thirdly, in such an event, subject to any special reason to the contrary (eg the applicants not having availed themselves of ample opportunity to do so after warnings), the applicants would have been entitled to remedy the defect on the Applications by submitting maps which were properly compliant with paragraph 1 of Schedule 14. In relation to each of these three propositions, it seems to me that Lord Steyns observations in R v Soneji [2005] UKHL 49, [2006] 1 AC 340, paras 14 and 23, are in point. He said that where Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply, the emphasis ought to be on the consequences of non compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity, which is ultimately a question of statutory construction. As to the first proposition, it seems to me that the purpose of the requirement in paragraph 1(a) of Schedule 14 is to enable the council to whom a section 53(5) application is made to be assisted as to the identity, location, extent and surroundings of the way, when dealing with the application. Accordingly, if the council is content to accept a less helpful or informative map than it was entitled to insist on, that is a matter for the council, and there is no basis for holding the application invalid. As to the second proposition in para 92 above, the notion that the defect could simply have been overlooked seems to me to fly directly in the face of the conclusion that paragraph 1 of Schedule 14, when read together with the 1993 Regulations, requires a section 53(5) application to be accompanied by a map drawn to a certain minimum scale. If an application does not comply with that requirement, and the failure is not waived by the council, the application is invalid as it stands. Unless it can be said that the failure is de minimis (a suggestion which was rightly rejected by Supperstone J in this case), the court would not be giving effect to the statute if it simply overlooked the defect. That brings one to the third proposition in para 92 above. I do not consider that it would be consistent with the purpose of the 1981 Act, and in particular section 53 and Schedule 14, if an application which was defective because it was accompanied by a map on too small a scale, could not be validated by the subsequent provision of a map on the appropriate scale. On the contrary. The point was well put in Inverclyde District Council v Lord Advocate (cited and followed by Carnwath LJ in Oxfordshire County Council v Oxford City Council [2005] EWCA Civ 175, [2006] Ch 43, paras 106 109), by Lord Keith, who held that it was open to an applicant to amend an application after the final date by which the application had had to be made. He said that [t]he planning authority must simply deal with the application procedurally in a way which is just to the applicant in all the circumstances. That being so, there is no good reason why amendment of the application should not be permitted at any stage. Accordingly, in the absence of any other statutory provisions, I would have held that, although the Applications were invalid for the purposes of section 53(5) because they did not comply with the requirements of Schedule 14, they could effectively be saved by the applicant submitting maps drawn to the stipulated scale. Having said that, such a conclusion is not available in my opinion in this case, because the provisions of section 67 of the 2006 Act, on which Mr Plumbe (a chartered surveyor who intervened on this appeal) rightly placed great emphasis in his brief submission, apply in this case. Section 67(1) extinguishes a certain type of public right of way (namely one for mechanically propelled vehicles) if it is not shown in a definitive map. Paragraphs (a) to (c) of section 67(3) exclude certain ways from the ambit of section 67(1); only para (a) is directly in point, and it refers to ways in respect of which an application was made under section 53(5) of the [1981 Act]. However, and here lies the problem for the respondents, section 67(6) states that [f]or the purposes of subsection (3), an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act. As Mr Laurence QC says on behalf of the appellant council, the observations of Lord Steyn in Soneji cannot apply to the position under section 67, because this is a case where Parliament [has] expressly spel[led] out the consequences of a failure to comply with its command, in that section 67(1) expressly provides that a right of way is extinguished unless (for present purposes) section 67(3)(a) applies. To adopt the words of Lord Woolf MR in R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354, quoted by Lord Carnwath in para 72, Parliament in section 67(1) and (6) has spelled out the consequence of the non compliance, and as the result of non compliance goes to jurisdiction jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver. Unless section 67(6) is mere surplusage, it seems to me that it can only sensibly be interpreted as meaning that, if a section 53(5) application has been made, but that application does not comply with the requirements of paragraph 1 of Schedule 14, then it is not to be treated as an application for the purposes of section 67(3)(a). As that is what happened in the present case, it must follow that the ways the subject of the Applications have been extinguished pursuant to section 67(1). It seems to me impossible to give section 67(6) any meaning if it does not have the effect for which Mr Laurence QC contends. The ingenious notion that it was intended to make it clear that only paragraph 1, and not paragraph 2, of Schedule 14 had to be complied with is wholly unconvincing, because, as Lord Carnwath says in para 77, it is clear from the wording of paragraph 2 itself that it only applies after an application has been made. I find the notion that section 67(6) is surplusage very difficult to accept. It is not as if the choice was between a strained meaning and no meaning, as the natural effect of the words of the subsection is as I have described. And that meaning appears to me to be entirely consistent with the purpose of section 67, which is to extinguish certain rights of way if they are not registered, subject to certain exemptions including those ways subject to section 53(5) applications. While it may seem harsh, it seems to me quite consistent with the purpose of the section to exclude from that class of exemption cases where the application is defective (even though it may otherwise be saveable). I do not consider that the court would be performing its duty of reflecting the intention of Parliament as expressed in legislation if it effectively ignored or discarded a subsection simply because it did not like the consequences, or it considered that they were rather harsh. It is said on behalf of the respondents by Mr Pay, who presented his arguments very well, that section 67 was retrospective in its effect and it is therefore appropriate to interpret a provision such as section 67(6) generously to a party who has made a defective section 53(5) application. I am unpersuaded by that. First, the effect of section 67 was only backdated to the moment when the Government announced its intention to enact it. Secondly, the respondents case does not involve interpreting section 67(6) so much as discarding it. Thirdly, there is no correlation between the retrospectivity and the timing of the failure to comply or opportunity to remedy the failure to comply. It is also said that there is some surplusage in section 67 anyway. Although that was not gone into in any detail, I am unconvinced that it is true. However, even if it is, I do not see how it would assist the respondents case. The notion that my conclusion as to the effect of section 67(6) leads to absurdity, because an application could thereby be invalidated by virtue of a small oversight, does not impress me. It is an argument which can be raised in relation to any provision, whether contractual or statutory, which requires a step, which has potentially beneficial consequences for the person who is to take it, to be taken by a certain date which cannot be moved. An obvious example is the service of a statutory or contractual notice: if a defective notice is served and is not corrected before the stipulated date, then the right to serve the notice, and the consequential benefits, are irretrievably lost, even if the defect was due to an oversight. Conclusion For these reasons (which on the second question are very similar to those contained in the judgment of Dyson LJ in R (Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431, [2009] 1 WLR 138), and for the reasons given in the brief judgment of Lord Sumption, I would have allowed this appeal. LORD SUMPTION: (dissenting) There are two reasons why regulations 2 and 8 of the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993/12) might have prescribed the use of a map on a scale of not less 1:25,000. One is because a map on that scale showing the relevant byway could be expected to show more of the surrounding detail than a map on a smaller scale. The other is that it was desired to ensure that the map should be visible without unduly straining the eyesight of those using it. In my opinion it is manifest that the requirement was imposed for the first of those reasons and not for the second. It is true that the Regulations do not specify what maps of the prescribed scale must be used and that different maps may vary in the amount of surrounding detail shown. It is also true that an applicant supplying a map under regulation 8 might in theory satisfy the requirement by producing a 1:25,000 scale map with less surrounding detail than some 1:50,000 scale maps. It is also true that he might satisfy it by producing a home made map on which the byway was shown with little or no surrounding detail (although this course would clearly not be open to a local authority producing a definitive map under regulation 2). But I do not regard this as relevant to the construction of the Regulations, because I decline to construe them on the assumption that applicants could be expected to complete their applications in the most obtuse and unhelpful manner consistent with the language. In my opinion the Regulations have been drafted on the assumption that a map would be used in which a 1:25,000 scale map would have sufficient surrounding detail, and in any event more than a 1:50,000 map. A magnified copy of a 1:50,000 map is therefore not the same thing as a 1:25,000 map, and does not comply with regulation 8. Section 67(6) of the Natural Environment and Rural Communities Act 2006 provides that for the purposes of subsection (3) an application seeking modifications to the definitive map means one which complies with Schedule 14, paragraph 1 of the Wildlife and Countryside Act 1981. That means one which includes a map drawn on the prescribed scale. The application in this case was therefore not an application of the kind referred to in section 67(3) of the 2006 Act. It follows that on the relevant date any right of way for mechanically propelled vehicles was extinguished. Since the defect might in theory have been made good after the relevant date, this may be described as a technical point. But sometimes technicality is unavoidable. Where the subsistence of rights over land depend on some state of affairs being in existence at a specified date, it is essential that that state of affairs and no other should be in existence by that date and not later. have allowed the appeal. For these reasons, which are the same as those of Lord Neuberger, I would

UK-Abs

Councils (known in this context as surveying authorities) are required by section 53 of the Wildlife and Countryside Act 1981 to maintain a definitive map and statement of the public rights of way in their local area. Under the 1981 Act, members of the public may apply to surveying authorities for an order modifying the definitive map and statement in light of new evidence of the existence of a public right of way. Schedule 14 to the 1981 Act specifies in paragraph 1 that such applications must be accompanied by a map drawn to the prescribed scale and showing the way or ways to which the application relates. The scale is prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, which provide by Regulation 2 that a definitive map shall be on a scale of not less than 1:25,000 and by regulation 3 that maps accompanying an application for a modification order must also comply with regulation 2. The Natural Environment and Rural Communities Act 2006, section 67, extinguished all unrecorded rights of way for mechanically propelled vehicles in England as of 2 May 2006. However, such rights of way could be preserved if an application for a modification order had been made before 20 January 2005. Section 67(6) specifies that an application under this section is made when it is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act. Before the deadline, the Friends of Dorsets Rights of Way made five applications to Dorset County Council (the appellant) under the 1981 Act for orders modifying the definitive map and statement to show various byways open to all traffic. The maps accompanying the applications were produced using a computer program which printed out maps which were to a presented scale of 1:25,000 or larger but which were derived originally from Ordnance Survey 1:50,000 maps. The Trail Riders Fellowship (the first respondent) has now taken over conduct of those applications. On 7 October 2010, the council rejected all of the applications on the basis that the accompanying maps were not drawn to a scale of not less than 1:25,000. If the councils decision is upheld, the vehicular rights of way in question will no longer exist. Supperstone J upheld the councils decision on the basis that: (i) the application maps did not comply with the statutory requirements; and (ii) applying the decision of the Court of Appeal in the case of R (Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431 (Winchester), the applications were invalid because the extent of the non compliance was not negligible (de minimis). The Court of Appeal allowed the appeal, holding that (i) the maps did comply with the statutory requirements, but (ii) if the appeal had failed on the first point, the non compliance could not sensibly be described as de minimis. The Supreme Court dismisses the councils appeal on the basis of point (i) and upholds the Court of Appeals decision that the maps did comply with statutory requirements by a majority of 3 2. Lord Clarke gives the leading judgment; Lord Toulson and Lord Carnwath agree with Lord Clarke. Lord Sumption and Lord Neuberger would both have decided in the appellant councils favour on point (i). Point (ii) therefore does not arise. Had point (ii) arisen, Lord Neuberger, Lord Sumption and Lord Toulson would have held that the effect of non compliance with the statutory provisions is that the applications would not have been valid, while Lord Carnwath would have held, contrary to Winchester, that they would nonetheless have been valid. Lord Clarke prefers not to express a view on point (ii). (i) Did the maps submitted with the applications comply with the statutory requirements? Lord Clarke explains that the only question is whether the maps were drawn to a scale of not less than 1:25,000 [18 19]. He holds that they were. Each map was in fact produced to a presented scale of 1:25,000 or larger [20]. The statute and regulations could have but did not require that a map with the amount of detail of an Ordnance Survey 1:25,000 map be used, and the mere fact that one might ordinarily expect the use of an Ordnance Survey 1:25,000 map does not tell us whether that is a requirement [22 25]. Maps drawn to a scale of 1:25,000 without any reference at all to an Ordnance Survey map would satisfy the statutory provisions, even if they contained only as much detail as an Ordnance Survey 1:50,000 map [25 26]. Although the prescribed scale requirement applies to the application map and the definitive map and statement in the same terms, it is important to note that the surveying authority is under a public law duty to prepare and maintain the definitive map and statement to a professional standard, whereas lay applicants are only required to put relevant material before the surveying authority for investigation [28]. A map could be drawn by a computer program [29 30]. Lord Toulson [35, 40] and Lord Carnwath [51] agree with Lord Clarke. Lord Neuberger and Lord Sumption would have allowed the appeal in relation to point (i); each agrees with the other [106, 109]. Lord Neuberger considers that: the most natural meaning of Schedule 14 is that it requires that, where an applicant uses a copy of an original map, the original map must have been prepared on a scale of at least 1:25,000 [86 87]; the justification for the use of a minimum scale must have been that such a map would normally show more contextual detail [88]; it is not natural to say that a map is drawn to a certain scale if it has not been prepared to that scale [90]; and the terms in question must have had the same meaning in relation to both the definitive map and the map accompanying an application [91]. Lord Sumption says that the Regulations were drafted on the assumption that a 1:25,000 scale map would have more detail than a 1:50,000 map. A magnified 1:50,000 map is therefore not the same thing as a 1:25,000 map [107]. (ii) Does non compliance with the statutory requirements mean that the maps are invalid? Lord Neuberger explains that the ultimate question of one of statutory construction: can Parliament fairly be taken to have intended that the applications would be totally invalid if they did not comply with the statutory requirements [93]? Prior to the deadline imposed by the 2006 Act, it would have been open to the council to waive the defect by accepting a non compliant application, or to the applicant to validate the application after its submission by providing compliant maps. The defect could not simply have been overlooked unless it could be said that the defect was de minimis (a suggestion rightly rejected by the first instance judge) [92 97]. But under section 67 of the 2006 Act, Parliament has spelled out the consequence of non compliance: a non compliant application is not to be treated as a valid application, and there is no jurisdiction to waive or amend the defect [99]. Any other interpretation would deprive section 67(6) of the 2006 Act of all meaning [100 105]. Lord Sumption agrees: the point may be technical, but the technicality is unavoidable [108]. Lord Toulson agrees with the approach taken by Lord Neuberger and Lord Sumption [41]. He notes that all statutes must be construed in their own context but in this case section 67(6) puts the answer beyond doubt [48 50]. Lord Carnwath starts from the principle that procedural requirements such as those in the 1981 Act should be interpreted flexibly and in a non technical way [69], and adds that such a flexible approach is particularly appropriate given that the primary duty to keep the definitive map up to date rests on the surveying authority and that the effect of the statute is retrospective [71, 78]. In this context, substantial compliance with the statutory provisions would suffice to achieve validity. Winchester was therefore too narrowly decided [73 75]. Section 67(6) is simply included for clarity [77]. He would therefore have dismissed the appeal on this basis as well (and notes that the grounds are closely related) [80 81]. Lord Clarke is sympathetic to Lord Carnwaths general approach but prefers not to express a view on the issue until it arises on the facts of a particular case [34].

The principal issue in this appeal concerns the role, if any, of the courts of England and Wales (including the Supreme Court of the United Kingdom) in the legislative process of one of the Channel Islands. It raises fundamental questions about the constitutional relationship between the United Kingdom and the Bailiwicks of Guernsey and Jersey. It also raises questions about the constitutional relationship between the courts and a representative or democratically elected legislature. The case concerns an Order in Council of 12 October 2011 by which Royal Assent was given to the Reform (Sark) (Amendment) (No 2) Law 2010 (the 2010 Reform Law) which had been passed by the Chief Pleas, the legislature of Sark. The claimants originally applied to the Administrative Court for the Order to be quashed, and without the Order the Law could not become law. At the outset of the hearing, they modified that claim, to seek only a declaration that the decision of the Committee of the Privy Council which recommended approval of the Law was an unlawful decision, on the ground that, in certain respects, the Law was incompatible with the European Convention on Human Rights. The Administrative Court granted such a declaration: [2013] EWHC 1183 (Admin). The appellants claim that the Court had no jurisdiction to do so, or, if it had, that that jurisdiction should not have been exercised. If it was open to the court to make such a declaration, two further issues arise. First, is the correctness of Government legal advice given as to the meaning and effect of an international treaty ever justiciable in the courts of England and Wales as the House of Lords in R v Secretary of State for the Home Department, ex p Launder [1997] 1 WLR 839 held that it could be? Second, if it is, was the Administrative Court correct to hold that, in one limited respect, the 2010 Reform Law was incompatible with the European Convention? The Supreme Court elected to hear argument from all parties on the jurisdiction issues first. Having done so, we announced that we did not require to hear argument on the two further issues. It follows, as all parties will have understood, that the appeal will be allowed on the principal issue and the declaration made by the Administrative Court set aside. The claimants in this action, Sir David and Sir Frederick Barclay, have withdrawn from the proceedings. They have agreed not to enforce the costs order made in their favour in the Administrative Court. The defendants in the action and appellants in this court, the Secretary of State for Justice and Lord Chancellor, the Privy Council Committee for the Affairs of Jersey and Guernsey, and the Privy Council itself, have agreed not to apply for costs orders against the claimants in any circumstances. Despite the Barclay brothers withdrawal, it seemed to this court that the constitutional issues raised by the appeal were of such importance that we should have the assistance of advocates to the court, who could put forward such counter arguments to those of the appellants as appeared to them proper. We are most grateful to the Hon Michael Beloff QC and Mr Ivan Hare for their able assistance. We are also grateful that the Attorney General of Jersey and the States of Guernsey have intervened in this appeal, given that the appeal raises such serious issues about the relationship between the United Kingdom and the Channel Islands. This is a leap frog appeal, the Administrative Court having granted a certificate pursuant to section 12 of the Administration of Justice Act 1969. That court did not think it right to decline jurisdiction, in the light of two decisions which are binding both on that court and on the Court of Appeal. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (Bancoult (No 2)), the House of Lords held that the courts of England and Wales did have jurisdiction to rule upon the lawfulness of Orders in Council, made under the Royal prerogative, legislating in respect of a British Overseas Territory. In R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] UKSC 9, [2010] 1 AC 464 (Barclay (No 1)), the Barclay brothers and a resident of Sark mounted a similar challenge to this against the Reform (Sark) Law 2008 (the 2008 Reform Law). It was conceded at all levels in Barclay (No 1) that, in the light of the decisions of the Court of Appeal and House of Lords in Bancoult (No 2), the Order in Council granting Royal Assent to the Law was amenable to judicial review in the courts of England and Wales. The Administrative Court did not think it right to embark upon a process of distinguishing Bancoult (No 2) which had not been considered in Barclay (No 1) (para 46). The relationship between the Channel Islands, the Crown and the United Kingdom The Channel Islands, like the Isle of Man (although it has a rather different history), are not part of the United Kingdom. Nor have they ever been British colonies, or British Overseas Territories as the few remaining colonies are now termed. They are Crown Dependencies, enjoying a unique relationship with the United Kingdom and the rest of the British Commonwealth through the Crown, in the person of the Sovereign. The constitutional relationship between the Channel Islands, the Crown and the United Kingdom is discussed at length in Chapter 31 of the Report of the Royal Commission on the Constitution, 1969 1973 (the Kilbrandon Commission), 1973, Cmnd 5460. This is now supplemented by the House of Commons Justice Committees Eighth Report of Session 2009 2010, Crown Dependencies, 2010, HC 56 1; the Government response to that Report, 2010, Cm 7965; the Justice Committees Tenth Report of Session 2013 2014, Crown Dependencies: developments since 2010, 2014, HC 726; and the Governments response to that Report, 2014, Cm 8837. In none of these is the jurisdiction of the courts of England and Wales over the institutions of the Channel Islands, or over the acts of the United Kingdom government in relation to the Channel Islands, discussed. Many aspects of the relationship are uncertain and practice is still developing. Nevertheless, some things are clear. The Channel Islands consist of the Bailiwicks of Jersey and Guernsey. The Bailiwick of Guernsey includes the islands of Alderney and Sark, which have their own legislative and executive institutions. Not being part of the United Kingdom, unlike Wales, Scotland and Northern Ireland, the Bailiwicks are not represented in the Parliament of the United Kingdom. They are economically self sufficient. They pay no taxes to the United Kingdom and they receive no contribution from the revenues of the United Kingdom. They were not settled by, or conquered by or ceded to, the United Kingdom as colonies. Their link with the United Kingdom and the rest of the Commonwealth is through the Crown, not in the sense of the ultimate executive authority in the United Kingdom, but in the sense of the person of the Sovereign. The Sovereigns personal representative in each Bailiwick is the Lieutenant Governor. This link stems from the Norman conquest of England in 1066, when the Duke of Normandy became King of England. The Islands were part of the Duchy of Normandy. King Philippe Auguste of France succeeded in retaking possession of continental Normandy from King John of England in 1204, but was not able permanently to retake the Islands, which remained in the possession of and retained their allegiance to the King of England. The Treaty of Calais of 1360 contained a clause confirming that the King of England shall have and hold all the islands which he now holds: see Minquiers and Ecrehos Case (France v United Kingdom) [1953] ICJ Rep 47, 54. The States of Guernsey told the Kilbrandon Commission that, after the ducal title was surrendered, the King of England continued to rule the Islands as though he were Duke of Normandy, observing their laws and customs and liberties; and these were later confirmed by the charters of successive sovereigns which secured for them their own judiciaries and freedom from process of English courts and other important privileges of which the Islands were justly proud and which have always been respected (Cmnd 5460, para 1349). The Charter granted by Queen Elizabeth I to the people of Guernsey, Alderney and Sark in 1560, for example, granted to the bailiff and jurats and all other magistrates and officers of justice . full and absolute authority, power and faculty to have the cognisance, jurisdiction, and judgment concerning and touching all and all sorts of pleas, processes, lawsuits, actions, quarrels and causes arising within the islands and maritime places aforesaid (clause 5). Further, it provided that the islands authorities and people should none of them be cited, or summoned, or drawn into any lawsuit, or forced in any manner by any writs or process, issued from any of our courts of the kingdom of England, to appear and answer before any judges, courts or other officers of justice, out of any of the islands and maritime places aforesaid, touching or concerning anything, dispute, causes or matters in controversy whatsoever, arising in the aforesaid islands . (clause 6). Nevertheless, the Bailiwicks are not independent states in international law. The United Kingdom Government is responsible for their international relations and for their defence. But it is the practice to consult the Island authorities before entering into any international agreement which would apply to them. The UK has also undertaken not to act internationally on behalf of a Crown Dependency without prior consultation; recognises that their interests may differ from those of the UK (especially in relation to the European Union, of which the Islands are not members) and so it may have to represent them both; and supports the principle of the Dependencies further developing their own international identities (Cm 8837, p 10). The United Kingdom Parliament has power to legislate for the Islands, but Acts of Parliament do not extend to the Islands automatically, but only by express mention or necessary implication. The more common practice is for an Act of Parliament to give power to extend its application to the Islands by Order in Council. It is the practice to consult the Islands before any UK legislation is extended to them. The Kilbrandon Commission observed that it can be said that a constitutional convention has been established whereby Parliament does not legislate for the islands without their consent on domestic matters (Cmnd 5460, para 1469). Nevertheless, in the light of the view taken by the Judicial Committee of the Privy Council in Madzimbamuto v Lardner Burke [1969] 1 AC 645, at 722 3, the Commission concluded that in the eyes of the courts the UK Parliament did have a paramount power to legislate for the Islands on any matter, domestic or international, without their consent, although it should be no more ready than in the past to interfere in their domestic affairs (para 1473). The Crown also retains the right to legislate for the Islands by Order in Council. The evidence of the States of Guernsey to the Kilbrandon Commission was that the last instance of this was the Court of Appeal (Channel Islands) Order 1949 (Jersey Order in Council 12/1949), which was based on a scheme which had the prior approval of the States. For the most part, therefore, the Islands legislate for themselves. Jersey, Guernsey, Alderney and Sark each have their own legislature. The States of Guernsey have power to legislate for the whole Bailiwick, including Alderney and Sark. On criminal matters they may do this without the consent of the Alderney and Sark legislatures, but on other matters their consent is required. The Human Rights (Bailiwick of Guernsey) Law, 2000 applies throughout the Bailiwick, including Sark. On some matters, the Islands can legislate for themselves. For instance, the States of Guernsey may legislate by Ordinance, the limits of which power were considered by the Judicial Committee of the Privy Council in Jersey Fishermens Association Ltd v States of Guernsey [2007] UKPC 30; [2007] Eu LR 670. However, generally they legislate by Laws which require the Royal Assent after being passed as a Projet de Loi by the local legislature. Royal Assent is given by Order in Council. Since 1668, there has been a Standing Committee of the Privy Council which deals (originally among many other things) with the affairs of Jersey and Guernsey. This was instituted before the development of cabinet government as we now know it. In the 18th century there developed the constitutional convention that, in relation to Great Britain and later the United Kingdom, the Sovereign would only act on the advice of those Privy Councillors who were members of the cabinet and thus accountable to Parliament. But that did not apply to the Channel Islands, and at least until the end of the 19th century, the Committee for the Affairs of Jersey and Guernsey was composed of Privy Councillors the majority of whom were not members of the United Kingdom government (see WJ Heyting, The Privy Council Committee for the Affairs of Jersey and Guernsey, in The Constitutional Relationship between Jersey and the United Kingdom, 1977, The Jersey Constitutional Association). The present Committee was constituted at the beginning of the reign of Her Majesty the Queen by Order in Council dated 22 February 1952. This appoints the whole Privy Council, or any three or more of them, as the Committee and provides that all Acts passed, or to be passed, by the States of the Islands of Jersey and Guernsey and its Dependencies, and submitted to Her Majesty in Council, for Her Majestys approval, and all petitions received from those Islands be, and the same are hereby, referred to the said Committee for their consideration and report. In practice, the Committee consists of the Lord President of the Council, the member of the cabinet responsible for relations with the Channel Islands, and one or two other government ministers. Responsibility for relations with the Islands used to lie with the Home Secretary but has now been passed to the Lord Chancellor. The committee in this case consisted of the Lord Chancellor, a Minister of State in the Ministry of Justice and the Lord President. Thus, in contrast to earlier centuries, Her Majesty in Council is now advised solely by members of the United Kingdom government. The practice is that a Projet de Loi is sent by the Island authorities to the Ministry of Justice, together with an explanatory report. Petitions can be lodged either for or against it. A small team of civil servants in the Ministry scrutinises it to see whether approval should be recommended. It is common ground between the appellants and the interveners in this case that there is a strong presumption in favour of granting Royal Assent to a measure which has been passed by an Island legislature. The 2010 Justice Committee report stated that the grounds for withholding Assent are not entirely clear (2010, HC 56, para 51). The question does not arise in this appeal, as approval of the 2010 Reform Law was indeed recommended. However, it should be recorded that the appellants and the interveners are not agreed on the permissible scope for recommending the refusal of Royal Assent to a measure which has been passed by an Island legislature. The Justice Committee took the view, shared by the appellants, that it would certainly be legitimate to withhold Assent if the legislation would put the relevant Island in breach of an international obligation which applies to the Island and for which the UK is responsible (2010, HC 56, para 51; see also Cm 7965, p 16, note 36). The interveners position is that Assent may be withheld if the Projet de Loi would breach an international obligation which has been extended, by agreement, to the Islands, but that this does not apply where the relevant agreement has already been incorporated by legislation into the domestic law of the Islands. The democratic decision of the Island legislature should not be supplanted by the executives view of an executive agreed treaty obligation. Further, the appellants take the view that Assent may be withheld if it would clearly not be in the public interest for it to become law (Treasury Solicitors letter to the claimants, 16 November 2007). This too is not accepted by the interveners. The Kilbrandon Report did state that the Crown has ultimate responsibility for the good government of the Islands (Cmnd 5460, para 1361). Intervention by the United Kingdom Government would certainly be justifiable to preserve law and order in the event of grave internal disruption; but the UK Government and Parliament ought to be very slow to seek to impose their will on the Islands merely on the grounds that they know better than the Islands what is good for them (para 1502). The Justice Committee reported a high degree of consensus that good government would only be called into question in the most serious of circumstances, such as a fundamental breakdown in public order or endemic corruption in an Island government, legislature or judiciary (2010, HC 56, para 37). The Government agreed (Cm 7965, p 9). Given this very narrow scope for direct intervention, the interveners argue that the public interest is not a ground upon which Royal Assent can be refused. These questions do not arise on this appeal, nor do they necessarily cover the full ground: it is possible, for example, that Royal Assent might lawfully be withheld to Island legislation, not because it put the Island in breach of an applicable international obligation but in the light of the United Kingdoms international relations generally (as is the implication of the discussion, obiter, in the Jersey Fishermens Association case, at paras 29 to 38). It is not necessary for this court to express a view upon these contentious issues. We flag them up because they would arise in the (no doubt highly unlikely) event of a recommendation that Royal Assent be withheld. We note only that, as the interveners were not party to Barclay (No 1), in which the issue also did not arise, or to this case in the Administrative Court, any statement in the judgments in those cases as to the scope for withholding Royal Assent cannot be treated as authoritative. Sark has a population of around 600. Queen Elizabeth I of England granted the island as a Royal Fief to the first Seigneur, Helier de Carteret, by letters patent in 1565. The fief descends by inheritance but can be sold with royal consent. The family of the present Seigneur acquired the fief in 1852 and he inherited it from his grandmother in 1974. The letters patent required the Seigneur to keep the island continually inhabited by 40 men, the quarantine. He therefore leased 40 parcels of land, known as tenements, at low rents, on condition that a house was built and maintained on the tenement and a man and musket provided for the defence of the island. These 40 tenements still exist, although some tenants own more than one. The Barclay litigation is concerned with both the judiciary and the legislature of the Island. The chief judge of the island is the Seneschal, whose office of Seneschal was created by the Crown in 1675. He was originally appointed by the Seigneur with the approval of the Lieutenant Governor of Guernsey, the Sovereigns representative in the Bailiwick. The court of the Seneschal has unlimited jurisdiction in civil matters, but a more limited jurisdiction in criminal matters. There is an appeal from his court to the Royal Court of Guernsey, which also has concurrent first instance jurisdiction in civil matters and sole jurisdiction over more serious criminal matters. Appeals from the Royal Court lie to the Court of Appeal for Guernsey, and from that Court to the Judicial Committee of the Privy Council. The legislature of Sark is the Chief Pleas, which is also the islands executive, operating through committees in the style which used to be adopted by most local authorities in England and Wales. However, as already noted, the legislature of Guernsey may also legislate for the island in criminal matters without the consent of the Chief Pleas and in other matters with its consent. Under the constitution of Sark as set out in the Reform (Sark) Law 1951, the Chief Pleas consisted of the Seigneur and the Seneschal, the 40 tenants, and 12 elected deputies of the people. The Seneschal was ex officio President. Major changes were made by the 2008 Reform Law, which was passed by the Chief Pleas in 2006 and given Royal Assent in 2008. The principal change was that the Chief Pleas became a wholly elected body of 28 conseilleurs, apart from the Seigneur and the Seneschal, who remained members but could not vote. The Seneschal remained ex officio President. In Barclay (No 1) the 2008 Reform Law was challenged on three grounds: that the continued membership of the Chief Pleas of the Seigneur and Seneschal was incompatible with article 3 of the First Protocol to the European Convention; that while alien residents of Sark could vote in the elections for conseilleurs, they could not stand for election, which was also said to be incompatible with article 3 of the First Protocol; and that the dual role of the Seneschal as President of the Chief Pleas and chief judge was incompatible with article 6 of the Convention. All three challenges failed before Wyn Williams J: [2008] EWHC 1354 (Admin); the first two failed both on appeal to the Court of Appeal and to the Supreme Court: [2008] EWCA Civ 1319; [2009] UKSC 9; the third challenge succeeded in the Court of Appeal and there was no cross appeal against that to the Supreme Court. The Court of Appeal declined to quash the Law, but made a declaration that the Seneschals dual role breached article 6 of the Convention. As a result, the Chief Pleas enacted the 2010 Reform Law which is in issue in these proceedings. Under this, the Seneschal is no longer to serve as President or member of the Chief Pleas and a new office of President is created; and new provisions are made for the appointment, removal, renewal and remuneration of the Seneschal. The claimants challenged the latter provisions as being incompatible with the impartiality and independence of the judiciary which is required by article 6 of the Convention. The Administrative Court rejected the challenges to the provisions for the appointment, removal and renewal of the Seneschal. But it held that the provision for the remuneration of the Seneschal, out of public funds to be determined by the Chief Pleas on the recommendation of its General Purposes and Advisory Committee in consultation with its Finance and Commerce Committee, was incompatible with article 6. This was because the court held that there was nothing to prevent the Chief Pleas making an arbitrary reduction in the remuneration of the Seneschal. In such a small community, an objective outsider would see the Seneschal as vulnerable to pressure from the members of the Chief Pleas not to make decisions which would be unpopular with them. The court therefore granted the claimants a declaration that the decision of the Committee for Jersey and Guernsey to recommend approval of the provisions of the 2010 Reform Law amending the 2008 Reform Law was an unlawful decision, as in respect of the remuneration of the office of the Seneschal, the law was incompatible with article 6 of the Convention. The court made it clear that the incompatibility could be cured by amending the law to restore the role of the Lieutenant Governor, whose approval of the remuneration of the Seneschal had been required under the 2008 Reform Law. Jurisdiction The appellants and the interveners both argue (i) that the courts of England and Wales do not have jurisdiction to entertain this claim, and (ii) that if they do have such jurisdiction, they should not have exercised it in this case. As will become apparent, it is not possible to state a general rule as to whether or not an Order made by Her Majesty in Council is amenable to judicial review in the courts of England and Wales, given the wide variety of circumstances in which such Orders are made. However, the principal argument of both the appellants and the interveners in support of each of the above propositions is that any attack upon Island legislation on the ground that it is incompatible with the European Convention on Human Rights ought to be brought in the Island courts under the local Human Rights legislation, in this case the Human Rights (Bailiwick of Guernsey) Law 2000, and not in the courts of England and Wales. This argument was placed at the forefront of the written and oral submissions of the interveners and of the oral submissions of the appellant. It is therefore convenient to consider the lesser jurisdiction question (ii) above, should it be exercised, before the greater jurisdiction question (i), does it exist? (i) Exercise The Human Rights (Bailiwick of Guernsey) Law 2000 is closely modelled on the United Kingdoms Human Rights Act 1998 (the 1998 Act). Thus, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (s 3(1)). This does not affect the validity, continuing operation or enforcement of any incompatible primary legislation (s 3(2)). If a court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of that incompatibility (s 4(2)). Such a declaration does not affect the validity, continuing operation or enforcement of the provision in question and is not binding on the parties (s 4(6)). A court for this purpose means (a) the Judicial Committee of the Privy Council, (b) the Guernsey Court of Appeal, (c) the Royal Court of Guernsey, sitting otherwise than as an Ordinary Court dealing with a criminal matter, (d) the Court of Alderney, sitting otherwise than as a criminal trial court, and (e) the Court of the Seneschal of Sark, sitting otherwise than as a criminal trial court (s 4(5)). When any court is considering whether to make a declaration of incompatibility, Her Majestys Procureur is entitled to be given notice of this and to be joined as a party to the proceedings (s 5(1) and (2)). Primary legislation means any (a) Act of the UK Parliament which applies or extends directly to Guernsey, (b) Church of England measure applicable to Guernsey, (c) Order in Council extending to Guernsey an Act of Parliament, (d) Law, (e) Ordinance other than one made under a power contained in another enactment, and (f) Order in Council (i) made in exercise of Her Majestys Royal Prerogative, or (ii) amending an Act of Parliament, which applies to Guernsey (s 17). Laws and Ordinances (unless made under a power contained in another enactment) passed by an Island legislature are clearly primary legislation for this purpose. So too are the three methods by which other bodies may legislate for the Islands: an Act of the UK Parliament which extends to the Islands (now unusual), an Order in Council extending an Act of the UK Parliament to the Islands (now the usual way of applying UK legislation to the Islands), or an Order in Council made in the exercise of Her Majestys prerogative to legislate directly for the Islands (now rare, see para 12 above). Thus the claimants could have applied, either to have the 2010 Reform Law read down in accordance with section 3(1) of the Human Rights (Bailiwick of Guernsey) Law 2000 or for a declaration of incompatibility in accordance with section 4(2). Such an application could have been brought either in the Royal Court of Guernsey or in the Court of the Seneschal (but given that the challenge was concerned with the appointment and terms of service of the Seneschal the former would have been more appropriate). In each case the ultimate route of appeal would be to the Judicial Committee of the Privy Council. The remedies available would have been different from, in one sense wider and in another sense narrower than, the remedies available on a judicial review of the decision to recommend Royal Assent to an Island Law. On the one hand, in an appropriate case, it is possible to read and give effect to legislation which would otherwise be incompatible with a Convention right in a way which is compatible with that right. This is a flexible power which is capable of directly remedying the complaint of a person who argues that legislation is incompatible with his rights. In the United Kingdom it is regarded as the power of first resort: Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557. A declaration of incompatibility, on the other hand, leaves the incompatible law intact, although it sends a clear message to the legislature that the state will be in breach of its international obligations unless and until it is put right. While it is unlawful for other public authorities to act in a way which is incompatible with the Convention rights (s 6(1)), unless effectively obliged to do so by primary legislation (s 6(2)), a public authority for this purpose does not include an Island legislature or a person exercising functions in connection with proceedings in an Island legislature (s 6(3)). In this way, as with the United Kingdoms 1998 Act, a delicate balance is drawn which respects the supremacy of the Island legislatures. It was not suggested in Barclay (No 1) that those remedies are available in respect of an Island Law in the courts of England and Wales. An Island Law is not included in the list of primary legislation in the 1998 Act (s 21(1)). The list does include an Order in Council made in exercise of Her Majestys Royal Prerogative, but there is nothing in the 1998 Act to indicate that this extends to Orders in Council made in the exercise of the prerogative power to give Royal Assent to Island legislation or to legislate for territories outside the United Kingdom. It was suggested in Barclay (No 1) that the Secretary of State for Justice and Lord Chancellor, the Committee for the Affairs of Jersey and Guernsey and the Privy Council were acting as public authorities for the purpose of sections 6 and 7 of the 1998 Act when they recommended and approved the 2008 Reform Law. That suggestion was rejected both at first instance and in the Court of Appeal. The arguments were canvassed in the Supreme Court (paras 102 to 111) but the Court declined to express a view, because it had been conceded that the recommendation, and indeed the resulting decision of the Privy Council to approve the Law, were amenable to judicial review on ordinary principles (paras 100, 111). The applicability of the 1998 Act to territories outside the United Kingdom but for whose international relations the United Kingdom is responsible was considered by the House of Lords in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 (Quark Fishing). The company alleged that their rights under article 1 of the First Protocol to the European Convention had been breached by the denial of a licence to fish for Patagonian toothfish in the territorial waters of the South Georgia and South Sandwich Islands (SGSSI). Having succeeded in getting the decision quashed on ordinary judicial review principles, the company applied for damages under the 1998 Act. The company could succeed only if (a) those responsible for refusing them the licence the Director of Fisheries for the SGSSI acting under the instructions of the Commissioner for the SGSSI acting under the instructions of the Secretary of State for Foreign and Commonwealth Affairs were a public authority for the purpose of the 1998 Act, and (b) the rights contained in article 1 of the First Protocol were Convention rights within the meaning of the 1998 Act. The SGSSI is a British Overseas Territory governed as provided for in the South Georgia and South Sandwich Islands Order 1985. The United Kingdom is responsible for the international relations of the SGSSI for the purpose of article 56 of the European Convention, under which any member state may (or may not) declare that the Convention shall extend to all or any of such territories. The United Kingdom had made such a declaration in respect of the Convention itself, but (for some unknown reason) had neglected to do so in respect of the First Protocol. The House of Lords was unanimous in concluding that the rights contained in article 1 of the First Protocol were not Convention rights for the purpose of the 1998 Act. Section 1 of the 1998 Act defines the Convention Rights as the rights set out in the listed articles of the Convention and two of its Protocols. By section 21, the Convention means the European Convention as it has effect for the time being in relation to the United Kingdom. I decided the case on the narrowest possible ground, that the rights in question could not have effect in relation to the United Kingdom when the United Kingdom had not extended them to the territory in question (para 97). Lord Nicholls decided the case on the same basis, but also stated that the rights brought home by the Act do not include Convention rights arising from these extended obligations assumed by the United Kingdom in respect of its overseas territories. The United Kingdom thereby became responsible in international law for securing the protection of those rights but it did not extend the reach of sections 7 and 8 of the 1998 Act (para 36). Lord Hoffmann also stated that declarations under article 56 operated only in international law (para 56). However, the majority, Lord Bingham, Lord Hoffmann and Lord Hope, decided the case on the basis that the instructions had been given on behalf of Her Majesty in right of the SGSSI and not in right of the United Kingdom. Thus the Secretary of State and the SGSSI officials could not be acting as United Kingdom public authorities for the purpose of sections 6 and 7 of the 1998 Act. Both Lord Nicholls and I considered that the capacity in which the Crown acted was irrelevant. What mattered was the intended scope of the 1998 Act. On any view, it would have been strange to hold that the 1998 Act applied to Quarks claim, when the United Kingdom had a choice about whether to extend the rights in question to the SGSSI and had not done so. Thus it was tolerably clear that Quark would not be able to succeed before the European Court of Human Rights (as indeed turned out to be the case: see Quark Fishing Ltd v United Kingdom, Application no 15305/06, Decision of 19 September 2006). Does it make a difference to the scope of the 1998 Act that the United Kingdom has extended the rights in question to the Channel Islands? On the one hand, under our dualist approach to the incorporation of international treaties, there is an important distinction between assuming responsibility in international law and extending rights and responsibilities in domestic law. On the other hand, the House of Lords has decided since Quark Fishing that the 1998 Act applies to the acts of United Kingdom public authorities in relation to persons within its jurisdiction for the purposes of article 1 of the Convention wherever they may be in the world: R (Al Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2008] AC 153. Liability under sections 6 and 7 of the 1998 Act is therefore likely to depend upon whether the alleged victim was within the jurisdiction of the United Kingdom and whether the perpetrator was a United Kingdom public authority. It certainly cannot be ruled out that violations of Convention rights committed in one of the Channel Islands by a United Kingdom public authority are actionable in the United Kingdom courts under the 1998 Act. But in my view it can be ruled out that sections 3 and 4 of the 1998 Act were intended by Parliament to apply to Channel Islands legislation as it applies in the Channel Islands. It is not for the courts of England and Wales to interpret the law of the Channel Islands or decide what is law there. Insofar as that task rests with the courts, it rests with the Island courts, culminating ultimately in the Judicial Committee of the Privy Council. It is not for the courts of England and Wales to read down Island legislation so as to make it conform to the Convention rights. It is not for the courts of England and Wales to declare that Island legislation is incompatible with the Convention rights. I would not, therefore, read an Order in Council made in exercise of [the royal prerogative] in the definition of primary legislation in section 21(1) of the 1998 Act as including an Order in Council giving Royal Assent to Island legislation or legislating directly for an Island. For the courts of England and Wales to entertain challenges to the compatibility of Island legislation with the Convention rights would clearly be to subvert the scheme of the Islands own human rights legislation. It would also be to subvert the method by which the United Kingdom extended the European Convention to the Channel Islands. This was not by extending the 1998 Act to them: amendments to that effect were resisted in the UK Parliament. It was by extending the scope of the Convention in international law by a declaration under article 56, and leaving it to the Islands to legislate to incorporate the rights contained in the Convention into Island law. happened to adopt the same model as the 1998 Act but they did not have to do so. It would be inconsistent with that scheme for the definition of primary legislation in the 1998 Act to cover any form of primary Island legislation as defined in the Human Rights (Bailiwick of Guernsey) Law 2000. It is no answer to say that the challenge in this case was not to the legislation itself, but to the advice given to the Privy Council by the Ministry of Justice and the Committee for the Affairs of Jersey and Guernsey. If that advice was unlawful, then the decision to approve the legislation was unlawful, and it would in principle have been open to the court to quash the Order in Council approving it. It will be recalled that this was the relief originally sought by the claimants, not only in their Statement of Facts and Grounds but also in their skeleton argument for the substantive hearing in the Administrative Court. It was only abandoned at the outset of the hearing. As the Administrative Court itself pointed out, it would be a surprising outcome if the courts of England and Wales could quash the final stage in the Islands legislative process when the courts of the Bailiwick must respect the primacy of the legislative process (para 37). The interveners make the further point that issues of compatibility with Convention rights often involve consideration of whether the legislation in question has struck a fair balance between the protection of individual rights and the general interests of the community. In cases such as Lautsi v Italy (2011) 54 EHRR 60 (Grand Chamber) and SAS v France, Application no 43835/11, Grand Chamber judgment of 1 July 2014, Strasbourg has shown increasing respect for the particular national context and cultural traditions where interferences with qualified rights are concerned. In cases such as Al Khawaja and Tahery v United Kingdom, (2011) 54 EHRR 23 (Grand Chamber), Strasbourg has been sensitive to national concepts of due process when considering the requirements of article 6. The courts of the Bailiwick are infinitely better placed to assess whether an Island measure is necessary in a democratic society or whether an Island court would lack the required independence and impartiality. If it be thought that there is a risk of complacency in the judicial, legislative or administrative authorities, of a small community, where most if not all of the prominent actors will be known to one another, the ultimate safeguard lies with the Judicial Committee of the Privy Council. Unlike the courts of England and Wales, the Judicial Committee has the inestimable benefit of the considered judgments of the courts of first instance and appeal in the Island jurisdictions. Furthermore, the Island authorities will have every opportunity to take part in the case. This Court has benefitted greatly from the intervention of the Attorney General of Jersey and the States of Guernsey, an advantage which the Administrative Court did not enjoy. For all those reasons, it is clear to me that the courts of the Bailiwick are the appropriate forum in which challenges to Island legislation on grounds of incompatibility with the European Convention should be heard. The courts of England and Wales should not have entertained the challenge in Barclay (No 1) and we should not entertain the challenge in Barclay (No 2). That is sufficient to dispose of the case. (ii) Existence Nevertheless, both the appellants and the interveners go further and argue that the courts of England and Wales have no jurisdiction judicially to review the process whereby the Privy Council gives Royal Assent to Island legislation. Channel Islands legislation, it is argued, is quite different from the Orders in Council which were in issue in Bancoult (No 2). Furthermore, even if those differences are not such as to deny the existence of the jurisdiction, they are a further reason why it should not have been exercised in this case. It is necessary, therefore, to go into the details of the Bancoult case. As is now well known, in 1966, the British Government made a formal agreement with the Government of the United States of America for the establishment of a military base on Diego Garcia, the principal island in the Chagos archipelago in the Indian Ocean. At that time the islands were a dependency of Mauritius, a colony which had been ceded to the United Kingdom by France in 1814. The USA was unwilling that sovereignty over Diego Garcia should pass into the hands of Mauritius, which was soon to gain its independence. So the United Kingdom made the British Indian Ocean Territories Order 1965 (the BIOT Order). This detached the Chagos islands from Mauritius and constituted them (with some other islands) a new colony known as the BIOT. The Chagos islands had a small settled population mainly employed in the coconut and copra industries. The islanders presence was seen as an obstacle to the construction of the base. So the Commissioner of the BIOT, using the legislative powers given him under the BIOT Order, made the Immigration Ordinance 1971. Section 4 forbad anyone to enter or remain in the territory without a permit. Between 1968 and 1973 the whole population of the islands was removed, mainly to Mauritius. This was done with a callous disregard of their interests (Lord Hoffmann, Bancoult (No 2), para 10). This was mainly because the UK Government refused to acknowledge that there was any indigenous population of the islands, for fear that the United Kingdom might be held responsible for them in international law. Some of the islanders have been fighting to return to the islands, other than Diego Garcia, ever since. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 (Bancoult (No 1)), the Divisional Court of the Queens Bench Division quashed section 4 of the Immigration Ordinance 1971, on the ground that the power to legislate for the peace, order and good government of the BIOT did not include a power to expel all the inhabitants. The Government did not appeal. Indeed, the Foreign Secretary of the day announced, not only that they would put in place a new Immigration Ordinance which would allow the islanders to return to the outer island, but also that they were working on the feasibility of resettling them there. However, in 2004, having concluded that re settlement was not feasible and being concerned about the possibility of landings on the islands, the Government decided to restore full immigration control. A new British Indian Ocean Territory (Constitution) Order 2004 was made, section 9 of which stated that no person had the right of abode in the territory and that no one was entitled to enter or be present in the territory without authorisation. The British Indian Ocean Territory (Immigration) Order 2004 dealt with the details. Bancoult (No 2) was a challenge to the validity of those Orders. It succeeded in the Divisional Court ([2006] EWHC 1038 (Admin)) and in the Court of Appeal ([2008] QB 365) but failed by a majority of three to two in the House of Lords: [2008] UKHL 61, [2009] 1 AC 453. Nevertheless, the House was unanimous that the Orders in Council were amenable to judicial review in the courts of England and Wales. It was common ground that the Crown had the prerogative power to legislate for a ceded colony by Order in Council (and indeed in other ways): Campbell v Hall (1774) 1 Cowp 204, 211. It was argued for the Government that the courts had no power to review the validity of such legislation, either because it was primary legislation having the same validity as an Act of Parliament, or because of the terms of the Colonial Laws Validity Act 1865 (28 & 29 Vict c 63). (The 1865 Act does not apply to Channel Islands legislation and so we need not concern ourselves with the second argument). Rejecting the first argument, Lord Hoffmann could see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action. The principle of the sovereignty of Parliament was founded upon the unique authority Parliament derives from its representative character. The exercise of prerogative power by the executive lacked this quality (para 35). Lord Bingham simply observed that it is for the courts to inquire into whether a particular prerogative power exists or not and, if it does exist, into its extent (para 69). Lord Rodger expressly agreed with Lord Hoffmann on this point (para 105), as did Lord Carswell (para 122), and Lord Mance, who could see no good reason why the making of legislative Orders in Council should not be reviewable in the same way as other steps, administrative or legislative, by the executive, and every reason why they should be, on the familiar grounds of legality, rationality and procedural propriety (para 141). The appellants put forward two main reasons why this case is different from Bancoult (No 2). First and foremost, Bancoult concerned a colony which had no legislature other than the Commissioner whose powers were conferred by the very Orders under attack. There was no semblance of a representative or democratic legislature. The Orders were the act of the UK executive alone. By contrast, the Order in question here was the last stage in the process of passing legislation by an established and representative legislature. Unlike the BIOT, Sark has a functioning legislature, as well as its own functioning system of laws and its own courts. The courts of England and Wales have no more power to interfere in that process than they have to interfere with the process of giving Royal Assent to the Acts of the UK Parliament. This is indeed a very powerful reason why the courts of England and Wales should not interfere in something which is no business of theirs but is very much the business of the people of Sark and the Bailiwick of Guernsey. But it does not follow that there is no jurisdiction to entertain a challenge in a more appropriate case. It is common ground that the United Kingdom government is responsible for the international relations of the Channel Islands. The interveners do not accept that the United Kingdom government may scrutinise a Projet de Loi, even for conformity with its international obligations as they apply to the Channel Islands, if those obligations have already been translated into law in the Channel Islands. In the case of the Human Rights (Bailiwick of Guernsey) Law 2000, which provides its own careful balance between the legislature, the executive and the judiciary, that is a compelling reason for not exercising whatever jurisdiction there is. However, it is the clear responsibility of the United Kingdom government in international law to ensure that the Islands comply with such international obligations as apply to them. Just as the United Kingdom Parliament has the constitutional right to legislate for the Islands, even without their consent, on such matters, so must the United Kingdom executive have the constitutional power to ensure that proposed Island legislation is also compliant. As was pointed out in evidence to the Kilbrandon Commission, to hold otherwise would be to assign responsibility to the United Kingdom without the power to put that responsibility into effect (Cmnd 5460, para 1433). Nor is the analogy with Royal Assent to Acts of the United Kingdom Parliament exact: the Queen in Parliament is sovereign and its procedures cannot be questioned in the courts of the United Kingdom. It is to be hoped (and expected) that any disputes would be decided by negotiation between the UK Government and the Island authorities, but what if they cannot be resolved otherwise than by litigation? The question is perhaps more likely to arise in relation to the refusal of Royal Assent to a Project de Loi. The Administrative Court refers (para 26) to a dispute which arose in 1998. The Jersey legislature had passed fiscal legislation to which the United Kingdom Treasury objected as being potentially contrary to a commitment made to the Organisation for Economic Co operation and Development. Consideration was given in Jersey to bringing proceedings against the Secretary of State in respect of the failure to recommend approval, but never brought because the legislation was eventually approved. It is interesting that the interveners reserve their position in relation to jurisdiction judicially to review the refusal of Royal assent, while arguing that there is no jurisdiction to review a decision that Royal Assent should be granted. Would either the courts of the Island in question, culminating in the Judicial Committee of the Privy Council, or of the United Kingdom, culminating in this court, have jurisdiction in such a case? This leads to consideration of the second reason advanced for distinguishing Bancoult (No 2) from this case. In Bancoult (No 2), it was common ground in the House of Lords that the Orders in Council had been made by the Crown in right of the United Kingdom rather than in right of the BIOT (para 76). As that term of art had been explained in Quark Fishing, they had been made as part of the machinery of government of the United Kingdom, and in the interests of the United Kingdom, rather than as part of the machinery of government of the BIOT. In Quark Fishing on the other hand, the majority held that the instruction to refuse a licence had been made as part of the machinery of government of the SGSSI and not of the United Kingdom. As Lord Bingham put it, the Foreign Secretary was merely the mouthpiece and medium of the Queen as Queen of the SGSSI: [2006] 1 AC 529, para 12. The majority view in Quark Fishing (which also informed the decision of the Court of Appeal in Bancoult (No 2)) was severely criticised by Professor John Finnis, in Common Law Constraints: Whose Common Good Counts? (University of Oxford Faculty of Law Legal Studies Research Paper Series, Working Paper No 10/2008). He pointed out that to regard a Minister of the Crown as the mouthpiece and medium of the Sovereign was to stand the constitutional theory of responsible government on its head. The Queen never acts except on the advice of a government minister who is responsible to the legislature (save in the rare case where she may have to choose a Prime Minister). The question, therefore, is upon whose advice is she acting? According to Halsburys Laws of England, 2009, 5th edition, para 717, in a passage approved in Bancoult (No 2) and in earlier authorities, the position is as follows: The United Kingdom and its dependent territories within Her Majestys dominions form one realm having one undivided Crown. This general principle is not inconsistent with the further principle that on the grant of a representative legislature, and perhaps even as from the setting up of courts, a legislative council and other such structures of government, Her Majestys government in a colony is to be regarded as distinct from Her Majestys government in the United Kingdom. To the extent that a dependency has responsible government, the Crowns representative in the dependency acts on the advice of local ministers responsible to the local legislature, but in respect of any British overseas territory or other dependency of the United Kingdom, acts of Her Majesty herself are performed only on the advice of the United Kingdom government. It is easy to see that, in legislating for the very existence of and constitution of the BIOT, the Crown was acting on the advice of the United Kingdom government. It could hardly be otherwise, as no institutions of responsible government existed in the BIOT at the time. In Quark Fishing, the Crown gave instructions to the Commissioner and through him to the Director of Fisheries through a Secretary of State. That could only be a Secretary of State in the United Kingdom government, responsible to the United Kingdom Parliament. It is perhaps unsurprising that, having read Professor Finnis paper, Lord Hoffmann in Bancoult (No 2) was inclined to think that in Quark Fishing Lord Nicholls had been right (para 48). Although in advising Her Majesty, the United Kingdom government would no doubt take the interests of the colony into account, it was also entitled to take into account the interests of the United Kingdom and indeed the whole of Her Majestys dominions (para 49). In Barclay (No 1), Lord Collins observed, at para 107, that as matters now stand, the approach laid down by the then majority of the House of Lords [in Quark Fishing] leads to the conclusion that the decisions of the Committee for the Affairs of Jersey and Guernsey and the Privy Council were taken as part of the constitutional machinery of the Bailiwick of Guernsey and of Sark for the approval and enactment of laws in Sark, and that the fact that the decisions were taken by Ministers of the Crown who took into account the international obligations of the United Kingdom is irrelevant. It would be quite wrong for the approach in the Quark case to be revisited on an appeal (particularly with a panel of five) in which it does not arise, and in which it is not argued that the Quark case was wrongly decided and ought to be reconsidered. Relying on that observation, the Administrative Court in this case stated (para 43) that the Committee were advising Her Majesty in right of Guernsey, rather than in right of the United Kingdom. The Supreme Court in Barclay (No 1) was not invited to conclude that, if Her Majesty was acting in right of Guernsey and not of the United Kingdom, then the United Kingdom courts had no jurisdiction judicially to review the advice which was given to her. It might be thought logically to follow that, if the appellants were advising Her Majesty as part of the machinery of government of Guernsey and Sark, any judicial review of their advice should be brought in the courts of Guernsey and Sark, rather than in the courts of the United Kingdom. (It is, of course, a different question whether there would be any justiciable basis for such a review.) We are therefore invited by the appellants to distinguish Bancoult (No 2) for this reason also. However, it is not surprising that the Supreme Court in Barclay (No 1) was not invited to reach that conclusion, as it will be recalled (see para 33 above) that the instruction of the Secretary of State in Quark Fishing had been successfully judicially reviewed in the courts of England and Wales on conventional grounds and there was no appeal to the House of Lords on that aspect of the case. The House of Lords was concerned only with whether there was a claim to damages under the 1998 Act. Thus, it is not enough to ask whether a person is acting in right of the United Kingdom or of a colony or dependency: the consequence will depend upon why that question is being asked. In those circumstances, it seems to me that the decision in Quark Fishing is of little assistance in this case. If anything, it suggests that even if Her Majestys government is acting in right of the colony or dependency in question, the courts of the United Kingdom have jurisdiction judicially to review its decisions. The reality, as the Advocates to the Court argue, is that the appellants were advising Her Majesty both in right of the Bailiwick of Guernsey and of Sark and in right of the United Kingdom. They were advising her upon the final stage of the Islands legislative process. But they were doing so because of the United Kingdoms continuing responsibility for the international relations of the Bailiwick. They were politically accountable to the United Kingdom Parliament for that advice. I see no reason to doubt that they were legally accountable to the courts of the United Kingdom, although only in an appropriate case, which this is not. I would prefer to leave open the question whether they might also be legally accountable to the courts of the Bailiwick, as this has not been argued before us. Conclusion As a general proposition, to which there may well be exceptions, I would hold that the courts of the United Kingdom do have jurisdiction judicially to review an Order in Council which is made on the advice of the Government of the United Kingdom acting in whole or in part in the interests of the United Kingdom. Hence the Administrative Court did have jurisdiction to entertain this claim. Nevertheless, there are circumstances in which that jurisdiction should not be exercised. This is clearly one such case. The appeal should be allowed and the declaration made by the Administrative Court set aside.

UK-Abs

The principal issue in this appeal concerns the role, if any, of the courts of England and Wales (including the Supreme Court of the United Kingdom) in the legislative process of the island of Sark, part of the Crown Dependency of the Bailiwick of Guernsey. The Channel Islands are not part of the United Kingdom but as Crown Dependencies enjoy a unique relationship with the United Kingdom through the Crown, in the person of the Sovereign. The UK government is responsible for their international relations and for their defence. The UK Parliament has power to legislate for the Islands but Acts of Parliament do not extend to the Islands automatically. Usually, the Act gives power to extend the application of the Act to the Islands by Order in Council, which will be preceded by consultation. For the most part the Islands legislate for themselves. The States of Guernsey have power to legislate for the whole Bailiwick, including the islands of Alderney and Sark, and the Human Rights (Bailiwick of Guernsey) Law 2000 applies throughout the Bailiwick. Sark has its own legislature (the Chief Pleas), which generally legislates by passing a Projet de Loi. This then requires Royal Assent, which is given by Order in Council on the recommendation of a Standing Committee of the Privy Council dealing with the affairs of Jersey and Guernsey. Reform to the constitution of Sark had been made by the Reform (Sark) Law 2008 (the 2008 Reform Law). The 2008 Reform Law was successfully challenged by the respondents, Sir David and Sir Frederick Barclay, on the ground that the dual role of the office of Seneschal, as President of the Chief Pleas and chief judge, was incompatible with article 6 of the European Convention on Human Rights (ECHR), in R (Barclay) v Lord Chancellor and Secretary of State for Justice [2010] 1 AC 464 (Barclay (No 1)). The Reform (Sark) (Amendment) (No 2) Law (the 2010 Reform Law) was enacted in response, removing the right of the Seneschal to serve as President or member of the Chief Pleas and making provisions for his office as chief judge. The respondents considered that these provisions were incompatible with the impartiality and independence of the judiciary, required by article 6 ECHR. The respondents applied to the Administrative Court of England and Wales for an order declaring that the Order in Council made on 12 October 2011, by which Royal Assent was given to the 2010 Reform Law, was unlawful because the 2010 Reform Law was incompatible with the ECHR. The Administrative Court granted the declaration. The appellants appealed to the Supreme Court on the ground that the Administrative Court had no jurisdiction to do so or, if it had, that the jurisdiction should not have been exercised. The Supreme Court unanimously allows the appeal and sets aside the declaration made by the Administrative Court. It holds that the courts of the United Kingdom do have jurisdiction judicially to review an Order in Council which is made on the advice of the Government of the United Kingdom acting in whole or in part in the interests of the United Kingdom. However, although the Administrative Court did therefore have jurisdiction to entertain the respondents claim, it should not have exercised it in this case. Lady Hale gives the substantive judgment, with which the other Justices all agree. It is not possible to state a general rule as to whether or not an Order made by Her Majesty in Council is amenable to judicial review in the courts of England and Wales, given the wide variety of circumstances in which such orders are made [28]. The Human Rights Act 1998 (the HRA) does not apply to Channel Islands legislation as it applies in the Channel Islands, and does not include an Order in Council made in exercise of the royal prerogative in the definition of primary legislation subject to the HRA. Otherwise the method by which the ECHR had been extended to the Channel Islands would be subverted. A challenge to Sark legislation on the ground of incompatibility with the ECHR should be brought in the Island courts under the Human Rights (Bailiwick of Guernsey) Law 2000, from which an appeal will ultimately lie to the Judicial Committee of the Privy Council. The courts of the Bailiwick are better placed to assess whether legislation strikes a fair balance between the protection of individual rights and the general interests of the community and the appropriate forum for this claim. The courts of England and Wales should not have entertained the challenge in Barclay (No 1) and will not do so in this case [27 39]. The appellants had gone further and argued that the courts of England and Wales have no jurisdiction judicially to review the process whereby the Privy Council gives Royal Assent to Island legislation. The fact that, unlike former colonies without legislatures in respect of which Orders in Council are made, Sark has a functioning legislature and its own system of laws and courts, is a very powerful reason why the courts of England and Wales should not interfere with the business of the people of Sark. It does not follow, however, that there is no jurisdiction to entertain a challenge in a more appropriate case [47]. It is the clear responsibility of the UK government in international law to ensure that the Islands comply with such international obligations as apply to them [48]. It is to be expected that any dispute will be decided by negotiation with the Island authorities but, if this proves impossible, a challenge could be made in the courts of England and Wales. The reality is that the appellants advise Her Majesty both in right of the Bailiwick of Guernsey and of Sark and in right of the UK, because of the UKs continuing responsibility for the international relations of the Bailiwick. They are legally accountable to the UK Parliament, and to the UK courts in an appropriate case, which this is not. The question of whether they might also be accountable to the courts of the Bailiwick is left open as it had not been argued [57].

This appeal raises important issues concerning the principle of open justice: in particular, issues concerning the legal basis of the principle, the circumstances in which it can be departed from and the procedure which should be followed. The appeal is brought by the BBC in order to challenge an order made by the Court of Session in proceedings for judicial review of a decision of the Upper Tribunal. In its order, the court permitted the applicant for judicial review to amend his application by deleting his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported exercise) of a common law power. The court also gave directions under section 11 of the Contempt of Court Act 1981 (the 1981 Act) prohibiting the publication of his name or other identifying details and directing that no picture of him should be published or broadcast. The appeal raises the following questions: i) Whether the court possesses any power at common law to protect the anonymity of a party to proceedings before it, where the Convention rights set out in Schedule 1 to the Human Rights Act 1998 are engaged. It is argued on behalf of the BBC that any common law power which might previously have been exercised in such circumstances has been superseded by the Convention rights. ii) Whether the court acted compatibly with the BBCs rights under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), as given effect by the Human Rights Act, in making the order complained of, both in relation to the substance of its decision and in relation to the procedure which it followed. iii) Whether the order fell within the scope of section 12 of the Human Rights Act, with the consequence that the BBC should have been notified and given an opportunity to make representations before any order was made. The answers to these questions are of importance to courts, media organisations and individual litigants throughout the United Kingdom. The factual background The first respondent to this appeal, whom I shall refer to as A, is a foreign national who arrived in the UK as a visitor in 1991. Later that year he married a UK citizen, who also came from his country of origin and had a child from a previous relationship. He was then granted indefinite leave to remain in the UK. In 1996 he was convicted of sexual offences against his step child and was sentenced to 4 years imprisonment. In 1998 the second respondent, the Home Secretary, decided that he should be deported, and a notice of intention to make a deportation order was served. A and his wife were by then divorced. In 2000 he re married. He and his second wife have a number of children. Following service of the deportation notice, protracted proceedings began. The salient aspects can be summarised as follows. In 2001 As appeal against the Home Secretarys decision was dismissed. He then applied to the Home Secretary to be allowed to remain in the UK on the ground that his removal would violate his rights under articles 2, 3 and 8 of the ECHR. That application was refused, and a deportation order was served in June 2002. A then appealed against the refusal of his application to remain in the UK. Appeals to an immigration adjudicator and to the Immigration Appeal Tribunal were dismissed in 2003 and 2004 respectively. A further appeal to the Court of Session was however allowed, and it was agreed that the appeal should remitted to the Asylum and Immigration Tribunal for re hearing. Following that re hearing, the appeal was dismissed by the tribunal in 2007. As identity was withheld in the proceedings from 2001 onwards. In its 2007 decision, the tribunal noted that As claim under articles 2 and 3 of the ECHR was based on the argument that, in the event of his return to his country of origin, he would be at risk of death or ill treatment at the hands of persons enraged by his offences. The tribunal accepted that, if he faced such a risk as a known sexual offender, he was unlikely to receive effective protection from the police. The claim that such a risk existed was however largely based upon the premise that his return to his native country would receive publicity. The tribunal was not satisfied that it would. Although threats of violence had been made against him in his country of origin at the time of the criminal proceedings, when his identity had been disclosed in the media, they had not continued in more recent times. The claim based on article 8 was also rejected. For present purposes, it is relevant to note that the facts relied upon included an incident in January 2006 when A and his wife were attacked in their home in Scotland by a group of youths. Their children were then taken into care for a time because of police concerns that the house might be fire bombed. A and his wife were attacked again in June 2006 in a public park in the same town. After that incident A ceased to live with his wife and children. The incidents followed press publicity about As case, in which his name and the town in which he lived were mentioned. An appeal against the 2007 decision was allowed by the Court of Session in relation to article 8 only, and the appeal was again remitted to the tribunal for re hearing on that issue: A v Secretary of State for the Home Department [2008] CSIH 59. Following that re hearing, the appeal on the article 8 ground was dismissed by the tribunal in 2009. Leave to appeal against that decision was refused: CB v Secretary of State for the Home Department [2010] CSIH 89; 2011 SC 248. Later in 2010 A claimed asylum and submitted further representations. The claim and representations were treated by the Home Secretary as an application for the revocation of the deportation order made in 2002. That application was refused in 2011. A then appealed to the First tier Tribunal. It was agreed that the scope of the appeal was confined to articles 3 and 8 of the ECHR. In dealing with the appeal, the First tier Tribunal gave a direction to the parties under rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) that no report of the proceedings should directly or indirectly identify the appellant or any member of his family. Although the words no report might, read in isolation, suggest that the direction operated against the media, it went on to state that it applied to the appellant and to the respondent, consistently with rule 45. The direction was given on the basis that, first, the appeal concerned personal information about the lives of children, whose welfare might be injured if such information were revealed and their names known; secondly, the appeal concerned highly personal evidence which should remain confidential; and thirdly, A or others could be put at risk of harm by publication of his name and details. As claim under article 3 was again based on evidence, including a report by an expert witness, to the effect that he would be at risk of violence if he returned to his country of origin. It was said that the risk would arise as a result of publicity. The claim under article 8 was based on his family life with his wife and children, with whom he had resumed regular contact, although he continued to live apart from them because of the risk of stigmatisation if they were known to be connected to him. The tribunal refused the appeal. In relation to article 3, the tribunal placed weight on the findings made in 2007, and added: The proceedings involving the appellant are now anonymised thus reducing the risk of his being identified. Permission to appeal to the Upper Tribunal was refused. An application to the Upper Tribunal for permission to appeal was also refused. A then applied to the Court of Session for judicial review of the decision of the Upper Tribunal to refuse his application for permission to appeal. The petition was lodged on 21 September 2012, when a first hearing (ie a full hearing of the application) was fixed for 14 December 2012. On 30 October 2012 the Secretary of State gave notice that she intended to remove A on 11 November 2012. A then applied for the suspension (ie stay) of the removal decision ad interim, pending the full hearing of his application for judicial review. The application for interim suspension came before Lord Boyd of Duncansby on 7 November 2012, together with an application to amend the petition by deleting As name and address and substituting initials. Media organisations had not been notified of the hearing, and were not represented at it. Lord Boyd allowed the petition to be amended. He also made an order under section 11 of the 1981 Act prohibiting the publication of the name of the petitioner, or any particulars or details calculated to lead to the identification of the petitioner, and directing that no picture shall be published or broadcast of the petitioner in connection with these proceedings. On 8 November 2012 Lord Boyd refused the application for interim suspension. In his opinion he explained that he had to decide whether A had established a prima facie case for setting aside the Upper Tribunals decision, applying the test laid down in R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663 and Eba v Advocate General for Scotland [2011] UKSC 29; 2012 SC (UKSC) 1; [2012] 1 AC 710, and, if so, whether the balance of convenience favoured the granting of interim suspension of the removal decision. He concluded that a prima facie case had not been established. One of the arguments which he considered was that the First tier Tribunal had failed to give adequate reasons for rejecting the article 3 claim, and had not properly considered the report of the expert witness. In response, it was argued that the author of the report had failed to recognise that, if the appellant were returned to his home country, that was likely to be following proceedings in which his identity was not disclosed. Lord Boyd concluded that the tribunal had been entitled to find that the risk of As being identified was reduced by anonymisation, and that the point did not satisfy the Cart and Eba test. It was envisaged at the time of the hearing before Lord Boyd that the application for judicial review would proceed to a first hearing, notwithstanding As deportation. His counsel informed the court that he intended to seek the discharge of the first hearing fixed for 14 December 2012, so that a two day hearing could be held instead in January 2013. A reclaiming motion (ie an appeal) against Lord Boyds decision to refuse the application for interim suspension was heard by the Inner House of the Court of Session on 9 November 2012. It was refused: A v Secretary of State for the Home Department [2012] CSIH 86. In the meantime, the BBC became aware of the order made under section 11 of the 1981 Act, and applied for it to be recalled (ie set aside). The application came before the court on 9 November, when it was agreed that it should be continued (ie adjourned) to be heard on a future date. It was subsequently heard by Lord Glennie on 14 and 15 November 2012. On 6 December 2012 he refused the application, and granted leave to reclaim: British Broadcasting Corporation, Applicant [2012] CSOH 185; 2013 SLT 324. Lord Glennie noted that the only issue in the proceedings before the tribunal concerned the risk of its becoming known in his country of origin that A was being sent back. If that fact were known, and particularly if it were linked to information about the timing of his return, then it was accepted that there was a real risk of As article 3 rights being infringed. That was why an anonymity direction had been made by the tribunal. In these circumstances, Lord Glennie accepted that it was necessary to allow As name and identifying details to be withheld from the public in the court proceedings, and to make a section 11 order: first, so as to safeguard As Convention rights, and secondly, so as to preserve the integrity of the court proceedings, since publication of that information would give A grounds for a fresh application to the Home Secretary and frustrate the proceedings before the court. A absconded prior to his planned deportation, and was later detained. The Home Secretary then decided to deport him on 14 December 2012. An application was made to the court for the interim suspension of that decision, and for leave to amend the application for judicial review. The amendment, which was allowed, introduced averments to the effect that, following the granting to the BBC of leave to reclaim, it was uncertain whether the section 11 order would remain in place. The Home Secretary, it was argued, could not deport A until that matter was settled, since the tribunal had relied upon the anonymity order in holding that A would not be at real risk on return to his country of origin. If the BBCs reclaiming motion was successful, a material basis of the tribunals decision would be removed. The application for interim suspension was heard on 12 December 2012. It was accepted on behalf of the Home Secretary that As deportation would be unlawful unless the section 11 order remained in place: in the absence of the order, there would be a real risk that As identity and history as a sex offender would be publicised, and that such publicity would expose him to vigilante behaviour in his country of origin, contrary to his rights under article 3. The court concluded that the BBC was unlikely to succeed in a reclaiming motion against Lord Glennies decision, and refused interim suspension of the deportation decision on that basis. A reclaiming motion against that decision was refused by the Inner House the following day. A was deported to his country of origin on 14 December 2012. The BBC reclaimed against Lord Glennies decision to refuse to recall the section 11 order, and also challenged Lord Boyds decision to make the order in the first place. The reclaiming motion was refused by the Inner House on 17 May 2013: [2013] CSIH 43; 2013 SC 533. The court considered that the material before the tribunal justified the conclusion that anonymity would be a significant protection of As article 3 rights, and that in any event the recall of the section 11 order would subvert the understanding on which As deportation had been authorised. The present appeal is brought against that decision. A first hearing of the application for judicial review has not yet taken place. At the hearing of the reclaiming motion, the court was informed that the possibility of amending the application in order to seek an order for As return to the UK was under consideration. The general principle of open justice It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny. The principle is an aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian News & Media Ltd) v City of Westminster Magistrates Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618, para 1, society depends on the courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes? Who is to guard the guardians? In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny. The significance of the principle of open justice is illustrated by the fact that it was one of the matters covered by the constitutional legislation enacted following the accession of William and Mary. The Court of Session Act 1693, which remains in force, provides: That in all time coming, all bills, reports, debates, probations and others relating to processes shall be considered, reasoned, advised and voted by the Lords of Session with open doors, where parties, procurators and all others are hereby allowed to be present, as they used to be formerly in time of debates, but with this restriction, that in some special cases the said Lords shall be allowed to cause remove all persons, except the parties and their procurators. The corresponding Act Anent Advising Criminal Processes with Open Doors, passed on the same date, made similar provision for the High Court of Justiciary. As Lord Shaw of Dunfermline commented in Scott v Scott [1913] AC 417, 475, the two Acts formed part of the Revolution Settlement, and bore testimony to a determination to secure civil liberties against judges as well as against the Crown. The principle that courts should sit in public has important implications for the publishing of reports of court proceedings. In Sloan v B 1991 SC 412, 442, Lord President Hope, delivering the opinion of the court, explained that it is by an application of the same principle that it has long been recognised that proceedings in open court may be reported in the press and by other methods of broadcasting in the media. The principle on which this rule is founded seems to be that, as courts of justice are open to the public, anything that takes place before a judge or judges is thereby necessarily and legitimately made public, and, being once made legitimately public property, may be republished (Richardson v Wilson (1879) 7 R 237, 241 per Lord President Inglis). The connection between the principle of open justice and the reporting of court proceedings is not however merely functional. Since the rationale of the principle is that justice should be open to public scrutiny, and the media are the conduit through which most members of the public receive information about court proceedings, it follows that the principle of open justice is inextricably linked to the freedom of the media to report on court proceedings. Exceptions to the principle of open justice Since the principle of open justice is a constitutional principle to be found in the common law, it follows that it is for the courts to determine its ambit and its requirements, subject to any statutory provision. The courts therefore have an inherent jurisdiction to determine how the principle should be applied. That jurisdiction was recognised as long ago as the 1693 legislation I have mentioned. The Court of Session Act allowed the court to sit in private in some special cases, leaving it to the court to determine the circumstances in which a departure from the principle of open justice might be appropriate. The Act concerning criminal procedure declared that in the cases of rape, adultery and the like the said Commissioners [of Justiciary] may continue their former use and custom, by causing remove all persons, except parties and procurators, at the leading of the probation, as they shall see cause. That provision, which has a direct homologue in the modern law, recognised the courts power to determine when departures from the principle of open justice were appropriate in such cases. Exceptions to the principle of open justice were considered in the well known case of Scott v Scott [1913] AC 417, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising a wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor, of greater relevance to the present case, was litigation concerning a secret process, where the effect of publicity would be to destroy the subject matter. The Earl of Halsbury considered wardship and lunacy to fall outside the scope of the general principle that justice should be administered in public, but accepted that proceedings concerning trade secrets, or to prevent the publication of private correspondence, were exceptions to that principle, observing at p 443 that it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482 483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437 438: "As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity." A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued: But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott. After citing the dictum of Viscount Haldane which I also have cited, Lord Devlin continued at p 239: That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means. More recently still, the importance of the common law principle of open justice was emphasised by nine Justices of this court in the case of Bank Mellat v Her Majestys Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society (para 2). He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue. It has also been recognised in the English case law, consistently with Lord Neubergers requirement of the degree of privacy being kept to a minimum, that where the interests of justice require some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may suffice that particular information is withheld. In Attorney General v Leveller Magazine Ltd, for example, Lord Diplock accepted at p 451 that, where the court might sit in camera in order to preserve the anonymity of a witness in the interests of national security, it could instead allow a much less drastic derogation from the principle of open justice, namely that the witness should give evidence in public but should be permitted to withhold his name from the public and the press. Viscount Dilhorne and Lord Edmund Davies agreed that the court could do so, in the exercise of its inherent jurisdiction to control its own procedure: pp 458 and 464 respectively. Viscount Dilhorne gave as an example the practice of allowing a witness complaining of blackmail to withhold his identity from public disclosure in court, judicially approved in R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney General [1975] QB 637. The proposition that the court had no power to allow a witnesss name to be withheld from the public had been roundly rejected in that case: such a direction, it was held, was clearly preferable to an order for trial in camera where "the entire supervision by the public is gone" (p 652). In Scotland, as I have explained, the principle of open justice has been recognised by statute since the seventeenth century. The courts power to make exceptions to the general principle was acknowledged in the legislation of 1693. As Lord President Gill noted when the present appeal was before the Inner House, the basis of the courts power to make such exceptions is its inherent power to control its own procedure in the interests of justice: [2013] CSIH 43; 2013 SC 533, para 37. The common law power to make exceptions to the principle of open justice in the interests of justice was recognised in Sloan v B 1991 SC 412. Lord President Hope said at p 442: There is no doubt that as a general rule the proceedings of a court are open to the public, and thus to public scrutiny, at all times. Exceptions have to be made in special circumstances to allow the court to conduct its proceedings behind closed doors where the interests of justice require this to be done. But that is always the exception, and the general principle which applies equally in the sheriff court as it does in the Court of Session is that the court sits both for the hearing of cases and for the advising of them with open doors. It has also been recognised in Scotland that the qualification of the principle of open justice which is necessary in particular circumstances may not require to be as drastic as the complete exclusion of the public or the media from the proceedings, and that less extreme measures, such as the protection of the anonymity of a witness, may sometimes suffice. The point is illustrated by the case of Scottish Lion Insurance Co Ltd v Goodrich Corporation [2011] CSIH 18; 2011 SC 534, in which the court permitted the identities of the applicants to be withheld from public disclosure. The object of the proceedings was to protect the confidentiality of documents disclosing their identities, and an order designed to achieve that objective had previously been made by the court. As the court noted, the disclosure of their identities would be inconsistent with that order and would undermine the confidentiality which the proceedings were intended to preserve. The case was therefore one in which a limitation of the principle of open justice was necessary both to protect confidential information and to prevent the frustration of the judicial process. In relation to this aspect of the present case, counsel for the BBC was critical of a passage in the opinion of the Lord President, at para 38, in which he stated that the court must have regard not only to the justice of its decision, but also to the justice of the procedures by which it gives it. It therefore had the inherent power, in his opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of that partys identity would constitute an injustice to him. The Lord President gave as examples cases where disclosure would endanger a partys safety or would be commercially ruinous. He added that, quite apart from the Convention related aspects of the problem, he would regard it as the courts duty to withhold the identity of a female pursuer where the decision turned on intimate medical evidence. He also considered that the courts inherent jurisdiction could be extended to the protection of third parties whose rights and interests might be affected in similar ways. The other members of the First Division expressed their agreement. This passage in the Lord Presidents opinion was obiter dictum: his Lordship records that the subject of the courts inherent jurisdiction had not been the subject of submissions by the parties, but had become a matter of some importance because of a decision made by a judge in another case, following the hearing of the instant case. The examples which the Lord President gave were at a correspondingly high level of generality. Counsel argued however that this passage was an incorrect statement of the law, and might be treated by lower courts as authoritative. That apprehension appears to have been one of the principal factors to have prompted the bringing of this appeal, as much of the argument presented on behalf of the BBC was devoted to criticism of this obiter dictum. In the circumstances, some general observations may be made. As I have explained, it has long been recognised that the courts have the power to permit the identity of a party or a witness to be withheld from public disclosure where that is necessary in the interests of justice. The Lord President was plainly right to approach the matter on the basis that the interests of justice are not confined to the courts reaching a just decision on the issue in dispute between the parties. It is necessary in the first place to recognise that the administration of justice is a continuing process: see, for example, Attorney General v Butterworth [1963] 1 QB 696, 725 per Donovan LJ. The court can therefore take steps in current proceedings in order to ensure that the interests of justice will not be defeated in the future. For example, the High Court of Justiciary has permitted undercover police officers to give evidence while screened from the sight of the general public, and without public disclosure of their identities, in order to avoid jeopardising their effectiveness in future investigations. Other cases may raise different considerations. In some cases, for example, anonymity may be necessary in view of risks to the safety of a party or a witness. The point can be illustrated by the case of A v Scottish Minsters 2008 SLT 412, where a prisoner serving a sentence for sexual offences was permitted to bring proceedings, challenging the notification requirements applicable to sexual offenders, without disclosing his identity publicly, because of the danger to his safety if the nature of his offending became known to his fellow prisoners. The same approach was followed when the case subsequently came before the Inner House. In other cases the health of a vulnerable person may be at risk. An example is the case of HM Advocate v M [2007] HCJ 2, 2007 SLT 462, where the court made a section 11 order to prevent the publication of the identity of a woman who was due to be the principal witness at the trial of a person charged with having recklessly infected her with HIV. There was evidence before the court that the womans mental health would be endangered if her identity became publicly known. There was also a risk that the woman would otherwise be unable to give evidence, in which event the prosecution could not proceed. An example of a case where harm of a different kind was considered to justify a departure from the ordinary practice is Devine v Secretary of State for Scotland (22 January 1993, unreported), an action of damages arising from the deployment of the SAS to end a prison siege, where Lord Coulsfield permitted the soldiers to give evidence while screened from the view of the general public, and without disclosing their names publicly. He did so on the basis that their evidence was essential to the proper presentation of the defence, and the Armys ability to deploy them in future operations would otherwise be compromised. In such a case, their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure. These are only a few examples. Some of these examples may arguably go beyond the categories envisaged in some of the older authorities. As Lord Loreburn observed however in Scott v Scott at p 446, it would be impossible to enumerate or anticipate all possible contingencies. Furthermore, in this area as in others the common law is capable of development. The application of the principle of open justice may change in response to changes in society and in the administration of justice. It can also develop having regard to the approach adopted in other common law countries, some of which have constitutional texts containing guarantees comparable to the Convention rights, while in others the approach adopted reflects the courts view of the requirements of justice. To give only one example, the Supreme Court of Canada has considered some of the issues which I have mentioned, such as the anonymity of complainants in cases of sexual assault (Canadian Newspapers Co v Canada [1988] 1 SCR 122), the protection of parties to proceedings from embarrassment or humiliation (Edmonton Journal v Alberta [1989] 2 SCR 1326) and the concealment of the identity of undercover police officers (R v Mentuck [2001] 3 SCR 442). The development of the common law can also of course be influenced by the ECHR. The examples given by the Lord President of a party or witness whose safety may be endangered or who may suffer commercial ruin if his identity becomes known, or that of the female pursuer where the decision turns on intimate medical evidence, are all capable of raising issues which could warrant a qualification of the principle of open justice, applying the approach which I have explained. In relation to the last example, which was the subject of particular criticism by counsel for the BBC, I agree with the Lord President that it would be in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about her where there was no public interest in its being publicised. Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case. As Lord Toulson observed in Kennedy v The Charity Commission [2014] UKSC 20, para 113, the court has to carry out a balancing exercise which will be fact specific. Central to the courts evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others. Convention rights Having considered the source and importance of the principle of open justice, as well as the source and extent of the courts common law power to derogate from it, I now turn to the ECHR standards that apply in this context. Under the Convention, the principle of open justice is expressly protected by article 6(1), which provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a public hearing. Article 6(1) also provides that judgment shall be pronounced publicly. The rationale of these requirements, as explained by the European Court of Human Rights, is the same as in the common law: The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of article 6(1), a fair hearing, the guarantee of which is one of the foundations of a democratic society (B and P v United Kingdom (2001) 34 EHRR 529, para 36). As in domestic law, the general principle set out in article 6(1) is subject to qualifications: the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. These qualifications broadly reflect the various grounds upon which exceptions to the principle of open justice are made in our domestic law, either under the common law or under statute. In relation to the last of the qualifications (where publicity would prejudice the interests of justice), the assessment is explicitly left to the opinion of the national court. In relation to the other qualifications, as in relation to the qualifications to other Convention guarantees, the European court has allowed national authorities a margin of appreciation. The court has accepted that a state can designate a class of cases, such as proceedings under the Children Act 1989, as an exception to the general rule (B and P v United Kingdom (2001) 34 EHRR 529, para 39). It has also accepted that measures short of the complete exclusion of the press and public, such as allowing a witness to remain anonymous, may be compatible with article 6(1) (see, for example, Doorson v Netherlands (1996) 22 EHRR 330, para 71), and that such measures may even be necessary in order to secure a fair trial (see, for example, V v United Kingdom (1999) 30 EHRR 121, para 87). Article 6 is not the only provision of the Convention which is relevant to the principle of open justice. Articles 2 and 3 may for example apply where parties or witnesses are in physical danger. The rights guaranteed by those articles are, in this context, unqualified. The Convention therefore requires that proceedings must be organised in such a way that the interests protected by those articles are not unjustifiably imperilled: Doorson, para 70. In our domestic law, the courts power to prevent the identification of a witness is accordingly part of the structure of laws which enables the United Kingdom to comply with its obligations under those articles: In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 27 per Lord Rodger. Article 8 may also be relevant. It protects the private lives of the parties, to which article 6(1) also refers, and in addition requires respect for the private lives of other persons who may be affected by legal proceedings, such as witnesses. It is however a qualified right: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The court therefore allows a margin of appreciation to national authorities in striking a fair balance between the interest in publicity of court proceedings, on the one hand, and the interests protected by article 8, on the other hand: Z v Finland (1997) 25 EHRR 371, para 99. Article 10 is also relevant to the principle of open justice, since the right to receive and impart information, which is guaranteed by article 10(1), may be engaged where measures are taken in relation to court proceedings to prevent information from becoming publicly available. The right guaranteed by article 10(1) is however qualified by article 10(2): The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. These qualifications reflect the fact that freedom of expression may conflict with other important values, including the rights to life and to bodily security protected by articles 2 and 3 of the Convention, the integrity of legal proceedings and the rights of litigants and accused persons, protected by article 6, and the right to respect for private life, protected by article 8. Where there is a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a guarantee which is itself qualified, such as article 8, a balance must be struck, so as to ensure that any restriction upon the rights of the media, on the one hand, or of the litigants or third parties, on the other hand, is proportionate in the circumstances. The approach which should be adopted was considered in detail by Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, and by Lord Rodger in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697. Where the conflict is between the medias rights under article 10 and an unqualified right of some other party, such as the rights guaranteed by articles 2, 3 and 6(1), there can be no derogation from the latter. Care must nevertheless be taken to ensure that the extent of the interference with the medias rights is no greater than is necessary. The need for such care reflects the important role of the media in a democratic society in scrutinising the administration of justice generally, as well as their role as the conduit of information about particular proceedings which may be of public interest. Article 10(2) specifically identifies maintaining the authority and impartiality of the judiciary as a legitimate aim which may justify interference with freedom of expression. The phrase has a wide scope, as the European Court of Human Rights explained in Sunday Times v United Kingdom (1979) 2 EHRR 245, para 55: The Court first emphasises that the expression 'authority and impartiality of the judiciary' has to be understood 'within the meaning of the Convention'. For this purpose, account must be taken of the central position occupied in this context by article 6, which reflects the fundamental principle of the rule of law. The term 'judiciary' ('pouvoir judiciaire') comprises the machinery of justice or the judicial branch of government as well as the judges in their official capacity. The phrase 'authority of the judiciary' includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; further, that the public at large have respect for and confidence in the courts' capacity to fulfil that function. The need to maintain the authority and impartiality of the judiciary, as a justification for an interference with freedom of expression, thus overlaps with the right to a fair trial under article 6(1), and with the entitlement to derogate from the open justice principle under that article where publicity would prejudice the interests of justice. As the court indicated in the Sunday Times case, it is article 6(1) which occupies the central position in this context. Where the European court finds that a restriction of the principle of open justice is justifiable under article 6(1), it may not therefore find it necessary to consider the matter under article 10, on the basis that no separate issue arises. In the case of B and P v United Kingdom, for example, the court declined to examine a complaint under article 10 that the applicants were prohibited, upon risk of being found in contempt of court, from disclosing any documents used in proceedings under the Children Act 1989. The orders complained of were ancillary to measures taken to prevent public access to the hearing and to the judgment. Those measures had themselves been found to be justifiable under article 6(1) in order to protect the privacy of the children and the parties and to avoid prejudicing the interests of justice. The European court has accepted that the law of contempt falls within the ambit of the legitimate aim of maintaining the authority and impartiality of the judiciary. As it stated in the Sunday Times case at para 55: The majority of the categories of conduct covered by the law of contempt relate either to the position of the judges or to the functioning of the courts and of the machinery of justice: 'maintaining the authority and impartiality of the judiciary' is therefore one purpose of that law. In many later cases the court has accepted the compatibility with article 10 of restrictions on the publication of material which may prejudice the outcome of court proceedings: see, for example, Worm v Austria (1997) 25 EHRR 454 and BBC Scotland, McDonald, Rodgers and Donald v United Kingdom (Application No 34324/96) (unreported) given 23 October 1997. As the court explained in the Sunday Times case, it is unnecessary, where the aim of maintaining the authority and impartiality of the judiciary is engaged, to give separate consideration to the aim of protection of the rights of others, so far as the rights of the litigants in that capacity are concerned: In so far as the law of contempt may serve to protect the rights of litigants, this purpose is already included in the phrase 'maintaining the authority and impartiality of the judiciary': the rights so protected are the rights of individuals in their capacity as litigants, that is, as persons involved in the machinery of justice, and the authority of that machinery will not be maintained unless protection is afforded to all those involved in or having recourse to it. It is therefore not necessary to consider as a separate issue whether the law of contempt has the further purpose of safeguarding 'the rights of others'. (para 56) The balance to be achieved under article 10, in this context, is therefore between on the one hand protection of public discussion of matters of legitimate interest in a democracy, and on the other protection of the integrity of particular court proceedings or of the administration of justice more generally. If other interests protected under article 10(2) or under other articles of the Convention, such as article 8, are also involved, then they must also be taken into account. This approach is consistent with that adopted under our domestic law, as explained in para 41. The relationship between the Convention and domestic law It was submitted on behalf of the BBC that the source of the courts power to allow a party to legal proceedings not to disclose his identity publicly, in a situation where Convention rights are engaged, is to be found in the Convention rights themselves, rather than in the common law. Reference was made to In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 23 per Lord Steyn, and In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 30 per Lord Rodger. These dicta were not however concerned with the conduct of court proceedings. They concerned a different issue, namely the jurisdiction of the English courts to make orders contra mundum restraining publicity relating to court proceedings, and in particular the publication of information identifying persons involved in those proceedings: a jurisdiction which might otherwise have been in doubt, as Lord Rodger noted. It is apparent from recent authorities at the highest level, including Al Rawi and others v Security Service and others (JUSTICE and others intervening) [2011] UKSC 34; [2012] 1 AC 531, Bank Mellat v Her Majestys Treasury [2013] UKSC 38; [2013] 3 WLR 179 and Kennedy v The Charity Commission [2014] UKSC 20, that the common law principle of open justice remains in vigour, even when Convention rights are also applicable. In another recent decision, R (Osborn) v Parole Board [2013] UKSC 61; [2013] 3 WLR 1020, this court referred at para 61 to the importance of the continuing development of the common law in areas falling within the scope of the Convention guarantees, and cited as an illustration the case of R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (Article 19 Intervening) [2012] EWCA Civ 420; [2013] QB 618, where an issue falling within the ambit of article 10 was decided by applying the common law principle of open justice. Similar observations were made in Kennedy v The Charity Commission at paras 46 and 133; and the majority judgments in that case provide a further illustration of the same approach. That approach does not in any way diminish the importance of section 6 of the Human Rights Act, by virtue of which it is unlawful for the court to act in a way which is incompatible with a Convention right, unless subsection (2) applies. As was made clear in Kennedy, however, the starting point in this context is the domestic principle of open justice, with its qualifications under both common law and statute. Its application should normally meet the requirements of the Convention, given the extent to which the Convention and our domestic law in this area walk in step, and bearing in mind the capacity of the common law to develop as I have explained in para 40. As the case of V v United Kingdom demonstrates, it is however necessary to bear in mind that, although the Convention and our domestic law give expression to common values, the balance between those values, when they conflict, may not always be struck in the same place under the Convention as it might once have been under our domestic law. In that event, effect must be given to the Convention rights in accordance with the Human Rights Act. Section 11 of the Contempt of Court Act 1981 It is necessary next to return to section 11 of the 1981 Act, which provides: In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld. Section 11 was enacted in order to implement a recommendation made in the Report of the Committee on Contempt of Court (1974) (Cmnd 5794), para 141, footnote 72, following the case of R v Socialist Workers Printers and Publishers Ltd, Ex p Attorney General [1974] 1 QB 637. As Lord Rodger explained in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 31, section 11 does not itself confer any power upon courts to allow a name or other matter to be withheld from the public in proceedings before the court, but it applies in circumstances where such a power has been exercised. The purpose of section 11 is to support the exercise of such a power by giving the court a statutory power to give ancillary directions prohibiting the publication, in connection with the proceedings, of the name or matter which has been withheld from the public in the proceedings themselves. Section 11 thus resolves the doubt which had arisen following the Socialist Workers case as to the power of the court to make such ancillary orders at common law. The directions which the court is permitted to give are such as appear to it to be necessary for the purpose for which the name or matter was withheld. It was submitted on behalf of the BBC that section 11 does not enable an order to be made for the purpose of protecting an individuals Convention rights: such an order can only be made, it was argued, in order to protect the public interest in the administration of justice. That submission is of limited significance in the present case since, as I shall explain, one of the purposes of the order was to protect the administration of justice. Section 11 does not in any event contain any such limitation; and, where the courts are required under the Human Rights Act to impose reporting restrictions in order to protect Convention rights, they must use the means which are available to them. It was also submitted that no order could be made under section 11 unless members of the public had been present in the courtroom and had had a name or other matter withheld from them. That is however an unduly narrow construction of the provision. In the present case, for example, even if there were no members of the public present in court during the hearing before Lord Boyd, the effect of the order permitting the applicant for judicial review to be described as A was that his identity would be withheld from anyone looking at the rolls of court, either in Parliament House or on the internet, when any future hearing was listed, and from anyone present in the building when such a hearing was announced over the public address system. Anyone attending subsequent hearings in the case would hear him referred to in the same way; anyone who requested to see court documents to which the public could have access would also see him referred to in that way; and any judgments in the case, published on the internet or in the law reports, would be similarly anonymised. In all these respects, As identity would be withheld from the public. Section 12 of the Human Rights Act 1998 Section 12 of the Human Rights Act provides: (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made (the respondent) is neither present nor represented, no such relief is to be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code. (5) In this section court includes a tribunal; and relief 'includes any remedy or order (other than in criminal proceedings). As Lord Nicholls of Birkenhead explained in Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 AC 253, para 15, section 12 was enacted to allay concerns about the potential impact of article 8 Convention rights upon the grant of injunctions or interdicts against the media. It appears that section 12(2), in particular, was intended to restrict the scope for pre publication injunctions or interdicts being granted against broadcasters or the press on an ex parte basis, and that section 12(3) was designed to impose a more demanding test for the grant of interlocutory injunctions than the American Cyanamid standard. The effect of the provisions depends however upon the language used by Parliament rather than upon the particular concerns which may have prompted their enactment. In the present case, the First Division considered that an order under section 11 of the 1981 Act fell within the scope of section 12(2) of the Human Rights Act, on the basis that the expression relief was wide enough to cover an order of that kind. The first respondent has taken advantage of the BBCs appeal to challenge that conclusion. As I have explained, section 11 of the 1981 Act applies where the court allows a name or other matter to be withheld from the public in proceedings before the court, and permits the court to give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary. When an application is made to the court to allow a name or matter to be withheld, that is not an application for relief made against any person: no remedy or order is sought against any respondent. If ancillary directions under section 11 are also sought, prohibiting any publication of the name or matter in question, that equally is not an application for relief made against any respondent: the directions will operate on a blanket basis. In such circumstances there is no respondent who should be notified, or who might be present or represented at the hearing. There is therefore no obligation under section 12(2) of the Human Rights Act to allow the media an opportunity to be heard before such an order can be granted. The Lord President observed at para 39 that, even if the media were not entitled to be heard by virtue of section 12(2) of the Human Rights Act, they were entitled to be heard as a matter of fairness, although there was a question as to the stage at which the opportunity to be heard should be given. I agree. There are many situations in which courts make orders without having heard the persons who may be affected by them, usually because it is impractical, for one reason or another, to afford a hearing to those persons in advance of the making of the order. In such circumstances, fairness is secured by enabling any person affected to seek the recall of the order promptly at a hearing inter partes. In principle, an order under section 11 of the 1981 Act falls within the ambit of that approach. It would be impractical to afford a hearing to all those who might be affected by a section 11 order (including bloggers, social media users and internet based organisations) before such an order was made; but fairness requires that they should be able to seek the recall of the order promptly at a hearing inter partes. Article 13 of the Convention also requires that the media should have an effective remedy for any violation of their article 10 rights. That requirement is capable of being fulfilled, where a section 11 order has been made ex parte, provided its recall can be sought promptly at a hearing at which the media are able to make representations (cf Mackay and BBC Scotland v United Kingdom (2010) 53 EHRR 671, para 32). As the facts of this case demonstrate, the existing procedures in the Court of Session are capable of satisfying those requirements. That said, a conclusion that the existing procedures provide a sufficient safeguard to meet the requirements of the Convention does not mean to say that improved procedures may not be possible and desirable. Although it would be impractical to provide all those who might be affected by a section 11 order with an opportunity to make representations before such an order is made, it may nevertheless be possible in some circumstances to provide such an opportunity to some of those who would be affected. Nothing I have said is therefore inconsistent with the Lord Presidents conclusion that improved procedures should be introduced, or with the intention of the Scottish Civil Justice Council to address that issue. Any improved procedures should not however make it impossible to obtain orders restricting publicity on an ex parte basis: as the Lord President recognised, there will inevitably be circumstances in which it is necessary for such orders to be made on that basis. The present case It is necessary finally to consider the application of these principles to the present case. The BBC was aware of As identity at all material times. It would have been free to report it, were it not for the order made by Lord Boyd under section 11 of the 1981 Act. The order therefore fell within the scope of article 10 of the Convention, as given effect by the Human Rights Act. The BBC was entitled to challenge the order as being incompatible with article 10, on the assumption that a public broadcaster such as the BBC can qualify as a victim of a violation of that article. In the light of the relevant case law of the European Court of Human Rights (eg Radio France v France (2004) 40 EHRR 706; sterreichischer Rundfunk v Austria (Application No 35841/02) (unreported) given 7 December 2006; Mackay and BBC Scotland v United Kingdom (2010) 53 EHRR 671), and in the absence of argument to the contrary, I proceed on the basis that it can. As I have explained, article 10 sets out a qualified guarantee: the right of freedom of expression can be subjected to restrictions which are prescribed in law and are necessary in a democratic society for the protection of the rights of others or for maintaining the authority and impartiality of the judiciary. There is no doubt that an order made under section 11 is prescribed by law. The issue is whether the order made in the present case was necessary in a democratic society for the protection of the rights of others or for maintaining the authority and impartiality of the judiciary. There are undoubtedly features of the case which support the BBCs contention that there was at all material times a public interest in its ability to report it without restrictions. These include the fact that the case concerns the deportation of a foreign sex offender, the remarkable length of time the proceedings have taken, and the cost of the proceedings to the taxpayer. The reporting of the present case would contribute to a debate of general interest: cases concerning the deportation of foreign offenders are not infrequently reported as part of a debate about the impact of European human rights law, or about the procedure followed in such cases. It is also true that A has in the past been the subject of publicity in which his name and photograph were published. It is also undeniable that, although the BBC could report all other aspects of the case, their inability to reveal As identity would detract from the human or journalistic interest of the story. Nevertheless, the arguments in favour of Lord Boyds decision to make the order, and Lord Glennies decision not to recall it, were in my view overwhelming. It is necessary first to recall the procedural context in which those decisions were taken. The tribunal had made a decision, the effect of which was to authorise As deportation, and it had also made an anonymity direction on the ground that A could be put at risk of harm by publication of [his] name and details. Its decision to authorise As deportation, in the face of concerns about the risk of his being ill treated on his return to his country of origin, had been made on the basis that anonymity would be a significant protection of his article 3 rights. Lord Boyds order was then made in proceedings in which the validity of the tribunals decision was challenged. A date had been fixed for the hearing of As challenge to the decision, but the Home Secretary proposed to deport A several weeks before that hearing took place. The case came before Lord Boyd so that he could decide whether the deportation should be allowed to proceed before the challenge to the tribunals decision had been heard. In that situation, the publication of As identity, or of information enabling him to be identified, would have subverted the basis of the tribunals decision to authorise his deportation. That decision had been based on an assessment that there was no real risk of a violation of article 3 if As identity was not publicised in connection with the deportation proceedings. The decision would have been undermined, before the challenge to its validity was determined, if his identity was published in the meantime. A fresh application to be allowed to remain in this country could then have been made on the basis of the new factual situation created by the publication of his identity in connection with the deportation proceedings. That application would then have required to be considered by the Home Secretary, and a fresh decision made. The publication of As identity would therefore have frustrated the judicial review proceedings before the court. Indeed, the entire proceedings since at least 2007 would have been rendered largely pointless. The reasons for making the order were equally compelling if considered from the perspective of protecting As article 3 rights in the event of his deportation. The tribunal, as the fact finding body in this case, had accepted that A would be at serious risk of violence if his identity became known in his country of origin in connection with these proceedings, and had concluded that anonymity would be a significant protection of his article 3 rights. In those circumstances, the courts failure to make a section 11 order would, as the Lord President observed, have had the grave consequence that the deportation might create all the risks that the tribunals directions as to anonymity had been intended to prevent. In these circumstances, it was plainly necessary in the interests of justice, and in order to protect the safety of a party to the proceedings, to depart from the general principle of open justice to the extent involved in the making of the orders made by Lord Boyd. It follows that, subject to any issue arising under the Convention, the order allowing A to withhold his identity in the proceedings was in accordance with the common law, and the section 11 order was made in accordance with the power conferred by that provision. It also follows that the section 11 order was not incompatible with the Convention rights of the BBC. The interference with its freedom of expression was necessary to maintain the authority and impartiality of the judiciary, since its publication of As identity in connection with the proposed deportation would have completely undermined the judicial review proceedings. In these circumstances, where the publication of As identity in connection with the proceedings might well have rendered those proceedings pointless, the interference with the BBCs article 10 rights was unavoidable if the authority and impartiality of the judiciary, within the meaning of article 10(2), were to be maintained. Put shortly, the order had to be made if the court was to do its job, notwithstanding the resulting restriction upon the BBCs capacity to do its job. The interference with the BBCs article 10 rights was also necessary for the protection of the rights of others, namely the right of A not to be subjected to violent attack. As Lord Rodger observed in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 27, the media do not have the right to publish information at the known potential cost of an individual being killed or maimed. Although the BBC was not represented before Lord Boyd, it was able to apply to the court promptly for the recall of the order. As I have explained, that application was due to be heard by the court on 9 November 2012, only two days after the order had been made. With the BBCs agreement, that hearing was postponed until 14 November 2012, when Lord Glennie heard the BBCs application over the course of two days. He concluded that the order was justified and should not be recalled. For the reasons I have explained, that decision was correct. The procedure that was followed in my opinion satisfied the BBCs entitlement under the Convention to an effective remedy. Anonymity in relation to this judgment At the outset of the hearing of this appeal, the court made an order that no one shall publish or reveal the name of the respondent who is involved in these proceedings or publish or reveal any information which would be likely to lead to the identification of the respondent in connection with these proceedings. That order was made with the agreement of the BBC. A is now residing in the country where, as the tribunal concluded, he is at risk of serious violence if his identity becomes known in connection with these proceedings. His application for judicial review of the tribunals decision to authorise his deportation has not yet been heard. In these circumstances, it is appropriate both in the interests of justice, and in order to protect As safety, that his identity should continue to be withheld in connection with these proceedings, and that the order should therefore remain in place. Conclusion For these reasons, I would dismiss the appeal.

UK-Abs

A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. A appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill treatment (contrary to articles 2 and 3 of the European Convention on Human Rights (ECHR)) should he be deported. As identity was withheld in the proceedings from 2001 onwards [5] [9]. In dismissing As appeal against the Home Secretarys refusal to revoke the deportation order, the First tier tribunal noted that the proceedings were anonymised, thus reducing the risk of As identification. In September 2012 A applied to the Court of Session for judicial review of the Upper Tribunals refusal of permission to appeal. The Secretary of State gave notice that she intended to remove A from the UK before the date fixed for the hearing of the judicial review application. On 7 November 2012 Lord Boyd heard As application for interim suspension of the removal decision and allowed him to amend his application for judicial review by substituting initials for his name and address. Lord Boyd also gave directions under section 11 of the Contempt of Court Act 1981 prohibiting the publication of As name or other identifying details and directing that no picture of him should be published or broadcast [2]; [10] [13]. He refused the application for interim suspension, concluding that A had not established a prima facie case for setting aside the Upper Tribunals decision [14]. The Inner House refused As appeal against that decision [16]. Media organisations had not been notified of and were not represented at the hearing before Lord Boyd. The BBC became aware of the section 11 order and applied for it to be set aside. In refusing the application, Lord Glennie noted that it was accepted that if the fact that A was being deported became known in his country of origin there would be a real risk of his article 3 rights being infringed. That was why an anonymity order had been made by the tribunal. It was necessary to withhold As identity to safeguard his article 3 rights and to preserve the integrity of the court proceedings, since publication of the information would give A grounds for a fresh application to the Home Secretary and frustrate the proceedings [17 18]. A was deported on 14 December 2012 [20]. The BBCs appeal against Lord Glennies decision was refused in May 2013. The Inner House considered that the material before the tribunal justified the conclusion that anonymity would be a significant protection of As article 3 rights and that setting aside the section 11 order would subvert the understanding on which As deportation had been authorised [21]. The appeal raises three issues [3]: (i) Whether the court possesses any common law power to protect the anonymity of a party where rights under the ECHR (given effect by the Human Rights Act 1998 (HRA)) are engaged; (ii) Whether the court acted compatibly with the BBCs rights under article 10 ECHR (which protects freedom of expression), both in terms of the substance of its decision and the procedure followed; and (iii) Whether the section 11 order fell within the scope of section 12 HRA, so that the BBC ought to have been notified and given an opportunity to make representations before it was made. In a unanimous judgment delivered by Lord Reed, the court dismisses the BBCs appeal. Lord Reed explains the importance of the general constitutional principle of open justice. Society depends on the courts to act as guardians of the rule of law, and this in turn necessitates the openness of the courts to public scrutiny. The principle has important consequences for the publishing of reports of court proceedings: open justice is inextricably linked to the freedom of the media to report on court proceedings [23] [26]. But there are exceptions. The courts have an inherent jurisdiction to determine how the principle of open justice should be applied [27] [37] and can permit the identity of a party or witness to be withheld from public disclosure where necessary in the interests of justice [38 41]. Central to the courts evaluation will be the purpose of the open justice principle, the potential value of the information in advancing that purpose, and any risk of harm that its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others [41]. The principle of open justice is protected and qualified by the ECHR as it is in domestic law [42] [54]. But the common law principle remains in vigour even where Convention rights also apply [55 57]. The purpose of section 11 is to support the exercise of the courts power to allow a name or other matter to be withheld in court proceedings, by conferring a statutory power to give ancillary directions prohibiting publication of the relevant information. The use of section 11 is not limited to protecting the public interest in the administration of justice [60], or to cases where members of the public are present in court [61]. Section 12 HRA does not apply to section 11 applications as they are not applications for relief made against any person [62 66]. Fairness nevertheless requires the media to have an opportunity to be heard, but both this and the medias right to an effective remedy are secured by enabling any person affected to seek recall of the order promptly at a hearing inter partes [67] [68]. Whilst article 10 ECHR was engaged in the present case, the arguments in favour of making the order were overwhelming. The tribunal had made a decision, the effect of which was to authorise As deportation, on the basis that anonymity would be a significant protection of his article 3 rights. The courts failure to make the order would have meant that the deportation might create all the risks that the tribunals directions as to anonymity had been intended to prevent. The order was justifiable under article 10, since it was both prescribed by law and necessary in a democratic society in order to protect the integrity of the legal proceedings and As article 3 rights [69] [76]. The order allowing A to withhold his identity was in accordance with the courts common law powers. The section 11 order was made in accordance with the power conferred by that provision. It was not incompatible with the BBCs Convention rights [75 76]. The BBC was able to apply promptly for recall of the order, and its application came before the court two days after the order was made [77].

This appeal concerns the operation of section 1 of the Crime (International Co operation) Act 2003. That section gives the Secretary of State for the Home Department (who is the appellant in these proceedings) power to serve on a person in the United Kingdom any process or other document at the request of a foreign government or its authorities. Mr Mamdouh Ismail, the respondent, is an Egyptian national. He was chairman of the board of management of the El Salam Maritime Transportation Company which was based in Egypt. Mr Ismails son, Amr, was an executive director and vice chairman. The company operated a ferry. On 3 February 2006 it sank in the Red Sea and more than 1,000 people lost their lives. Mr Ismail and his son were charged with manslaughter. A trial took place before the first instance Safaga Court of Summary Justice. Neither Mr Ismail nor his son was present but they were legally represented. Both were acquitted on 27 July 2008. The prosecution appealed. The respondent and his son were again not present at the appeal hearing but lawyers appeared on their behalf. The respondents sons acquittal was affirmed but on 11 March 2009 Mr Ismail was found guilty. During the hearing before the Appeal Court a lawyer for the prosecution argued that submissions made on behalf of the respondent and his son should not be taken into account because neither was present. It appears that this argument was based on a rule of Egyptian law which requires a defendant to be present in court during a trial of a misdemeanour punishable by imprisonment. The argument was accepted. The respondent was sentenced to the maximum term of imprisonment: seven years, with hard labour. The respondent and his son had entered the United Kingdom on 26 April 2006. They have remained in this country since then. On 11 October 2010 the Egyptian authorities requested the Secretary of State to serve the judgment of the Appeal Court on Mr Ismail. In July 2011 they confirmed that request. On 3 August 2011 the Secretary of State informed the respondent that she intended to serve the judgment. In a letter before claim dated 18 August 2011, Mr Ismails solicitors submitted to the appellant that she would be acting unlawfully if she acceded to the request to serve the judgment. Various reasons were given. Further representations were made on Mr Ismails behalf between August 2011 and January 2012. These prompted an inquiry by the Secretary of State of the Egyptian authorities as to the effect that service of the judgment would have on the respondent. She was informed that the judgment of the Appeal Court, having been given in the respondents absence, could be appealed by means of an objection and this could be done by a lawyer acting on the respondents behalf; time for the lodging of objection (ten days) would begin to run when the judgment was served; if the respondent failed to appeal, the judgment would become final but, in that event, it could be appealed to the Court of Cassation; and if the respondent lodged an objection, he would have to attend the hearing of the appeal in person. On 23 May 2012 the Secretary of State informed Mr Ismails solicitors that she intended to serve the judgment on him. On 20 June 2012 a claim for permission to apply for judicial review of that decision was made. Permission was refused on the papers by Haddon Cave J on 10 October 2012. A renewed application was made and the matter was listed for a rolled up hearing before Goldring LJ and Wyn Williams J on 12 February 2013. Permission to apply for judicial review was given during the hearing and on 26 March 2013 the High Court delivered its reserved judgment, allowing the respondents claim for judicial review. On the Secretary of States application, the High Court certified two points of law of general public importance: 1. What is the extent of the Secretary of States discretion when serving a foreign judgment under section 1 of the Crime (International Co operation) Act 2003? 2. May a persons article 6 rights be engaged on service by the Secretary of State of a foreign judgment under section 1 of the Crime (International Co operation) Act 2003? The judgment of the High Court The High Court considered three grounds advanced on behalf of Mr Ismail. The first of these was that the Secretary of State had been wrong in her analysis of the extent of the obligations imposed on her by article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The second ground was that the Secretary of State adopted an irrational and unlawful approach in exercising her discretion as to whether or not to accede to the request to serve the judgment on Mr Ismail. Finally, it was argued that the Secretary of State, in her consideration of articles 2, 3 and 8 of ECHR, had failed to take into account all relevant circumstances. Goldring LJ (who delivered the judgment of the court) dealt first with the second of these arguments. He held (in para 63) that, in exercising her discretion under section 1 of the 2003 Act, the Secretary of State could not ignore evidence of obvious illegality or bad faith in the proceedings which had led to the request to enforce a foreign judgment. Nor could she fail to have regard to evidence in relation to the manner in which the judgment had been obtained. She was also obliged to take into account the consequences for the person on whom the judgment was to be served. The consequences which the court considered would ensue for the respondent by service of the judgment were summarised in paras 67 and 68: 67. Service of the judgment would have serious implications for the claimant both in Egypt and the United Kingdom. It would set time running for finalising the judgment. He would have two options: return to Egypt and begin to serve the prison sentence of seven years with hard labour and appeal or remain in the United Kingdom and suffer the consequences of a final judgment. 68. Remaining in the United Kingdom would have significant consequences for the claimant once the judgment is served. Although there is presently no extradition arrangement between the United Kingdom and Egypt, on any request for extradition, the claimant could not dispute the facts. Egypt would then be seeking the extradition of a man guilty of manslaughter. Of course, the claimant would have the protection rights under Part 2 of the Extradition Act 2003. Further, a final judgment in the United Kingdom might well lead to an Interpol red notice. He could not then leave the United Kingdom for fear of being arrested. On the question of whether the proceedings before the court of appeal in Egypt were tainted by illegality or bad faith, Goldring LJ (in para 72) referred to four factors which, he said, constituted sufficient evidence for the Secretary of State to have considered whether this was a judgment obviously obtained in flagrant disregard of justice; in other words, in bad faith (para 73). Those factors were: (i) the background of public pressure after the respondents acquittal for him to be convicted; (ii) the fact that two of the three judges due to hear the appeal were replaced shortly after their appointment by two men who had worked in the prosecutor's office at the time of the investigation; (iii) in the course of the appeal hearing, the respondents legal representation was effectively withdrawn; and (iv) there were grounds to question whether the judgment could be sustained on a proper analysis of the facts. On the first ground advanced on Mr Ismails behalf (that the Secretary of State had been wrong in her understanding of the duties imposed on her by article 6 of ECHR), Goldring LJ said (in para 100) that it was very difficult as a matter of principle to distinguish between enforcing a judgment and directly assisting in the enforcement of it in circumstances such as arose in Mr Ismails case. He considered, therefore, that there was sufficient evidence for the Secretary of State to consider whether article 6 was engaged. He made the following observation at para 102, however: For article 6 to be engaged the disregard of a persons article 6 rights must be flagrant. The test is a very high one. Some indication of that can be gauged from the fact that over the past 20 years article 6 has not been successfully invoked in an extradition context. Even in a case where defence counsel was appointed by the public prosecutor, the applicants were held incommunicado until trial, the hearing was not public and closed to the defence lawyers and self incriminating statements were obtained in highly doubtful circumstances, extradition was permitted (see Lord Browns speech in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110). That underlines how very exceptional must be the circumstances to result in the application of article 6 in a case such as the present. In light of the courts findings on the first two grounds, Goldring LJ said that it was unnecessary to consider the final ground to any degree. He reflected that, since the service of the judgment would have an impact on the respondents family life, the extent and proportionality of any interference with it would have to be assessed. He made an incidental comment on medical evidence that had been submitted on behalf of Mr Ismail. This consisted of three reports from a Professor Kopelman, the last of which suggested that the respondents poor mental condition would worsen if the judgment was served on him. Goldring LJ said (at para 103) that the Secretary of States concerns about this she had said that the claims made about Mr Ismails health were unrealistic may have been entirely justifiable. The appeal before this court For the Secretary of State, Mr Perry QC described the principal question on the appeal as being whether the service of a foreign judgment was capable of engaging the article 6 rights of the individual who is served with the judgment. He submitted that service of such a judgment could not engage article 6 for two reasons: first, service of a foreign judgment does not have the direct consequence of exposing the individual on whom it is served to a breach of any fair trial guarantee; secondly, the consequences of service are not of a type or nature to warrant the engagement of article 6 rights. Mr Perry claimed that it was beyond dispute that service of the judgment on the respondent would have had no direct effect on his rights in this jurisdiction. The only practical effect of service would have been to start the timetable for further appellate proceedings in Egypt. This would in turn require the respondent to decide whether or not to attend those appeal proceedings. Service of the judgment would make no difference to his ability to remain in the United Kingdom, nor would it have any effect on the conditions in which he lived here. By recognising the possible engagement of article 6, the High Courts judgment had impermissibly extended the reach of ECHR to a category of cases to which it had not previously been applied. On the second issue on which a question had been certified (the extent of the Secretary of States discretion when serving a foreign judgment under section 1 of the 2003 Act), Mr Perry submitted that it was not incumbent on the Secretary of State to investigate the fairness of proceedings in a foreign state where she is asked to serve or facilitate the service of a foreign judgment. To impose such a duty would run counter to the purpose of the 2003 Act in that such an obligation would impede the ability of the Secretary of State to offer speedy and effective procedural assistance to the competent authorities in other sovereign states. The High Court was wrong, Mr Perry argued, to treat mere service of process as giving rise to similar duties to those which might attend recognition and enforcement of such process. The two were conceptually and, as a matter of practicality, fundamentally different. The recognition and enforcement of a foreign judgment could have the consequence of directly exposing an individual to a possible breach of his article 6 rights, as in the case of extradition. Mere service of process, carrying no such risk (at present there is no extradition treaty between the UK and Egypt) was of a completely different order. The possibility that at some time in the future an extradition treaty might be made between the two countries was remote, Mr Perry said, and, in any event, a person whose extradition was sought would then have the protections provided for in Part 2 of the Extradition Act 2003. These include the prohibition of extradition where that would be incompatible with ECHR rights. Mr Perry also argued that the High Court was wrong to suggest that the issue of a red notice was contingent on the service of the judgment. Article 82 of INTERPOLs Rules on the Processing of Data explains the purpose of red notices. It stipulates that such notices are published at the request of a National Central Bureau or an international entity with powers of investigation and prosecution in criminal matters in order to seek the location of a wanted person and his or her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action. It did not depend on a final judgment having been passed on the person who was the subject of the notice. In fact, as emerged during the hearing of the appeal before this court, a red notice had been issued in respect of Mr Ismail. For the respondent, Ms Montgomery QC suggested that section 1 of the 2003 Act clearly conferred a discretion on the Secretary of State. The essential question was what the extent of that discretion was and what considerations the Secretary of State had to take into account in deciding whether to accede to a request to serve the foreign judgment. In this case there was a properly arguable case that the Egyptian appeal proceedings were manifestly unfair. They should be characterised in article 6 terms as amounting to a flagrant denial of justice Othman v UK (2012) 55 EHRR 1, para 259. To suggest, as did the appellant, that, acceding to the Egyptian governments request to serve the judgment of the appeal court on the respondent would have involved the discharge of a mere administrative function akin to the service of a claim form in a civil/commercial dispute, was unreal. Where material had been placed before the Secretary of State which plausibly suggested that there was inherent and blatant unfairness in the Egyptian trial process, a careful assessment of the respondents representations was needed. Ms Montgomery accepted that in many cases where service of process was sought, this would have limited or ancillary consequences in foreign proceedings. She suggested, however, that this would not invariably be the case and was not the case here. In this instance, service would have had immediate, profound, and irreversible consequences for the respondent. It was the single step necessary to trigger the start of a short period before Mr Ismails conviction and the sentence imposed on him became final. Service of the judgment dramatically reduced the options available to him. He would either have to become a fugitive from justice (having declined to return to Egypt, and having lost forever the opportunity to challenge the allegations), or to have surrendered to Egyptian custody and begun serving the custodial sentence while pursuing an appeal before the Egyptian courts. Contrary to the appellants contention, Ms Montgomery submitted that the service of foreign process was not a purely administrative act; it was, as a matter of principle, an exercise of sovereignty Dicey, Morris and Collins on The Conflict of Laws (15th ed) at 8 049. It was also wrong, Ms Montgomery argued, to suggest that the effects of service would only have been felt abroad. Service would have had foreseeable effects on Mr Ismail in the UK as well. In this jurisdiction the fact that he had become a fugitive from justice would necessarily have had serious implications for him: it would have potentially affected his immigration status and his ability to travel. Most significantly, Mr Ismail would have lost forever his ability to contest the merits of the criminal case against him and the effects of that would be experienced by him in this jurisdiction. (As it happens, Mr Ismails immigration status has not been affected. He was granted indefinite leave to remain on 21 August 2015, following the Egyptian authorities acceptance that the underlying criminal proceedings against him were time barred, and their withdrawal of their request for service of the judgment.) As to the engagement of article 6 of ECHR, Ms Montgomery contended that this case fell within the existing categories of exception to the ordinary territoriality principle under article 1 of the Convention. Relying on Soering v United Kingdom (1989) 11 EHRR 439; Drozd and Janousek v France and Spain (1992) 14 EHRR 745; Bankovic v United Kingdom (2007) 44 EHRR SE5; and Al Skeini v United Kingdom (2011) 53 EHRR 18, she claimed that enforcement of a foreign judgment arising from a flagrantly unfair trial, which would lead to the imposition of punishment in the form of a fine or detention in the UK was capable of engaging the appellants responsibility under article 6 of ECHR. Although the request for assistance in this instance did not seek the imposition of a fine or detention on the respondent, it involved the appellant directly in the process of enforcing the Egyptian judgment. On a proper analysis, in this case the appellant had been asked to participate in and to facilitate a critical step in criminal proceedings in a foreign state. This was not assistance in relation to a collateral feature of an Egyptian criminal process, or engagement with an ancillary part of it. It was participation in a key act with substantive consequences: it would have converted an arguably flagrantly unfair criminal trial process into a final conviction, accompanied by a lengthy sentence of imprisonment. By way of alternative argument, Ms Montgomery suggested that, if it was considered that the case did not come within the already recognised categories of exception to the territoriality principle, an extension of the existing categories of extraterritorial application of ECHR to cover the respondents position would be both limited and justified. The 2003 Act and guidance as to its application The material parts of section 1 of the 2003 Act are these: 1. Service of overseas process (1) The power conferred by subsection (3) is exercisable where the Secretary of State receives any process or other document to which this section applies from the government of, or other authority in, a country outside the United Kingdom, together with a request for the process or document to be served on a person in the United Kingdom. (2) (3) The Secretary of State may cause the process or document to be served by post or, if the request is for personal service, direct the chief officer of police for the area in which that person appears to be to cause it to be personally served on him. The tenor of the provision, looked at from a purely textual perspective, suggests an administrative procedure. It is contemplated that transmission of the document will be made by post unless personal service has been requested. This is not indicative of a requirement that there should routinely be an examination of the proceedings which prompted the request for service of the judgment in order to investigate whether they were infected by obvious illegality or bad faith. On the contrary, at first blush, the Secretary of States role might be regarded as that of a cipher, on account of her obviously occupying the position in the executive through which such requests should pass. Such a role might be considered to chime well with the preamble to the 2003 Act which states that the purpose of the legislation is, among other things, to make provision for furthering co operation with other countries in respect of criminal proceedings and investigations. It might also be considered to properly reflect the circumstance that there are no express statutory preconditions on the exercise of the Secretary of States power. As against such considerations, however, is the fact that the Secretary of State is invested with a power, as opposed to an obligation, to effect service of the foreign process. And, clearly, it was contemplated that there would be circumstances in which it would be appropriate not to authorise service. Mutual Legal Assistance Guidelines are issued by the Secretary of State to inform those who wish to make a request under the 2003 Act. The relevant edition of these guidelines, so far as concerns the present case, is the ninth. In the seventh edition, however, in passages omitted from the ninth, it was stated that the central authority (which administered such requests on behalf of the Secretary of State) should ensure that requests for legal assistance conformed with the requirements of law in the relevant part of the UK and the UKs international obligations and that the execution of particular requests was not inappropriate on public policy grounds. The ninth edition of the guidelines presented a different emphasis. It stated: The UK reserves the right not to serve process or procedural documents where to do so could place a persons safety at risk. (For example: if the procedural documents reveal the address of a key witness in a murder trial). Requesting Authorities should therefore always consider if it is necessary to include details relating to witnesses or victims in such documents. It should be noted that the passages in the seventh edition of the guidelines which required the central authority to ensure that requests for legal assistance conformed with the law of the UK and this countrys international obligations and that the execution of the request was not inappropriate on public policy grounds applied to both requests for service of process and legal assistance generally. The appellant has suggested that these sections were directed to the more intrusive forms of assistance which might be provided within the United Kingdom such as the execution of search warrants. The respondent has sought to counter this argument by referring to the fact that when the Bill which became the 2003 Act was passing through the House of Lords, the Parliamentary Under Secretary of State at the Home Office, Lord Filkin said: Clause 1(3) [section 1(3) of the enacted legislation] is not an obligatory provision. It contains the word may. It always remains open to the Secretary of State to decline to comply with a request. Clearly, there is a burden of responsibility on him when making an appropriate response to any such request. Evidence of this answer was given to the High Court without objection by counsel for the Secretary of State. It is doubtful that it would satisfy the test for admissibility set out in Pepper v Hart [1993] AC 593. In any event, I do not consider that the statement made by Lord Filkin advances the respondents case. It was an answer given to an inquiry as to what might happen if a request for service of process came from countries such as Iraq, North Korea or Zimbabwe. Lord Filkins statement did no more than point out that clause 1(3) was a permissive provision. That is not in dispute. The answer did not deal with the question at issue here, namely, what steps the Secretary of State must take to ensure that there is a lawful exercise of her power under section 1(3). It appears to me, therefore, that neither Lord Filkins answer nor the quoted passages from the seventh edition of the guidelines betoken an intention that the Secretary of State should be, in every instance where service of a foreign judgment is requested, obliged to examine the underlying proceedings which prompted the request for their consistency with the UKs standards of fairness in a criminal trial. The extraterritorial reach of ECHR It is well settled (and not in dispute in the present case) that a person who is physically present in a country which has acceded to ECHR is entitled to the protections enshrined in the Convention. Moreover, such a person may invoke his or her rights where the actions of the member state would expose them to consequences in a non contracting foreign state which would amount to a violation of Convention rights. Thus in Soering v United Kingdom (1989) 11 EHRR 439 the European Court of Human Rights (ECtHR) held that the extradition of the applicant to the United States of America would violate his article 3 rights because he would there be exposed to the risk of the imposition of the death penalty. The violation arose because, as Goldring LJ put it in para 75 of the High Courts judgment, as a direct consequence of the action of a contracting state an individual will be subject to proscribed ill treatment in a foreign state ECtHR was careful to explain, however, the limited nature of this apparent exception to the territorial reach of the Convention. In para 86 the court described the limits of that reach in these terms: Article 1 of the Convention, which provides that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I, sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to securing (reconnaitre in the French text) the listed rights and freedoms to persons within its own jurisdiction. Further, the Convention does not govern the actions of states not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other states. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. It was because the actions of the UK authorities, in extraditing the applicant to a country where he faced the possibility of suffering the death penalty, facilitated that outcome that a violation of article 3 was held to be present. In effect, the UK would have been directly instrumental in exposing Soering to the risk of being executed. Properly understood, therefore, this was not an instance of extending the territorial reach of ECHR. It was the decision to extradite, taken within this jurisdiction, that constituted the breach of article 3. It is, of course, true that the actual transgression of article 3 would take place outside the espace juridique of the Council of Europe but the decision of UK authorities which, it was held, would expose the applicant to the risk of execution was taken within this jurisdiction. Thus understood, Soering provides an obvious contrast with Mr Ismails case. The decision of the Secretary of State to serve the judgment on him did not expose him to the risk of violation of his Convention rights. It is undoubtedly true that service of the judgment would have placed Mr Ismail in something of a dilemma. But it is no part of the Secretary of States function to take steps to relieve him of the need to confront that dilemma. Avoidance of the consequences of the judgment becoming final lay in Mr Ismails hands. He could as he did simply decide not to return to Egypt. That may not have been a pleasant prospect but it is a very far cry from saying that his having to face it amounted to a possible violation of his article 6 rights. It is important to recognise that ECtHR in Soering found that the liability of the UK for a breach of article 3 arose as a direct consequence of the actions of UK authorities. At para 91, the court said: In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill treatment. (emphasis supplied) Again the contrast with the respondents position is clear. Service of the Egyptian courts judgment does not have the direct consequence of his becoming exposed to proscribed ill treatment. Even if one assumes that his return to Egypt would involve his being vulnerable to treatment that would, if it occurred within one of the contracting states, amount to a violation of a Convention right, this can on no account be said to be the direct consequence of the Secretary of State having served the judgment on him. Service of the judgment did not require him to return to Egypt. It may be said to have reduced his options but this is quite different from its carrying as an inevitable outcome his exposure to violation of his rights. As I have observed, avoidance of that consequence clearly lay within Mr Ismails control. He may have been faced with an unpalatable choice by the service of the judgment on him but that is quite a different matter from the Secretary of State having taken action which had as a direct consequence the respondents exposure to a violation of his Convention rights. Breach of an individuals rights within a contracting state can arise from actions taken outside the state by a non contracting country. As the judgment in Drozd and Janousek v France and Spain (1992) 14 EHRR 745 illustrates, where a judgment which has been obtained in a non contracting state is enforced in a member state, notwithstanding the fact that it was obtained in circumstances which would have amounted to breach of a Convention right, it may render its enforcement in a member state a violation of that states ECHR obligations. This can only occur if the circumstances in which the judgment was obtained amounted to a flagrant denial of justice para 110 and the concurring opinion of Judge Matscher in Drozd. That argument can be left aside for the present appeal. The issue is whether the service of a judgment can be regarded as akin to its enforcement. Goldring LJ considered that no practical distinction could be drawn between service of the judgment and its enforcement. At para 70 he said that by serving the judgment the Secretary of State would be directly assisting in the enforcement of this Egyptian conviction. He expanded on that thesis in para 100 where he said that it was very difficult as a matter of principle to distinguish between enforcing a judgment and directly assisting in the enforcement of it in such circumstances as the present. This finding lies at the heart of the appeal. Is the service of the judgment part and parcel of its enforcement? Certainly, it is a preliminary step which, on the available evidence, is at least prerequisite to enforcing the judgment. But does it give legal force to the judgment or ratify it? Plainly not. On the contrary section 2(2) of the 2003 Act expressly provides that no obligation arises under the law of the UK to comply with the process by virtue of its service. And section 2(3)(a) requires that the process must be accompanied by a notice drawing to the attention of the person on whom it is served the provisions of subsection (2). I consider that a clear distinction can be drawn between serving a judgment and taking steps to ensure that it is enforced. Enforcement of a judgment necessarily alters the legal position of the person against whom it has been obtained. The legal options available to the respondent may have been narrowed by service but his essential legal position remained unchanged. Mr Ismail remained free to stay in the United Kingdom. Any assets that he held in the UK were unaffected. Service of the judgment on him did not involve any coercive action against him. Moreover, enforcement of the judgment does not flow inexorably from its having been served. It may have been a stage in the process but it did not signify that that process would inevitably continue to its ultimate destination. Indeed, by serving the judgment, the Secretary of State was in no sense committed to authorising its enforcement. Very different considerations would have been in play if she had been asked to take the necessary steps to enforce it presumably, by agreeing to extradite the respondent. Then, as Mr Perry has pointed out, she would be required to observe the obligations imposed on her by the Extradition Act. These would include the duty to ascertain whether the respondents extradition to Egypt would be incompatible with any of his Convention rights precisely the type of exercise contemplated in Soering and Drozd. In my opinion, there is no reason that this type of consideration should be required to take place at the anterior and quite separate stage of deciding whether to serve the judgment. The Secretary of State was quite plainly aware that service of the judgment alone carried no risk of the respondent being exposed to breach of his Convention rights. Sovereignty Whether a decision to serve the judgment is to be characterised as a purely administrative act or the exercise of sovereignty does not seem to me to greatly matter in the present appeal. As Mr Perry submitted, states and international bodies attach increasing importance to their ability to seek assistance in criminal matters swiftly and through processes which are easily accessible. In both Drozd and Willcox v UK (2013) 57 EHRR SE16 the need for strengthening international co operation has been recognised. The European Convention on Mutual Assistance in Criminal Matters 1959 is the primary European instrument providing a framework for mutual legal assistance between EU member states. This is supplemented by the European Convention on Mutual Assistance in Criminal Matters (Council Act of 29 May 2000). It provides for the sending and service of procedural documents. Article 5(1) contemplates service being effected directly by post. It provides that each member state shall send procedural documents intended for persons who are in the territory of another member state to them directly by post. Article 5(2) provides a series of exceptions whereby service may be made via the competent authority of the requested state: 5(2) Procedural documents may be sent via the competent authorities of the requested member state only if: the address of the person for whom the document (a) is intended is unknown or uncertain; or, (b) the relevant procedural law of the requesting member state requires proof of service of the document on the addressee, other than proof that can be obtained by post; or (c) post; or (d) the requesting member state has justified reasons for considering that dispatch by post will be ineffective or is inappropriate. it has not been possible to serve the document by The fact that within the European Union the essentially formal and administrative nature of the exercise of serving process has been given such prominence is not irrelevant to the approach to the interpretation of section 1(3) of the 2003 Act. It would be inconsistent if service of process emanating from an EU country should be treated differently from that of a country which is outside the EU but which enjoys conventional diplomatic relations with the UK. Quite apart from this, the 2003 Act itself and the guidance issued under it clearly indicate that service of process would normally be achieved directly by post. In my opinion, this highlights the predominantly administrative element of this procedure. If service of a judgment is to be regarded as an essentially formal act (as I believe it should be) the question of whether it involves an act of sovereignty recedes in terms of importance. As the appellant has submitted, the United Kingdom plainly regards the service of foreign process as trespassing only in the most minimal way on its sovereignty. Serving a foreign judgment on a person within the UK does not involve any significant compromise on the sovereignty of this country. Consequences Service of the judgment by the Secretary of State would not, therefore, have involved an exercise of the UKs sovereignty nor, for the reasons given above, would it engage Mr Ismails fundamental rights. Indeed, in the particular circumstances of his case, service would have had no material impact on Mr Ismail at all. The High Court considered it to be a significant consequence that he would be exposed to the risk of service of a so called red notice. This, I am afraid, was plainly wrong. Not only was it the case that a red notice had already been issued in respect of him at the request of the Egyptian authorities, INTERPOL rules do not require service of a judgment on a person before a red notice can be issued. The High Court considered that there were other material consequences for the respondent of the service of the Egyptian court of appeals judgment on him: (i) he would have two options only; either to return to Egypt and begin to serve the prison sentence which had been imposed on him or to remain in the UK and suffer the consequences of a final judgment; and (ii) in the event of an extradition agreement being concluded between UK and Egypt, he would not be able to dispute the facts on which his conviction of manslaughter was based. For the reasons that I have earlier given, I do not consider that the narrowing of the respondents options as described in para 50(i) above is sufficient to engage article 6 of ECHR. Nor does the prospect of a future extradition agreement between Egypt and UK, or some other request by Egypt for the respondents extradition, engage article 6 at this stage. If such a circumstance arises, he will then be entitled to rely on the protections afforded by the Extradition Act, including invoking the entire panoply of his article 6 rights. I am also of the view that the Secretary of State was not, in this case, under any obligation to investigate further the consequences that would accrue to the respondent. These were clear. He was entitled to remain in the UK. Service of the judgment could not affect that situation. His assets in the UK were unaffected by having had the judgment served. There was a distinct difference, in terms of its effect on the respondent, between service of the judgment and seeking to have it enforced. While I have concluded that, in the respondents case, article 6 was not engaged and that the Secretary of State was not under an obligation to investigate further the respondents claim, it does not follow that there would not be circumstances in which the service of a judgment would engage article 6 or call for further investigation of the basis on which the judgment was obtained. It is conceivable that service of a judgment, in circumstances different from those arising in the present appeal, might lead more directly to its enforcement or other material consequences, or that obvious illegality or bad faith (that would affect the person on whom service was made in a way that does not arise for Mr Ismail) would warrant a more probing inquiry. On the issue identified by Mr Perry (para 13, above) I therefore consider that it may well be possible in certain cases for service of a foreign judgment to engage article 6. This is not such a case, however. Conclusion I would allow the appeal and dismiss the application for judicial review of the Secretary of States decision.

UK-Abs

Mr Mamdouh Ismail, the Respondent, is an Egyptian national who was chairman of the board of the El Salam Maritime Transportation Company. On 3 February 2006, a ferry operated by the company sank in the Red Sea and more than 1000 people lost their lives. Mr Ismail and his son, who was a director and vice chairman of the company, were charged with manslaughter. A trial took place at which neither defendant was present, though they were legally represented. Both were acquitted. The prosecution appealed and, again, Mr Ismail and his son were not present but were legally represented. The sons acquittal was affirmed but, on 11 March 2009, Mr Ismail was found guilty and was sentenced to the maximum sentence of seven years with hard labour. Mr Ismail had entered the United Kingdom on 26 April 2006, and has remained here ever since. On 11 October 2010, the Egyptian authorities requested that the Secretary of State serve the judgment of the Appeal Court in Mr Ismail. On 3 August 2011, the Secretary of State informed Mr Ismail that she intended to do so. In a letter before claim dated 18 August 2011, Mr Ismails solicitors submitted that the Secretary of State would be acting unlawfully if she served the judgment. Further representations were made on Mr Ismails behalf between August 2011 and January 2012. In response to these, the Secretary of State made inquiries with Egyptian authorities as to the effect that service of the judgment would have on Mr Ismail. She was informed that the Appeal Court judgment could be appealed by means of an objection made by a lawyer acting on Mr Ismails behalf within 10 days of service of the judgment; otherwise, the judgment would become final but could still be appealed to the Court of Cassation if Mr Ismail appeared in person. On 23 May 2012, the Secretary of State informed Mr Ismails solicitors that she intended to serve the judgment on him. On 20 June 2012 a claim for permission to apply for judicial review of that decision was made in the English courts. Following a hearing on 12 February 2013, permission was granted and, by a judgment of 26 March 2013 the High Court granted Mr Ismails application for judicial review. It certified two points of law of general public importance, which are pursued on this appeal: 1. What is the extent of the Secretary of States discretion when serving a foreign judgment under section 1 of the Crime (International Cooperation) Act 2003? 2. May a persons ECHR article 6 rights be engaged on service by the Secretary of State of a foreign judgment under section 1 of the Crime (International Co operation) Act 2003? The Supreme Court unanimously allows the Secretary of States appeal and dismisses the application for judicial review of the Secretary of States decision. Lord Kerr gives the only judgment. The Secretary of State contended that service of a foreign judgment could not engage article 6 because (1) it does not have the direct consequence of exposing the individual to a breach of any fair trial guarantee and (2) the consequences of service are not of a type or nature to warrant the engagement of article 6 rights [13]. Further, the Secretary of State submitted that it was not incumbent on her to investigate the fairness of proceedings in a foreign state when she was asked to serve a judgment: that would run counter to the purpose of the 2003 Act which was to provide speedy and effective procedural assistance to other sovereign states [15]. For Mr Ismail, it was submitted that there is a clear discretion in the 2003 Act; that the Secretary of State is required to carefully assess the respondents representations on article 6 when plausible evidence of unfairness in the Egyptian trial was provided to her; and that service is more than a merely administrative act [18, 20]. From a purely textual perspective, the wording of the statute suggests an administrative procedure that does not routinely require examination of the proceedings which prompted the request for service [23]. On the other hand, the Act provides a power and not an obligation to effect service of foreign process and it was therefore contemplated that there would be circumstances in which service would not be appropriate [26]. It is well settled that a person physically present in a country which has acceded to the ECHR is entitled to its protection, even in circumstances where the actions of a member state would expose them to consequences in a non contracting foreign state which would amount to a violation of Convention rights [32]. That, however, is not the context of this case because the decision of the Secretary of State to serve the judgment on Mr Ismail did not expose him to a risk of violation of his Convention rights [36]. Service of the judgment would have undoubtedly placed Mr Ismail in a dilemma whether to return to Egypt to appeal the judgment, or suffer the consequences of the judgment becoming final but having to face that dilemma does not amount to a possible violation of his article 6 rights [36]. Service of the Egyptian judgment does not have a direct consequence of exposing Mr Ismail to proscribed ill treatment. It reduces his options but does not carry the inevitable outcome of exposure to a violation of his rights. He could avoid that exposure by remaining in the UK [38]. Service of a judgment is not the same as enforcement of it because it does not give legal force to the judgment or ratify it [41]. Service does not, therefore, alter the legal position of the person on whom it is served. It may narrow the legal options available to him but his essential legal position remains unchanged [42]. Service of the judgment would not involve an exercise of the UKs sovereignty nor would it engage Mr Ismails fundamental rights. Indeed, in the particular circumstances of this case, it would have no material impact on Mr Ismail at all [48]. The Secretary of State was under no obligation to investigate further the consequences that would accrue to Mr Ismail on service of the judgment [52]. That being said, there may be cases in which service of a judgment would engage article 6 or would call for further investigation of the basis on which the judgment had been obtained. That might occur, for instance, where service would lead more directly to enforcement or have other material consequences on the individual. In certain cases service of a foreign judgment might engage article 6. This is not such a case [53].

Is the description that there is in general in that State no serious risk of persecution of persons entitled to reside in that State, in section 94(5) of the Nationality, Immigration and Asylum Act 2002, applicable to a state in which a) there is a serious risk of persecution of gays and other members of the LGBT community, b) that community is estimated to amount to between 5% and 10% of the population and c) there is no such risk affecting the remainder of the population? The state in question is Jamaica. 3. At first instance Mr Nicholas Paines QC, sitting as a Deputy High Court Judge in the Administrative Court, held that the Home Secretary could rationally find that the words applied to Jamaica, since 90% or more of the population did not face a serious risk of persecution. The Court of Appeal reversed his decision by a majority [2014] 1 WLR 836. Moore Bick LJ agreed with the deputy judge. He considered that opinions might legitimately differ on the question whether the proportion of LGBT people in Jamaica was so substantial as to lead to the conclusion that there was a serious risk of persecution, viewed from the perspective of the population as a whole, and that it was not irrational for the Home Secretary to reach a negative conclusion. Pill and Black LJJ took a different view. Pill LJ said (at para 57): My conclusion is that a state in which there is a serious risk of persecution for an entire section of the community, defined by sexual orientation and substantial in numbers, is not a state where in general there is no serious risk of persecution. As Lord Hope stated in HJ (Iran) v Secretary of State [2011] 1 AC 596 at para 11, the group is defined by the immutable characteristics of its members orientation and sexuality. It does not follow from the absence of risk to the much larger heterosexual community that in general there is no serious risk in section 94(5) terms where an entire section of the community of significant size and defined by its immutable characteristics, is at serious risk of systematic persecution. Black LJs judgment was to similar effect. 5. Legislative framework 4. Under section 82(1) of the Act there is generally a right of appeal to the Asylum and Immigration Chamber of the First Tier Tribunal in respect of an immigration decision, which includes a decision that a person is to be removed from the UK. Section 92 limits the circumstances in which such an appeal may be made in country. They include cases where an appellant has made an asylum or human rights claim while in the UK, as the respondent did. But section 92 is qualified by section 94(2) so as to exclude an in country appeal if the Home Secretary has certified that the asylum or human rights claim is clearly unfounded. And section 94(3) requires the Home Secretary to certify the claim if satisfied that the claimant is entitled to reside in a state listed in subsection (4), unless satisfied that the claim is not clearly unfounded. Jamaica was added to the list of states designated under section 94(4) by article 3 of the Asylum (Designated States) Order 2003 (SI 2003/970). Section 94(5) sets pre conditions on the exercise of the power of designation under subsection (4). It provides: 7. 6. The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that (a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdoms obligations under the Human Rights Convention. 8. Under section 94 (5A) to (5C), if the Home Secretary is satisfied that the statements in subsection (5) are true of a state, or part of a state, in relation to a description of person, an order may be made adding it to the list under section 94(4) in respect of that description of person. A description for this purpose may refer to a persons gender, language, race, religion, nationality, membership of a social or other group, political opinion or any other attribute or circumstance. These subsections were inserted by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, section 27. Facts 9. The respondent is a citizen of Jamaica. He was referred to by his initials in the judgments of the courts below but has no further wish to be anonymous. He came to the UK on 7 May 2010 on a visitors visa with leave to remain for one month. On 14 October 2010 he applied for asylum on the ground that he is a Jamaican homosexual and feared persecution if returned to Jamaica. On 20 October 2010 he was detained under section 62 of the Act pending a decision on his removal. The detention power was exercised in conjunction with a policy for fast tracking cases eligible to be dealt with under the so called Detained Non Suspensive Appeals (DNSA) process. It is not necessary for the purposes of this appeal to explain the details of the process, except to say that it applied only to asylum or human rights claimants from states designated under section 94(4). 10. Solicitors for the respondent complained to the Home Secretary that his case was not suitable for the DNSA process and his detention was unlawful. The complaint was rejected and on 15 November 2010 the respondent issued a claim for judicial review, seeking declarations that the decision to include Jamaica in the list of states designated under section 94(4) and the respondents detention were both unlawful. 11. On the same day the appellant served a decision on the respondent refusing his claim for asylum, but not certifying it as clearly unfounded. This meant that the respondent was free to pursue an in country appeal, and on 4 February 2011 the Tribunal upheld his claim to be a homosexual and at real risk of persecution if he were returned to Jamaica. Meanwhile the respondent had been released from detention on 24 November 2010. 12. The deputy judge dismissed the respondents claim in its entirety. The Court of Appeal not only allowed his appeal (by a majority) on the issue of the designation of Jamaica under section 94(4), but also held (unanimously) that his detention had been unlawful on other grounds. There is no appeal against the latter part of the Court of Appeals decision. Case law 13. The leading authority relevant to the interpretation of section 94(4) is the decision of the Court of Appeal in R (Asif Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789; [2002] QB 129. The case arose under para 5(2) of Schedule 2 to the Asylum and Immigration Act 1993, as substituted by the Asylum and Immigration Act 1996. The sub paragraph applied to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution. The claimant challenged the validity of an order designating Pakistan as such a country on the ground that women and Ahmadis were generally at risk of serious persecution. 14. Giving the judgment of the Court of Appeal, Lord Phillips MR said at para 57: the challenge made by the applicants to the inclusion of Pakistan in the order was to its legality rather than to its rationality. However, the language defining the state of affairs that had to exist before a country could be designated was imprecise. Whether there was in general a serious risk of persecution was a question which might give rise to a genuine difference of opinion on the part of two rational observers of the same evidence. A judicial review of the Secretary of States conclusion needed to have regard to that considerable margin of appreciation If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan and that this was a state of affairs that was a general feature in that country. For a risk to be serious it would have to affect a significant number of the populace. (Original emphasis) 15. The reference in the final sentence to the need for the risk to affect a significant number of the populace has given rise to debate, but it needs to be read in context. The evidence on behalf of the Home Secretary explained his reasoning in reaching his decision as follows: although certain minority groups [by which he included Ahmadis] may be subjected to acts of ill treatment by members of the general populace, the Government of Pakistan does not itself engage in such acts and Pakistan is not regarded as a country where the State is in general unwilling or unable to offer effective protection to its citizens against such acts. For that reason it is considered to be a country where there is in general no serious risk of persecution either from the State itself or from members of the public, either acting with the States sanction or encouragement, or against whose acts the State is in general unwilling or unable to protect. 16. It was not part of the Home Secretarys case that he regarded Ahmadis as too small a segment of the population to be relevant to his decision, and there was no evidence as to their estimated overall number or percentage of the general population. The case proceeded on the basis that they were a recognised religious minority. 17. The court held that the evidence clearly established that among women in Pakistan there was in general a serious risk of persecution. In relation to Ahmadis, the court referred to a nuanced judgment of the Immigration Appeal Tribunal available to the Home Secretary at the time of his decision, which had concluded that each case involving Ahmadis must be looked at on an individual basis, and that, while not all Ahmadis would be entitled to claim asylum, they lived in Pakistan as a religious minority who were likely to meet examples of intolerance, discrimination and at times persecution in their daily lives (Kaleem Ahmed v Secretary of State for the Home Department (unreported) of 7 December 1995, per Judge Pearl). The Court of Appeal concluded that if the evidence about Ahmadis had stood on its own, it would not have been incompatible with the Home Secretarys decision, but that when considered in conjunction with the evidence about women it added weight to the courts conclusion that the decision was irrational. The courts comments about the evidence concerning Ahmadis clearly related to the degree of risk which they faced and not to their size as a proportion of the community. 18. Lord Phillips did not amplify what he meant by his comment that for a risk to be serious, it would have to affect a significant number of the populace, but I doubt that he meant that the persons affected must not only be sufficient in number to form a recognisable section of the community but must exceed an unspecified percentage of the total population. If that was his intended meaning, he did not spell it out and it would have been unrelated to the argument. 19. In R (MD) (Gambia) v Secretary of State for the Home Department [2011] EWCA Civ 121, para 21, Elias LJ applied the words of Lord Phillips MR in Javed, para 57, to section 94(5) of the 2002 Act and said: It is not, therefore, enough to demonstrate occasional breaches of human rights standards even where they amount to persecution. The persecution must be sufficiently systematic properly to be described as a general feature in that country, and this in turn requires that it should affect a significant number of people. One of the groups alleged to be at risk in that case was homosexuals. The Home Secretarys response was to point out that there were no reports of homosexuals being arrested on a widespread basis or of other legal action being taken against them, although they were likely to face some social hostility. As in Javed, there was no reference to the number of homosexuals in Gambia or their percentage as a proportion of the community. Analysis 20. Mr James Eadie QC on behalf of the Home Secretary submitted that the judgment of Moore Bick LJ should be preferred to the majority of the Court of Appeal for the following main reasons: i) The natural meaning of section 94(5) was that it required the Home Secretary to reach a global judgment about the risk generally to those entitled to reside in the state (or relevant part of it) rather than the risk to any particular minority group. ii) Any other construction would mean that the identification of any group, however small, as being at risk of persecution would prevent the possibility of designation of the state, and this would seriously undermine the scheme. iii) Minority groups would still be properly protected under the statutory scheme, because designation did not necessarily result in an appeal being certified as clearly unfounded. The Home Secretary had still to consider under section 94(3) whether the appeal was clearly unfounded before issuing such a certificate. The present case was an example in point, because the Home Secretary decided not to issue such a certificate in the case of the respondent notwithstanding that Jamaica was a designated state. iv) The purpose of the legislative scheme, properly understood, was not to take away the protection of a vulnerable minority, but to achieve administrative efficiency in relation to the vast majority while still affording proper protection for the minority. It would be wrong to use the provisions of section 94(5A) to (5C), which enabled a state to be added to the list in relation to a particular description of person, as an aid to the construction of section 94(5), since subsections (5A) to (5C) were added by later amendment and therefore could not affect the meaning of section 94(5). v) 21. Section 94 is concerned with the return of unsuccessful asylum and human rights claimants. It is in that context that the Home Secretary may designate a state (or part of a state) only if satisfied that there is in general no serious risk of persecution of persons entitled to live there. I take section 94(5) in its natural meaning to refer to countries (or parts of countries) where its citizens are free from any serious risk of systematic persecution, either by the state itself or by non state agents which the state is unable or unwilling to control. This is the effect of the words in general and serious. I do not read the words there is in general no serious risk of persecution of persons, as meaning there is no serious risk of persecution of persons in general, and therefore as intended to permit the designation of a state which systematically carries out or tolerates persecution provided that it is limited so as not to affect the large majority. I read the words in general as intended to differentiate a state of affairs where persecution is endemic, ie it occurs in the ordinary course of things, from one where there may be isolated incidents of persecution. I am influenced by the fact that persecution within the meaning of the Refugee Convention will by its nature often be directed towards minorities (as Wilson J said in R (Husan) v Secretary of State for the Home Department [2005] EWHC 189 (Admin), para 55), and the great majority of asylum and human rights claimants belong to minorities of one kind or another. For a serious risk of persecution to exist in general, ie as a general feature of life in the relevant country, it must be possible to identify a recognisable section of the community to whom it applies, but to require it to be established also that the relevant minority exceeds x% of the population is open to several objections. The first is the absence of any yardstick for determining what x should be. If the Home Secretary was entitled to conclude that 10% was insufficient, would the same apply to 15%, 20% or 25%? It is no answer to 22. say that it is a question of degree for the judgment of the Home Secretary, within a wide margin of appreciation, if there is simply no way of deciding it. Secondly, if it were possible to place a value on x, it is nevertheless hard to see any reason why it should make a difference whether the group represented, say, more than 20% or only 15%. Thirdly, in the case of many minority groups there will be no way of obtaining reliable information as to their total size for obvious reasons. Even without the risk of persecution, a persons sexuality is a matter which many would prefer to keep private, and to disclose something which carries with it a serious risk of persecution is to court trouble. I am not persuaded by Mr Eadies argument that it makes little or no difference to members of minority groups who are exposed to a serious risk of persecution whether the state has been designated under section 94(4). As Mr Stephen Knafler QC argued, although there may be a different outcome in some cases, the purpose of designation is that applicants from designated countries will normally be detained and fast tracked. In the present case, although the Home Secretary did not certify that the respondents claim was clearly unfounded, he was previously detained as a claimant from a designated state. I would endorse Black LJs comment at [2014] 1 WLR 836, para 44 that the designation of a state changes the complexion of the analysis of the claim. 23. 24. Since the hearing the court has received written submissions from both parties on the issue whether it is permissible to have regard to the provisions of section 94(5A) to (5C) when construing section 94(5). The Secretary of State submits that it is impermissible and relies on Boss Holdings Ltd v Grosvenor West End Properties [2008] UKHL 5, [2008] 1 WLR 289, para 23, in which Lord Neuberger endorsed the proposition that a later amendment does not affect the construction of earlier legislation. The appellant submits that the revised statute should be construed as a whole, ie in its present form, and relies on R v Brown (Northern Ireland) [2013] UKSC 43, para 34, where Lord Kerr endorsed the proposition that an amended statute is to be construed as a whole in its amended form, although in so doing he did not suggest that the legislative history is to be ignored and he examined the purpose of the relevant amendment in its context. There is no inconsistency between what was said in the two cases. In construing any legislation it is relevant to consider its purpose and that may include considering the purpose of an amendment. Parliament may sometimes amend legislation in order to correct a previous interpretation by the court. That said, and with the qualification that we have not heard full argument, I am content for present purposes to accept that generally speaking an amendment cannot affect the construction of an Act as originally enacted, and therefore that it would not be right to be influenced by the later introduction of section 94(5A) to (5C) in interpreting section 94(5). It is nevertheless of interest that Parliament has considered it appropriate to give the Home Secretary the additional power to add a state to the list in relation to a particular description of person. The court was told that so far the exercise of this power has been limited to adding a state in relation only to men (as in the case of Gambia), but the language of the statute expressly contemplates a wide variety of descriptions of person. Parliament was therefore alive to the problem of designation of states where there is a serious risk of persecution limited to a particular target group or groups and has provided a means of addressing it. I would dismiss the appeal. 25. Postscript: Hansard 26. Mr Knafler asked the court to admit a considerable amount of Hansard material, including ministerial statements made during the passage of the predecessor Act, the Asylum and Immigration Act 1996, and in the debate on the motion that the draft statutory instrument which added Jamaica to the list of designated states should be approved. The attempt to rely on Hansard material was misjudged, and the Court of Appeal rightly refused to admit it. Moore Bick LJ gave three reasons the language of section 94(5) is not ambiguous, the statements relied upon did not have the necessary degree of clarity and they were not made in debates on the 2002 Act. I agree with the first and second reasons. As to the third, nothing said during the debate on the Order could possibly be admissible as an aid to construing the parent Act, but I would not wish to lay down a firm rule that the Hansard record of a ministerial statement in a debate on predecessor legislation can never be admissible in circumstances where the wording of the later Act is materially identical. However, it is unnecessary to discuss the point further because it is academic. 27. A full reading of the relevant debates in both Houses of Parliament on the 1996 Act shows why ministerial answers to questions should only be admitted under Pepper v Hart [1993] AC 593 in the plainest of cases. Ministers were asked a number of questions in an attempt to pin them on the meaning of in general. To extract a sentence here and a passage there from such a debate and use it as a legal tool would serve neither the Parliamentary nor the judicial process. Not surprisingly, the answers given were somewhat generalised and fell far short of a definitive statement of ministerial purpose. LORD HUGHES: 28. I agree with Lord Toulson that this appeal ought to be dismissed. For my part, however, I would add a few words of qualification to the reasons which he so clearly expresses. 29. The issue of principle raised by this appeal is the correct approach to the two related expressions in section 94(5) of the Nationality, Immigration and Asylum Act 2002, namely: i) and ii) in subsection (a): in general no serious risk of persecution in subsection (b): (removal) will not in general contravene the United Kingdoms obligations under the Human Rights Convention. I respectfully entirely agree that these expressions, and in particular the words in general, do not mean that a state can be designated so long as the population as a whole is not at risk of persecution, or unless the removal to it of any person will involve a breach by the UK of the Convention. Such an approach would substitute universal for general. Moreover, it is in the nature of persecution that it is very often applied to minority groups. I also agree that it is quite impossible to lay down any numerical threshold for a defined percentage of the population which needs to be at risk before it can be said that there does exist in general a serious risk of persecution or of removal contravening this countrys Convention obligations. It does not, however, follow that the Secretary of State is prevented from designating a destination state under section 94(4) simply because it is possible to identify some common feature or grouping of a few persons who may suffer persecution or ill treatment in breach of the Convention in that state when in general the state is free from those two risks. Such grouping will almost always be possible when persecution under the Refugee Convention is in question, since the status of refugee is there defined in terms of a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Whilst in theory there is perhaps room for a risk of ill treatment such as will occasion a breach of Convention rights in the event of removal (section 94(5)(b)) arising in the case of a single individual, or unconnected single individuals, it will much more often be the case that, as with a risk of persecution, the individual will be capable of categorisation into some form of grouping, or, as Lord Toulson 30. puts it, recognisable section of the community which constitutes the reason why he is at risk. So, to treat the existence of risk to a recognisable section of the community as a bar to certification however small the section will in effect be in danger of preventing certification of any state where there is any risk of persecution to anyone. That was indeed the construction urged upon us by the claimant, but as I understand it that is not the construction upheld. 31. Designation of a destination state does not mean automatic removal. Whether a state is designated or not, the Secretary of State is required to give individual consideration to each case and to reach a decision whether to certify the asylum or human rights claim as clearly unfounded. It is established law that the test at this stage is restrictive. The claim must be one which is so manifestly unfounded that it is bound to fail, or, to put it another way, one which cannot, on any legitimate view of fact and law, succeed. It is an objective test, not one which depends on the opinion of the Home Secretary and accordingly certification is, if challenged, to be subjected to the most anxious scrutiny; the court substitutes its own conclusion for that of the Secretary of State. For these rules of law, see R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36; [2003] 1 AC 920, para 34 and R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25, [2003] 1 WLR 1230, paras 56 58. The designation of the state alters the starting point because section 94(3) requires certification as clearly unfounded unless the Secretary of State is satisfied that the claim does not qualify. Nevertheless the test for certification remains the same; the operation of this test is illustrated by the present case in which the claim was not certified, because as a homosexual the claimant was or might be at risk. 32. Designation of the destination state is a significant legal act, because the practice of the Secretary of State is to fast track decisions in relation to claimants from such a state. Thus, as Black LJ neatly put it, designation changes the complexion of the analysis of the claim. It is therefore important that the decision as to designation should be made with careful attention to the level of risk of persecution or of removal involving breach of human rights. 33. This decision has to be made by the Home Secretary. It will be subject to review on ordinary public law grounds. I agree with Lord Toulson that although subsections 94(5A) to (5C) cannot alter the meaning of in general, the presence of those subsections and the possible means of dealing with some situations in destination states which they now provide will be relevant to that decision. But there will, as it seems to me, remain instances where the risk of persecution (etc) is unusual in a particular state but still can be said to apply to an identifiable grouping of persons and thus, in that sense, to be systemic or systematic. I do not think that in ordinary language a risk 34. becomes one which exists in general because it exists in common for those who belong to an identifiable grouping, however limited in size. Hypothetical examples are no doubt dangerous, but one might be a few linked cells of political campaigners of particular and unpopular views whose activities have attracted the hostility of the public at large and/or of the state authorities and who are, as a result, not protected as they ought to be from persecution or inhuman treatment. Another might be social campaigners who favour a religious rite which the great majority of the local population regards with extreme distaste. These are classic examples of refugee claimants who may be at risk in a state otherwise entirely safe. There is no doubt that their claims to asylum ought where appropriate to succeed notwithstanding the designation of their home state. But it would, as it seems to me, be a misdescription of such a state to say of it that there was in general a serious risk of persecution, on the grounds that all members of this group were at risk, and the risk accordingly systemic. A systemic risk is a necessary but not always a sufficient basis for non designation. In the case of such a state it is perfectly sensible to designate it under section 94, so that the great majority of asylum or human rights claims from its nationals can correctly be refused, and to leave individual cases of applications by members of such a group to be considered separately. In other words, the assessment of when there is or is not in general a risk is a matter of degree and one on which reasonable people may take different views: see Lord Phillips MR in R (Asif Javed) v Secretary of State for the Home Department [2001] 1 EWCA Civ 789; [2002] QB 129 in the passage cited by Lord Toulson at para 14 above. But that is in the nature of a great many decisions which fall to be made in all fields of public administration. It is not a reason to substitute for the judgment committed to the Home Secretary a bar to designation whenever the risk can be described as systemic, in the sense that it applies to members of an identifiable group. That, as it seems to me, is to risk re defining the expression in general. Given the extra essential step of individual consideration of whether or not to certify a claim as clearly unfounded, it is entirely appropriate to allow the Secretary of State a degree of flexibility in considering the manifold different political and social situations which may obtain in different foreign states; that is the clear purpose of the term in general in the statute. That expression would no doubt be too imprecise without further definition if the outcomes of individual claims depended upon it, but they do not. 35. The clear purpose of section 94 designation is to streamline the administration of the great majority of decisions where the destination state can in general be relied upon to be safe. That is a legitimate aim, especially given the notorious delays which attend the processing of the very large number of immigration and removal cases in which asylum or human rights claims are made. It is in the interests of the public at large but also of meritorious asylum or human rights claimants that the latters good claims should not be delayed by large numbers of clearly unfounded ones. In the present case, however, the risk attaches to all who are homosexual, lesbian, bisexual or transsexual. That risk, as it seems to me, can only properly be described as a general risk in Jamaica. As Pill LJ put it in the Court of Appeal, the risk applies to an entire section of the community, defined by sexual orientation and substantial in numbers. Accordingly, whilst I agree that a decision on designation is one on which reasonable people may take different views, it does not seem to me that there is more than one answer which can be given on the present facts. It follows that I agree that the Secretary of States appeal ought to be dismissed. 36.

UK-Abs

The Respondent is a citizen of Jamaica. He arrived in the UK on 7 May 2010 on a one month visitors visa. On 14 October 2010 he applied for asylum on the ground that he is homosexual and feared persecution if he returned to Jamaica. On 20 October 2010, he was detained pending a decision on removal. This was done pursuant to a fast tracking procedure as Jamaica was on the list of states designated under s 94(4) of the Nationality, Immigration and Asylum Act 2002 (the Act). Jamaica was added to the s 94(4) list by article 3 of the Asylum (Designated State) Order 2003 (SI 2003/970). This was done pursuant to the Secretary of States power in s 94(5) of the Act as it was believed that the following conditions were met: (a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdoms obligations under the Human Rights Convention. Jamaicas inclusion on the s 94(4) list meant that asylum or human rights claims from individuals entitled to reside in Jamaica were required to be certified by the Secretary of State as clearly unfounded unless the Secretary of State was satisfied that this was not the case (s 94(3) of the Act). The effect of this was that appeals made by applicants against immigration decisions in relation to clearly unfounded claims would have to be brought from outside the UK (s 92 of the Act). The Respondents complaints that it was unlawful to detain him and that the fast tracking process was unsuitable for his case were rejected by the Secretary of State. As a result, on 15 November 2010 the Respondent issued a claim for judicial review seeking declarations on two grounds: (i) his detention was unlawful; and, (ii) the decision to include Jamaica on the list in section 94(4) of the Act was unlawful. On the same day, the Home Secretary refused the Respondents claim for asylum but did not certify it as clearly unfounded. This meant that he could appeal the decision whilst remaining in the UK. The Respondent was released from detention on 24 November 2010. On 4 February 2011, the First Tier Tribunal upheld his claim that he was homosexual and at real risk of persecution if returned to Jamaica. The Deputy High Court Judge, Mr Nicholas Paines QC, dismissed both of the Respondents grounds. The Court of Appeal allowed, by majority of two to one, the Respondents appeal on whether Jamaica should be designated under section 94(4). It held unanimously that his detention had been unlawful on other grounds. The Home Secretary appealed to the Supreme Court solely on whether Jamaica should be included in the section 94(4) list. The Supreme Court unanimously dismisses the appeal. Lord Toulson (with whom Lady Hale, Lord Sumption and Lord Carnwath agree) delivers the lead judgment. Lord Hughes concurs with the result but for different reasons. Lord Toulson (in the majority) reads s 94(5) of the Act as referring to countries where its citizens are free from any serious risk of systematic persecution either by the state or by non state agents which the state is unable or unwilling to control. The phrase in general differentiates persecution which occurs in the ordinary course of things from isolated incidents of persecution. It does not require the persecution to affect any particular percentage of the population [21]. Rather, the persecution must be a general feature of life in the country and apply to a recognisable section of the community. This reading is influenced by the fact that persecution within the Refugee Convention will often be directed towards minorities and that the majority of asylum and human rights claimants belong to minorities. Requiring the group persecuted to exceed a percentage threshold is open to several objections: there is no way of determining that threshold; it is hard to see why it should make a difference whether a group just exceeds or just falls below the threshold; and, there would be no way of obtaining reliable information about the size of many minority groups [22]. The leading authorities do not contend otherwise [13] [19]. Lord Toulson is not persuaded that it makes little or no difference to individuals whether their state is on the s 94(4) list. The purpose of designation is that applicants from those countries will normally be detained and fast tracked, as borne out by the facts of this case. Designation of a state changes the complexion of the analysis of the claim [23]. Lord Hughes (in the minority) agrees that it would be impossible to lay down a defined percentage of the population which needs to be at risk before there exists in general a serious risk of persecution. However, the Secretary of State should not be prevented from designating a State under s 94(4) of the Act simply because some form of grouping or a recognisable section of the community may suffer persecution when in general that State is free from persecution [30]. To bar designation where the risk is systemic, in the sense that it applies to members of an identifiable group, risks redefining the phrase in general and removes the intended flexibility on the part of the Secretary of State to make these complex decisions [34]. Nonetheless, in this case the risk to all who are homosexual, lesbian, bisexual or trans sexual can only properly be described as a general risk in Jamaica so that the appeal should be dismissed [36].

The appellant, a British national now 57, is in prison in Bali, Indonesia, awaiting execution by firing squad, following her conviction for drug offences. That follows her arrest in May 2012 and her subsequent trial on 22 January 2013 in the District Court of Denpasar. She had admitted the offences, but claimed that she had been coerced by threats to her sons life. Following her arrest she had co operated with the police, leading to the arrest of four others. The prosecutor had called for a sentence of 15 years imprisonment, and supported her appeal to the Indonesian High Court. But that was unsuccessful, as was her further appeal to the Supreme Court on 29 August 2013. The only legal options now available to her to avoid execution are an application to the Supreme Court to reopen the case, and an application to the President for clemency. The time limit for both expires on 29 August 2014. She needs legal help to prepare her case. The UK government has provided substantial consular assistance since it was notified of her arrest, has made diplomatic representations to the Indonesian authorities, and submitted amicus briefs to the High Court and Supreme Court in support of her appeals. But it has declined to pay for legal help, relying on what was said to be a rigid policy, as stated in its publication Support for British Nationals Abroad: a Guide (first published in June 2007): Although we cannot give legal advice, start legal proceedings, or investigate a crime, we can offer basic information about the local legal system, including whether a legal aid scheme is available. We can give you a list of local interpreters and local lawyers if you want, although we cannot pay for either. (emphasis added) The central issue in this case is the legality of that approach, either under domestic law, or (if it applies to her case) the European Convention on Human Rights. The course of the proceedings in UK and Indonesia The present proceedings sought an order requiring the Secretary of State to make arrangements for an adequate lawyer to represent her in the Indonesian appeal. They proceeded with remarkable and commendable urgency. They were lodged on 24 January 2013, only two days after her conviction. The urgency was dictated by the need for her notice of appeal to the Denpasar High Court to be lodged within seven days, and grounds 14 days thereafter. A rolled up hearing took place on 31 January, when the Divisional Court (Gloster and Nicola Davies JJ) granted permission but refused the substantive application, for reasons given in a judgment on 4 February [2013] EWHC 168 (Admin). The applicants grounds had complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (5,000) raised by her sister, but who (according to her) spoke little English and had no experience of capital defence litigation. Following her conviction, and by the time of the judicial review application, the consulate had put her in touch with Mr Agus, a local lawyer. He was the British Ambassadors honorary legal adviser and was also a human rights specialist, who had acted in previous death penalty cases. He was willing to act for the appellant on a pro bono basis, subject to payment of his expenses, estimated at some 2,600. Accordingly, it was that seemingly modest sum which was initially the subject of the judicial review proceedings. In the event, following the dismissal of her application by the Divisional Court, the necessary sum was raised by donations from the public. Her appeal to the High Court in Indonesia then proceeded with the assistance of Mr Agus. On the issue of sentence it was supported by the prosecutor, and by amicus briefs submitted by Lord Macdonald and by the UK Government. On 10 April, the High Court of Denpasar dismissed the appeal. In this country her appeal against the order of the Divisional Court was heard by the Court of Appeal on 22 April and judgment was given on 22 May 2013 dismissing the appeal: [2013] 1 WLR 2938. By that time her request was for 8,000 to instruct Mr Agus in the appeal to the Supreme Court (again principally for his expenses). The Court of Appeal noted that some of the money had by that time been raised by donations. In the event, the full sum was raised and the appeal proceeded in the Supreme Court with Mr Agus assistance, but unfortunately was again unsuccessful. We have had the advantage of more detail than the lower courts about the course of proceedings in the lower courts. We were told that translations of the District Court and High Court judgments only became available in March 2014. As will be seen, even allowing for problems of translation, they make very disturbing reading. We have also some further evidence on the appellants side, including information as to the legal options now open to the appellant in Indonesia and their consequences, and also of the practice of other countries in providing funding in comparable cases. We have not seen evidence of any more recent consideration of the case by the Secretary of State. Nor is there before us any ground of challenge based on action or inaction since the Court of Appeal hearing. The appeal to this court has proceeded as one of principle, directed to the legality of the policy and its application in relation to the decision to refuse funding in January 2013. While however we are principally concerned with the legality of the decision made at that time, and the policy on which it was based, there is as we understand it no objection to us taking account of the new material in so far as it assists in resolving those questions. The Indonesian proceedings in more detail The District Court judgment recorded that she had been accompanied by a lawyer and a translator, and that she had been able to understand the proceedings and respond to questions put to her. It also summarised her statement to the court. She admitted her knowledge that she was carrying narcotics, but said that they belonged to a Julian Ponder (a member of a syndicate), who had threatened to kill her child if she did not comply, and that she felt very bad and ashamed. The judgment noted that the prosecutor was seeking a sentence of 15 years imprisonment and a substantial fine, and that her lawyers had filed a plea for the lightest sentence by reason that she committed the deeds not on her own accord but solely under the threats of the other party. The court, however, held that it was just and fitting that the maximum sentence be imposed. It rejected the prosecutions submission that there were no aggravating circumstances. Instead it found no mitigating circumstances. Rather it listed five aggravating circumstances, including her making of complicated statements to the court, her lack of remorse, and her resort to continued excuse for her ailing son, making herself subject to Julians threat into committing the deeds. A fully reasoned notice of appeal to the High Court was prepared by Mr Agus. This repeated her claim that she had been forced to commit the crime because of threats to her son by a narcotics syndicate. It also relied, by way of mitigation, on the facts that she had no previous criminal record and suffered from mental illness; that following her arrest she had co operated with the police in a sting operation which had led to the arrest of four members of the syndicate (including Mr Ponder); that they had been convicted and sentenced only to terms of imprisonment of between one and six years; and that her attempts at trial to read a full statement of apology had been interrupted by flash photography at short distance from photographers in court. The district court had failed to consider her mitigating factors, especially her role as a collaborator with the police, and the sentence was unjust and disproportionate. The appeal was supported by a substantial amicus brief (14 pages) on behalf of the UK government. This relied on a decision of the Indonesian Constitutional Court (Decision no. 2 3/PUU V/2007), which had upheld the permissibility of the death penalty for drug offences, but only in special or exceptional cases, and taking account of any mitigating circumstances. The appellants case came nowhere near that category. The mitigating circumstances included her co operation with the police, her previous good character, her remorse, and the circumstances in which she came to be involved. A further substantial amicus brief (20 pages) was submitted by Lord Macdonald QC (formerly Director of Public Prosecutions) in his own name. He gave particular emphasis to the appellants status as a cooperating witness, having regard to the vital role of such witnesses in combating the drug trade, and the need for leniency in sentencing as an incentive to such co operation. The court dismissed the appeal and confirmed the death penalty. With respect to the court, their treatment of the defendants case seems cursory in the extreme. The judgment noted, without further discussion, that the prosecutor had objected to the death penalty, and that a brief had been submitted by Lord Macdonald QC, but there was no mention of submissions of the UK Government. The court described the appellants action as highly systematic and organised as a criminal organisation network with an international scale with the involvement of many individuals who are all foreign nationals Narcotics crimes were categorised as extraordinary crimes, for which the State of Indonesia had established a state of emergency to eradicate narcotic crimes The death penalty to the appellant would give the positive response to the society to not commit narcotic crimes. Of the case of the appellant and her supporters, it said simply: based on the above consideration the defendants appeal brief, the appeal brief of the Public Prosecutor as well as the Amicus Curiae brief of Lord Macdonald are groundless and must be put aside. We have been given limited information about the subsequent appeal to the Supreme Court, and events thereafter. As we have said, the appellant was represented by Mr Agus before the Supreme Court, again with funds raised from public donations. We have been told that an amicus brief was submitted by the UK government to the Supreme Court. We assume it was in terms similar to that submitted to the High Court. In a witness statement dated 19 March 2014, Zoe Bedford, casework lawyer for Reprieve, indicated that the full judgment of the Supreme Court was still awaited. We understand that is still the position. In the absence of the judgment, and since the sentence was confirmed, there seems little reason to hope that the arguments on her side were given any more weight than in the lower courts. According to Ms Bedford, the only two avenues now open to her to avoid execution are a Peninjuan Kembali (PK) application to the Supreme Court and a clemency petition to the President. We were told that they are normally filed at the same time, with the clemency petition being held over to await the decision on the PK. According to Ms Bedford, the PK application enables the court to review a decision on the grounds of new evidence, a fundamental error or misapplication of the law; and unlike at the appeal stages, there will be the opportunity for oral argument She asserts that a lawyer is essential for this stage, and that legal advice is also needed on the implications of the complex new clemency laws and their interpretation, which remain the subject of much debate within the legal community in Indonesia. This documentation apparently needs to be lodged within one year of the Supreme Court decision, that is by 29 August 2014. Unfortunately, Mr Agus suffered a severe stroke in October 2013 and is unable to represent her. Attempts to find other lawyers prepared to work on a pro bono basis have failed, and Reprieve itself has no Indonesian lawyers qualified to undertake the task. A suitable lawyer has been identified but only if his fees (said to be US$ 35,000, excluding expenses) can be provided for. (We assume, although this is not entirely clear, that this fee would cover both the clemency petition and the linked application to the Supreme Court.) A statement from Mr Agus himself gives his view that the failings in this case are not unique, and that if the death penalty were reversed by the Supreme Court it would be a persuasive decision for future cases highlighting the flaws in the system which make the death penalty such a dangerous sentence to impose. The issues Three issues are identified in the agreed statement: The Convention issues i) Whether the appellant is within the jurisdiction of the UK for the purpose of article 1 of the European Convention on Human Rights. ii) If so, whether the respondent was and is obliged by the Convention to provide funds for the appellants legal representation in capital proceedings against her in Indonesia, or alternatively to consider her claim for funding. The common law issue iii) Whether the UK governments blanket policy to refuse to consider providing such funding in any case, including the appellants, is unlawful and/or irrational and/or (if material) disproportionate. The Convention issues We say at once that on issue (i) we are in substantial agreement with the courts below. This will make it unnecessary to consider in issue (ii). We note at the outset the Convention right on which Mr ONeill QC relies on behalf of Mrs Sandiford. The death sentence under which she suffers might have suggested article 2 or 3. But it is actually article 6, enshrining the right to a fair trial, on which alone reliance is placed. The case advanced is that the United Kingdom can and should secure to Mrs Sandiford free legal assistance under article 6(3)(c), in circumstances where she cannot afford to fund herself and no such assistance is available to her in Indonesia. Lord Dyson MR (para 35ff) reviewed the relevant case law of the European Court of Human Rights, culminating in the authoritative restatement of the principles by the Grand Chamber in Al Skeini v United Kingdom (2011) 53 EHRR 589. As was confirmed in that judgment (para 131ff), jurisdiction under article 1 is primarily territorial, but there are certain recognised exceptions one of which is in relation to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction when these agents exert authority and control over others (para 134). Having discussed in detail the other Strasbourg cases relied on by the appellants, he concluded that the test was not satisfied in the present case. He adopted a passage from of the judgment of Gloster J in the Divisional Court (para 40): In my judgment it is manifestly clear on the facts of this case, that, at all relevant times, from the moment she was arrested, throughout the time she was in custody, throughout the trial process, and after her conviction when held in prison, the claimant was and remains under the authority and control of the Indonesian state and relevant criminal authorities. The mere fact that the consular officials provided her with advice and support, and that the [Foreign and Commonwealth Office] engaged in diplomatic representations, cannot be regarded as any kind of exertion of authority or control by agents of the United Kingdom so as to engage its responsibilities under the Convention. Since the Court of Appeals decision in this case, the issue of jurisdiction under article 1, and in particular of the exceptions to the principle of territoriality, has been considered by the Supreme Court in Smith v The Ministry of Defence (JUSTICE intervening) [2013] UKSC 41, [2014] AC 52. It is unnecessary to look in detail at Lord Hope of Craigheads leading judgment on this issue, since it confirms that it is to the Strasbourg authorities, in particular Al Skeini, that we must look for detailed guidance. It is enough to say that there is nothing inconsistent with the Court of Appeals approach. Mr ONeill challenged this approach as too narrow. It was wrong to limit the scope of authority and control to situations in which a state is exercising physical control over a person. Physical power and control, in his submission, were not relevant to the separate category, recognised in Al Skeini, of acts of diplomatic and consular agents. In that context the correct approach was to focus on the activity of the member state, even if its authority was only partial. So in this case, the fact that the appellant is in custody in Indonesia does not prevent the UK exercising its authority, under the Vienna Convention, to arrange for her legal representation. The focus is on whether the state had jurisdiction over the act or omission complained about, not whether she is under its authority and control in other ways. In our view, however, the Strasbourg authorities on which he relies do not support such an extension. In Al Skeini the court identified the consular exception in these terms (para 134): First, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others. The Court footnoted this head with a number of references. The main reference was to Bankovi v Belgium (2001) 11 BHRC 435, para 73, where the court said that customary international law and treaty provisions had recognised extra territorial exercise of jurisdiction by a state in cases including those involving the activities of its diplomatic or consular agents abroad. The court added: see also X v Federal Republic of Germany, (1965) 8 Yearbook of the European Convention on Human Rights 158, 169; X v United Kingdom (1977) 12 DR 73; M v Denmark (1992) 73 DR 193; 15 EHRR CD 28 (sub nom V v Denmark)). The United Kingdom has no territorial jurisdiction over Mrs Sandiford in prison in Indonesia. But the United Kingdom could, in one way or another, provide her with funds for her legal proceedings in Indonesia. It could on the face of it do so without using any diplomatic or consular agents, by providing funds here which could then be remitted to Indonesia. However, there is no general Convention principle that the United Kingdom should take steps within the jurisdiction to avoid exposing persons, even United Kingdom citizens, to injury to rights which they would have if the Convention applied abroad. The principle recognised in cases like Soering v United Kingdom (1989) 11 EHRR 439 only applies where the United Kingdom is proposing a step such as the surrender or removal from the jurisdiction of a person which may lead to infringement of that persons Convention rights abroad. The exceptional extra territorial jurisdiction described in Al Skeini 53 EHRR 589, para 134 was expressed as depending on acts of diplomatic or consular agents abroad where such agents exert authority and control over others. It is common ground that the United Kingdom could use its diplomatic or consular agents to fund the defence in Indonesia of a United Kingdom citizen. The Vienna Convention on Consular Relations of 24 April 1963 provides that the consular functions exercisable by consular posts or diplomatic missions consist in inter alia [Article 5] (i) . representing or arranging appropriate representation for nationals of the sending state before the tribunals and other authorities of the receiving state . where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests. (m) performing any other functions entrusted to a consular post by the sending state that are not prohibited by the laws and regulations of the receiving state or to which no objection is taken by the receiving state . The Convention on Consular Relations permits, but it is not suggested that it obliges, the exercise of any such functions. In the present case, the United Kingdom has decided not to use its agents to arrange or fund representation of Mrs Sandiford for this purpose. In these circumstances, it is not possible, in our opinion, to identify any relevant acts of diplomatic or consular agents or therefore any relevant exercise of authority or control by such agents over Mrs Sandiford, which could bring the first extra territorial exception into play. The United Kingdoms diplomatic and consular agents in Indonesia have of course been active in relation to Mrs Sandifords predicament, particularly making representations and filing an amicus brief. But their support for her and their activity in this regard have hitherto excluded any involvement in instructing or funding lawyers on her behalf. A deliberate refusal to instruct or fund lawyers on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her. It is the opposite a decision not to undertake or exercise any relevant authority or control. The authorities footnoted in Al Skeini para 134 do not lead to any different conclusion. In X v Germany the allegation was that the German Consul had asked the Moroccan authorities to expel him. The case failed on the facts, with the Commission merely remarking that diplomatic and consular representatives . perform certain duties with regard to [nationals of a contracting state abroad] which may, in certain circumstances, make that country liable in respect of the Convention ((1965) 8 Yearbook of the European Convention on Human Rights 158, 168). The potential liability referred to was therefore based on duties undertaken and performed. M [or V] v Denmark involved the positive act of the Danish Ambassador to East Germany in inviting the East German police to enter the Danish Embassy in East Berlin where a group of East Germans had taken refuge and been promised immunity. Not surprisingly, the Commission held that he had thereby exercised authority over the group, although again the claim failed on the facts, because the group had by then left voluntarily. The high point of Mr ONeills argument is perhaps the Commission decision in X v United Kingdom (1977) 12 DR 73. The British court had ordered a Jordanian father to return his daughter to England. According to the summary, the English mother got in touch with the British consulate in Amman asking it to obtain the custody of her daughter from the Jordanian Court and the Consulate reported on the childs well being, and provided the mother with a list of lawyers practising in Jordan and registered her daughter in her passport, but with no result. The mother complained that the Consul had failed to intervene in her domestic dispute and help reunite mother and child, so allegedly violating articles 8 and/or 13, and that the Consul refused to ask its legal adviser to answer questions about Jordanian law in order to help her prepare her case for court in Jordan, so violating article 6. The complaint failed again on the facts, with the Commission reciting what had been done and concluding that the consular authorities had done all that could be reasonably expected of them. But first the Commission made what appears to have been a statement of legal principle in relation to jurisdiction: authorized agents of a state, including diplomatic or consular agents bring other persons or property within the jurisdiction of that state to the extent that they exercise authority over such persons or property. Insofar as they affect such persons or property by their acts or omissions, the responsibility of the state is engaged Therefore, in the present case the Commission is satisfied that even though the alleged failure of the consular authorities to do all in their power to help the applicant occurred outside the territory of the United Kingdom, it was still within the jurisdiction, within the meaning of article 1 of the Convention. (p 74) The statement refers to responsibility for acts or omissions and treats the alleged failure of the consular authorities to do all in their power as bringing the case within article 1. So it lends a superficial support to Mrs Sandifords case that a mere unexercised consular power suffices for the purposes of establishing jurisdiction under article 1. But, read literally, that would appear to imply that any omission to exercise any power which could be exercised by diplomatic or consular means would bring the circumstances within the jurisdiction under article 1. On that basis, jurisdiction under article 1 would depend not on activities undertaken or duties performed, but simply on powers possessed. That would be contrary to the later statements of principle in Bankovi and Al Skeini. (Logically, it would also mean that Bankovi itself must be wrong, since, if a mere unexercised power suffices, then an actual exercise of a power affecting a person abroad must surely also suffice.) In our opinion, Commission dicta made in passing in 1977 cannot and do not determine the scope of article 1 today. To the extent that they are inconsistent with later statements, they must be regarded as too extensively phrased. But it is not uninteresting to note that, even though they were so widely expressed, their application on the facts in no way favours Mrs Sandifords current case. If states have any duty to arrange and fund representation on behalf of their citizens abroad, the result in X v United Kingdom ought on the face of it to have been the opposite at least in respect of the complaint made under article 6. Looking at the matter more broadly, the position is that Mrs Sandiford has been apprehended, convicted and tried for drug smuggling in Indonesia. If one asks, by reference to any common sense formulation, under whose authority or control she is, the answer is: that of the Indonesian authorities. It is they who ought to be ensuring her fair trial. If they were party to the Convention, it would be their duty to do so, and to provide appropriate legal assistance in a case of impecuniosity, under article 6. Since Al Skeini, it is possible in certain respects to divide and tailor the Convention rights relevant to the situation of a particular individual: see para 137 in that case. But to divide and tailor the rights under article 6, so as to isolate the duty to fund from the remaining package of rights involved in fair trial, and to treat it as applying to the United Kingdom and as putting Mrs Sandiford to that extent under the authority or control of the United Kingdom, is in our opinion impossible in circumstances where the United Kingdom has deliberately not assumed or performed any role in relation to funding. Before leaving the Convention position, it is also worth considering the full implications of the appellants case that the Convention applies. Logically, article 6 would be engaged in respect of every criminal charge, however serious or minor, brought against a British citizen in any overseas country in the world. Article 6 would become a compulsory world wide legal aid scheme for impecunious British citizens abroad, presumably even for those who had decided to live permanently abroad. For reasons we have given, however, in our opinion Mrs Sandiford was not and is not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention, so that no part of article 6 is capable of imposing any obligation on the United Kingdom in respect of the criminal proceedings and capital penalty to which she is now subject in Indonesia. The common law issue The blanket policy history and practice Before considering the legal issues, it is convenient to refer to the evidence as to how the policy has evolved and how it has worked in practice. Although the policy itself is not in dispute, evidence of the sources of that policy and of the reasoning behind it has proved somewhat elusive. The best evidence now available is contained in two statements (approved we are told by Foreign Office ministers), submitted by Louise Proudlove (Head of Consular Assistance, Consular Directorate, of the FCO). The first was available to the Divisional Court and was necessarily prepared in great haste. The second was submitted to the Court of Appeal in April 2013, partly in response to evidence from Reprieve of a case in 2003 where funding had been provided for a British citizen (Mr Maharaj) facing the death penalty in Florida. It was said to be based on a search of all relevant sources (including documentary and electronic files and interviews with former FCO employees), which was as comprehensive as possible in the time available. It is safe to assume that, if there were further material, it would have come to light in the time that has elapsed since then. There is no doubt as to the longstanding policy of the UK government to oppose the death penalty as a matter of principle. Its current strategy (published in revised form in 2011) is set out in HMG Strategy for Abolition of the Death Penalty 2010 2015. This has the appearance of a formal policy statement, approved by Ministers, and appears as such on the FCO website. According to the Executive Summary it sets out the UK's policy on the death penalty, and offers guidance to FCO overseas missions on how they can take forward our objectives. Appendix 1 identifies Indonesia as one of a second tier of priority countries where consular posts should be working towards one or more of our goals. We were told, for example, the FCO has recently funded a project in Indonesia for training lawyers in handling death penalty cases, in particular by improving understanding of human and constitutional rights. Appendix 2 notes that the FCO is funding three multi country projects (not currently including Indonesia), two of which provide free legal representation for prisoners facing the death penalty. The stated objectives include increasing the number of abolitionist countries, seeking further restrictions in countries where it is used, and ensuring that EU minimum standards are applied. Those standards (as recorded in appendix 4 of the strategy) include the requirement that capital punishment must only be carried out pursuant to a final judgment by an independent and impartial court after legal proceedings complying with international standards including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, and where appropriate, the right to contact a consular representative. The methods for achieving these goals include bilateral initiatives including raising individual cases of British nationals: HMG policy is to use all appropriate influence to prevent the execution of any British national (emphasis added; as will be seen appropriate influence is a phrase which is regularly repeated in ministerial statements on the subject). Delivery methods include lobbying on individual cases of British Nationals who have been sentenced to the death penalty or are facing death penalty charges, the strategy being specifically tailored to each case. The strategy says nothing in terms about the funding of legal representation for individual cases, but equally there appears to be nothing which rules it out. Appendix 6, which lists further recommendations of possible actions by consular posts, does not exclude legal action as such. The list includes: Legal challenges to the constitutionality of the imposition and application of the death penalty are a good tool to use, eg to the mandatory nature of the death penalty, delay on death row or the mercy process Such legal challenges are also suggested as possible actions under the heading adherence to international standards. By contrast with this strategy, there appears to be no comparable published statement covering the current policy for funding legal representation. Ms Proudlove explains her own understanding of the practice in individual cases, following notification of an arrest by the host country (as required by the Vienna Convention on Consular Relations 1963). In that connection, she refers to an internal guidance note, the precise date and status of which are unclear, which sets out a checklist of actions. The note starts by affirming the governments policy to use all appropriate influence to prevent the execution of any British national. It includes advice on working with the subjects local lawyer, preparing representations which can be made before, during and after the trial right up to execution, and considering the possibility of a legal brief to court, if admissible under local law but in respect of which, it is said, there are strict HMG criteria. There is special advice about involving Reprieve. For the current policy on funding legal representation, as already noted, she relies on the 2007 guide (and subsequent revisions), and its statement that we cannot pay for local lawyers. That does not purport itself to be a policy making document, nor does it explain the reasons for the prohibition. We were given no direct evidence as to how, or under whose authority, it came to be published in that form. Ms Proudloves researches, going back to 1987, have shown that the previous policy, though strict, was not inflexible. Thus she refers to a Consular Department Circular dated July 1987 which recommends that if there is no possibility of obtaining funds for the defence a report should be submitted with an estimate of costs, to Consular Department for decision whether public funds can be used against a UTR (undertaking to repay). According to the writer: this facility is rarely used (I cannot recall a single case in the last four years) but should remain an option. This position did not change in the ensuing decade. (A letter from the head of the consular division dated January 1997 to Phillip Sapsford QC is to similar effect.) Ms Proudlove also explains the circumstances in which in 1997 it was agreed to offer funding of up to 20,000 for expert evidence (against an undertaking to repay) to Mr Maharaj who was facing capital charges in the USA. Apart from that and one other similar case (Mr Elliott), also from the USA and relating to expert evidence, no record has been found of any case in which funds were made available for legal representation pursuant to the previous policy. She has attempted to discover in the FCO records the circumstances of a change of policy in 2006 7 to a blanket policy allowing no exceptions. She refers to the decision to refuse assistance in another case from the USA (Ms Carty) in 2004. The Minister was at that time recorded as confirming the existing policy that loans should not in general be provided for death penalty cases, although it was recognised that there be would be exceptions which would continue to be considered on a case by case basis. She infers that the change of policy occurred at some time between that decision and the first publication of the guide in 2007. But she frankly admits that in spite of her extensive searches she has been unable to find any documentation recording such a change of policy. She also notes that shortly thereafter the decision was made to provide annual funding to Reprieve, in amounts rising from 20,000 in 2005/6 to 60,000 in 2012/3. According to the terms of reference, Reprieve is to provide a range of services including helping to ensure the best available legal representation, and securing pro bono services from experts and lawyers where possible. The next formal record of a review of the policy (and the last of which we have evidence before the present case) was in May 2010 when there was a detailed submission to the Foreign Secretary. This was triggered, it was said, by two cases at a critical stage, in which the department was in consultation with lawyers and Reprieve, and a steer from Ministers would be welcomed. The scope of the submission is apparent from the introductory passage, under the heading Options: We recommend that Ministers agree we should, as a matter of general policy, continue to seek to use all appropriate influence to prevent the execution of any British national, beginning that effort from the time the death penalty becomes a possibility. 4. Alternatives would include: A) to limit our action to cases clearly in breach of international standards; B) to limit out action to cases where we judged there was a strong chance of success; C) to consider providing direct legal assistance. The paper reviewed the merits and disadvantages of the three alternatives and concluded: Overall we judge that the risks of a more selective approach (in particular defending judgements not to raise cases) outweigh the benefits. So we recommend that we retain our strong advocacy on behalf of all British nationals facing the death penalty abroad. A minute dated 8 June 2010 recorded (without further comment on the three alternatives) that the Secretary of State accepted your recommendation that the UK should seek to use all appropriate influence to prevent the execution of any British National. There appears to be no record of what action was taken in relation to the two cases which triggered the submission. On the other hand we have been shown no specific case where assistance has in practice been refused on the basis simply of the blanket policy, without any consideration of the individual circumstances. We note from this evidence that, while the FCO has resisted requests to fund legal representation as such, it has been willing on occasions to spend relatively substantial sums on legal advice in connection with the preparation of amicus briefs. For example, in the Maharaj case two briefs were prepared in 2003 and 2005, at a cost of over US$25,000. A similar amount was spent in 2010 in another American case (Kenneth Gay). In Indonesia in 2012 Mr Agus on the instructions of the FCO had prepared an amicus brief for another British citizen faced with a possible death penalty (Gareth Cashmore) for a fee equivalent to some 17,000. This was the template used for the preparation of the amicus brief in the appellants case. Finally, although the evidence explains the practical difficulties in operating a fair and consistent scheme for funding legal representation, it is not suggested that it would be impossible. There is no challenge in principle to the evidence more recently submitted on behalf of Reprieve, which shows that many comparable governments do provide such funding for their nationals facing capital charges abroad, although (as Mr Chamberlain fairly points out) the court has no material to judge what practical difficulties may have arisen in the countries concerned. The Secretary of States powers and the role of the courts There was no material dispute as to the existence or source of the power of the Secretary of State to provide assistance, including legal funding, for British citizens facing capital charges abroad. It is immaterial for the present purposes to consider whether this is properly described as a common law or a prerogative power (see eg Wade and Forsyth Administrative Law 10th ed (2009), pp 181 183). The significant point is that it is not derived from statute, and accordingly any legal constraints on its exercise must be found elsewhere. Assistance in this respect can be found in the judgment of the Court of Appeal in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 1598, [2003] UKHRR 76, which concerned the possible responsibility of the UK government to make representations to the USA government or take other action on behalf of British citizens detained in Guantanamo bay. The court noted that, subject to issues arising under the European Convention on Human Rights, international law had not yet recognised any general duty for a state to intervene by diplomatic means (para 69). Enforceable rights could however arise in domestic law based on established government policy statements or practices, underpinned by the law of legitimate expectation and justiciable in accordance with the principles established in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374): (paras 81ff). The Court of Appeal held that, although the Foreign Offices discretion as to exercise its prerogative powers in such a case was a very wide one and although the court cannot enter the forbidden areas, including decisions affecting foreign policy, there was no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation (para 106). Neither party in the present case sought to question that analysis. Relevant also in the present context is the courts discussion of Butts case (R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Ferhut Butt (1999) 116 ILR 607), in which the applicant had sought an order that the FCO should make representations to the President of the Yemen relating to a criminal trial in progress in the Yemen. Henry LJ recorded the concession by the respondent Secretary of State that he was under a common law duty to protect its citizens abroad, but that the extent and the limits of that duty (were) set out in a leaflet that is available for those who travel abroad. As the court noted in Abbasi, the leaflets in question expressly excluded intervention in a criminal trial, which was fatal to the application. Rather than a common law duty as such, as suggested by Henry LJ, the Abbasi court preferred to characterise it as a legitimate expectation that such assistance as was proffered in the leaflets would be provided (paras 93 4). The courts role is dependent on the nature and the subject matter of the power or its exercise, particularly on whether the subject matter is justiciable: Council of Civil Service Union v Minister for the Civil Service [1985] AC 374, 417 418 per Lord Roskill, R v Secretary of State for the Home Department, Ex p Bentley [1994] QB 349. In the former case, at p 418B C, Lord Roskill suggested as prerogative powers which would not be justiciable those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers. Even so, it has been held that a decision to refuse to issue any pardon based on a failure to identify the possibility in law of a conditional pardon may be reviewable (see Ex p Bentley); and it has also been held that a decision to refuse to issue a passport is reviewable (R v Secretary of State for the Foreign Office, ex p Everett [1989] 1 QB 81) In the present case, there has been no dispute that the Secretary of State, in accordance with his published policies and established practice, has some responsibility for British citizens facing capital charges abroad, nor that his exercise of that responsibility is subject to review by the courts in accordance with the principles outlined in Abbasi. On the other hand it is also common ground that he has a wide discretion in the formulation and application of that policy. The issues turn on the restrictions on which he is entitled to place on that policy and on its application to the appellants case. Fettering discretion the issues In the courts below, as in this court, the argument has turned principally on his right to adopt a blanket policy not permitting of any exceptions, having regard to the well known rule that a public body may not fetter the exercise of a discretionary statutory power (exemplified by British Oxygen Co Ltd v Board of Trade [1971] AC 610). As recorded in the agreed statement of facts, the existence of such a policy, since about 2007, has not been in dispute. The Court of Appeal decided (following its decision in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213) that that rule had no application to the exercise of a prerogative or common law power as in this case (para 53, per Lord Dyson MR), and that the decision to adopt such a rule was not irrational (para 60). The reasoning of the Court of Appeal is encapsulated in a short passage in the judgment of the Master of the Rolls: 53. It is clearly established that a public body may not unlawfully fetter the exercise of a discretionary statutory power: see, for example, British Oxygen Co Ltd v Board of Trade [1971] AC 610. But where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule of law which requires the decision maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case. This is because it is within the power of the decision maker to decide on the extent to which the power is to be exercised in, for example, setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be: R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para 191. The Court of Appeal in Elias had in turn adopted the reasoning of Girvan J in In re Ws Application [1998] NI 19, in a passage approved by the Northern Ireland Court of Appeal [1998] NI 219. Mr ONeill argues that this is too narrow an approach. He challenges the distinction between statutory and common law powers as inconsistent with modern principles of judicial review as it has developed since GCHQ: judicial review is as applicable to decisions taken under prerogative powers as to decisions taken under statutory powers save to the extent that the legality of the exercise of certain prerogative powers (eg treaty making) may not be justiciable.: R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, 553C D, per Lord Browne Wilkinson) Further, at least where human rights are at stake, the rule against fettering discretion is a general principle of the rule of law (see eg Gillan v United Kingdom (2010) 50 EHRR 1105, para 77). Furthermore he submits, in the context of the present case such a rigid policy is inconsistent with the objects and purpose of the governments adopted strategy on the death penalty and as such is irrational. A more flexible policy would allow exceptional cases to be dealt with on their own merits in accordance with the strategy, but need not be open ended. Mr ONeill accepts for example that it would be open to the Secretary of State to adopt a total cap on fees (say 20,000) in an individual case, or even to refuse funding altogether if he had reached the limit of resources allocated for a particular year. What he cannot do is to exclude consideration altogether. Mr Chamberlain adopts the reasoning of the Court of Appeal. As he points out, the leading cases on the no fettering principle are directed in terms to the exercise of statutory discretions (see eg British Oxygen [1971] AC 610, 625D per Lord Reid). The principle has been explained as founded on the Parliamentary intention that a power exercisable by statute from time to time must reflect the circumstances at the time: it cannot be exercised nunc pro tunc (R v Secretary of State for the Home Department ex parte Venables [1998] AC 407, 496 497 per Lord Browne Wilkinson). The same rationale cannot be applied to non statutory governmental powers However his case does not rest on that legal proposition alone. While he asserts the right of ministers exercising a common law power to formulate a bright line policy, not subject to exceptions, he submits: In any event, even in relation to statutory discretions, decision makers are entitled to adopt policies admitting of no exceptions, provided that they are prepared to consider, by reference to the facts of an individual case, whether to change the policy. That is what happened here. (Secretary of States printed case, paragraph 6) A review of the evidence, he says, shows that the department did in fact consider the points put forward as justifying exceptional treatment for Mrs Sandiford, but decided for good reasons not to accept them. Discussion The issue which divides the parties is, in short, whether there exists in relation to prerogative powers any principle paralleling that which, in relation to statutory powers, precludes the holder of the statutory power from deciding that he will only ever exercise the power in one sense. The basis of the statutory principle is that the legislature in conferring the power, rather than imposing an obligation to exercise it in one sense, must have contemplated that it might be appropriate to exercise it in different senses in different circumstances. But prerogative powers do not stem from any legislative source, nor therefore from any such legislative decision, and there is no external originator who could have imposed any obligation to exercise them in one sense, rather than another. They are intrinsic to the Crown and it is for the Crown to determine whether and how to exercise them in its discretion. In our opinion, in agreement with the Court of Appeal, this does have the consequence that prerogative powers have to be approached on a different basis from statutory powers. There is no necessary implication, from their mere existence, that the State as their holder must keep open the possibility of their exercise in more than one sense. There is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power. In so far as reliance is placed on legitimate expectation derived from established published policy or established practice, it is to the policy or practice that one must look for the limits, rigid or flexible, of the commitment so made, and of any enforceable rights derived from it. The point is well illustrated by the case on which the Court of Appeal relied. Elias [2006] 1 WLR 3213 concerned a non statutory compensation scheme set up by the government in November 2000 to repay the debt of honour owed by the UK to British civilians interned by the Japanese during the Second World War. In July 2001, following some uncertainty about the scope of the scheme, and further discussion within the department, more detailed eligibility criteria were announced to Parliament. This order of events was subject to critical comment in the Court of Appeal. As Mummery LJ observed: It does not require much foresight to appreciate the importance of giving proper consideration to establishing lawful eligibility criteria before starting to make ex gratia payments to claimants. Astonishing though it may seem, very many payments were made under the Compensation Scheme (though not to Mrs Elias), even before the eligibility criteria had been settled and announced and without giving proper consideration to whether there was potential discrimination on racial grounds. (para 19) Mrs Elias challenge was based on a number of grounds, including direct and indirect racial discrimination, as well as fettering of discretion. Under the latter head, she argued that the Secretary of State should have been willing to consider any exceptional circumstances, in which payment might be paid to those owed a debt of honour, even though they fell outside the scope of the eligibility criteria. The court rejected this submission in the words cited by the Master of the Rolls in the present case. It is of interest to note also the terms in which the court refused permission to amend the claim to include a ground based on the failure to review the policy. Mummery LJ observed that the duty to keep the scheme under review in the light of developments was not disputed, but said: There was, however, no such duty here. The criteria had been laid down with full knowledge of the facts and a decision was made as to who should be excluded from the Scheme. In the ABCIFER case this court had decided that this was a rational and lawful decision. There was no duty to reconsider the criteria on the grounds suggested by Mrs Elias (para 189: the reference is to R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397) In other words, in circumstances where the Secretary of State had laid down a detailed scheme, recently reviewed, covering those to be included or excluded, there could be no legitimate expectation that he would consider further categories of exception outside those specifically provided for. As we have already made clear, this does not mean that the formulation or exercise of a prerogative power may not be susceptible to review on other grounds. In particular there is no reason why a prerogative refusal to fund foreign litigation should be immune from all judicial review. It does not raise any real issues of foreign policy. As we understand it, the Governments current blanket policy is motivated largely by domestic policy and funding considerations. In particular, as Abbasi made clear, there is no reason why action or inaction in the exercise of such a power should not be reviewable on the grounds of irrationality or breach of other judicial review principles. Irrationality is a high threshold, but it may be easier than otherwise to surmount in a case involving an imminent risk of death by execution of a British citizen deprived of financial support abroad. The courts role is given added weight in a context where the right to life is at stake (see R (Bugdaycay) v Secretary of State for the Home Department [1987] AC 514). A keen scrutiny of the policy and its application must on any view be required in such circumstances. There may be scope in an appropriate case to test the legitimacy of the blanket policy that the Foreign Office currently advances, by reference to a broader framework of proportionality discussed in a non Convention context in Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] UKSC 20, [2014] 2 WLR 808. Issues of consistency may also arise when the blanket policy is compared with the strong and apparently flexible approach to the exercise of appropriate influence advocated by the FCOs published strategy for abolition of the death penalty. However, for reasons which will become apparent, these questions are not critical to the outcome of this particular appeal. Policy as applied to the appellant In the event, the legality or otherwise of the blanket policy is not determinative, because, regardless of the strict limits of the policy as described in the evidence, Mr Chamberlain is right in our view to submit that the department did not treat its existence as the end of the matter, but was on the evidence prepared to consider whether it should be modified in the face of the particular circumstances disclosed by the appellants case. Ms Proudlove explains the steps taken by her department following letters before action from the appellants solicitors in October 2012. Consideration, she says, was given to the policy issues: Consular Directorate officials came to the view, having considered our policy in general and the circumstances in Mrs Sandiford's case, that if we were to pay for the provision of her legal representation, this would inevitably result in having to change our policy of not paying for legal representation on the basis that there were a number of analogous death penalty cases. Consideration was then given to whether or not the policy ought to be changed. However, having considered the serious points of principle and practicability that I have outlined above, we came to the view that we should not change our policy. Of course, as is the case with policies in general in the Consular Directorate, they are under regular review with a view to providing the best consular service that we can provide to British nationals abroad. She also explains the Departments view of the special factors put forward in the judicial review proceedings as justifying an exception in the case of the appellant. These were, first, that legal representation was available (through Mr Agus) at relatively low cost, and, secondly, that she had no other means of payment. Ms Proudloves response, in short, was, first, that there was no fair way of distinguishing between cases on the basis of cost, nor of limiting the costs of appeals; secondly, there was some evidence that the appellants family were able to raise sums of the order required, but in any event their financial circumstances were in no way exceptional as compared to others facing the death penalty abroad. It may be said (as Gloster J suggested: para 78) that there is a difference between formulating or reformulating policy, and considering exceptions to policy once made. In many contexts, no doubt, that may be a significant difference, where for example the making of policy is itself subject to a formal process, perhaps including consultation, distinct from its application in individual cases. However, in the present context that seems a distinction without a difference. Our review of the development of policy shows that, on the one hand, policy submissions were made to ministers without any formal procedure, and generally in response to issues raised by individual cases. On the other, it was sensibly recognised that if an exception were to be approved it would be taken as setting a precedent, and to that extent would be tantamount to a variation of the policy. In his written case to this court, Mr ONeill maintains his challenge to the rationality of the actions and decisions of the Secretary of State in January 2013. However, we see nothing arguably irrational in the reasons given by Ms Proudlove for not making an exception to the policy in this case, at least as matters stood in January 2013. The challenge is all the more difficult to sustain in the light of what followed. It follows that the challenge to the decision made in January 2013, and the The department seems to have responded with appropriate urgency to the wholly unexpected death sentence. They were able to put the appellant in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses only basis. Although it is argued that the small amount involved was a reason for making an exception to their policy, it could equally point in the other direction. It was hardly irrational to think that it was a sum which the family should be able to raise for themselves, as indeed turned out to be the case. In the event the problem at the appeal was not the lack of competent legal representation, but the apparent unwillingness of the court to take any notice of it. This cannot be laid at the door of the Secretary of State. policy on which it was based, must fail. The present position While this is enough to dispose of the appeal, we cannot leave the matter there. Mrs Sandiford remains in jeopardy and urgently in need of legal help. Since January 2013, as a result of the surprising course of the Indonesian proceedings, circumstances have radically developed in respects which appear to have been quite unforeseeable. However, we have no up to date information as to the departments consideration of those matters. As has been seen, those responsible have been willing to consider whether the policy should be departed from or qualified in her case, but that has been on information which is now out of date. Logic and consistency, if nothing else, call for an urgent review of the policy as it applies to her in the light of the current information. The evidence now available as to the course of the Indonesian proceedings appears to raise the most serious issues as to the functioning of the local judicial system and its ability to deal justly with the appellants case. In particular, on the material we have been shown, the local courts seem to have ignored the substantial mitigating factors in her case, including her age and mental problems, her lack of any previous record, her co operation with the police, and not least the remarkable disparity of her sentence with those of the members of the syndicate whom she helped to bring to justice. On the face of it, there is substantial material to support her application to the Supreme Court or the President. She needs a competent lawyer to present it. It is through no fault of her own that Mr Agus illness has deprived her of his expert support, and with it her only opportunity of pro bono representation. Nor is this simply a matter of justice to her. If Mr Agus view is accepted, an application to the Supreme Court, supported by appropriate oral submissions and new evidence, may offer the prospect of a lasting improvement to the approach of the local courts to comparable cases in the future. It is not, of course, for this Court now to express any view as to what the outcome might be of such a review. But we note that, even under the old pre 2007 policy, it appears that the Foreign Office did not experience real difficulty in controlling and limiting the financial exposure which it incurred in a very few exceptional cases. It is not clear to us that the creation or recognition of an exception for a case as extreme as the present would risk opening a floodgate to future demands for financial support. However that may be, the further review needs to be undertaken and the outcome to be supported by a clear justification of the rationality and/or proportionality of maintaining an absolutely blanket policy covering even the present circumstances. Without prejudice to that review, but for the reasons given above, the present appeal must be dismissed. LORD SUMPTION I agree with the order proposed by Lord Carnwath and Lord Mance, for the reasons given in their joint judgment. I wish only to add some observations of my own on the rule against the fettering of discretions in the context of the exercise of a common law power. The rule is of long standing. It was articulated by Bankes LJ in more or less its modern form in R v Port of London Authority Ex p Kynoch Ltd [1919] 1 KB 176, 184: There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes. Commenting on Bankes LJs statement of principle, Lord Reid observed in British Oxygen Co Ltd v Board of Trade [1971] AC 610, 625, The general rule is that anyone who has to exercise a statutory discretion must not shut his ears to an application (to adapt from Bankes LJ on p 183). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say of course I do not mean to say that there need be an oral hearing. In the present case the respondent's officers have carefully considered all that the appellants have had to say and I have no doubt that they will continue to do so. The respondent might at any time change his mind and therefore I think that the appellants are entitled to have a decision whether these cylinders are eligible for grant. The basis of the rule against the fettering of discretions, as Bankes LJ and Lord Reid pointed out, is that a discretion conferred on a decision maker is to be exercised. Within the limits of that discretion, which will normally be derived from terms in which it was conferred, members of the class of potential beneficiaries have a right to be considered, even if they have no right to any particular outcome. The effect of the decision maker adopting a self imposed rule that he will exercise his discretion in only some of the ways permitted by the terms in which it was conferred, is to deny that right to those who are thereby excluded. It also leads to the arbitrary exclusion of information relevant to the discretion conferred, and thereby to inconsistent, capricious and potentially irrational decisions. Since the decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, the principles of public law applicable to the exercise of common law and statutory powers have in many respects been assimilated. But there remain inevitable differences arising from the distinct origins of these powers. One of them relates to the rule which precludes a decision maker from fettering his own discretion. In Elias v Secretary of State for Defence [2006] 1 WLR 3213, the Court of Appeal held that the rule had no application to the exercise of common law powers. The decision concerned the rules of a scheme for compensating certain categories of British subject who had been interned by the Japanese during the Second World War. The scheme had no statutory basis. It was created under the common law powers of the Crown. Mummery LJ, at para 191 said: The analogy with statutory discretion is a false one. It is lawful to formulate a policy for the exercise of a discretionary power conferred by statute, but the person who falls within the statute cannot be completely debarred, as he continues to have a statutory right to be considered by the person entrusted with the discretion. No such consideration arises in the case of an ordinary common law power, as it is within the power of the decision maker to decide on the extent to which the power is to be exercised in, for example, setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be. If there are no exceptions the decision maker is under no duty to make payments outside the parameters of the scheme. The Court of Appeal in the present case were guided by this decision, which was plainly correct. A common law power is a mere power. It does not confer a discretion in the same sense that a statutory power confers a discretion. A statutory discretionary power carries with it a duty to exercise the discretion one way or the other and in doing so to take account of all relevant matters having regard to its scope. Ministers have common law powers to do many things, and if they choose to exercise such a power they must do so in accordance with ordinary public law principles, ie fairly, rationally and on a correct appreciation of the law. But there is no duty to exercise the power at all. There is no identifiable class of potential beneficiaries of the common law powers of the Crown in general, other than the public at large. There are no legal criteria analogous to those to be derived from an empowering Act, by which the decision whether to exercise a common law power or not can be assessed. It is up to ministers to decide whether to exercise them, and if so to what extent. It follows that the mere existence of a common law power to do something cannot give rise to any right to be considered, on the part of someone who might hypothetically benefit by it. Such a right must arise, if at all, in other ways, usually by virtue of a legitimate expectation arising from the actual exercise of the power: see R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76. The problem in this case is that neither the practice nor the public statements of the Foreign Office can be said to give rise to a legitimate expectation that the legal fees of British subjects in difficulty abroad will be paid. On the contrary, it has been clear for some years that the policy of the Secretary of State is not to pay them. The result is that there is no basis for any criticism of the self imposed limitations of the Secretary of States policy, other than the fact that he could have made it broader had he wished to. The limitations are certainly not irrational. In common with Lord Mance and Lord Carnwath I consider that the Secretary of State ought now to revisit the question whether the policy should be broadened or an exception made in order to accommodate the particular case of Mrs Sandiford in the light of the fresh information about the course of the proceedings in Indonesia. But that is not because the Secretary of State has a duty to broaden his policy or make an exception. It is because he has already undertaken a review of that policy on the information available to him at the time, and because consistency and rationality require him not to treat that review as closed at a time when relevant further information is still becoming available which might alter his assessment.

UK-Abs

Mrs Sandiford is a 57 year old British national. She is currently in prison in Bali, Indonesia, awaiting execution by firing squad following her conviction for drug offences. The issue in this appeal is the legality of the Foreign Secretarys policy of providing consular assistance in such cases, but not funding for legal representation. Following her arrest in May 2012 she had co operated with the police, leading to the arrest and conviction of four others. At her trial she admitted the offences but claimed that she had been coerced by death threats to her son. Following her conviction and sentence in December 2012, she sought financial assistance from the UK government to pay for legal representation to prepare and present her appeal to the High Court in Indonesia. The consulate put her in touch with an experienced local lawyer, who was willing to assist on an expenses only basis. However, they declined to make any financial contribution to her legal costs, relying on their published policy, under which the government was willing to provide consular support and assistance in finding suitable local lawyers, but not to pay for legal representation. She commenced the present proceedings for judicial review challenging the legality of that policy, both on article 6 of the European Convention on Human Rights and the common law. Her claim was rejected by the Divisional Court on 31 January 2013 and her appeal to the Court of Appeal was dismissed on 22 May 2013. In the meantime, the necessary sum for the expenses of her lawyer in Indonesia was raised by donations from the public. Her High Court appeal in Indonesia proceeded with his assistance, and was also supported by an amicus brief by the UK government, but was unsuccessful. She appealed to the Indonesian Supreme Court, again with legal assistance funded by donations, but her appeal was dismissed in August 2013. She now requires a substantial sum to pay for the legal assistance to prepare and present an application to the Indonesian Supreme Court to reopen the case and a clemency petition to the President of Indonesia. The papers require to be lodged by 29 August 2014. The issue in this case is the legality of the governments blanket policy to refuse to pay for legal representation in such cases, and their decision in January 2013 to refuse to make an exception to that policy in her own case. Her claim having failed in the High Court and Court of Appeal, Mrs Sandiford now appeals to the UK Supreme Court. The Supreme Court unanimously dismisses the appeal. However, in the light of new information (not available to the lower courts) as to the course of the proceedings in Indonesia and the steps now available to her there, the court calls on the Secretary of State urgently to review the application of the policy to Mrs Sandifords case in the light of that information. Lord Carnwath and Lord Mance give a joint judgment, with which Lord Clarke and Lord Toulson agree. Lord Sumption gives a concurring judgment. Mrs Sandiford is not within the jurisdiction of the UK for the purposes of article 1 of the European Convention on Human Rights. Jurisdiction under article 1 is primarily territorial, but there are certain recognised exceptions. One exception is in relation to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction when the agents exert authority and control over others [19]. In this case, it is not possible to identify any relevant acts of diplomatic or consular agents or any relevant exercise of authority or control by such agents over Mrs Sandiford which could bring the exception into play. Refusal to instruct or fund lawyers on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her [26]. Mrs Sandiford has been apprehended, convicted and tried for drug smuggling in Indonesia, and is under the authority and control of the Indonesian authorities. It is they who have responsibility for be ensuring her fair trial. [32]. Under domestic law, the Secretary of State has power to provide assistance, including legal funding, for British citizens facing capital charges abroad. This power is not derived from statute [49]. Prerogative powers have to be approached on a different basis from statutory powers. There is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power [62]. In any event, on the evidence, the Foreign Office was prepared to consider whether the policy should be modified in the face of the particular circumstances of Mrs Sandifords case [67]. The department responded with urgency to Mrs Sandifords unexpected death sentence, and put Mrs Sandiford in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses only basis. Their reasons for not making an exception to their no funding policy were not irrational. The problem at the appeal was not lack of competent representation but the apparent unwillingness of the court to take any notice of it [72]. The challenge to the decision to refuse funding and to the policy on which it was based therefore fails [73]. Although that disposes of the appeal, Mrs Sandiford remains in jeopardy and urgently in need of legal help. Circumstances have radically developed in unforeseen ways. The evidence now available as to the Indonesian proceedings appear to raise the most serious issues as to the functioning of the local judicial system and its ability to deal with Mrs Sandifords case. The local courts seem to have ignored the substantial mitigating factors in her case, including her age and mental problems, her lack of any previous record, her co operation with the police and the disparity of her sentence with those of the others convicted. This calls for an urgent review of the policy as it applies to Mrs Sandiford in light of the current information [74 75].

This appeal is concerned with the law of unjust enrichment and subrogation. The original parties to the action were Melissa Menelaou as claimant (Melissa), the Bank of Cyprus UK Ltd as defendant (the Bank) and a firm of solicitors, Boulter & Co, as third party (Boulters). The trial of the action came before David Donaldson QC, sitting as an additional judge of the Chancery Division (the judge): [2012] EWHC 1991 (Ch). The trial began on 16 May 2012 and lasted three days. By the end of the trial only the Banks counterclaim against Melissa was live. On 19 July 2012 the judge handed down a judgment dismissing the counterclaim. The Bank appealed to the Court of Appeal (Moses, Tomlinson and Floyd LJJ), which allowed the appeal on 4 July 2013: [2013] EWCA Civ 1960, [2014] 1 WLR 854. Melissa appeals to this court. The background facts The facts can largely be taken from the agreed statement of facts and issues. Melissa, who was born on 27 January 1990, is the second of the four children of Mr Parris and Mrs Donna Menelaou (the Menelaou parents). The other children were Danielle, born on 9 August 1986, Max, born on 24 June 1991 and Ella Mae, born on 6 February 2002. In mid 2008, the Menelaou parents and their three youngest children lived at Rush Green Hall, Great Amwell, Hertfordshire (Rush Green Hall), which was a property owned by the Menelaou parents jointly. Melissa was 18 and a student at a nearby college. Rush Green Hall was subject to two charges in favour of the Bank. The Menelaou parents directly owed the Bank about 2.2m, and had personally guaranteed loans made by the Bank to their companies. The Menelaou parents decided to sell Rush Green Hall, to apply some of the proceeds to buy a smaller property as the family home, to provide funds for Danielle to pay the deposit on a house which she wanted to buy with her future husband and to free up capital to invest in a further development project. The Menelaou parents instructed Boulters to act for them in the conveyancing transaction. The senior partner of Boulters was Mr Menelaous sister. They used Mr Paul Cacciatore, who was employed by Boulters as a legal executive and who was also one of Mr Menelaous brothers in law. On 15 July 2008 contracts were exchanged for the sale of Rush Green Hall for the price of 1.9m. The contractual purchasers of Rush Green Hall paid a deposit of 190,000 to Boulters for the account of the Menelaou parents. About a week later, Mr Menelaou informed Mr Cacciatore that he had found a new property to serve as the family home at 2 Great Oak Court, Hunsdon, Hertfordshire (Great Oak Court). On 24 July 2008 contracts were exchanged for the purchase of Great Oak Court for the price of 875,000. On Mr Menelaous instructions, the purchaser of Great Oak Court was to be Melissa. The deposit payable was 87,500. This deposit was paid from the 190,000 held by Boulters as the deposit for the sale of Rush Green Hall. Mr Menelaou told Melissa that Great Oak Court was being bought in her name as a gift to her, on the basis that she would hold the property for the benefit of herself and her two younger siblings. She agreed to the arrangement. The Bank was not approached about the proposed arrangement prior to the exchanges of contracts. The Bank sanctioned the proposed arrangements with some reluctance given the overall indebtedness of the Menelaou parents and their companies. On 5 September 2008 Boulters wrote to the Bank saying that it understood that the Bank was to take a charge over Great Oak Court from Melissa, which Boulters understood would be a third party charge. Completion was to be on 12 September. On 9 September 2008 the Bank wrote to Boulters in these terms: Thank you for your letter dated 5 September 2008. We confirm that upon receipt of 750,000 we will release our charges over [Rush Green Hall] subject to a third party legal charge over [Great Oak Court] which is registered in the name of Melissa Menelaou. Melissa was not aware of the Banks intention to take any charge over Great Oak Court. The Bank also instructed Boulters to act as its solicitors to deal with the discharge of its charges over Rush Green Hall and to obtain a charge in favour of the Bank over Great Oak Court. On 10 September 2008 Boulters replied to the Banks letter of 9 September enclosing a certificate of title undertaking to obtain an executed mortgage in Melissas name over Great Oak Court and to confirm that they had complied or would comply with the Banks instructions. On 11 September 2008 Boulters sent the Bank a form of legal charge over Great Oak Court, purportedly signed by Melissa and identifying her as the customer. It was (and is) Melissas case, supported by her brother and by handwriting evidence, that the signature on the charge was not hers. Indeed, she was unaware of the existence of the charge until 2010. On the same day, 11 September 2008, the Bank telephoned Boulters and pointed out that the identity of the customer in the charge should be the Menelaou parents and not Melissa. Boulters did not contact Melissa. Instead, an employee of Boulters simply changed the name of the customer in manuscript on the charge from that of Melissa to those of the Menelaou parents. On 12 September 2008 completion of the sale of Rush Green Hall by the Menelaou parents and the purchase of Great Oak Court by Melissa both took place. As part of the completion process, Boulters received the balance of the price of Rush Green Hall from its purchasers. They remitted 750,000 to the Bank and sent a further 785,000 to the vendors of Great Oak Court to meet the remaining 90% of the purchase price for Great Oak Court. Boulters also sent the Bank two deeds to be sealed by the Bank authorising the cancellation of the entries in respect of the two registered charges over Rush Green Hall. The discharge of mortgage forms were not returned by the Bank until 13 October 2008. After a considerable delay, Melissa was registered as the proprietor of Great Oak Court. The Bank was also registered as the purported chargee. Following completion, the Menelaou parents, Melissa, and her two younger siblings moved into Great Oak Court and occupied it as their family home. In the spring of 2010 Melissa was told by her parents that their business was experiencing difficulties. It was proposed that Great Oak Court would be sold and a smaller property purchased. It was at this point that Melissa discovered the existence of the charge dated 12 September 2008 over Great Oak Court. Melissas conveyancing solicitors then corresponded with Boulters. The Bank was made aware of the challenge to the validity of its charge and, through its solicitors, intimated a claim against Boulters. Many allegations of breach of duty (fiduciary and otherwise) were made by the Bank against Boulters. The procedural history On 2 November 2010 Melissa issued a Part 7 claim in the Chancery Division seeking orders that all references to the charge, as appearing in the Charges Register for Great Oak Court, be removed. The main basis for this claim was that, not having been signed by Melissa, the Banks charge was void. The Bank defended the claim but also counterclaimed for a declaration that the Bank was entitled to be subrogated to an unpaid vendors lien over Great Oak Court. On 14 January 2011 the Bank issued a Part 20 claim against Boulters for damages for breach of trust and/or fiduciary duty, and an indemnity against all costs and expenses that it might incur in the main claim. After the exchange of witness statements, it became clear to Melissa and her advisers that Boulters had altered the charge without consulting her. By consent of the parties, pursuant to Melissas application dated 13 April 2012, the particulars of claim were amended to rely upon this alteration as a further ground for rendering the charge void. The Banks response was to continue to challenge the invalidity of the charge. As stated above, the trial of the case began on 16 May 2012. At the commencement of the trial all issues were live. Melissa was called to give evidence and was duly cross examined. Thereafter, following an interchange between counsel and the judge, Boulters conceded in the Part 20 claim that the charge was void and that Melissa was entitled to the relief sought in her claim and, as it is put in the statement of facts and issues, reflexively, the Bank conceded the same in the main claim. The issue of liability in the Banks claims against Boulters was then compromised and a written agreement was entered into between the Bank and Boulters whereby Boulters accepted that it was in breach of its duties in both contract and tort and was liable to indemnify the Bank for its losses as a result of an invalid charge being entered against Great Oak Court. As a result of that agreement, the only remaining live issue for determination at the trial was the Banks counterclaim against Melissa. Judgment was reserved and (as stated above) was handed down on 19 July 2012 dismissing the counterclaim. No formal order was made on that day but a further hearing took place on 23 October 2012, when the judge made an order that the Banks charge be removed from the Register (reflecting the Banks and Boulters concession that the Banks charge was void) and formally dismissed the Banks counterclaim with costs. The judge granted the Bank permission to appeal against the dismissal of its counterclaim. The judgment The judge made these findings in the course of his judgment. Whether by operation of law or as a result of any agreement or understanding between the parties, there was nothing to qualify the straightforward position that, in receiving the sale proceeds of Rush Green Hall, Boulters was acting as agent for Mr and Mrs Menelaou and held all the moneys for them alone (para 17). As regards the totality of the purchase price of Great Oak Court, it was not discharged by the use of moneys belonging to the Bank (para 19). The judge approached the matter on two bases, which he described as the narrow or traditional approach to the doctrine of subrogation to the unpaid vendors lien and the wider approach based on the law of unjust enrichment (para 14). He held that the fact that the moneys provided for the purchase were not paid by, and did not belong to, the Bank was fatal to the counterclaim on the narrow or traditional approach (para 19). As to the wider approach, he concluded that there was both benefit to Melissa, namely the gratuitous acquisition of Great Oak Court (albeit to be held on trust for her two younger siblings), and detriment to the Bank, namely the release of its two charges (para 22). He held that The existence of both detriment and benefit does not however establish the further element that the latter should have been at the expense of the Bank (para 22 original emphasis). He added, also in para 22: It is sufficient for me to say that there must in my view be something in the nature of, to use the formula proposed in Burrows, The Law of Restitution, 3rd ed (2010) p 66, a transfer of value from the Bank to the claimant. But here the claimants benefit enured and was complete on 12 September 2008, while the Banks detriment through the mistaken release of its charges over Rush Green Hall occurred a month later. Whether or not times arrow must always and with full rigour be respected in the law of unjust enrichment, I am clear that this is not a case in which economic or any other kind of reality calls for its wholesale rejection. The judge concluded that, although this left Melissa without any charge over her property, it did not leave the Bank without all recourse. This was because the Bank had an indemnity for its losses from Boulters (in reality with that firms indemnity insurers), which indemnity was agreed during the course of the trial (para 11). The Court of Appeal In a judgment handed down on 2 July 2013 the Court of Appeal unanimously allowed the Banks appeal. The question in this appeal is whether it was correct to do so. I will consider its reasoning in the course of my discussion of the issues argued before us. On 4 July 2003 the Court of Appeal handed down a further judgment dealing with a number of consequential issues. It declared that the Bank was entitled to be subrogated to an equitable charge by way of an unpaid vendors lien over Great Oak Court for 875,000 plus interest. The result of the Court of Appeals decision is that Melissas property, Great Oak Court, has been subjected to an equitable charge for 875,000 plus interest. The Banks application to a Master in the Chancery Division seeking to enforce the equitable charge has been stayed by agreement pending the outcome of this appeal. Discussion In the course of the argument, there was much discussion of the relevant legal principles. However, in my opinion it is not necessary to resolve all the possible issues which were discussed. It appears to me that this is a case of unjust enrichment. In Benedetti v Sawiris [2013] UKSC 50, [2014] AC 938 the Supreme Court recognised that it is now well established that the court must ask itself four questions when faced with a claim for unjust enrichment. They are these: (1) Has the defendant been enriched? (2) Was the enrichment at the claimants expense? (3) Was the enrichment unjust? (4) Are there any defences available to the defendant? See, for example, Benedetti at para 10, following Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221 per Lord Steyn at 227 (and per Lord Hoffmann to much the same effect at 234) and Investment Trust Companies v Revenue and Customs Comrs [2012] EWCH 458 (Ch), [2012] STC 1150 per Henderson J at para 38 (ITC). In that paragraph Henderson J noted that Professor Andrew Burrows QC said in The Law of Restitution, 3rd ed (2011) p 27 that, if the first three questions are answered affirmatively and the fourth negatively, the claimant will be entitled to restitution and that those four elements constitute the fundamental conceptual structure of an unjust enrichment claim. In para 39, Henderson J accepted that approach, although he said that the four questions were no more than broad headings for ease of exposition, that they did not have statutory force and that there may be a considerable degree of overlap between the first three questions. I agree. In the instant case, there is no doubt that Melissa was enriched when she became the owner of Great Oak Court, which she was given by her parents, albeit on the basis that she would hold it for the benefit of herself and her two younger siblings. As it is correctly put on behalf of the Bank, her obligation to pay the purchase price of Great Oak Court to the vendor was discharged. The essential question is whether she was enriched at the expense of the Bank, since, if she was, there cannot in my opinion have been any doubt that the enrichment was unjust. I would accept the submission made on behalf of the Bank that the unjust factor or ground for restitution is usually identified in subrogation cases as being, either (1) that the lender was acting pursuant to the mistaken assumption that it would obtain security which it failed to obtain: see eg Banque Financire per Lord Hoffmann at p 234H, or (2) failure of consideration: see the fourth and fifth points made by Neuberger LJ in Cheltenham & Gloucester plc v Appleyard (C&G) [2004] EWCA Civ 291, paras 35 and 36; [2004] 13 EG 127 (CS). On the facts here the Bank expected to have a first legal charge over Great Oak Court securing the debts of the appellants parents and their companies but, as events turned out, it did not have that security interest. The critical question is therefore whether Melissa was enriched at the expense of the Bank. Was Melissa enriched at the expense of the Bank? According to Goff & Jones on The Law of Unjust Enrichment, 8th ed (2011), para 6 01, the requirement that the unjust enrichment of the defendant must have been at the expense of the claimant reflects the principle that the law of unjust enrichment is not concerned with the disgorgement of gains made by defendants, nor with the compensation of losses sustained by claimants, but with the reversal of transfers of value between claimants and defendants. I agree. In my opinion the answer to the question whether Melissa was unjustly enriched at the expense of the Bank is plainly yes. The Bank was central to the scheme from start to finish. It had two charges on Rush Green Hall which secured indebtedness of about 2.2m. It agreed to release 785,000 for the purchase of Great Oak Court in return for a charge on Great Oak Court. It was thus thanks to the Bank that Melissa became owner of Great Oak Court, but only subject to the charge. Unfortunately the charge was void for the reasons set out above. In the result Melissa became the owner of Great Oak Court unencumbered by the charge. She was therefore enriched at the expense of the Bank because the value of the property to Melissa was considerably greater than it would have been but for the avoidance of the charge and the Bank was left without the security which was central to the whole arrangement. As I see it, the two arrangements, namely the sale of Rush Green Hall and the purchase of Great Oak Court, were not separate but part of one scheme, which involved the Bank throughout. I respectfully disagree with the conclusions of the judge summarised in paras 13 to 16 above. It is not, so far as I am aware, in dispute that, if the Bank had received all the proceeds of sale of Rush Green Hall and had then re advanced the moneys required for the purchase of Great Oak Court, it would be entitled to succeed whether or not the re advance was to the Menelaou parents or to Melissa. It is submitted on behalf of the Bank that, if that is so, it would be pure formalism for subrogation to be precluded simply because the moneys remained in Boulters client account (and were not paid to the respondent) between the sale of Rush Green Hall and the purchase of Great Oak Court; just as Lord Steyn commented in Banque Financire at p 227C that it would be pure formalism for the interposition of Mr Herzig between the loan by BFC of its advance and Parcs obligation to repay to be treated as altering the substance of the transaction and the result of the claim. On the facts of the instant case the funds remained in Boulters client account and were not paid to the Bank because of a pre acquisition agreement between it and the Menelaou parents. By this agreement it was agreed that money to which the Bank was otherwise absolutely entitled under its charges could remain advanced to the Menelaou parents for the purpose of purchasing Great Oak Court and was to be released only on condition that the Bank was given a specific charge over Great Oak Court. I would accept those submissions, which support the conclusion in para 24 above. I would reject the submission that there must be a direct payment by the Bank to Melissa. Such a requirement, while sufficient, is not in my view necessary because it would be too rigid. As I see it, whether a particular enrichment is at the expense of the claimant depends upon the facts of the case. The question in each case is whether there is a sufficient causal connection, in the sense of a sufficient nexus or link, between the loss to the Bank and the benefit received by the defendant, here Melissa. There has been much debate both among academics and judges as to the correct test. The contrast was noted by Henderson J at first instance in ITC. He discussed the problem in considerable detail between paras 47 and 73, especially between paras 52 and 73. The contrast is between a rule that requires there to be a direct causal link between the claimants payment and the defendants enrichment, subject to some exceptions (paras 52 59) and a broader more flexible approach (paras 60 69). He expressed his conclusions on the principles as follows in para 67: 67. I must now draw the threads together, and state my conclusions on this difficult question. In the first place, I agree with Mr Rabinowitz that there can be no room for a bright line requirement which would automatically rule out all restitutionary claims against indirect recipients. Indeed, Mr Swift accepted as much in his closing submissions. In my judgment the infinite variety of possible factual circumstances is such that an absolute rule of this nature would be unsustainable. Secondly, however, the limited guidance to be found in the English authorities, and above all the clear statements by all three members of the Court of Appeal in Kleinwort Benson Ltd v Birmingham City Council [1996] 4 All ER 733, [1997] QB 380, suggest to me that it is preferable to think in terms of a general requirement of direct enrichment, to which there are limited exceptions, rather than to adopt Professor Birks view that the rule and the exceptions should in effect swap places (see At the expense of the claimant: direct and indirect enrichment in English law in Unjustified Enrichment: Key Issues in Comparative Perspective, edited by David Johnston and Reinhard Zimmermann, Cambridge (2002), p 494). In my judgment the obiter dicta of May LJ in Filby and the line of subrogation cases relied on by Professor Birks, provide too flimsy a foundation for such a reformulation, whatever its theoretical attractions may be, quite apart from the difficulty in framing the general rule in acceptable terms if it is not confined to direct recipients. The reference to Filby is to Filby v Mortgage Express (No 2) Ltd [2004] EWCA Civ 759, [2004] All ER (D) 198 (Jun). Henderson J continued as follows in para 68. The real question, therefore, is whether claims of the present type should be treated as exceptions to the general rule. So far as I am aware, no exhaustive list of criteria for the recognition of exceptions has yet been put forward by proponents of the general rule, and I think it is safe to assume that the usual preference of English law for development in a pragmatic and step by step fashion will prevail. Nevertheless, in the search for principle a number of relevant considerations have been identified, including (in no particular order): (a) the need for a close causal connection between the payment by the claimant and the enrichment of the indirect recipient; (b) the need to avoid any risk of double recovery, often coupled with a suggested requirement that the claimant should first be required to exhaust his remedies against the direct recipient; (c) the need to avoid any conflict with contracts between the parties, and in particular to prevent leapfrogging over an immediate contractual counterparty in a way which would undermine the contract; and (d) the need to confine the remedy to disgorgement of undue enrichment, and not to allow it to encroach into the territory of compensation or damages. It is submitted on behalf of the Bank that on four occasions since the decision in ITC the Court of Appeal has endorsed the considerations identified by Henderson J. They variously described his approach thus: as relevant considerations in TFL Management Services v Lloyds TSB Bank plc [2014] 1 WLR 2006 (TFL) per Floyd LJ, para 57, as of assistance in Relfo Ltd v Varsani (No 2) [2014] EWCA Civ 360, [2015] 1 BCLC 14 per Arden LJ, para 96; and as relevant considerations skilfully distilled in ITC on appeal, [2015] EWCA Civ 82 per Patten LJ (giving the judgment of the court), paras 67 and 69. Further, in his judgment in this case Floyd LJ described Henderson Js approach as thoughtful and valuable at para 39 and in TFL he said this about Henderson Js para 68: 57. I agree with Henderson J that these are relevant considerations in deciding the question of whether an indirect benefit was conferred at the claimants expense. But the various factors to which he refers are not, and were not I think intended to be, rigid principles. Far less can it be said that if one or more of the factors can be said to be adverse to the claim, the claim is necessarily doomed to failure. That approach seems to me to be consistent with the approach of the Court of Appeal in ITC, where Patten LJ said at the end of para 69: We consider that the correlative of taking a broad approach to the first consideration by taking account of economic or commercial reality is that it is important not to take a narrow view of what, under the third criterion, would conflict with contracts between the parties or with a relevant third party in a way which would undermine the contract. That seems to me to be a sensible approach. There is scope for legitimate debate as to whether the correct approach is to adopt a narrow test with exceptions or a broader approach. However, it appears to me that, whichever test is adopted the result is likely to be the same. In any event it is not to my mind necessary to consider the issue further in this case because, as the Court of Appeal made clear, the position is clear on the facts of the instant case, which is concerned only with the first of Henderson Js relevant considerations. In a case in which more such considerations were relevant, it would be necessary to have regard to a number of different factors, probably with no presumption one way or the other where the starting point is. position is neatly described by Tomlinson LJ as follows in paras 57 and 58: In short, I agree with the approach of the Court of Appeal. In particular, the 57. In the present case, the Bank was to receive 1.9m upon the sale of Rush Green Hall in circumstances where it was owed 2.2m and had charges over Rush Green Hall to secure that indebtedness. The Bank had agreed that it would release its charges over Rush Green Hall upon receipt of 750,000 out of the sale proceeds, in return for a charge over Great Oak Court to secure what would be the remaining indebtedness, 1.45m, thereby enabling the Menelaou parents on the strength of that undertaking by the Bank to use 875,000 out of the sale proceeds of Rush Green Hall for the purchase of Great Oak Court in the name of Melissa. I do not see how this can sensibly be described as anything other than a transfer of value between the Bank and Melissa, in whose name the purchase of Great Oak Court was made. 58. I am glad to be able to reach this conclusion. It gives effect to the reality of the transaction, whereas the conclusion of the judge, in my respectful view, amounts to that pure formalism which Lord Steyn has in this context deprecated That was of course a reference to the speech of Lord Steyn in Banque Financire referred to in para 18 above. Both Floyd and Moses LJJ expressed much the same conclusions at paras 42 and 48 and 61 62 respectively. I am unable to accept that there is any significance in the point which attracted the judge (para 22) that the benefit to Melissa was complete on 12 September, whereas the detriment to the Bank occurred over a month later when its charges over Rush Green Hall were released. As Moses LJ put it at para 62, everyone knew, as a result of the Banks agreement on 9 September 2008, that the Banks security in Rush Green Hall would be released and, provided that the terms of that agreement were satisfied, the Bank was bound to release its charge. For all these reasons I agree with the Court of Appeal that Melissa was enriched at the expense of the Bank. I have already expressed my view that she was unjustly so enriched. Defences The fourth question, namely whether there are any defences available to the defendant, must in my opinion be answered in the negative. On the assumption that the first three questions are answered in the affirmative, I do not understand Melissa to be relying upon any other defence. It is not suggested, for example, that she had a change of position defence. Nor was she a bona fide purchaser for value without notice. She was a mere donee and, as such can be in no better position than her parents as donors. As indicated at the end of para 31 above, I recognise that in another case there may well be defences or at least countervailing considerations, as indicated, for example, in considerations (b), (c) and (d) identified by Henderson J. Remedies The next question is what remedies are available to the Bank. The answer is that the Bank is subrogated to the unpaid sellers lien. Subrogation (sometimes known in this context as restitutionary subrogation) is available as a remedy in order to reverse what would otherwise be Melissas unjust enrichment. It is important to recognise that a claim in unjust enrichment is different in principle from a claim to vindicate property rights; see eg Foskett v McKeown [2001] 1 AC 102 per Lord Browne Wilkinson at p 108F, Lord Millett at p 129E F and Lord Hoffmann at p 115F, where he agreed with Lord Millett. Foskett was a claim to enforce property rights. Lord Millett expressed the distinction between that case and a case of unjust enrichment at p 129F: A plaintiff who brings an action in unjust enrichment must show that the defendant has been enriched at the plaintiffs expense, for he cannot have been unjustly enriched if he has not been enriched at all. But the plaintiff is not concerned to show that the defendant is in receipt of property belonging beneficially to the plaintiff or its traceable proceeds. The fact that the beneficial ownership of the property has passed to the defendant provides no defence; indeed, it is usually the very fact which founds the claim. Conversely, a plaintiff who brings an action like the present must show that the defendant is in receipt of property which belongs beneficially to him or its traceable proceeds, but he need not show that the defendant has been enriched by its receipt. He may, for example, have paid full value for the property, but he is still required to disgorge it if he received it with notice of the plaintiffs interest. The sentence which I have put in italics shows that a claim in unjust enrichment does not need to show a property right. In C&G Neuberger LJ (giving the judgment of the Court of Appeal) summarised the principles relevant to different types of subrogation concisely in paras 24 49. Like Floyd LJ at para 44, he set out the principles relevant here at para 25 as follows: The principle upon which C&G rely has been nowhere better stated than by Walton J in Burston Finance Ltd v Speirway Ltd (in liquidation) [1974] 1 WLR 1648 at p 1652B C: [W]here As money is used to pay off the claim of B, who is a secured creditor, A is entitled to be regarded in equity as having had an assignment to him of Bs rights as a secured creditor. It finds one of its chief uses in the situation where one person advances money on the understanding that he is to have certain security for the money he has advanced, and for one reason or another, he does not receive the promised security. In such a case he is nevertheless to be subrogated to the rights of any other person who at the relevant time had any security over the same property and whose debts have been discharged in whole or in part by the money so provided by him. Neuberger LJ noted at para 26 that that formulation was cited with approval by (among others) Lord Hutton in Banque Financire at p 245C D. He further noted at para 36 that in Banque Financire the lender bargained for what Lord Hoffmann called at p 229C a negative form of protection in the form of an undertaking, which he did not get. He added that this did not prevent his claim to be subrogated to a security, albeit essentially as a personal remedy: see per Lord Steyn at p 228C D and Lord Hoffmann at p 229C. The class of subrogation under discussion in this case is known as subrogation to an unpaid vendors lien. I agree with Floyd LJ at para 15 that it is not a concept which it is particularly straightforward to understand. He puts it thus. What the Bank seeks to achieve is to be placed in a position equivalent to that of the vendor of Great Oak Court at the point where the purchase money has not been paid. At that point the vendor would be able to refuse to convey the title to Great Oak Court, unless the purchase money was paid to him. He added that the lien was explained by Millett LJ in Barclays Bank plc v Estates & Commercial Ltd [1977] 1 WLR 415 at pp 419 420, in this way (omitting citations): As soon as a binding contract for sale [of land] is entered into, the vendor has a lien on the property for the purchase money and a right to remain in possession of the property until payment is made. The lien does not arise on completion but on exchange of contracts. It is discharged on completion to the extent that the purchase money is paid. Even if the vendor executes an outright conveyance of the legal estate in favour of the purchaser and delivers the title deeds to him, he still retains an equitable lien on the property to secure the payment of any part of the purchase money which remains unpaid. The lien is not excluded by the fact that the conveyance contains an express receipt for the purchase money. The lien arises by operation of law and independently of the agreement between the parties. It does not depend in any way upon the parties subjective intentions. It is excluded where its retention would be inconsistent with the provisions of the contract for sale or with the true nature of the transaction as disclosed by the documents. Floyd LJ then set out the passage from the judgment of Walton J in Burston Finance set out by Neuberger LJ in C&G and quoted at para 39 above. I adopt Floyd LJs description of the position at para 17 of his judgment as follows. A third party who provides some or all of the purchase money for a purchaser, thereby discharging the obligation to the vendor, can claim the benefit of the unpaid vendors lien by subrogation. This is so even after the lien has been extinguished as between vendor and purchaser. Floyd LJ notes that it is not intuitively clear how, or why, this should be the case and asks how it is that the unpaid vendors lien transferred from the vendor to the third party. He says with force that it might be thought that once the obligation in question has been extinguished, there is nothing which the vendor could transfer. He further asks by what legal method the transfer takes place, even if there was something to transfer. He notes that there has been no legal assignment and suggests that it was conceptual problems such as these that gave rise to the notion that the vendors lien was kept alive for the benefit of the subrogated third party. Floyd LJ resolves this apparent difficulty by adding that in Banque Financire at p 236 Lord Hoffmann explained that the phrase keeping the charge alive was not a literal truth but a metaphor or analogy: In a case in which the whole of the secured debt is repaid, the charge is not kept alive at all. It is discharged and ceases to exist. Lord Hoffmann added at p 236E F: It is important to remember that, as Millett LJ pointed out in Boscawen v Bajwa [1996] 1 WLR 328, 335, subrogation is not a right or a cause of action but an equitable remedy against a party who would otherwise be unjustly enriched. It is a means by which the court regulates the legal relationships between a plaintiff and a defendant or defendants in order to prevent unjust enrichment. When judges say the charge is kept alive for the benefit of the plaintiff, what they mean is that his legal relations with a defendant who would otherwise be unjustly enriched are regulated as if the benefit of the charge had been assigned to him. In para 19 Floyd LJ notes that Lord Hoffmann reviewed five authorities, namely Chetwynd v Allen [1899] 1 Ch 353, Butler v Rice [1910] 2 Ch 277, Ghana Commercial Bank v Chandiram [1960] AC 732, Paul v Spierway [1976] Ch 220 and Boscawen v Bajwa [1996] 1 WLR 328. Having done so, Lord Hoffmann noted at p 233 that in Boscawen there was no common intention that the vendor, whose mortgage had been paid off, should grant any security to Abbey National. Lord Hoffmann then said this at pp 233H 234D: As Millett LJ pointed out, at p 339 [of Boscawen], the Abbey National expected to obtain a charge from the purchaser as legal owner after completion of the sale, and, in the event which happened of there being no such completion, did not intend its money to be used at all. This meant that: The factual context in which the claim to subrogation arises is a novel one which does not appear to have arisen before but the justice of its claim cannot be denied. These cases seem to me to show that it is a mistake to regard the availability of subrogation as a remedy to prevent unjust enrichment as turning entirely upon the question of intention, whether common or unilateral. Such an analysis has inevitably to be propped up by presumptions which can verge upon outright fictions, more appropriate to a less developed legal system than we now have. I would venture to suggest that the reason why intention has played so prominent a part in the earlier cases is because of the influence of cases on contractual subrogation. But I think it should be recognised that one is here concerned with a restitutionary remedy and that the appropriate questions are therefore, first, whether the defendant would be enriched at the plaintiffs expense; secondly, whether such enrichment would be unjust; and thirdly, whether there are nevertheless reasons of policy for denying a remedy. An example of a case which failed on the third ground is Orakpo v Manson Investments Ltd [1978] AC 95, in which it was considered that restitution would be contrary to the terms and policy of the Moneylenders Acts. That appears to me to be an illuminating passage. Lord Hoffmann stresses what are the same questions as those referred to in para 18 above. Moreover, the reference to Orakpo seems to me to be of some significance. It demonstrates that, when Lord Hoffmann was referring to subrogation as a remedy to prevent unjust enrichment, he was not referring to subrogation to personal rights alone because Orakpo was a case concerning subrogation to property rights. The case of Orakpo is also of interest because it shows the broad nature of the doctrine of unjust enrichment. Three examples suffice. Lord Diplock said at p 104E F: My Lords, there is no general doctrine of unjust enrichment recognised in English law. What it does is to provide specific remedies in particular cases of what might be classified as unjust enrichment in a legal system that is based upon the civil law. There are some circumstances in which the remedy takes the form of subrogation, but this expression embraces more than a single concept in English law. It is a convenient way of describing a transfer of rights from one person to another, without assignment or assent of the person from whom the rights are transferred and which takes place by operation of law in a whole variety of widely different circumstances. Some rights by subrogation are contractual in their origin, as in the case of contracts of insurance. Others, such as the right of an innocent lender to recover from a company moneys borrowed ultra vires to the extent that these have been expended on discharging the companys lawful debts, are in no way based on contract and appear to defeat classification except as an empirical remedy to prevent a particular kind of unjust enrichment. Lord Salmon said this at p 110: The test as to whether the courts will apply the doctrine of subrogation to the facts of any particular case is entirely empirical. It is, I think, impossible to formulate any narrower principle than that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be. Finally, Lord Edmund Davies said at p 112: Apart from specific agreement and certain well established cases, it is conjectural how far the right of subrogation will be granted though in principle there is no reason why it should be confined to the hitherto recognised categories (Goff and Jones, The Law of Restitution (1966), pp 376 377). Those statements seem to me to support a flexible approach to the remedies appropriate in a particular case. Indeed, the principles have been extended since the decision in Orakpo because there is now a general doctrine of unjust enrichment in a way that there was not when Lord Diplock drafted his speech. Lord Hoffmann stresses the importance of the questions identified in para 18 above. It appears to me that, on the facts of this case, if, as here, the first three questions are answered in the affirmative and the fourth in the negative, the appropriate equitable remedy is that the claimant is subrogated to the unpaid vendors lien as explained in paras 41 and 42 above. On the facts here the Bank is entitled to a lien on the property, which is in principle an equitable interest which it can enforced by sale. In short, by effectively reinstating Melissas liability under the charge, the remedy of subrogation is reversing what would otherwise be her unjust enrichment. I would accept the submission made on behalf of the Bank that the analyses in Banque Financire have rationalised the older cases through the prism of unjust enrichment. Banque Financire was not limited to subrogation to personal rights. The remedy the House fashioned was subrogation to a property right but, as the Bank puts it, it was attenuated so as not to grant RTB a greater right than that for which it had bargained. There is no reason why, on the facts of this case, the remedy should not be subrogation as described above, even if the Bank did not retain a property interest in the proceeds of sale of Rush Green Hall. The remedy simply reverses the unjust enrichment which Melissa would otherwise enjoy by ensuring that the Bank not only has a personal claim against her but also has an equitable interest in Great Oak Court, as it would have had if the scheme had gone through in accordance with the agreement of the Bank and the Menelaou parents. Moreover, but for the proposed remedy the Bank would lose the benefit it was to receive from the scheme, namely a charge on Great Oak Court to replace the charges it had on Rush Green Hall. In reaching these conclusions I have read Lord Carnwaths judgment in draft with great interest. My own view is that the principles are somewhat broader than he suggests. Conclusion For these reasons I would dismiss the appeal. As I see it, these conclusions make it unnecessary to decide whether the Bank had a security interest in the proceeds of sale that were used to buy Great Oak Court. In so far as the answer to that may depend upon the true ratio of the decision of the Court of Appeal in Buhr v Barclays Bank [2001] EWCA Civ 1223, [2002] BPIR 25 like the Court of Appeal I would prefer to leave that question for determination in a case in which it arises for decision. In so far as the Bank relies upon a Quistclose type trust (Quistclose Investments Ltd v Rolls Razor Ltd [1970] AC 567), arising in a similar manner to that which arose in Twinsectra v Yardley [2002] 2 AC 164, there seems to me to be much to be said for the conclusions reached by Lord Carnwath. However, in my opinion it is not necessary for the Bank to do so. Postscript Since writing the above I have read Lord Neubergers judgment in draft. I essentially agree with his conclusions and reasoning. I also agree with his tentative conclusions and reasoning in paras 103, 104 and 106. The one point upon which there is or may be a difference between us is whether the Bank would have a personal claim in unjust enrichment against Melissa. For my part I see no reason why it should not in principle have such a claim provided that it is dealt with as suggested by Lord Neuberger in para 81. In any event I agree with him that it is not necessary to decide this question in this appeal for reasons he gives in para 82. I would only say that there seems to me to be considerable force in his comments in para 81, namely that the standard response to unjust enrichment is a monetary restitutionary award in order to reverse the unjust enrichment. This must be left for decision on another day. LORD NEUBERGER: The facts of this case and the findings of the courts below are explained by Lord Clarke in paras 1 17. The question which arises is whether, in the light of those facts, the Bank is entitled to claim a charge over the freehold of Great Oak Court by invoking a right to be subrogated to the unpaid vendors lien over the freehold of Great Oak Court (the Lien). In considering that issue, I shall adopt the nomenclature in Lord Clarkes judgment. The Banks primary case involves two steps; the first is that it has a claim based on unjust enrichment against Melissa; the second step is that that claim was or should be satisfied by subrogating the Bank to the Lien. Melissas main argument against the first step is that she was innocent of any wrong doing and therefore cannot be said to have been unjustly enriched. As to the second step, her main argument is that subrogation as claimed by the Bank is not, as a matter of principle, available as a remedy for unjust enrichment in the circumstances of this case. I agree with Lord Clarke, and with the Court of Appeal, that, despite Melissas arguments to the contrary, each of the two steps in the Banks argument is made out. I am also attracted to the view that the Banks case on the first step could be justified on the alternative basis of an orthodox proprietary claim rather than on unjust enrichment, which in turn would render the second step in its case even clearer. Because the appeal raises points of some significance and because the state of the law appears to be somewhat unclear, I shall explain why I have reached these conclusions. Can the Bank establish an unjust enrichment claim against Melissa? The first step in the Banks case is that it has a claim against Melissa in unjust enrichment. A claim in unjust enrichment requires one to address the four questions which Lord Clarke sets out in para 18 above. I agree with what he says in relation to those four questions in this case in paras 19 35 above, and indeed with the analysis of Floyd LJ in the Court of Appeal at [2013] EWCA Civ 1960; [2014] 1 WLR 854, paras 29 to 42. I express the position in my own words as follows. The answer to the first question, namely whether Melissa has been enriched, would appear to be plainly yes, because she received the freehold of Great Oak Court (the freehold) for nothing. However, although it does not affect the outcome in the present case, there is much to be said for the view that the relevant enrichment for present purposes is that she received the freehold free of any charge, instead of receiving it subject to a charge to secure her parents indebtedness to the Bank (a Charge). This may be a more accurate way of answering the first question for present purposes, because the only aspect of Melissas enrichment which can be complained of by anyone arises from the fact that she received the freehold free of the intended Charge. The fact that the freehold was conveyed to her was an uncontroversial benefit, but the fact that it was not subject to a Charge was not just a benefit, but, in the light of the facts surrounding the sale of Rush Green Hall, the purchase of Great Oak Court and the preparation of the defective Deed of Charge (the Deed), it was accidental and unintended. (The fact that Melissa held the freehold on trust for herself and her siblings adds nothing for present purposes.) In any event, it might be said to be somewhat artificial to distinguish between acquisition of the freehold and acquisition of the freehold subject to the Charge. After all, Great Oak Court could not have been acquired without the Banks agreement that some of the proceeds of sale of Rush Green Hall could be used to purchase it, and that agreement was conditional on the grant of the Charge contemporaneously with the purchase. This is reflected by the observations of Lord Oliver in Abbey National Building Society v Cann [1991] 1 AC 56, 92 93, albeit that his observations apply by analogy rather than directly: [T]he acquisition of the legal estate and the charge are not only precisely simultaneous but indissolubly bound together. The acquisition of the legal estate is entirely dependent upon the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them. The reality is that the purchaser of land who relies upon a building society or bank loan for the completion of his purchase never in fact acquires anything but an equity of redemption, for the land is, from the very inception, charged with the amount of the loan without which it could never have been transferred at all and it was never intended that it should be otherwise. I turn to the second question, namely whether the enrichment was at the expense of the Bank. Professor Burrows refers to this requirement as being that the defendants enrichment must come from (be subtracted from) the claimants wealth Proprietary Restitution: Unmasking Unjust Enrichment (2001) 117 LQR 412, 415. The Bank had the right to demand the whole of the proceeds of sale of Rush Green Hall, as the Menelaou parents debt to the Bank, which had been secured on the freehold of Rush Green Hall, exceeded the proceeds of sale. Instead, the Bank agreed that 875,000 of those proceeds of sale could be used to fund the purchase of the freehold of Great Oak Court, but only provided that the Bank was granted a Charge over that freehold at the time of its acquisition. So the Bank would have had the right to prevent the 875,000 being used to purchase the freehold if it had not been provided with a valid Charge. Even assuming (as Melissa asserts) that the Bank had released to the Menelaou parents 875,000 of the proceeds of sale of Rush Green Hall, the release was only on the basis that it would be granted a Charge over Great Oak Court. Therefore, it seems to me clear that the Bank could have prevented the purchase proceeding until it had been granted a Charge. Accordingly, again deriving support from the passage quoted from Abbey National, looking at the arrangements in relation to the purchase and charging of Great Oak Court, it seems to me plain that Melissas enrichment was at the expense of the Bank. That conclusion is reinforced (if reinforcement is needed) by the point made by Lord Clarke in para 25 above, reflecting the realistic approach of the House of Lords in Abbey National, that it is appropriate not merely to consider the purchase of, and charge over, Great Oak Court as a single composite transaction. It is also appropriate in the present case to treat the sale of Rush Green Hall and the purchase of Great Oak Court as one scheme, at least for present purposes. I see nothing in any of the judgments in Scott v Southern Pacific Mortgages Ltd [2014] UKSC 52, [2015] 1 AC 385 (sub nom Mortgage Business plc v OShaughnessy) which casts doubt on that approach. If one regards the enrichment as having the freehold uncharged rather than subject to a Charge, it therefore seems clear that that enrichment was at the Banks expense. One gets the same answer if Melissas enrichment is regarded as being the freehold in its entirety: that enrichment would be at the expense of the Bank, albeit only to the extent that the freehold was uncharged rather than subject to the Charge, and therefore the points made in paras 66 67 above would apply with equal force. The third question is whether the enrichment was unjust. At first sight, there may appear to be some attraction in Melissas argument that, as between the Bank and herself, her enrichment was not unjust. After all, as Mr Mark Warwick QC pointed out, she owed the Bank nothing, she was wholly unaware of a prospective or actual charge, and she was innocent of any oversight, let alone any wrong doing, whether before, during or after the sale of Rush Green Hall and the purchase of Great Oak Court. The answer to that contention, in my view, lies in the fact that Melissa received the freehold as a gift from her parents. Had she been a bona fide purchaser for full value, it may very well have been impossible to characterise her enrichment as unjust, especially if she had no notice of the Banks rights. If she had paid a small sum to her parents for her acquisition, a difficult question might have had to be faced, although, as at present advised, I think that her enrichment would still have been unjust, but the extent of any unjust enrichment would be reduced by the small sum. But she paid nothing, and she therefore cannot, in my view, be in any better position than her parents so far as the Banks claim is concerned. And there can be no doubt that, if the Menelaou parents, rather than directing the transfer to Melissa, had acquired the freehold themselves in circumstances where the Deed was for some reason invalid, the Bank would have had a claim against them in unjust enrichment. Again, it seems to me to be easier to see why Melissas enrichment should be characterised as unjust if her enrichment is treated as being the receipt of the freehold uncharged instead of subject to the Charge. Her parents were quite properly able to direct the transfer of the freehold of Great Oak Court to Melissa, but they were not properly entitled, so far as the Bank was concerned, to direct the transfer to her of the unencumbered freehold; they were only properly able, at least as against the Bank, to direct the transfer to her of the freehold subject to a Charge. Mr Warwick suggested that this analysis could be called into question by considering the likely outcome if the Menelaou parents had decided to direct the freehold of Great Oak Court to be transferred to a charity, instead of their daughter. I agree that the outcome would be no different, but I see no difficulties in accepting that the Bank would in those circumstances have had a claim in unjust enrichment against the charity. A variant of Mr Warwicks argument on this third aspect is the contention that, if the Bank could otherwise mount a valid unjust enrichment claim, that claim cannot succeed against Melissa, as she was only an indirect recipient of any enrichment, to use the language Goff & Jones on The Law of Unjust Enrichment, 8th ed (2012), eds Professors C Mitchell, P Mitchell and Watterson, paras 6 12ff and in Ben McFarlanes article Unjust Enrichment, Property Rights, and Indirect Recipients (2009) 17 RLR 37. It is fair to say that there was a tripartite relationship in this case, in the sense that not merely Melissa and the Bank, but also the Menelaou parents, were parties to the arrangements which gave rise to the alleged unjust enrichment. However, as already explained above, there was in reality a single transaction, and it was from that transaction that Melissa directly benefitted, even though the benefit was effected at the direction of the Menelaou parents. The benefit to Melissa was direct because it arose as the immediate and inevitable result of the very transaction to which she was party and which gave rise to the unjust enrichment (in contrast to the examples at the beginning of Professor McFarlanes article). I should add that, even if Melissa could be characterised as an indirect recipient of any enrichment, I do not consider that that would assist her: she would still properly be liable on the facts of this case, essentially for the same reasons. As for the fourth question, it appears to me that, if (as I consider) the first three questions are answered in the Banks favour, there is no special reason precluding the conclusion that the Bank had a valid claim in unjust enrichment against Melissa. As already mentioned, the fact that Melissa did not know of the circumstances which caused her enrichment to be unjust does not alter the fact that she was unjustly enriched; nor does it alter the extent of her unjust enrichment. However, it does render it more likely that she would be able to rely on subsequent events to give rise to an innocent change of position defence to a claim based on the unjust enrichment. However, no such defence appears to arise in this case. It was rather tentatively suggested that the Bank should have no right to claim in unjust enrichment against Melissa, as it had a cast iron case for recovering all its losses arising from the defective Deed from Boulters. There is nothing in that point. Boulters liability in no way impinges on the question whether, and to what extent, Melissa was unjustly enriched at the expense of the Bank: the Banks claim against Boulters is res inter alios acta so far as Melissa is concerned. (Further, although the point was not argued, it may well be that, if the Bank had recovered damages from Boulters, then Boulters would be subrogated to the Banks unjust enrichment claim against Melissa.) Standing back, any fair minded person would say that, as a matter of fairness and common sense, by acquiring the freehold from any Charge, Melissa was unjustly enriched at the expense of the Bank, albeit not because of any fault of hers. Tomlinson LJs analysis in the Court of Appeal, as set out by Lord Clarke in para 33 above, accurately summarises the position. Of course, fairness and common sense cannot safely be relied as the sole touchstones as to whether there has been unjust enrichment as a matter of law. In that connection, like Lord Clarke, I would commend Henderson Js observations in Investment Trust Companies v Revenue and Customs Comrs [2012] EWHC 458 (Ch), [2012] STC 1150, paras 67 68, as containing what Floyd LJ called a thoughtful and valuable approach, while rightly not laying down rigid principles. Can the Bank invoke subrogation on the basis of its unjust enrichment claim? I turn then to the second step, namely whether the Banks claim in unjust enrichment can properly be satisfied by holding that it is subrogated to the Lien over the freehold to the extent of the price payable for the freehold, namely 875,000. (And in that connection, the fact that 10% of the 875,000 had already been paid as a deposit is irrelevant for present purposes, as the balance had to be paid to rescue the deposit.) Given that the Bank has a claim based on unjust enrichment against Melissa to the extent described above, it is hard to identify a more appropriate remedy for the Bank to obtain against Melissa. Subrogation to the Lien would accord to the Bank, and impose on Melissa, a right very similar to, although rather less in value than, that which the Bank should have had. It would give the Bank a lien instead of a formal charge, and it would be in the sum of 875,000 (plus interest), rather than the larger debt, well over 1m at the time of the purchase of the freehold, owed by the Menelaou parents to the Bank. An award of financial compensation might seem rather less appropriate. It was never intended that the Bank should have any personal claim against Melissa, merely that the freehold which she owned would be charged with the Menelaou parents debt to the Bank. Even if the compensation was limited to 875,000 (plus interest), it could prejudice Melissa for instance, if the freehold declined in value as a result of a fall in the property market subsequent to her acquisition. However, it is fair to say that the standard response to unjust enrichment is a monetary restitutionary award, to use the terminology adopted by in A Restatement of the English Law of Unjust Enrichment (Burrows et al, 2012), article 34, in order to reverse the unjust enrichment. In this case, the unjust enrichment could be quantified at 875,000, its value at the time it was conferred, or the difference in the value of the freehold uncharged and subject to the Charge at the date of the assessment of the unjust enrichment (or possibly at some other date). In so far as the quantification would result in an unfair or oppressive sum, the court could adjust the sum to avoid any unfairness or oppression. It is not necessary for the purpose of the present appeal to decide whether the Bank has a monetary claim against Melissa in the light of her unjust enrichment, let alone to determine the precise amount which the Bank could seek from her on that basis, or to decide whether the existence of any monetary claim would be affected by the subrogation claim. Nor would it be appropriate to do so, given that none of these points was debated in any detail on this appeal: indeed, the issue of whether the Bank had a money claim against Melissa was barely touched on at all (and no complaint is thereby intended). Turning now to the law, the circumstances in which an unpaid vendors lien typically arises and the circumstances in which subrogation typically can be claimed have been summarised by Millett LJ and Walton J respectively in the passages quoted by Lord Clarke in paras 41 and 39 above. In the course of his attractive argument on behalf of Melissa, Mr Warwick contended that, because the Banks case against Melissa was based on unjust enrichment, it could not justify the Banks claim to be subrogated to the Lien. His contention was that the decided cases and judicial dicta which establish a right to be subrogated to a charge or a debt, all involved the money coming from the person who establishes subrogation being used to pay off the chargee or the creditor respectively see eg per Sir John Romilly MR in Drew v Lockett (1863) 32 Beav 499, 505; per Lord Selborne LC in Duncan, Fox & Co v North and South Wales Bank (1880) 6 App Cas 1, 19; per Romer J in Chetwynd v Allen [1899] 1 Ch 353, 357, per Vaughan Williams LJ in Thurstan v Nottingham Permanent Benefit Building Society [1902] 1 Ch 1, 9; per Warrington J in Butler v Rice [1910] 2 Ch 277, 282; and, as quoted by Clarke LJ in para 39 above, per Walton J in Burston Finance Ltd v Speirway Ltd [1974] 1 WLR 1648, 1652. It is true that it can be fairly argued that the dicta in those cases as to when and how subrogation could arise do not apply here. However, there is nothing in those dicta to suggest that the judges in any of those cases were purporting to give an exclusive explanation or definition of when subrogation can arise. Further, as Mr Rainey QC, for the Bank, pointed out in his clear argument, no consideration was given in those cases to analysing whether actual ownership of the money on the part of the person claiming subrogation was needed. Nonetheless, that does not alter the point that subrogation should be accorded to the Bank in this case only if it can be achieved in accordance with principle. In my view, Mr Warwicks argument involves assuming that the circumstances in which subrogation can be claimed are more limited than they really are. That is made good by two decisions of the House of Lords. In Orakpo v Manson Investments Ltd [1978] AC 95, 104, Lord Diplock explained that there were some circumstances in which the remedy [for unjust enrichment] takes the form of subrogation, but this expression embraces more than a single concept in English law. He went on to describe subrogation as a convenient way of describing a transfer of rights from one person to another, without assignment or assent of the person from whom the rights are transferred and which takes place by operation of law in a whole variety of widely different circumstances. He described a case where a person who pays off a secured lender as being [o]ne of the sets of circumstances in which a right of subrogation arises. In the same case at p 110, Lord Salmon expressed himself very broadly, suggesting that [t]he test as to whether the courts will apply the doctrine of subrogation to the facts of any particular case is entirely empirical and that the principle was that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be. Lord Edmund Davies suggested at p 112 that there is no reason why it should be confined to the hitherto recognised categories. And, to much the same effect, Slade LJ described the doctrine of subrogation as a flexible one, capable of giving a remedy in many and various situations in In re T H Knitwear (Wholesale) Ltd [1988] Ch 275, 286F. The opinion of Lord Hoffmann in the more recent decision of the House of Lords in Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221 includes some illuminating remarks about subrogation, which are much in point for present purposes. At p 231G H, having described subrogation in the traditional case as a contractual arrangement for the transfer of rights against third parties [which] is founded upon the common intention of the parties, he went on to say that the term is also used to describe an equitable remedy to reverse or prevent unjust enrichment which is not based upon any agreement or common intention of the party enriched and the party deprived. Then, at pp 231H 232A, he described the former principle as part of the law of contract and the latter, which seems, at least on the face of it, to cover the present case, as part of the law of restitution. Lord Hoffmanns subsequent analysis at p 232B H confirms that the Banks subrogation claim in this case should not be in difficulties because Melissa was wholly ignorant of, and in no way responsible for, the fact that the Bank was intended to have a charge over the freehold (and, as Lord Hoffmann explained, this is confirmed by a number of earlier decisions including two of the cases relied on by Mr Warwick, namely Chetwynd and Butler). Thus, at p 234B D, Lord Hoffmann observed that it was a mistake to regard the availability of subrogation as a remedy to prevent unjust enrichment as turning entirely upon the question of intention (although he also said that this does not mean that questions of intention may not be highly relevant to the question whether or not enrichment has been unjust). He also expressed the view that intention has played so prominent a part in the earlier cases because of the influence of cases on contractual subrogation, and that, in a case of a restitutionary subrogation claim, the appropriate questions were, in effect, those identified by Lord Clarke at para 18 above. At p 236E, Lord Hoffmann explained that subrogation was not a right or a cause of action but an equitable remedy against a party who would otherwise be unjustly enriched. Accordingly, as he went on to say, the notion (in this case) of the unpaid vendors lien being kept alive for the benefit of the Bank was not a literal truth but rather a metaphor or analogy (p 236D). Particularly significantly for present purposes, Lord Hoffmann said at p 236F that subrogation is an equitable remedy against a party who would otherwise be unjustly enriched and a means by which the court regulates the legal relationships between a plaintiff and a defendant in order to prevent unjust enrichment. Accordingly, he said, it would not by any means follow that the [Bank] must for all purposes be treated as an actual assignee of the benefit of the [unpaid vendors lien] and, in particular, that [it] would be so treated in relation to someone who would not be unjustly enriched (p 236G). In my view, the observations in Orakpo and, even more, in Banque Financire, support the Banks claim to be subrogated to the Lien as a result of what happened in this case. It seems to me that this view is supported by the views expressed by the current editors of Goff & Jones at para 39 10, where they describe the true position as that explained by Lord Hoffmann in the passage quoted in para 90 above from Banque Financire at p 236F. The editors go on to say at para 39 12 that subrogation to extinguished rights is therefore a remedy that reverses unjust enrichment of a discharged debtor which follows from the discharge of a debt, by affording the claimant new rights which prima facie replicate the creditors extinguished rights. The same point is made in the following paragraphs. For instance in para 39 16, it is suggested that the subrogation cases can all be explained on the ground for restitution that makes it unjust for the debtor to be enriched at the claimants expense. It is true that there is nothing in Chapter 39 of Goff and Jones which deals with what is said to be the problem for the Bank in this case, namely that the money used to pay off the secured creditor (ie the unpaid vendor) did not emanate from the Bank itself. However, that does not seem to me to present the Bank with a problem in relation to its claim for subrogation. For the reasons given in paras 66 68 above, the Bank has established that Melissas enrichment was at its expense even though the money did not emanate from the Bank directly, so that its unjust enrichment is made out against her. I do not see why the Bank need establish anything more in this case in order to make good its case to be subrogated to the Lien. It is right to add that para 7 02 of Geoff & Jones, cited by Lord Carnwath in para 131 could be read as suggesting that a more stringent test has to be satisfied before the court will award subrogation (and see also paras 37 9 and 37 10). However, in the light of Orakpo and Banque Financire, I do not consider that those paragraphs can be read in this way. Further, at para 6 30 of Goff & Jones, the editors describe the grant by the House of Lords in Banque Financire of a subrogation remedy as unprecedented. However that was primarily because subrogation was accorded to a party who thereby obtained, as Lord Hoffmann himself put it at p 229, far greater security than it ever bargained for, and perhaps also because of the adjustments which had to be made to the subrogated right in order to achieve equity (discussed in Goff & Jones at paras 39 44 and 39 45). The Banks claim to subrogation in this case is stronger in the sense that neither of those two points can be raised against it in this case. Despite the broad statements in Banque Financire, what is said in Chapter 39 of Goff & Jones, and the way in which Lord Salmon and Lord Edmund Davies expressed themselves in Orakpo, the combination of facts that (i) the Bank has a claim in unjust enrichment against Melissa arising out of her acquisition of the freehold, (ii) subrogation is a remedy which can be accorded to reverse unjust enrichment, (iii) the Lien arose out of the transaction giving rise to the acquisition, and (iv) the Lien is a right to which it is legally possible to subrogate, is not enough to justify the conclusion that the Bank should be subrogated to the Lien. There has to be a principled case to support such a conclusion. Having said that, it seems to me that the conclusion is supported by principle. In addition to the general points identified in the previous paragraph, it appears to me that the following five points, when taken together, establish the Banks subrogation claim. (i) The freehold was acquired by being purchased through Boulters for 875,000; (ii) 875,000 was a sum which the Bank could have demanded from Boulters, and it only agreed to its being used to purchase the freehold if the Bank was granted a Charge; (iii) without that agreement, there would have been no 875,000 to purchase the freehold, (iv) owing to an oversight, the Bank was not granted a valid Charge; (v) the payment of 875,000 to purchase the freehold discharged the Lien. In those circumstances, it is hard to see why subrogating the Bank to the unpaid vendors lien is not an appropriate way to remedy the unjust enrichment. I do not consider that the reasoning in Boscawen v Bajwa [1996] 1 WLR 328 presents a problem. In that case, at pp 334D and 335C, Millett LJ discussed in instructive detail both tracing, which he explained was a process, and subrogation, which he described as a remedy. (On reflection, I wonder whether the distinction, despite the approval of Lord Hoffmann in Banque Financire at p 236E of the description of subrogation as a remedy, is as satisfactory as it seems at first sight. It seems to me questionable whether a sharp distinction can satisfactorily be drawn between a process and a remedy, but the point has no effect on the outcome of this case.) While I accept that Millett LJ treated tracing as the appropriate process to achieve subrogation in Boscawen, there are two important caveats for present purposes. First, he nowhere stated that subrogation was an impermissible remedy if tracing was not an available prior process. Secondly, as Mr Rainey QC pointed out, at p 339A B Millett LJ said that it would be perilous to extrapolate from one set of circumstances where the court has required a particular precondition to be satisfied before the remedy of subrogation can be granted a general rule which makes that requirement a precondition which must be satisfied in other and different circumstances. Similarly, at p 334H, Millett LJ described subrogation as a remedy which will be fashioned to the circumstances. Nor do I think that Lord Milletts statement in Foskett v McKeown [2001] 1 AC 102, p 127F about property rights being determined by fixed rules and not being discretionary, casts doubt on my conclusion in this case. His analysis in that case has its critics see eg Burrows, (2001) 117 LQR 412, 417 and The Law of Restitution, 3rd ed (2011), pp 140, 170 171 and 432 434, and Mitchell and Watterson, Subrogation: Law and Practice (2007), para 6.50. However, and more to the point, Lord Milletts remarks were directed to proprietary claims not unjust enrichment claims. Lord Millett made that clear in a passage at p 129E G, where he said, inter alia, that one must distinguish between a claim brought to vindicate property rights and one brought to reverse unjust enrichment, and that Foskett was an example of the former. This point was also made by Lord Browne Wilkinson and Lord Hoffmann at pp 108F and 115G respectively. Finally on this aspect, it is worth mentioning that Melissas case represents a triumph of form over substance, or, to use the words of Lord Steyn in Banque Financire at 227C, pure formalism. It would have been perfectly open to the Bank to have requested Boulters to pay the whole proceeds of the sale of Rush Green Hall to the Bank, with the Bank then remitting back to Boulters the 875,000 needed to purchase Great Oak Court, on the basis that it would be subject to a charge in favour of the Bank to secure the Menelaou parents indebtedness. If that had happened, and the Menelaou parents had then directed the transfer of Great Oak Court to Melissa, and the defective Deed had been executed, it is very difficult to see why the Bank could not have claimed subrogation to the unpaid vendors lien. If Melissas case on this appeal is right, the fact that the Bank sensibly short circuited the process, and agreed that the 875,000 could be retained by Boulters to purchase Great Oak Court, would mean that a small and practical change, of no apparent commercial significance, results in a substantially different commercial outcome. Such an outcome is, of course, possible, but its unattractiveness tends to support the conclusion which I have reached. The Banks proprietary claim This leads conveniently to the final point, namely whether the Banks claim to be subrogated to the unpaid vendors lien could in fact be justified by a simpler and less potentially controversial route. At least on the basis of the arguments we have heard, I am very sympathetic to the notion that the Bank had a proprietary interest in the 875,000 which was used to purchase Great Oak Court, and if that is right, its subrogation claim becomes relatively uncontroversial. I am, however, reluctant to express a concluded view on the topic, as the argument was developed very shortly, although it is fair to say that it was considered (and rejected) at first instance, albeit on a somewhat different basis from that which currently appeals to me. In this connection, I would be inclined substantially to agree with the analysis of Lord Carnwath in paras 135 139 of his judgment. It seems to me difficult, at least on the basis of the relatively limited argument we have heard, to argue against the proposition that the Bank had a proprietary interest in the 875,000 which was used to purchase Great Oak Court. What was intended to happen on 12 September 2006 was that the proceeds of sale of Rush Green Hall, which was charged to the Bank for a debt in excess of those proceeds, were split into two portions, one of which was to be paid to the Bank to reduce the debt, and the other of which was to be used to purchase Great Oak Court on terms that the Bank was to have charge over it for the outstanding indebtedness. In those circumstances, it would seem, either the second portion was the Banks money beneficially subject to its agreement that the money could be used to purchase Great Oak Court, or it was the Menelaou parents money beneficially subject to the Banks right to require it to be paid to the Bank to reduce the Menelaou parents debt unless it was used to purchase Great Oak Court subject to the Charge. When it comes to the beneficial interests in this case, as I see it at the moment, the position would be as follows. There would be little need to resort to Quistclose Investments v Rolls Razor Ltd [1970] AC 597, because there could be no doubt but that Boulters held the 875,000 on trust: it was plainly not their money beneficially. Both the Menelaou parents and the Bank were their clients towards whom they had contractual and equitable duties, and, more particularly, both of whom had an interest in the 875,000. If the Bank beneficially owned the 875,000 (subject to its agreement that the Menelaou parents could use it to purchase Great Oak Court, subject to the Charge), cadit quaestio so far as the Banks subrogation to the Lien is concerned, as I see it: the Banks money was used to redeem the Lien. Assuming, however, that the Menelaou parents were the beneficial owners of the 875,000, the Bank would, in my view, have had the right of requiring that sum to be used to purchase Great Oak Court subject to a Charge back in favour of the Bank, failing which the Bank would have the right to demand that that sum be paid to it. I find it hard to see why that would not have given the Bank a sufficient interest in the 875,000 to enable it to claim to be subrogated to the Lien, even on Melissas restricted view of subrogation. It may well be that the Bank could also claim that, if the 875,000 was to be treated as beneficially owned by the Menelaou parents, it was nonetheless subject to a charge in favour of the Bank, as discussed by Arden LJ in Buhr v Barclays Bank plc [2001] EWCA Civ 1223; [2002] BPIR 25, para 45. This argument was rejected by the Judge at first instance in this case see at [2012] EWHC 1991 (Ch), paras 15 17. It is unnecessary and inappropriate to discuss that possibility further, as it was barely touched on in argument. Conclusion In those circumstances, I would dismiss Melissas appeal on the basis that the Bank has a valid unjust enrichment claim against her which is properly reflected in the Banks claim to be subrogated to the unpaid vendors lien over the freehold of Great Oak Court. I add this. My strong, if provisional, opinion that the Bank had a proprietary interest in the 875,000 which was used to purchase the freehold leads me to wonder whether the conclusion that the Banks unjust enrichment claim is satisfied by subrogation could in fact be regarded as controversial, even before Orakpo and Banque Financire were decided. The reasons which persuade me that the unjust enrichment claim can properly be satisfied by subrogation to the Lien (see paras 91 95 above) are precious close to those which persuade me that there is a very strong case for saying that the Bank had a proprietary interest in the 875,000 (see para 103 above). LORD CARNWATH: Introduction I agree that the appeal should be dismissed, but I arrive at that conclusion by a somewhat different route from that taken by my colleagues. In my view the respondents case can be supported (contrary to the decision of the deputy judge) by a strict application of the traditional rules of subrogation, without any need to extend them beyond their established limits. I am less convinced with respect of the case for rationalising the older cases through the prism of unjust enrichment, as Lord Clarke suggests was done in Banque Financire (Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221), thus in effect conflating the two doctrines. As Lord Millett explained in Foskett v McKeown [2001] 1 AC 102, 129 (cited by Lord Clarke at para 38), there is a clear distinction of principle between a claim to enforce property rights and a claim for unjust enrichment. Earlier in the same judgment (at p 127F) he had emphasised that property rights are to be determined by fixed rules and settled principles, not by discretion or policy. Subrogation to a vendors lien is a claim to a property right, but it is, as Lord Clarke acknowledges, a less than straightforward concept. It should not be extended, nor should the established rules be distorted, without good reason. Conversely, in the light of some decades of academic discussion and of the authorities reviewed by Lord Clarke, it is surely time for the principles of restitution or unjust enrichment to be allowed to stand on their own feet. A proprietary remedy may arguably be justified because, as Lord Neuberger says (paras 79 80), such a remedy, rather than a personal remedy, is the most appropriate response to the unjust enrichment found in this case; but not because of some tenuous relationship with a vendors lien which has no continuing existence or practical relevance. However, that is not how the case has been argued, and, since it is not necessary for my decision on the appeal, I shall limit my observations on those wider issues. In this judgment I will take the facts as set out by Lord Clarke. I would only observe that I approach those facts without any particular predisposition in favour of the Banks claim. As Mr Warwick points out, if Melissa was enriched, it was because her parents gave to her, and to her two younger siblings, some of the proceeds of sale of their property, which she received in good faith. In the same way, Melissas older sister, Danielle, was enriched because she also received some of the proceeds of Rush Green Hall. Neither was aware of any interest of the Bank, and in Danielles case none has been asserted. Melissas ignorance of the Banks claim is the result of their own solicitors incompetence, not of any fault on her part. Subrogation the principles A simple modern statement of the principle of subrogation, frequently adopted in later cases (see eg Cheltenham & Gloucester plc v Appleyard [2004] EWCA] Civ 291, para 25, per Neuberger LJ); [2004] 13 EG 127 (CS), is that of Walton J in Burston Finance Ltd v Speirway Ltd [1974] 1 WLR 1648, 1652B C: [W]here As money is used to pay off the claim of B, who is a secured creditor, A is entitled to be regarded in equity as having had an assignment to him of Bs rights as a secured creditor. It finds one of its chief uses in the situation where one person advances money on the understanding that he is to have certain security for the money he has advanced, and, for one reason or another, he does not receive the promised security. In such a case he is nevertheless to be subrogated to the rights of any other person who at the relevant time had any security over the same property and whose debts have been discharged, in whole or in part, by the money so provided by him. Probably the fullest textbook discussion of the subject is to be found in Mitchell and Watterson Subrogation Law and Practice (2007) (It is noteworthy that both authors are also editors of the later edition of Goff & Jones (2011) to which I shall come.) Under the heading transfer of extinguished proprietary rights (para 3.26 8) the authors trace the origins of the rule whereby those whose money is used to pay off on land are presumptively entitled to acquire the charge for their own benefit (derived from Patten v Bond (1889) 60 LT 583). They describe as anomalous the extension of the rule beyond payments by someone with an existing interest in the land which requires protection. The anomaly lies in the absence of any sound policy reason to treat such a person any differently to any other person who has voluntarily paid off a persons debt, and for the more substantial reason that liabilities are not to be forced on people behind their backs (citing Falcke v Scottish Imperial Insurance (1886) 34 Ch D 234, 248 per Bowen LJ). However, as they observe the principle became well established in the case law, approved for example in the Privy Council in Ghana Commercial Bank v Chandiram [1960] AC 732, the justification for acquisition of the security being that the claimant was presumed to have intended this at the time when they parted with the money. The application of the concept in the context of an unpaid vendor's lien is also well established, but no less anomalous. Burston itself related to such a claim. The claim failed because, by taking a legal charge over the same property (even though invalid against the liquidator by reason of failure to register under the Companies Act 1948), the lien had been lost either as a result of the doctrine of merger or by presumed intention to waive the unpaid vendors lien (p 1653C). The earliest example in the cases cited to the court was Thurstan v Nottingham Permanent Benefit Building Society [1902] 1 Ch 1. On a purchase of land by an infant, 250 of the purchase money was paid on her behalf by the building society to the vendor subject to a mortgage. Although the mortgage was held to be void because of the infancy, the Society was subrogated to, and so able to enforce, the vendors lien. Vaughan Williams LJ, after some initial uncertainty and consultation with his colleagues, concluded at pp 9 10: the society, having paid off the vendor, have a right to the remedies of the vendor have a right, that is, to enforce the vendors lien. It is true that the society were not the vendors, but, having paid off the vendor, the society, as against the purchaser, stand in the place of the vendor. At first sight it seems odd that the Society, having failed due to its own mistake of law to get the security which it wanted, was able to revive and take advantage of a different security designed for a different purpose and a different person. As Floyd LJ observed in the Court of Appeal (para 15), the concept, although well established, is not altogether straightforward: A third party who provides some or all of the purchase money for a purchaser, thereby discharging the obligation to the vendor, can claim the benefit of the unpaid vendors lien by subrogation. This is so even after the lien has been, as between vendor and purchaser, extinguished. It is not intuitively clear how, or why, this should be the case. How is the unpaid vendors lien transferred from the vendor to the third party? It might be thought that once the obligation in question has been extinguished, there is nothing which the vendor could transfer. Even if there was something to transfer, by what legal mechanism does the transfer take place? There has been no assignment. (para 17) As he explained, Lord Hoffmann made some attempt to address such conceptual concerns in Banque Financire: In my view, the phrase keeping the charge alive needs to be handled with some care. It is not a literal truth but rather a metaphor or analogy: see Birks, An Introduction to the Law of Restitution, pp 93 97. In a case in which the whole of the secured debt is repaid, the charge is not kept alive at all. It is discharged and ceases to exist. It is important to remember that, as Millett LJ pointed out in Boscawen v Bajwa [1996] 1 WLR 328, 335, subrogation is not a right or a cause of action but an equitable remedy against a party who would otherwise be unjustly enriched. It is a means by which the court regulates the legal relationships between a plaintiff and a defendant or defendants in order to prevent unjust enrichment. When judges say that the charge is kept alive for the benefit of the plaintiff, what they mean is that his legal relations with a defendant who would otherwise be unjustly enriched are regulated as if the benefit of the charge had been assigned to him. It does not by any means follow that the plaintiff must for all purposes be treated as an actual assignee of the benefit of the charge and, in particular, that he would be so treated in relation to someone who would not be unjustly enriched.(P 236D E) It is not clear to me, with respect, how describing the concept as a metaphor adds anything by way of explanatory force. I note that in the passage cited by Lord Hoffmann, Professor Birks began by observing that in the law of restitution, subrogation really adds nothing to the techniques otherwise available; it is in the nature of a metaphor which can be done without (ibid p 93). Thirty years on, I would respectfully agree. In the context of the law of unjust enrichment, the issue should be the nature of the appropriate remedy, not whether it conforms to an analogy derived from some other area of the law. The view of the Court of Appeal In the Court of Appeal (as in this court) the appellant submitted that, there was no justification for extending the rules of subrogation so as to provide a proprietary remedy in this case. A proprietary claim based on subrogation to vendors lien is available only to a claimant who can show that the purchase price has been paid off by use of his own money. That is a common feature of all the cases in which such a claim has been allowed. It is supported by the leading modern authority: Boscawen v Bajwa [1996] 1 WLR 328. Floyd LJ acknowledged that no case had been cited to the court in which a lender had been entitled to a remedy of subrogation when that lender had not advanced funds (para 43). However, he considered that there was no strict requirement to that effect. He described the unusual feature of the present case that the Bank provided the value by agreeing to release a security interest rather than by advancing specific funds. The appellant had relied on Bankers Trust Co v Namdar [1997] NPC 22; [1997] EGCS 20, in which subrogation had been denied because, in the words of Peter Gibson LJ: I cannot see how the Bank can be afforded the remedy of subrogation in circumstances which, as I see it in agreement with the Judge, the Bank cannot properly be said to be the provider of the money used to discharge the debt owed to it by Mr and Mrs Namdar. (Floyd LJs emphasis) In the present case, however, Floyd LJ thought it sufficient the Bank had been a provider of the funds as a matter of economic reality: The mere fact that the claimant does some act in reliance on which there is a transfer of value between different parties is not sufficient. When the Bank gave its undertaking to release its charges on Rush Green Hall, and thus release the purchase moneys for the purchase of Great Oak Court, there was, as I have held, a transfer of value from the Bank to Melissa. Moreover, if one asks Peter Gibson LJs question, namely whether it can properly be said that the Bank is the provider of the money used to discharge the debt, the answer in the present case is that it is. Certainly that is true if one asks whether the Bank is the source of the moneys used as a matter of economic reality. I therefore see no reason in principle or justice why the Bank should not be entitled to the remedy of subrogation. (para 48) Moses LJ preferred to speak of a sufficiently close causal connection, established by showing that, but for the Banks agreement to release its charges over Rush Green Hall, Great Oak Court would never have been purchased and the obligation to pay its vendors would never have been satisfied. In his view, there was no need to invoke the somewhat fuzzy concept of economic reality (paras 61 62). Boscawen In my view, the strict approach advocated by the appellant gains strong support from the judgment of Millett LJ in Boscawen v Bajwa [1996] 1 WLR 328. It is the leading modern authority on the application of principles of tracing and subrogation in a context not dissimilar to the present. As has been seen, it was cited with approval by Lord Hoffmann in Banque Financire at p 233F (a valuable and illuminating analysis of the remedy of subrogation). Because of its acknowledged importance in this area of the law, it justifies careful examination. Indeed, if the test was as flexible as that favoured by the Court of Appeal in this case, much of the discussion in that judgment would have been redundant. The facts (as in the present case) involved a failure by solicitors to complete a transaction in the way intended by the main parties. A much simplified account will suffice. A building society (Abbey National) agreed to make an advance to clients for the purchase of a property from the defendant (Mr Bajwa) to be secured on a first legal charge. The property was subject to an existing mortgage in favour of another building society (Halifax). Abbey National paid the money to solicitors (Dave & Co) acting jointly for the society and the purchaser, on terms which obliged them to use the money for the purchase, and to return it if for any reason completion did not take place. They transferred it to the vendors solicitors (Hill Lawson) to hold to their order pending completion. Before completion Hill Lawson sent the money to Halifax in discharge of their mortgage, after which the sale fell through. In response to a subsequent claim to the property by judgment creditors of Mr Bajwa, the Abbey National claimed to be subrogated to the Halifax mortgage. It was held (in the words of the headnote) that: the money used by the vendors solicitors to discharge the mortgage had been held by the purchasers solicitors as trust money for the building society and by the vendors solicitors to the purchasers solicitors order pending completion of the purchase; that, therefore, the money could be traced into the payment and the vendors solicitors in making it had to be taken to have intended to keep the mortgage alive for the benefit of the building society; and that, accordingly, the building society was entitled, by way of subrogation, to a charge on the proceeds of sale of the property in priority to the plaintiffs. The headnote rightly highlights the importance of establishing a tracing link between the plaintiffs money and the money used to discharge the mortgage, leading to a presumed intention to keep the mortgage alive for the plaintiffs benefit. Millett LJs judgment needs to be read in the context of the issues before him. The main issue before the Court of Appeal was whether, in allowing the claim, the judge had made an impermissible aggregation of two different equitable doctrines, subrogation and tracing (p 333D G). As Millett LJ explained, these arguments showed a confusion of thought as to the nature of tracing: Tracing properly so called, however, is neither a claim nor a remedy but a process. It is the process by which the plaintiff traces what has happened to his property, identifies the persons who have handled or received it, and justifies his claim that the money which they handled or received (and, if necessary, which they still retain) can properly be regarded as representing his property. The process of tracing was to be distinguished from the fashioning of the appropriate remedy, once the plaintiff had succeeded in tracing his property whether in its original or in some changed form into the hands of the defendant, and overcome any defences: The plaintiff will generally be entitled to a personal remedy; if he seeks a proprietary remedy he must usually prove that the property to which he lays claim is still in the ownership of the defendant. If he succeeds in doing this, the court will treat the defendant as holding the property on a constructive trust for the plaintiff and will order the defendant to transfer it in specie to the plaintiff. But this is only one of the proprietary remedies which are available to a court of equity. If the plaintiffs money has been applied by the defendant, for example, not in the acquisition of a landed property but in its improvement, then the court may treat the land as charged with the payment to the plaintiff of a sum representing the amount by which the value of the defendants land has been enhanced by the use of the plaintiffs money. And if the plaintiffs money has been used to discharge a mortgage on the defendant's land, then the court may achieve a similar result by treating the land as subject to a charge by way of subrogation in favour of the plaintiff. The judge had not erred by invoking the two doctrines in the same case: They arose at different stages of the proceedings. Tracing was the process by which the Abbey National sought to establish that its money was applied in the discharge of the Halifaxs charge; subrogation was the remedy which it sought in order to deprive Mr Bajwa (through whom the appellants claim) of the unjust enrichment which he would thereby otherwise obtain at the Abbey Nationals expense. (p 334B 335F, emphasis added) Millett LJ went on to discuss separately the principles of tracing and subrogation, as applied to the instant case. In relation to the former (pp 335 337), it had been argued that the right to trace was lost when the money advanced by Abbey National went into Hill Lawsons general client account, where it was mixed with other money including other funds belonging to Mr Bajwa. It was held in favour of Abbey National that, as against Hill Lawson and Mr Bajwa, who though not wrongdoers were not innocent volunteers, they could rely on equitys ability to follow money through a mixed bank account by treating the money in the account as charged with the repayment of his money (pp 336F, 337G). Under the heading Subrogation (pp 338 339) the principal issue was whether it mattered that Abbey National had failed to show an intention to obtain the benefit of the Halifax security. As Millett LJ explained: In cases such as Butler v Rice and Ghana Commercial Bank v Chandiram [1960] AC 732, where the claimant paid the creditor direct and intended to discharge his security, the court took the claimants intention to have been to keep the original security alive for his own benefit save in so far as it was replaced by an effective security in favour of himself. In the present case the Abbey National did not intend to discharge the Halifaxs charge in the events which happened, that is to say, in the event that completion did not proceed. But it did not intend its money to be used at all in that event. However, that did not mean that the remedy was unavailable: In the present case the payment was made by Hill Lawson, and it is their intention which matters. As fiduciaries, they could not be heard to say that they had paid out their principals money otherwise than for the benefit of their principal. Accordingly, their intention must be taken to have been to keep the Halifaxs charge alive for the benefit of the Abbey National pending completion. In my judgment this is sufficient to bring the doctrine of subrogation into play. (p 339D H) These passages are of direct relevance to the arguments in the present case, and in my view difficult to reconcile with the more flexible approach of the Court of Appeal. It was clearly regarded by Millett LJ as necessary for the claimants to establish that the money used to pay off the loan was their money. Tracing was the process by which this was done. In the context of subrogation, tracing was not about identifying a particular asset in the hands of the defendant, as belonging notionally to the claimant; but rather as providing the necessary link with the payments made to discharge the relevant mortgage. In the passage quoted above, Millett LJ treated such payments as analogous to money spent in improving property. It was not regarded by him as sufficient to apply a broad causation or economic reality test, such as applied by the Court of Appeal in the present case. Had that been enough, the detailed examination of equitable rules relevant to tracing the money in the Hill Lawson account would have been unnecessary. It would have been enough that but for the receipt of the money from Abbey National, the Halifax mortgage would never have been paid off. This aspect of the case is not affected by the decision in Banque Financire. Lord Hoffmann noted that there was no difficulty on the facts of that case in tracing the banks money into the discharge of the relevant debt, since by contrast with Boscawen the payment was direct (p 235C D). I take him to have been using that term in the same sense as Millett LJ. The problem was not so much the right to a proprietary remedy but whether that right should be cut down so as to limit its scope by reference to the limited nature of the initial agreement. The decision itself, and in particular the nature of the remedy (personal, proprietary or hybrid?), have been much discussed (see Goff & Jones para 6 30). But it throws no doubt on the importance, in the present context, of establishing a tracing link between the claimants own money and the payment used to discharge the security. Academic discussion I should make brief reference to some of the academic discussion, if only to note the lack of consensus on the issues before us. Indeed, there are few more hotly debated issues among specialist academics in this field than the scope of the remedies, personal or proprietary, for unjust enrichment. In Mitchell and Watterson (op cit), there is an illuminating discussion of the various strands of academic opinion as it stood at the time of that edition (2007). I note in particular two sections, headed Proprietary remedies for unjust enrichment generally (para 8.40ff) and Proprietary subrogation (para 8.46 7). The former notes, for example, the view of some commentators that the English law of unjust enrichment should be purged of proprietary remedies altogether (para 8.41); contrasted with other more accommodating approaches, such as that of Professor Andrew Burrows (The Law of Restitution, 2nd ed (2002), para 8.42) who accepts the need for special justification for a proprietary remedy, but finds it in two factors, that the payment added to the value of the defendants asset and that the claimant did not voluntarily assume the risk of the defendants insolvency. Against that backdrop, it is said, the subrogation authorities reveal a surprising readiness to award proprietary remedies. Following Banque Financire, it is suggested that the courts should look across from the subrogation authorities to develop a consistent view of the circumstances in which proprietary restitutionary remedies should be awarded (para 8.46 7). The clearest academic exposition in recent textbooks of the distinction on which the appellants rely appears in the current edition of Goff & Jones, The Law of Unjust Enrichment, 8th ed (2011). Floyd LJ referred to para 6 01, relating to the term at the claimants expense, without noting that this was in a chapter dealing specifically with personal claims. Chapter 7, headed At the Claimants Expense; Proprietary Claims contains the following important passage, which on its face appears to support the appellants case: Both personal and proprietary claims are governed by the rule that the defendants enrichment must have been gained at the claimants expense, but the tests used to determine whether this requirement has been satisfied vary with the type of claim. Where the claimant seeks a personal remedy, he must show that there was a transfer of value between the parties, and this is tested by asking whether an event took place that caused the claimant to become worse off and the defendant to become better off. This is discussed in Chapter 6. In contrast, where the claimant seeks a proprietary remedy, it is not enough for him to show that there was a transfer of value between the parties: he must also show either that he previously owned the property in which he now claims an ownership or security interest, or else that the defendant acquired this property in exchange for property that was previously owned by the claimant, or else that this property was formerly the subject matter of an interest that was discharged with property that was previously owned by the claimant. This test is more stringent than the causal test used in the context of personal claims, and it serves as a control mechanism to prevent proprietary restitutionary remedies from becoming too freely available. (para 7 02, emphasis added) The footnote refers to a list of cases cited later in the chapter (para 7 39, fn 87) including in the subrogation context Boscawen (at p 334). The application of those principles to the payment of debts is discussed in more detail later in the chapter (para 7 42). The rule that the tracing process comes to an end when the value being traced is dissipated applies generally where the claimants money is used to pay off a debt. Subrogation is cited as one exception to the rule: if the debt was secured by a charge over the defendants property then Equity can treat the debt and the charge, by a legal fiction, as though they were not extinguished by the payment, thereby enabling the beneficiaries to trace the value inherent in their money into the value inherent in the creditors fictionally subsisting chose in action against the defendant. Again the reference is to Boscawen. Notable here is the close link between subrogation and the doctrine of tracing, which as has been seen was central to the analysis by Millett LJ in that case. There is no apparent support for the Court of Appeals view that a sufficient link could be found in a looser test based on economic reality or simple causation. Is there a tracing link in this case? The Court of Appeal felt able to decide the case on the footing that the Bank did not have an interest in the money used to pay off the security. It found it unnecessary to decide whether that assumption was correct. In this court it has been submitted that it was not. It is argued that the Bank did have a sufficient interest on the basis either of the principle in Buhr v Barclays Bank plc [2001] EWCA Civ 1223, [2002] BPIR 25, or of a so called Quistclose trust (after Quistclose Investments Ltd v Rolls Razor Ltd [1970] AC 567). Although the Quistclose principle does not appear in terms to have been relied on in argument in the courts below, the substance was sufficiently pleaded in the amended counterclaim (para 13), which asserts that the proceeds of the sale of Rush Green Hall released by the defendant Bank were held on trust for the defendant, subject to a power for Mr and Mrs Menelaou to use the same to purchase a flat in the joint names of Danielle Menelaou and her partner and also to purchase the Property in the name of the claimant but only on condition that the outstanding debts of Mr and Mrs Menelaou were to be secured by a first legal charge over the Property. The issue was also addressed by the judge (paras 14 17), albeit not specifically by reference to the Quistclose principle. It does not depend on any further findings of fact. I see no reason therefore why it cannot properly be relied on by the Bank in this court. The Quistclose principle was explained and applied by the House of Lords in Twinsectra Ltd v Yardley [2002] 2 AC 164. A solicitor (Sims) had received money, lent by Twinsectra to his client (Mr Yardley) for the purchase of a property, under an undertaking that it would be utilised solely for the acquisition of property and for no other purpose. The money was paid to the defendant solicitor (Mr Leach), acting on behalf of the same client; he paid it out to the client who used it for purposes other than the purchase of the property. A claim against the defendant solicitor for dishonest assistance failed only because dishonesty was not established. The money was held to be subject to a trust in the first solicitors client account, the terms of which were found in the terms of the undertaking, which made clear that the money was not to be at the free disposal of [the client]: the effect of the undertaking was to provide that the money in the Sims client account should remain Twinsectras money until such time as it was applied for the acquisition of property in accordance with the undertaking. For example, if Mr Yardley went bankrupt before the money had been so applied, it would not have formed part of his estate, as it would have done if Sims had held it in trust for him absolutely. The undertaking would have ensured that Twinsectra could get it back. It follows that Sims held the money in trust for Twinsectra, but subject to a power to apply it by way of loan to Mr Yardley in accordance with the undertaking (paras 12 13, per Lord Hoffmann) In the present case the critical issue is the status of the money received by Boulters on 12 September 2008, as proceeds of the sale of Rush Green Hall. (I do not understand either party to suggest that the deposit 90,000 should be treated differently from the balance of 785,000.) The judge saw no reason to infer a proprietary interest in the Bank: 16. In the present case the agreement or understanding recorded in the Banks letter of 9 September 2008 did not address the question of ownership or even security rights in the sale proceeds of Rush Green Hall, and had no reason to do so. While the arrival of the sale proceeds from Rush Green Hall and the payment of 785,000 to the vendors of Great Oak Court (or their solicitors) and of 750,000 to the Bank could not have been literally simultaneous, it is unrealistic to suppose that the parties were concerned with the status of the incoming monies in any short interval between them. Critically, the agreement was concerned only with the circumstances in which the charges over Rush Green Hall would be released. So long as they remained in place, there was neither need nor reason for the Bank to have any rights over the proceeds of sale, or thereafter, since the charges were only to be released against substitute security over Great Oak Court. And should there be a defect in that substitute security, the Bank had protected itself by obtaining the undertakings given by Boulters in the Certificate of Title. With respect to the judge, this analysis (like my own as trial judge in Twinsectra) seems to me to start from the wrong end. In the Boulters client account the money was undoubtedly trust money, in the sense that it was held beneficially for their clients (see eg In re A Solicitor [1952] Ch 328). That is not affected by the brevity of the period for which it was expected to be held. The relevant questions are: for whose benefit was it so held and on what terms? By this time they were acting for both the Menelaous and the Bank. Their respective interests in the money depended on the arrangements between them and with their solicitors. It is true that the Banks letter of 9 September 2008 said nothing in terms about an interest in the money to be used for the new purchase. But there is nothing to suggest that the money was treated as freely at the disposal of the Menelaous, which would have been inconsistent with the general purpose of the arrangement. The terms of the certificate of title provided to the Bank by Boulters on 10 September are also relevant. In it Melissa was named as borrower, and the price as 875,000. It included a standard form undertaking prior to use of the mortgage advance, to obtain in the form required by you the execution of a mortgage and a guarantee as appropriate by the persons whose identities have been checked in accordance with paragraph (1) above as those of the Borrower, any other person in whom the legal estate is vested and any guarantor . They also undertook to notify the Bank of anything coming to their attention before completion which would render the certificate untrue or inaccurate, and if so to defer completion pending your authority to proceed and return the mortgage advance to you if required . I agree with Mr Rainey that in its context the reference in the certificate of title to the mortgage advance must be read as a reference to the money received by them from the sale of Rush Green Hall. The natural implication of the undertakings was that, if the sale failed, the sum so defined would be paid to the Bank; not simply transferred to the Menelaous. It follows in my view that there is no difficulty in this case in finding the necessary tracing link between the Bank and the money used to purchase the new property. In this respect it is a much simpler case than Boscawen. The Banks interest in the purchase money was clear and direct. On this relatively narrow ground, I would hold that the appeal should be dismissed. LORD KERR AND LORD WILSON: Subject to the sentence which follows, we agree with the judgments both of Lord Clarke and of Lord Neuberger. We consider, however, that it is preferable to leave the availability of a personal claim against Melissa entirely open and so to that extent we prefer the terms in which Lord Neuberger expresses himself in paras 80 82 above to the marginally different terms in which Lord Clarke expresses himself in para 55 above.

UK-Abs

The appellant (Melissa Menelaou) is the owner of a property, 2 Great Oak Court (the Property), bought by her parents in 2008 (in her name as a gift to her) as a family home for her, her siblings and her parents. The respondent Bank had two charges, securing the parents borrowing, totalling about 2.2 million over the previous family home owned by the parents, which was sold. The Bank agreed to release those charges, in return for a lump sum payment of 750,000 discharging part of the debt, and a fresh charge over the Property to secure the remaining indebtedness of 1.45 million. This left 875,000 to be used out of the sale proceeds for the purchase of the Property in Melissas name. Melissa was eventually registered as the proprietor of the Property, and the Bank as purported chargee. Melissa only became aware of the existence of the charge in 2010. She then discovered that the charge had not been properly executed and was in fact void, because she had not signed it and it had been altered without consulting her. She sought rectification of the register. The Bank invoked the unpaid vendors lien (namely the charge which the law gave to the vendor over the Property to secure the payment of the 875,000 which the purchasers were contractually due to pay him). It counterclaimed that, because the 875,000 used to pay the vendor effectively originated from its release of the charges over the previous property, and was intended to be secured on the Property, the law entitled it to be subrogated to the unpaid vendors lien, and thereby to claim a charge over the Property in the sum of 875,000. That counterclaim was the only issue at trial. It was dismissed by the judge at first instance, but granted by the Court of Appeal. The Supreme Court dismisses the appeal. Lord Clarke (with whom Lord Kerr and Lord Wilson agree) delivers the judgment. Lord Neuberger writes a concurring judgment, with which Lord Kerr and Lord Wilson also agree. Lord Carnwath writes a judgment dismissing the appeal, but on different reasoning. This is a case of unjust enrichment. Melissa was enriched. The critical question is whether she was enriched at the expense of the Bank [19 22], because if so that enrichment was clearly unjust. The answer is plainly yes: she became owner of the Property (subject to the charge) thanks to the Banks agreement to release a part of the debt in return for that charge. Since the charge was void, the value of the Property to Melissa was considerably greater, at the expense of the Bank which was left without the security that was central to the overall scheme [24]. There was one overall scheme, and a sufficient causal connection between the Banks loss and Melissas benefit, adopting either a narrow approach (with exceptions) or broad approach to the causal test [25 35]. There are no other defences available to Melissa [36]. The appropriate equitable remedy is that the Bank is subrogated to the unpaid sellers lien. This has the effect of reinstating Melissas liability under the charge, reversing her unjust enrichment, and allowing the Bank to enforce its equitable interest in the Property by sale [49]. Although this is a complex remedy, it has been rationalised by the development of the doctrine of unjust enrichment, and may now be applied flexibly to the facts of any particular case [37 48; 50]. Lord Neuberger agrees. The Bank can establish an unjust enrichment claim against Melissa. The first step is that she was enriched, because she received the freehold of the Property for nothing (or more accurately, received the freehold free of the intended charge) [62 64]. The second step is that Melissa was enriched at the Banks expense, both because the Bank could have prevented the purchase of the Property proceeding until it had been granted a charge, and because there was one overall scheme [65 68]. Thirdly, Melissas enrichment was unjust, since she (as a donee) could not be placed in a better position than her parents, who were not entitled to transfer the freehold free of the intended charge, and since she directly benefited from the scheme [69 73]. Fourthly, Melissa cannot point to any facts which give her a defence, even though she did not know of the charge and the Bank might have an alternative claim [73 77]. Lord Neuberger further notes that it is hard to identify a more appropriate remedy than subrogating the Bank to the lien over the freehold [79 82, 106]. The remedy is broad and flexible, and justified here on analysis of the decision of the House of Lords in Orakpo v Manson Investments Ltd [1978] AC 95, 104 and Lord Hoffmans observations in Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221 [83 93]. Melissas case is by contrast pure formalism [95, 99]. This remedy could probably also be justified on the basis that the Bank had a proprietary interest in the 875,000 used to purchase the Property, and that either the Bank or Melissas parents were the beneficial owners of that sum [100 104, 106]. Lord Carnwath concurs, reaching the same conclusion, but by strict application of the traditional rules of subrogation. The proprietary restitutionary remedy is justified in this case by principles of tracing and subrogation as expressed in Boscawen v Bajwa [1996] 1 WLR 328, not because of any tenuous relationship with a vendors lien, said to subsist by way of analogy [109, 117 121]. The remedy requires that the claimant establish that its money was used to discharge the security through the process of tracing; the looser test of economic reality or simple causation (applied by the Court of Appeal in this case) is insufficient [132]. Here, there was a clear tracing link between the Bank and the money used to purchase the Property. The Banks interest in the purchase money was clear and direct. [134 140].

These appeals arise out of the decision of the government to promote the high speed rail link from London to the north known as HS2. The decision was announced in a command paper, High Speed Rail: Investing in Britain's Future Decisions and Next Steps (Cm 8247, 10 January 2012). (It has been referred to in the proceedings as the DNS.) The main issues, in summary, are, first, whether it should have been preceded by strategic environmental assessment, under the relevant European Directive, and, secondly, whether the hybrid bill procedure, as currently proposed, will comply with the procedural requirements of European law. The Court of Appeal decided both issues against the appellants, the first by a majority (Sullivan LJ dissenting). We also need to consider the possibility of referring either question to the European court (CJEU). The appellants In the first appeal, the HS2 Action Alliance is a not for profit organisation working with over 90 affiliated action groups and residents' associations in opposition to the HS2 scheme. The appellants in the Hillingdon appeal are local authorities along the proposed route of Phase 1 of HS2. They are all members of the 51M group, a group of local authorities which joined together in a national campaign to oppose the HS2 rail proposals. In the third appeal, Heathrow Hub Limited (HHL) has for many years promoted the concept of a multi modal transport hub at Heathrow Airport, integrating Heathrow with road, conventional mainline railway and high speed rail services. Factual background In January 2009, the previous government established a company called High Speed Two Limited (HS2 Ltd) to advise on proposals for a new railway from London to the West Midlands and potentially beyond. In December 2009 HS2 Ltd reported to the Secretary of State. The options for routes north of Birmingham include what became the preferred Y shaped network and two others known as the reverse S and the reverse E configurations. On 15 December 2009, the Secretary of State made a statement to Parliament setting out his proposed next steps, including a White Paper by the end of March 2010, followed by a full public consultation in the autumn of 2010, leading to preparation of a hybrid Bill. On 11 March 2010, the Department for Transport published a Command Paper entitled High Speed Rail (Cm 7827), along with HS2 Ltd's report and other technical reports. The initial core high speed network would link London to Birmingham, Manchester, the East Midlands, Sheffield and Leeds, and be capable of carrying trains at up to 250 miles per hour. It would take the form of a Y shaped network of around 335 miles. The paper explained the governments reasons in the light of the HS2 Ltd studies for preferring it to the reverse S and reverse E configurations. The studies had shown that as a first step a high speed line from London to Birmingham would offer high value for money. There would be connections to existing tracks to allow direct high speed train services to destinations further north. The capacity so released would be used to expand commuter, regional and freight service on existing lines. The first phase would run from a rebuilt Euston Station to a new Birmingham City Centre Station. Following further work by HS2 Ltd, formal public consultation would begin in the autumn. At the same time detailed planning work would begin on the routes from Birmingham to Manchester and Leeds, with a view to public consultation in early 2012. High speed access to Heathrow would be provided by a link with Crossrail and the Heathrow Express, but the government had appointed Lord Mawhinney to assess the options for a potential station at Heathrow. As to the procedure it was stated, at p 9, point 17: That powers to deliver this proposed high speed rail network should be secured by means of a single Hybrid Bill, to be introduced subject to public consultation, environmental impact assessment and further detailed work on funding and costs to feed into decisions to be taken in the next Spending Review. Depending on Parliamentary timescales and approval, this could allow construction to begin after the completion of London's Crossrail line, opening from 2017, with the high speed network opening in phases from 2026. Following the general election in May 2010, the proposals were adopted by the new Coalition Government, but it was indicated that due to financial constraints it would be achieved in phases. In June 2010 Lord Macwhinney reported that there was no compelling case for a direct high speed link to Heathrow. In October 2010, following further work by HS2 Ltd, the Secretary of State announced the preferred option for north of Birmingham involving two separate corridors, one via Manchester and the other via the East Midlands (the Y network). In December the Secretary of State published details of the proposed route for Phase 1 between London and Birmingham. The proposed route included provision for a spur link to Heathrow Airport, to be built later at the same time as the lines to Leeds and Manchester. In February 2011, the government opened formal public consultation on the high speed rail proposals, including the proposed Y network, and the preferred route for Phase 1 from London to the West Midlands. There was a consultation report entitled High Speed Rail: Investing In Britain's Future, accompanied by an Appraisal of Sustainability, and other economic and technical studies. The Secretary of States foreword described the consultation as one of the largest and most wide ranging ever undertaken by Government. The government would announce the result of the consultation and final decisions on its strategy for high speed rail before the end of 2011. Among other responses, the 51M group submitted an extensive consultation response objecting to the principle of HS2, challenging the governments case on business and capacity grounds, expressing concerns over the environmental impact, and arguing that the Appraisal of Sustainability had not been properly carried out or consulted upon with regard to other alternatives. In particular it submitted that any necessary increase in capacity could be provided more cost effectively by an alternative proposal, known as the optimised alternative, based on improving existing lines and services. Camden Council submitted a separate response raising concerns about the impact on the community and infrastructure around Euston. HHL contended that the mainline of HS2 should run via Heathrow. On 10 January 2012, the Department for Transport published the DNS. It included confirmation of the government's high speed rail strategy and a summary of its decisions, a review of the consultation responses, and statement of the next steps. With regard to alternatives, it was noted that relatively few responses had discussed the merits of the proposed Y network, but so far as alternatives were put forward the government remained of the view for the reasons given previously that its proposal offered the most effective approach. Under the heading Alternatives to high speed rail, the paper considered options for upgrading the existing network, including the optimised alternative proposed by the 51M group. It was concluded that the approach of upgrading the existing network would be incapable of matching the scale of the benefits that could be provided by a new high speed rail line, although it accepted that such alternatives would be expected to have some advantages, such as lower sustainability impacts than entirely new lines, including smaller impacts on noise, landscape and townscape. The overall conclusion was that any sustainability and cost advantages are outweighed by the substantial disbenefits of enhancing existing lines (paras 3.77 3.92). The DNS set out the process by which the government intended to obtain development consent for HS2, namely through two Hybrid Bills in Parliament, the first for Phase 1 and the second for Phase 2. The DNS also stated that following consultation safeguarding directions would be issued under the planning laws to safeguard the Phase 1 route corridor adopted by the DNS from incompatible development. Consultation on safeguarding was started in October 2012 and completed in January 2013. On 9 July 2013, the Safeguarding Direction was made. The effect is that the Secretary of State will be notified if a local planning authority is minded to grant planning permission for any development which HS2 Ltd considers would conflict with the Phase 1 route corridor, and the Secretary of State has power to give directions restricting the grant of planning permission, either indefinitely or during such a period as may be specified. The making of the Safeguarding Direction also triggered the statutory blight procedures. Eligible property owners within the safeguarded area may serve a blight notice asking the Secretary of State to buy their property prior to it being needed for construction. A High Speed Rail (Preparation) Bill was introduced into the House of Commons on 13 May 2013 and received Royal Assent on 21 November 2013. It was described as a paving bill to enable the Secretary of State to incur essential expenditure on preparatory works to allow the construction programme to proceed as quickly as possible following Royal Assent for the main bill. Meanwhile, work on Phase 2 continued. Public consultation on the detailed route for Phase 2 of the Y network began on 17 July 2013. It took the form of a consultation paper (Consultation on the route from the West Midlands to Manchester, Leeds and beyond), with supporting documents. The proposals for Phase 2 were broadly in accordance with the Government's High Speed Rail Strategy as set out in the DNS. The paper states that the current intention is to bring forward a hybrid Bill for Phase 2 in the next Parliament, following the May 2015 General Election. Judicial Review The present proceedings were commenced in April 2012. Following a ten day hearing in December 2012, Ouseley J gave judgment on 15 March 2013. The judgment is a tour de force running to 844 paragraphs, and dealing with a wide range of issues, most of which happily are no longer in dispute. He upheld the claim in relation to certain aspects of the consultation process, but dismissed it on the issues relevant to the present appeal. The Court of Appeal (Lord Dyson MR, Richards and Sullivan LJJ) following a hearing in June 2013, gave judgment dismissing the appeal on 24 July 2013. I will need to return to the reasoning of the judgments below when considering the submissions before the Supreme Court. The issues before this court can be summarised as follows: i) SEA whether the DNS in the circumstances of HS2 is a plan or programme which sets the framework for development consent and was required by administrative provisions within the meaning of articles 2 3 of Directive 2001/42/EC (the SEA Directive). ii) Aarhus whether if the interpretation of the majority in the Court of Appeal is correct, article 3(2)(a) of the SEA Directive is inconsistent with article 7 of the Aarhus Convention, and if so with what consequences. iii) EIA/Hybrid Bill whether the Hybrid Bill procedure as proposed meets the requirements of Directive 2011/92/EU (the EIA Directive), taking account in particular that (a) issues of principle will be excluded from the Select Committee stage, and (b) the debate on the Bill at Second and Third Reading will be subject to a Government whip. iv) Timing whether the court should intervene at this stage, or whether the court should wait until the Parliamentary process is completed; v) CJEU reference whether any of the above questions raise uncertain issues of European law on which a reference should be made to the European court. Since the hearing the hybrid bill for Phase 1 has been introduced to Parliament and received its first reading on 25 November 2013. The issues relating to the parliamentary process (iii) and (iv) will be discussed by Lord Reed, with whose reasoning and conclusions I agree. The SEA Directive The relevant provisions of the directive and extracts from the authorities are quoted at length in the judgment of the Master of the Rolls. I can therefore be more selective. At issue is the interpretation of article 3 which provides: 1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects. 2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [the EIA Directive] . HS2 is such a transport project. By article 2(a) plans and programmes means plans and programmes which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions. Although not directly applicable, attention should be drawn also to articles 3.4 and 3.5, by which member states are required to determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects. In making that determination on a case by case examination, they are required to take into account the criteria set out in Annex II. Those criteria include: The characteristics of plans and programmes, having regard, in particular, to the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources, the degree to which the plan or programme influences other plans and programmes including those in a hierarchy, . We were referred to three relevant European authorities on the interpretation of the definition: (i) Terre wallonne ASBL and Inter Environnement Wallonie ASBL v Rgion wallonne (Joined Cases C 105/09 and C 110/09) [2010] ECR I 5611 (Terre wallonne) (ii) Inter Environnement Bruxelles ASBL v Rgion de Bruxelles Capitale (Case C 567/10) [2012] 2 CMLR 909 (I E Bruxelles) (iii) Nomarchiaki Aftodioikisi Aitoloakarnanias Ipourgos v Perivallontos, Khorotaxias kai Dimosion Ergon (Case C 43/10) [2013] Env. L. R. 453 (Grand Chamber) (Nomarchiaki) The debate in this court has centred on two parts of the definition: required by administrative provisions and set the framework for future development consent Required by administrative provisions As explained by the CJEU, the word required in this context means no more than regulated: I E Bruxelles para 31. But it is less clear how that concept applies to administrative, as opposed to legislative or regulatory, provisions. In Walton v The Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, at para 99, I said: There may be some uncertainty as to what in the definition is meant by 'administrative', as opposed to 'legislative or regulatory', provisions. However, it seems that some level of formality is needed: the administrative provisions must be such as to identify both the competent authorities and the procedure for preparation and adoption. The appellants submitted that the March 2010 Command Paper satisfied this part of the definition, since it determined the competent authority for adopting the plan and the procedure for preparing it. The majority in the Court of Appeal were inclined to agree, adopting a broad and purposive interpretation, but found it unnecessary to reach a decision on this point (para 71). Sullivan LJ held that this part of the definition was satisfied: although there were some changes to the procedure set out in the 2010 Command Paper, the process there described was in substance followed by the new government, and to that extent regulated the preparation and adoption of the DNS (paras 180 182). Mr Mould was disposed to accept that the 2010 Paper was at least arguably an administrative provision within this part of the definition, but not that it regulated the procedure in the formal sense. I am prepared to proceed on the assumption that Sullivan LJ was right on this point, or at least that there is a referable issue on the meaning of that part of the definition. I therefore turn to what emerged as the principal issue between the parties, that is the reference to a plan or programme which sets the framework for future development consent. Setting the framework The authorities Terre wallonne concerned an action programme adopted under article 5(1) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources. The issue was whether it fell within article 3(2)(a) of the SEA Directive on the basis that it set the framework for future development consent of intensive livestock installations (listed in Annexes I and II to the EIA Directive). As Advocate General Kokott explained (paras 60 67), the main issue for the court was how strongly the requirements of the plans or programmes must influence individual projects in order to come within the definition. This was against the background of arguments by certain member states that the framework must determine the location, nature or size (her emphasis) of projects requiring environmental assessment. She rejected that view as too narrow. She concluded: 67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources. In deciding that the definition did apply to the instant case she noted that under article 8 of the EIA Directive consideration must be given not only to direct effects of the planned works, but also to effects on the environment arising from their use, including in this case the effects on water quality resulting from intensive lifestock installations, and that therefore disposal of manure arising had to be considered (para 80). She concluded: In the context of such consideration, the framework set by the action programme has at least the effect that it must be possible for the installation to be operated in accordance with the provisions of the programme. At the same time, however, development consent can hardly be refused on grounds of the pollution of waters by nitrate from agriculture if the project complies with the rules of the programme. Certain alternatives, which are harmful to the environment as gauged by the objectives of the action programme, are thus excluded and others, which possibly afford water greater protection, do not have to be examined and taken into consideration. (para 82 emphasis added) As I read her opinion, the references to influence in the earlier paragraphs were to indicate that something less than a specific determination of the nature of the project would suffice. On the other hand, the latter paragraph shows that influence as such might not be enough; the critical factor was that consideration of certain environmental effects would in practice be excluded altogether. The court (paras 52 54) agreed with her as to the relevance of article 8 of the EIA Directive, and noted that under article 5(4) of Directive 91/676 action programmes must provide for a set of measures compliance with which can be a requirement for issue of the consent, including requirements for storage of livestock manure. It concluded: 54. In such a situation, the existence and scope of which it is nevertheless for the national court to assess in the light of the action programme concerned, it must be held that the action programme is to be regarded, in respect of those measures, as setting the framework for future development consent of projects listed in Annexes I and II of Directive 85/337 within the meaning of Article 3(2)(a) to Directive 2001/42. Accordingly, in answer to the relevant question, it held that an action programme adopted pursuant to article 5(1) of Directive 91/676 was in principle a plan or programme covered by article 3(2)(a) since it constituted a plan or programme within the meaning of article 2(a) and contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Council Directive 85/337. In I E Bruxelles, the court held that the repeal of a land use plan was capable of falling within the scope of the SEA Directive, even in the absence of any specific reference in its text to repeal (as opposed to modification). The court rejected a narrow interpretation as contrary to the objective of the directive to provide for a high level of protection of the environment (para 30): That interpretation would thus run counter to the directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures. (emphasis added) The same formula (emphasised in the above quotation) was adopted by the Grand Chamber in Nomarchiaki. The case concerned a controversial project for the diversion of the River Acheloos in western Greece, to serve the irrigation and energy needs of the region of Thessaly. One of many issues was whether it should be regarded as a plan or programme within the meaning of the SEA Directive. Differing from the Advocate General, the court said no, and dealt with the issue very briefly (para 95): It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (see, to that effect, [Inter Environnement Bruxelles and Others (Case C 567/10) [2012] CMLR 909, para 30)]. (emphasis added) The Court of Appeal In the Court of Appeal a joint judgment was given by the Master of the Rolls and Richards LJ. Having referred to the paradigm case of a statutory development plan, and building on the Advocate Generals discussion in Terre wallone, they spoke of the different degrees of influence which a plan might have: At one end of the spectrum is the plan or programme which conclusively determines whether consent is given and all material conditions. Such a plan or programme clearly sets the framework. It is an example of legal influence of highest order. At the other end of the spectrum is the plan or programme which identifies various development options, but which states that the decision maker is free to accept or reject all or any of the options. (para 54) In their view, however, it was not necessary for the plan to be legally binding: We would not rule out the possibility that a plan or programme may set the framework where it has sufficiently potent factual influence, but (as we shall explain) not where the decision maker is Parliament. If it is clear that the decision maker will follow the recommendations contained in a plan or programme and the measures are likely to have significant effects on the environment, then the mere fact that the decision maker is not legally obliged to make a decision in accordance with the plan or programme might not be a sufficient reason for holding that the plan or programme does not set the framework. But in our view, there must at least be cogent evidence that there is a real likelihood that a plan or programme will influence the decision if it is to be regarded as setting the framework (para 50, emphasis added) Applying the test as set out in the italicised words, they agreed with Ouseley J that the DNS was not within the definition. The DNS would have no legal influence on Parliament, which was not obliged to comply with it or even to have regard to it in reaching its decision. Nor was it appropriate or possible for the court to assess the degree of influence the DNS was likely to have as a matter of fact on Parliament's decision making process: Parliament is constitutionally sovereign and free to accept or reject statements of Government policy as it sees fit, and the court should not seek to second guess what Parliament will do. Moreover the decision whether to give consent to the project as outlined in the DNS is very controversial and politically sensitive. No final decision has yet been taken as to the form or length of debate that is to take place in Parliament. (para 56) Sullivan LJ was concerned that the majoritys interpretation would leave an undesirable gap in strategic environmental protection; governments would be able to avoid the need for strategic environmental assessment by promoting specific acts of legislation (paras 154 7). He applied the same test as the majority but disagreed as to the result. He considered that there was cogent evidence of a real likelihood that the DNS would influence Parliaments decision. In the present context (by contrast with that of the conventional development control process), he rejected as unrealistic a distinction between the role of the government as promoter of the scheme and its role in the Parliamentary decision making process: When considering the status of the DNS in the hybrid Bill procedure it must be recognised that the Government has a dual role. Having devised the plan the Government is not merely the promoter of the project, it will actively participate in the decision making process under the hybrid Bill procedure. Parliament is constitutionally distinct from the executive, but members of the Government are members of ParliamentThe well established collective ministerial responsibility will ensure that the plan prepared by the Government (the DNS) will in fact have a very significant influence on Parliament's decision making process in respect of a Government Bill. (para 173) convention of Drawing a parallel with the purposive approach of the CJEU to legislative decisions in the context of the EIA, he thought that the court should look at the substance and not simply the constitutional formality of the entire decision making process (para 174). The arguments in this court have broadly followed those summarised in the judgments of the Court of Appeal, and reflected in the respective views of the majority and minority. They have been developed at considerable length in the written and oral submissions to this court. I hope I will be forgiven for not attempting to summarise them further in this judgment. The difference between the parties in the end comes down to a relatively short point of construction of the directive and its application to the special facts of this case. Discussion Introductory comments In Lord Reeds judgment in Walton v Scottish Ministers [2013] PTSR 51, para 10ff, there is a detailed discussion of the evolution and general purpose of the relevant directives. It is unnecessary to repeat it here. He cited in particular (para 12 of that judgment) the helpful discussion by Advocate General Kokott (in Terre wallone, points 31 32) of the evolution of the SEA Directive to fill a perceived gap in the EIA regime: The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context. He referred also (para 14 of that judgment) to an extract from the European Commissions first report on the application of the SEA Directive ((COM(2009) 469 final, para 4.1): The two Directives are to a large extent complementary: the SEA is 'up stream' and identifies the best options at an early planning stage, and the EIA is 'down stream' and refers to the projects that are coming through at a later stage. In theory, an overlap of the two processes is unlikely to occur. However, different areas of potential overlaps in the application of the two Directives have been identified. In particular, the boundaries between what constitutes a plan, a programme or a project are not always clear, and there may be some doubts as to whether the 'subject' of the assessment meets the criteria of either or both of the Directives. It should be borne in mind also that, although the expression strategic is commonly used in shorthand descriptions of the directive, it is not a word that appears in the text. The correct title is Directive on the assessment of the effects of certain plans and programmes on the environment. It is not therefore to be assumed, as some of Mr Elvins submissions seemed to imply, that because a project is strategic in nature (as HS2 undoubtedly is) the presumption must be in favour of assessment under this directive. The purpose is more specific, that is to prevent major effects on the environment being predetermined by earlier planning measures before the EIA stage is reached. Against that background, and unaided by more specific authority, I would have regarded the concept embodied in article 3.2 as reasonably clear. One is looking for something which does not simply define the project, or describe its merits, but which sets the criteria by which it is to be determined by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects. That approach is to my mind strongly supported by the approach of the Advocate General and the court to the facts of Terre wallone and by the formula enunciated in I E Bruxelles and adopted by the Grand Chamber in Nomarchiaki. In relation to an ordinary planning proposal, the development plan is an obvious example of such a plan or programme. That is common ground. Even if as in the UK it is not prescriptive, it nonetheless defines the criteria by which the application is to be determined, and thus sets the framework for the grant of consent. No doubt the application itself will have been accompanied by plans and other supporting material designed to persuade the authority of its merits. In one sense that material might be said to set the framework for the authoritys consideration, in that the nature of the application limits the scope of the debate. However, no one would for that reason regard the application as a plan or programme falling within the definition. In principle, in my view, the same reasoning should apply to the DNS, albeit on a much larger scale. It is a very elaborate description of the HS2 project, including the thinking behind it and the governments reasons for rejecting alternatives. In one sense, it might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result. But it does not in any way constrain the decision making process of the authority responsible, which in this case is Parliament. As Ouseley J said: 96. The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here. With respect to Sullivan LJ, I do not think that position is materially changed by what he called the dual role of government. Formally, and in reality, Parliament is autonomous, and not bound by any criteria contained in previous government statements. I have noted that the majority and the minority in the Court of Appeal adopted the same test, turning on the likelihood that the plan or programme would influence the decision. The majority referred to the possibility of the plan having a sufficiently potent factual influence (para 55). Although Mr Mould generally supported the reasoning of the majority, he submitted that influence in the ordinary sense was not enough. The influence, he submitted, must be such as to constrain subsequent consideration, and to prevent appropriate account from being taken of all the environmental effects which might otherwise be relevant. In my view he was right to make that qualification. A test based on the potency of the influence could have the paradoxical result that the stronger the case made in favour of a proposal, the greater the need for strategic assessment. Setting a framework implies more than mere influence, a word which is not used by the court in any of the judgments to which we have been referred. It appears in annex II of the directive, but only in the different context of one plan influencing another. In Terre wallone Advocate General Kokott spoke of influence, but, as already noted, that was by way of contrast with the submissions before her which suggested the need for the plan to be determinative. Finally, Mr Elvin pointed to the fact that the DNS had specific legal consequences, notably in the safeguarding direction, and the consequent application of the related blight provisions, and also in providing the basis for the paving Bill, and for the allocation of resources under it. I accept that these points provide an arguably material distinction from the supporting material for a conventional planning application. However, they do not imply any further constraint on Parliaments consideration of the environmental impacts of the project as a whole, under the hybrid Bill procedure. Practical consequences Sullivan LJ was concerned that the majoritys interpretation would leave a gap in the environmental protection provided by the directives. It is helpful to consider this concern in the context of the facts of the present case. The governments case from the beginning has been that the SEA Directive has no application because neither the DNS, nor anything which preceded it, was a plan or programme as there defined. They accept however that as a project within the meaning of the EIA Directive it must be subject to environmental assessment in a modified form adapted to the proposed legislative procedure (as discussed by Lord Reed). It is common ground, as I understand it, that the difference between the two procedures is significant principally in relation to the treatment of alternatives. The respective requirements are: i) SEA Directive Article 5 provides that the environmental report must identif[y] describ[e] and evaluat[e] the likely significant effects on the environment of implementing both the plan or programme itself, and reasonable alternatives. Annex 1 sets out the information to be given, including an outline of the reasons for selecting the alternatives dealt with and a description of how the assessment was undertaken. ii) EIA Directive Article 5 requires the statement to include the information specified in annex IV, which includes simply an outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects. The reasons for this difference are not obvious. It may simply reflect the different stages at which the two exercises are carried out. At the earlier stage of strategic assessment neither the proposed plan nor the alternatives will need to have been worked up to the same degree of detail as will be appropriate at the EIA stage. At the latter stage to require an equivalent degree of detail for the rejected alternatives may be seen as unduly burdensome. In any event, it was not in dispute between the parties that the treatment of alternatives required under the SEA Directive is more detailed than under the EIA, and that it was not satisfied in this case. It is also common ground that compliance with the SEA Directive at this stage would be possible, but that it would involve significant delay. Mr Mould on instructions, and without dissent, spoke of an added delay of six months to a year. There is also a measure of agreement as to what such additional consideration would involve. Ouseley J considered whether, in spite of the governments position that such treatment was unnecessary, substantial compliance had been achieved (paras 160 172). In a passage the reasoning of which has not been challenged before this court, he concluded that it had not been achieved, for reasons essentially related to the Y network and its alternatives, and the spurs to Heathrow. On the other hand, as Mr Mould emphasises, he took a different view in relation to Phase 1 in respect of which, viewed on its own, he would have found substantial compliance with the SEA Directive (para 168). Furthermore, in his view, even if the SEA Directive had applied, it would not have required more detailed consideration of alternative strategies based on improvements to the existing network, such as the optimised alternative: The Government concluded that alternative strategies for motorways or a new conventional or enhanced existing rail network were not capable of meeting the plan objectives set for high speed rail. It is obviously a contestable view as to whether those objectives should be met, or can be met to a large extent by means other than a new high speed rail network. These alternative strategies could not, however, have constituted reasonable alternatives to the plan for assessment in the SEA, since they are incapable by their very nature of meeting all the objectives for a new high speed rail network. The sifting process whereby a plan is arrived at does not require public consultation at each sift. This whole process has been set out in considerable detail in the many published documents for those who wished to pursue it, but it did not all have to be in an SEA. (para 162) On that view, which was not challenged before us, application of the SEA Directive would result in more detailed consideration of alternatives such as the reverse S and reverse E configurations, but not of the optimised alternative. Since the optimised alternative is the only one for which the parties before us have expressed any positive support, the SEA process as such may not meet their particular needs (save possibly in respect of HHLs interest in the Heathrow Spur alternatives, although we were told that that aspect is affected by the current study of future airport capacity under Sir Howard Davies). Miss Lieven suggested that the strategic significance of the optimised alternative might require reassessment in the light of more recent ministerial statements about the objectives of HS2. That cannot in my view affect our consideration of the present appeals, which are concerned with the procedural requirements for the DNS at the time it was made. On the other hand, nothing in the DNS prevents arguments and evidence relating to the governments present intentions being presented to Parliament within the current decision making process. This indeed illustrates the practical importance of the distinction, in the context of the SEA Directive, between merely influencing subsequent consideration, and setting limits on the scope of what can be considered. Until Parliament has reached its decision, the merits of all aspects of the HS2 project, on economic, environmental and other grounds, remain open to debate. Aarhus It is convenient at this point to deal briefly with Mr Elvins related argument under article 7 of the Aarhus Convention. That article requires provision to be made for the public to participate in the preparation of plans and programmes relating to the environment. It is to be noted that this article refers to plans and programmes in general, without the qualifications found in the SEA Directive definition. It is not suggested, having regard to the extent of public consultation which has already taken place on the HS2 project, that there has been any breach of this requirement taken on its own, even assuming the DNS to be a plan or programme within the meaning of this article. Instead the argument, as I understand it, is that the SEA Directive must be interpreted in such a way as to ensure conformity with the Convention, which in turn requires that any plans or programmes covered by article 7 are also subject to the SEA procedure. The majority of the Court of Appeal rejected this argument. They said (para 63): our conclusion that the DNS is not a plan or programme setting the framework for future development consent does not in our view involve any incompatibility with article 7. If a plan or programme does not set the framework, it is difficult to see how article 7 can have been intended to apply to it. In such a case, the requisite degree of public participation can be achieved through compliance with the requirements of the EIA Directive in the development consent procedure for a specific project. Sullivan LJ was unpersuaded by this reasoning. He thought that consultation under the EIA Directive was an inadequate response to article 7, because by that time strategic alternatives will have been foreclosed by the legislative process and the pass will have been sold. (para 178) To my mind there is a more fundamental objection to Mr Elvins argument. There is no reason to assume that article 7 and the SEA Directive are intended to cover exactly the same ground. The differences in wording are clear and must be assumed to be deliberate. Indeed the UNECE guidance on the Convention (The Aarhus Convention: An Implementation Guide 2nd Ed 2013 p 118 119) accepts that its reference to plans and programmes relating to the environment is broader than the equivalent definition in the SEA Directive. The SEA Directive must be interpreted and applied in its own terms. If this falls short of full compliance with the Aarhus Convention, it does not invalidate the directive so far as it goes. It simply means that a possible breach of the Convention may have to be considered as a separate and additional issue. In the present case the point is academic because no such breach is alleged. CJEU reference It will be apparent from what I have said that I do not find it necessary to make a reference to the CJEU in this case. I am conscious of the disagreement between the very experienced members of the Court of Appeal. However, they differed principally not on the formulation of the test, but on its application to the facts of the case, and in particular to the workings of the parliamentary process under domestic law. Although I have taken a rather different view of the appropriate legal test, that is because I have attached more importance to the guidance contained in the words of the court itself in the trilogy of cases to which I have referred. This seems to me the kind of case which Advocate General Jacobs had in mind when (in Case C 338/95 Wiener S.1. GmbH v Hauptzollamt Emmerich [1997] ECR I 6495, para 61) he referred to the emergence of a body of case law developed by the CJEU to which national courts and tribunals can resort in resolving new questions of Community law: Experience has shown that that case law now provides sufficient guidance to enable national courts and tribunals and in particular specialised courts and tribunals to decide many cases for themselves without the need for a reference . That approach is also reflected in the recommendation issued by the court in September 2012, to which Lord Sumption has referred. Conclusion For these reasons, and those given by Lord Reed on the issues covered in his judgment, I would dismiss the appeals. LORD REED (with whom Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Sumption and Lord Carnwath agree) Hybrid bill procedure and the EIA Directive As Lord Carnwath has explained, the appeal brought by the London Borough of Hillingdon and nine other local authorities raises the question whether the hybrid bill procedure, under which Parliament is being invited to authorise the HS2 project by Acts of Parliament, is compliant with the requirements of the Environmental Impact Assessment Directive (Directive 2011/92/EU, OJ 2012, L 26/1, the EIA Directive). In particular, the appellants seek the quashing of the Governments decision, announced in the DNS, to pursue a hybrid bill for each phase of the Y network, and to introduce a hybrid bill by the end of 2013 to provide the necessary powers to construct and operate Phase 1. The question is also raised, on behalf of the respondents, whether it is appropriate for the court to consider the compatibility of the Parliamentary procedure with the EIA Directive at the present stage, or whether that issue should be considered only after the Parliamentary procedure has been completed. It is convenient to consider those questions together, as they are to some extent inter related. Hybrid bill procedure It may be helpful at the outset to explain what is meant by hybrid bill procedure. A hybrid bill shares certain characteristics of a public bill and a private bill. The Speaker has defined a hybrid bill as "a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class" (Hansard (HC Debates), 10 December 1962, col 45). This hybrid character influences the Parliamentary procedure: a hybrid bill proceeds as a public bill, with a second reading, committee report and third reading, but with an additional select committee stage after the second reading in each House, at which objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the bill and be heard. Parliamentary standing orders make provision for those persons who have standing to lodge a petition. It is for Parliament and not the Government to determine the Parliamentary procedure for a hybrid bill laid before it. It is however a matter of agreement between the parties that, in the case of the hybrid bill for Phase 1 of HS2, the principle of the bill will be set upon the bills receiving a second reading following debate, subject to the Government whip, in the House of Commons. It is expected that the principle of the bill will extend to a high speed rail line running between London, Birmingham and the West Midlands, with its central London terminus at Euston and a link to HS1 (ie the Channel Tunnel Rail Link). It is also common ground that the established convention is that a select committee for a hybrid bill cannot hear petitions which seek to challenge the principle of the bill, unless instructed to do so by the House at second reading (Erskine Mays Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed (2011), ed Jack, p 656). Under the Parliamentary procedures as currently envisaged by the Government, matters that go to the principle of the bill will not be considered by the select committee. Such matters would be expected to include the business case for HS2, alternatives to the high speed rail project and alternative routes for Phase 1. The principle of the bill could in theory be re opened at third reading, but that debate also will be subject to the Government whip. The relevant standing orders In order to understand the arguments, it is also necessary to note the relevant Parliamentary standing orders (SOs). SO 27A for Private Business requires that a bill authorising the carrying out of works the nature and extent of which are specified in the bill must be accompanied by an environmental statement, which must be available for inspection and for sale at a reasonable price. The environmental statement must contain the information required by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824), the 2011 Regulations), which transpose the requirements of the EIA Directive, so far as affecting applications for planning permission, into English law. SO 224A, which was introduced in June 2013 after the hearing of the appeal in the Court of Appeal, requires that upon the deposit of the bill a notice must be published stating that any person who wishes to make comments on the environmental statement should send those comments to the minister responsible for the bill. The minister must publish and deposit the comments received, and submit them to an independent assessor appointed by the Examiner of Petitions for Private Bills. The assessor is then to prepare a report summarising the issues raised by those comments. The report must be submitted to the House at least 14 days prior to second reading. At third reading the minister must set out the main reasons and considerations upon which Parliament is invited to consent to the project and the main measures to avoid, reduce and if possible offset the project's major adverse effects. A written statement must be laid before the House not less than seven days before third reading. The House of Lords has made corresponding arrangements under SO 83A. Finally, by way of introduction, it is necessary to consider the role of Government whips. In that regard, although the argument on behalf of the appellants was largely concerned with the implications, for the purposes of assessing compliance with the EIA Directive, of the fact that votes on the bill are intended to be subject to the Government whip, the court was not provided with any authoritative account of how the whip operates. In general terms, the Government whips are ministers responsible for fitting the Governments programme of business into the time available during the session. The Opposition parties also have whips, who are members of either House, appointed by their party in Parliament to help organise their partys contribution to Parliamentary business. The term is derived from hunting: a whipper in is a huntsmans assistant, who drives straying hounds back to the pack using a whip. One of the whips duties is to see that their parties are as fully represented as possible at important votes or divisions, and, in the Commons, to arrange pairs for members who wish to be absent (a pair being a member of the opposite party who also wishes to be absent). Each week they send a circular to their Members of Parliament or peers, detailing the forthcoming Parliamentary business. Items underlined once are considered routine and attendance is optional. Those underlined twice are more important and attendance is expected unless a pair has been arranged. Items underlined three times, such as second readings of significant bills, are highly important. The failure of Government backbenchers to attend a vote with a three line whip, or their voting contrary to Government policy on such an occasion, may have disadvantageous consequences for them within their party, including in extreme circumstances the possibility of suspension from the Parliamentary party. In that event the member keeps his seat but sits as an independent until the whip is restored. In practice, Members of Parliament have to consider a range of factors besides the guidance of the whips. For example, in relation to controversial developments affecting their constituencies, Members of Parliament have to consider the views of their constituents: if they fail to do so, they may lose their constituents support, and may in consequence be liable to lose their seat at the next election. Although Government backbenchers generally support Government policies, failures to vote in accordance with the whip are not infrequent. One recent study found that Members of Parliament on the Government benches had voted against the whip in 43% of divisions during the first 18 months of the current Government: P Cowley and M Stuart, A Coalition with Two Wobbly Wings: Backbench Dissent in the House of Commons, (2012) Political Insight, 3, pp 8 11. It also has to be borne in mind that the apprehension of backbench dissent may result in changes to proposed legislation, so as to ensure that the Government will not be defeated. A study of the Government elected in 2001 carried out by Professor Philip Cowley of the University of Nottingham, for example, concluded that the fact that it had never suffered a defeat on a whipped vote could hardly be seen as evidence of parliamentary impotence From the very beginning, the 2001 Parliament saw the Government give ground to its backbench critics on measure after measure, including on almost all major policy initiatives: Cowley, The Rebels: How Blair Mislaid His Majority (2005), pp 242 243. The same study commented that to focus on the weakness of Members of Parliament and the disciplinary power of the whips was a quite monumental failure to understand the realities of parliamentary life (op cit, p 48). In some circumstances, it may in any event be impractical for the Government to proceed with a project without the support of the Opposition, as well as that of its own backbenchers. That may be the position, for example, where the period of time over which substantial Government resources require to be committed will extend beyond the Parliament during which the necessary legislation is enacted. In such a situation, there may be little purpose in obtaining Parliamentary approval for a project unless there is confidence that a future government, even if of a different party, will continue to support the project as so approved. Whether the HS2 project might be in that position, as has been suggested in public debate on the issue, was not addressed in the submissions. In relation to voting in Parliament, it is also relevant to note the convention that members of the Government do not vote against Government legislation. If they do so, they are generally expected to resign, failing which they may be dismissed. Their loss of office does not affect their position as Members of Parliament. The appellants argument At the hearing of the appeal, which was held before the bill for Phase 1 was introduced into Parliament, the appellants argued as follows. The Government intends to seek development consent for HS2 through hybrid bills in Parliament, without going through all the procedures required by the EIA Directive. The Government relies on the exemption granted by article 1(4): This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process. As construed by the Court of Justice, however, that provision applies only where the objectives of the Directive are fulfilled by the legislative process. In order to achieve the objectives of the EIA Directive, it is argued, the Parliamentary procedure must allow effective public participation, as required by article 6(4): The public concerned shall be given early and effective opportunities to participate in the environmental decision making procedures referred to in article 2(2) and shall for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken. The procedure must therefore permit the public to produce information demonstrating why the HS2 project should not proceed, and that information must be capable of influencing the outcome of the decision making process. In particular, these appellants must be able to provide information about their proposal for the optimised alternative, and Members of Parliament must be able to consider it and to be influenced by it. It is however not possible, it is argued, for there to be effective public participation under the procedure envisaged. The Government has already taken the critical decision to accept the economic case for HS2 and to reject the optimised alternative. The bill for Phase 1 will reflect that decision. Parliament will be asked to approve the principle of the bill at second reading. It will have available to it an environmental statement prepared on behalf of the Secretary of State. It will also have available to it the comments on the environmental statement and the assessors summary of those comments. The Secretary of State has however confirmed in correspondence that the vote at the conclusion of the debate will be subject to the whip. Ministers will face the alternatives of resignation or dismissal from office if they vote against the bill. Backbenchers will risk disciplinary sanctions. The effect of the whip and of collective ministerial responsibility, it is argued, is therefore that ministers and backbenchers will be unable to give proper consideration to the environmental information when examining or debating the bill. Both the imposition of the Government whip, and collective ministerial responsibility, are incompatible with the EIA Directive, since they necessarily render public participation ineffective. Furthermore, it is argued, the environmental information which will be provided to Parliament in respect of HS2 is so voluminous and complex that Members of Parliament cannot possibly consider it properly following the procedure envisaged. The draft environmental statement prepared on behalf of the Secretary of State extends to 27 volumes. The material produced by these appellants, relating to the optimised alternative, is also substantial and detailed. There is no requirement that Members of Parliament should read the environmental statement, the non technical summary which it contains, or the summary of consultation responses, before voting. It is implausible to suggest that all or even a majority of Members of Parliament who vote on the bill will have done so. A second reading debate will not in any event allow a proper examination of the material to take place. Such a debate is likely to last only one or two days. There is no requirement that Members of Parliament should be present in the Chamber during the debate, and it would be implausible to suggest that the majority of Members who vote on the bill will have been present. The subsequent examination of the bill by a select committee will not, it is argued, involve any consideration of the principle of the bill, and therefore will not involve consideration of alternatives to HS2 or of the economic case for the project. Any argument that the environmental impact as set out in the environmental statement should outweigh the need for HS2 will not be considered by the select committee. The final vote on the bill at third reading will again be subject to the whip. Put shortly, it is argued that the effect of (1) the whipping of the vote at second and third readings, (2) the limited opportunity which is provided by a debate in Parliament for the examination of the environmental information, and (3) the limited remit of the select committee following second reading, is to prevent effective public participation, contrary to article 6(4) of the EIA Directive. At the least, it is argued, the question whether the proposed procedure is compliant with the EIA Directive is not acte clair, and should therefore be the subject of a reference to the Court of Justice. It is argued that this is a matter on which the court should rule now. The critical decision which is subject to challenge is not any decision of Parliament, but the decision of the Government to promote a hybrid bill and to impose a whip upon its progress through Parliament. Although the Parliamentary procedure is capable of being changed, the Government has no intention of seeking any such change. It is in addition obligatory under article 6(2) of the EIA Directive that the public should be informed early in the decision making process of the procedure to be followed. That provision states: The public shall be informed, whether by public notices or by other appropriate means such as electronic media where available, of the following matters early in the environmental decision making procedures referred to in article 2(2) and, at the latest, as soon as information can reasonably be provided: (g) details of the arrangements for public participation made pursuant to paragraph 5 of this article. It is argued that it is in any event preferable, and consistent with the objectives of the Aarhus Convention, that this issue should be considered by the court before the substantial time and expense involved in the Parliamentary proceedings have been incurred by the appellants and others. Judicial scrutiny of the Parliamentary procedure cannot be avoided in the event that a bill is passed following the procedure proposed, since the courts cannot in that event avoid determining whether the requirements of the EIA Directive have been satisfied. That follows from article 11(1), which provides: Member states shall ensure that, in accordance with the relevant national legal system, members of the public concerned: (a) having a sufficient interest, or alternatively; (b) maintaining the impairment of a right, where administrative procedural law of a member state requires this as a precondition; have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive. The respondents argument On behalf of the respondents, it was contended that the court could not determine in advance whether the quality of the Parliamentary proceedings would meet the requirements of article 1(4) of the EIA Directive, as construed by the Court of Justice. In view of the requirements of SO 27A and SO 204A, the hybrid bill procedure was in principle capable of meeting those requirements. The appellants contentions to the contrary were based merely on assertion. Whether Members of Parliament had in fact given effective scrutiny to the bill and taken account of public representations and comments would fall to be considered by the court, if called upon to do so, after the legislation had been enacted, in the light of the Parliamentary debates. At the same time, if the court considered that there were inherent defects in the procedure currently contemplated, it would be helpful for it to say so. Constitutional issues The argument presented on behalf of the appellants as to the implications of the EIA Directive, if well founded, impinges upon long established constitutional principles governing the relationship between Parliament and the courts, as reflected for example in article 9 of the Bill of Rights 1689, in authorities concerned with judicial scrutiny of Parliamentary procedure, such as Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710; 1 Bell 252, Lee v Bude and Torrington Junction Railway Co (1871) LR 6 CP 576, Pickin v British Railways Board [1974] AC 765 and Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816, and in other cases concerned with judicial scrutiny of decisions whether to introduce a bill in Parliament, such as R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin). Neither the Bill of Rights nor any of the authorities I have mentioned was however referred to in the parties printed cases; nor was this issue mentioned before us until it was raised by the court. Nevertheless, it follows that the appellants contentions potentially raise a question as to the extent, if any, to which these principles may have been implicitly qualified or abrogated by the European Communities Act 1972. Contrary to the submission made on behalf of the appellants, that question cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act. If there is a conflict between a constitutional principle, such as that embodied in article 9 of the Bill of Rights, and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom. Nor can the issue be resolved, as was also suggested, by following the decision in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603, since that case was not concerned with the compatibility with EU law of the process by which legislation is enacted in Parliament. In the event, for reasons which I shall explain, it is possible to determine the appeal without requiring to address these matters. National legislation and the EIA Directive The EIA Directive was adopted in its original form in 1985 (Directive 85/337/EEC, OJ 1985, L 175/40). Since then it has been significantly amended by further directives, including the Public Participation Directive (Directive 2003/35/EC, OJ 2003, L 156/17). I shall refer to the EIA Directive as codified in 2011 (Directive 2011/92/EU, OJ 2012, L 26/1). Article 1(4) of the EIA Directive (originally numbered 1(5)) has already been quoted, but it is convenient to remind oneself of its terms: This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process. It might have been thought, in the light of that provision, that the Directive would not apply to the HS2 project if its details were adopted by a specific Act of Parliament. The Court of Justice has however given article 1(4) what might diplomatically be described as a purposive interpretation: in effect, since has been construed as meaning provided that. A Grand Chamber of the Court explained how article 1(4) was to be understood in Case C 43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and others [2013] Env LR 453. After quoting article 1(4), the court continued: 78. It follows from that provision that, where the objectives of Directive 85/337, including that of supplying information, are achieved through a legislative process, that directive does not apply to the project in question (see Case C 287/98 Linster [2000] ECR I 6917, para 51; Joined Cases C 128/09 to C 131/09, C 134/09 and C 135/09 Boxus and others [2011] ECR I 0000, [[2012] Env LR 320], para 36; and Case C 182/10 Solvay and others [2012] ECR I 0000, [[2012] Env LR 545], para 30). 79. That provision lays down two conditions for the exclusion of a project from the scope of Directive 85/337. The first requires the details of the project to be adopted by a specific legislative act. Under the second, the objectives of the directive, including that of supplying information, must be achieved through the legislative process (see Case C 435/97 WWF and others [1999] ECR I 5613, para 57; Boxus and others, para 37; and Solvay and others, para 31). In the present case, there is no dispute that the first of these conditions, as explained in greater detail by the court at paras 80 82 of its Nomarchiaki judgment, is capable of being satisfied through the proposed Parliamentary procedure. The appeal focuses upon the second condition. It is argued that the hybrid bill procedure is not capable of achieving the objectives of the EIA Directive. The Court of Justice has considered the second condition on a number of occasions, and in its judgments has often repeated the same paragraphs, with minor variations. The most recent exposition is contained in the Nomarchiaki judgment. In paragraph 83, the court identified the fundamental objective of the EIA Directive: 83. As regards the second condition, it is clear from article 2(1) of Directive 85/337 that the fundamental objective of the Directive is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their environmental effects before consent is given (see Case C 287/98 Linster [2000] ECR I 6917, para 52; Joined Cases C 128/09 to C 131/09, C 134/09 and C 135/09 Boxus and others [2011] ECR I 0000, [[2012] Env LR 320], para 41; and Case C 182/10 Solvay and others [2012] ECR I 0000, [[2012] Env LR 545], para 35). The fundamental objective is thus the assessment of the environmental effects of projects before consent is given. assessment must be conducted: In paragraph 84, the court identified the basis upon which the 84. In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question (see Case C 435/97 WWF and others [1999] ECR I 5613, para 61; Linster, paragraph 53; Boxus and others, para 42; and Solvay and others, para 36). The assessment must therefore be based upon appropriate information. to national legislatures: In paragraphs 85 and 86, the court explained how that approach applied 85. Consequently, the national legislature must have sufficient information at its disposal at the time when the project is adopted. In accordance with article 5(3) of Directive 85/337 and Annex IV thereto, the minimum information to be supplied by the developer is to include a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data required to identify and assess the main effects which the project is likely to have on the environment (see Boxus and others, para 43, and Solvay and others, para 37). 86. There is however nothing to prevent the national legislature, when adopting a project, from using information gathered as part of an earlier administrative procedure and the EIA produced in that connection, provided that the EIA is based on information and knowledge that are not out of date. The EIA, which must be carried out before the decision making process, involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data (see Case C 50/09 Commission v Ireland [2011] ECR I [873], para 40). The legislature must therefore have appropriate information at its disposal at the time when the project is adopted. In paragraphs 88 and 89 the court made some additional observations: However, a legislative act which does no more than simply ratify a pre existing administrative act, by merely referring to overriding reasons in the public interest, without the prior initiation of a substantive legislative process enabling the conditions stated in paragraph 79 of this judgment to be fulfilled, cannot be regarded as a specific legislative act within the meaning of article 1(5) of Directive 85/337 and is not therefore sufficient to exclude a project from the scope of that directive (see Boxus and others, para 45, and Solvay and others, para 39). In particular, a legislative act adopted without the members of the legislative body having had available to them the information mentioned in paragraph 85 of this judgment cannot fall within the scope of article 1(5) of Directive 85/337 (see Boxus and others, para 46, and Solvay and others, para 40). The references in those paragraphs to article 1(5) refer to the provision in Directive 85/337 corresponding to article 1(4) of the codified EIA Directive. It is clear from paragraph 88 that article 1(4) requires a substantive legislative process, rather than the mere ratification of an administrative decision. In other words, the decision must in reality be that of the legislature: its role must not be merely formal. Paragraph 89 reiterates the requirement that appropriate information should be available to the members of the legislative body. 88. Finally, in relation to this judgment, the court made clear in paragraph 90, as it had in its previous judgments, the responsibility of national courts to apply these principles to the legislation passed by their national legislatures: It is for the national court to determine whether those conditions have been satisfied. For that purpose, it must take account of both the content of the legislative act adopted and the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates (see Boxus and others, para 47, and Solvay and others, para 41). It is therefore for national courts, not the Court of Justice, to determine whether the conditions laid down by the court in that judgment have been satisfied in a particular national context: in particular, in relation to the second condition, whether the decision to adopt the project was the outcome of a substantive legislative process, and whether appropriate information was available to the members of the legislature at the time when the project was adopted. 89. In relation to the requirement that there should be the possibility of review by the national court, it is also relevant to note the Grand Chamber judgment in Case C 135/09 Boxus and others [2011] ECR I 9711; [2012] Env LR 320. In its judgment, the court stated at para 50 that neither the EIA Directive nor the Aarhus Convention applied to projects adopted by a legislative act satisfying the two conditions laid down by the court. The obligation imposed by article 11 of the Directive applied to other projects: that is to say, those adopted either by an act which was not legislative in nature or by a legislative act which did not fulfil those conditions (para 51). It follows that the reliance placed by the appellants in the present case upon article 11 of the Directive begs the question whether the proposed procedure would be incompatible with article 1(4): it is only if it is incompatible with that provision that article 11 applies. 90. At the same time, the Court of Justice also made it clear in its Boxus judgment that there must be the possibility of review of whether the conditions laid down by the court are satisfied. In that regard, the court stated at paras 54 55: 54. The requirements flowing from article 9 of the Aarhus Convention and article 10a of Directive 85/337 presuppose in this regard that, when a project falling within the ambit of article 6 of the Aarhus Convention or of Directive 85/337 is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in article 1(5) of that directive and set out in paragraph 37 of the present judgment must be amenable to review, under the national procedural rules, by a court of law or an independent and impartial body established by law. 55. If no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous paragraph and, as the case may be, drawing the necessary conclusions by disapplying that legislative act. Articles 1(5) and 10a of Directive 85/337 correspond to articles 1(4) and 11 respectively of the EIA Directive in its codified form. The acceptance by the Court of Justice in para 50 of its Boxus judgment that the EIA Directive does not apply to projects adopted by a legislative act satisfying the two conditions set by the court has important implications for the submissions made on behalf of the appellants in the present case. Those submissions took as their premise that Parliamentary procedure must comply with the requirements of the Directive, and in particular with the requirements of article 6. They appeared to overlook the fact that the whole point of article 1(4) is to exempt legislation falling within its scope from those requirements. Exemption from the requirements of the Directive cannot be conditional upon compliance with them: otherwise, there would be no exemption. In particular, article 6(4) cannot apply to projects which are exempted from its requirements by article 1(4). As Advocate General Sharpston explained in the case of Boxus at point 56 of her opinion: Where a decision is reached by a legislative process, however, such public participation already exists. The legislature itself is composed of democratically elected representatives of the public. When the decision making process takes place within such a body, it benefits from indirect, but nevertheless representative, public participation. Is the application premature? In my view it is appropriate to consider the appellants contentions at the present stage, rather than waiting until legislation may have been enacted. In taking that view, I do not however accept all the arguments advanced in that regard on behalf of the appellants: in particular, the arguments based on articles 6(2) and 11(1) of the EIA Directive. The principal advantages of considering the appellants contentions at the present stage are practical. It is not in dispute that the Parliamentary procedure will be costly and time consuming. It is plainly convenient to have the point of law as to the effect of the EIA Directive, as a matter of EU law, decided before further time and expense are incurred on the basis, if the appellants are correct, of a mistaken understanding by Government. I am mindful of the importance of refraining from trespassing upon the province of Parliament or, so far as possible, even appearing to do so. The court can however consider the effect of the Directive under EU law without in my opinion affecting or encroaching upon any of the powers of Parliament. The Parliamentary authorities have not thought it necessary to seek to intervene in these proceedings, although the court was told that they have been kept informed of the parties cases. No bill or draft bill has been placed before the court. Nothing the court does or says at this stage will affect the supremacy of Parliament in respect of any bill presented to it; nor will it affect the power of the Secretary of State, or any other Member of Parliament, to present to Parliament whatever bill he thinks fit. Nor is it necessary for the court to express any view, let alone take any action, concerning any decision to lay any bill before Parliament or concerning Parliaments approving such a bill. The court can in my opinion resolve the issue raised by the appellants by performing its ordinary duty to interpret legislation. The only unusual feature is that the court is arguably doing so before any action falling within the ambit of that legislation has yet been taken. As was observed by Sir John Donaldson MR in R v HM Treasury, Ex p Smedley [1985] QB 657, 667, in relation to a challenge to a draft Order in Council: In many, and possibly most, circumstances the proper course would undoubtedly be for the courts to invite the applicant to renew his application if and when an order was made, but in some circumstances an expression of view on questions of law which would arise for decision if Parliament were to approve a draft may be of service not only to the parties, but also to each House of Parliament itself. The present case is of course concerned with a proposal to seek Parliamentary approval of a bill rather than a draft Order in Council; and there is in consequence a prior constitutional question, as I have explained, as to whether the issues of law raised by the appellants would indeed arise for decision in the event that the bill were to be enacted. In that respect, this case is distinguishable from Ex p Smedley, and from the analogous case of R v Electricity Commissioners, Ex p London Electricity Joint Committee (1920) Ltd [1924] 1 KB 171. The approach adopted in those cases nevertheless has much to recommend it in the present circumstances. Adopting the words of Younger LJ in the case of the Electricity Commissioners at p 213, the interference of the court in such a case as this, and at this stage, so far from being even in the most diluted sense of the words a challenge to its supremacy, may be an assistance to Parliament. If, on the other hand, the appellants contentions were not considered until after legislation had been enacted, those contentions would necessarily be directed against the compatibility with the Directive of the proceedings in Parliament which had led to the enactment. In particular, the appellants arguments, if reflecting those which the court has heard in this appeal, would focus upon the adequacy of the consideration of the environmental information by Members of Parliament, and the factors which might have influenced the way in which they voted. Unless authorised by the legislation to undertake such scrutiny, the court would then have to consider the conflict between such contentions and long established constitutional principles before such an argument could even be entertained. That is not to say that the possibility of a future challenge can be foreclosed, since the compatibility with the Directive of Parliamentary proceedings which have not yet been completed cannot be definitively determined in advance. Any future challenge could not however be based on contentions which had already been considered and rejected in the present proceedings. The compatibility of the procedure envisaged with the EIA Directive Turning then to the appellants contentions, there is no doubt that the procedure by which the Secretary of State proposes to seek Parliamentary authorisation for the HS2 project is a substantive legislative process. Parliaments role is not merely formal. It will be asked to give its consent to a bill which may undergo amendment during its passage through Parliament, and not merely to give formal ratification to a prior administrative decision. There is equally no reason to doubt at this stage that appropriate information will be available to the members of the legislature at the time when decisions are taken as to whether the project should be adopted: the procedures laid down in SOs 27A and 224A of the House of Commons, and in the corresponding standing orders of the House of Lords, are apt to ensure that such information is made available. In those circumstances, it is unnecessary for the purposes of this appeal to consider the question whether it can ever be constitutionally permissible for the courts to enquire into the adequacy of the information placed before Parliament during the passage of a bill. The appellants did not seek to argue that appropriate information could not be made available. As I have explained, their primary objection was to the fact that the decision whether to approve the principal elements of the project would be subject to the whip and thus to party oversight. Although this was not spelled out, the implication of their argument is that a decision by Parliament would be compatible with the EIA Directive only if Members of Parliament were allowed a free vote, regardless of their party allegiance or of their membership of the Government. There is however nothing in the case law of the Court of Justice to suggest that the influence of Parliamentary parties, or of Government, over voting in national legislatures is incompatible with article 1(4). As I have explained, the court has identified the two conditions that must be satisfied in order for the exemption conferred by article 1(4) to apply, and has left it to national courts to judge whether those conditions are met in particular circumstances. As I have explained in paras 98 and 99 above, there is no reason to doubt that those conditions are capable of being met in the present case. One of the ideas underlying the submissions on behalf of the appellants appears to be that members of the legislature must act independently and impartially when voting on whether to approve a project falling within the scope of article 1(4) of the EIA Directive, rather than being influenced by Parliamentary party politics. That idea appears to me however to be based on a misunderstanding of the constitutional role of the legislature. In that regard, there may be some value in referring to domestic cases where analogous issues have been considered. The case of Franklin v Minister of Town and Country Planning [1948] AC 87, for example, concerned the decision of a government minister to confirm a draft new town order following a public local inquiry. One of the grounds on which the decision was challenged was that the minister could not consider the report and the objections without a pre disposition to favour the confirmation of the draft order, since it took forward a government policy to which he was necessarily committed. That argument was rejected. The ministers decision making function was not of a judicial or quasi judicial character: the purpose of the report was to provide him with information, and the only question was whether he had genuinely considered the report and the objections when they were submitted to him. As Lord Thankerton explained, there is no universal rule requiring that decision makers must possess the independence and impartiality required of a court or tribunal: it is necessary to take account of the constitutional position of the decision maker, and of the nature of the decision. A similar approach can be seen in more recent cases concerned with the role of government policy in decisions concerned with infrastructure projects and development control, such as Bushell v Secretary of State for the Environment [1981] AC 75 and R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295. In the latter case, for example, Lord Hoffmann explained that in a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them (para 69), and that such a decision is not a judicial or quasi judicial act, but is the exercise of a power delegated by the people as a whole to decide what the public interest requires (para 74). The interpretation of the EIA Directive is of course a question of EU law, and cannot be determined by principles of our domestic law. EU law nevertheless draws inspiration from the constitutional traditions of the member states; and the observations in these decisions reflect constitutional principles which apply in other member states besides the United Kingdom. Furthermore, Parliamentary parties are recognised as playing a legitimate role in democratic decision making in other member states besides the United Kingdom (see, for example, article 53a of the German Basic Law, and the Federal Constitutional Courts judgment of 10 May 1977 on the Weapons Act 1972, BVerfGE 44, 308, paras 35 37). Their role at European level is expressly recognised in article 10(4) of the Treaty on European Union, which provides that political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. Article 12(2) of the Charter of Fundamental Rights of the European Union is in similar terms. The role of political parties in democratic decision making at national level is no less important. It would be surprising if the EIA Directive required the adoption of a radically different approach. The fundamental objective of the Directive is, as the Court of Justice has explained, to ensure that the environmental effects of projects are assessed before consent is given. The achievement of that objective requires that appropriate environmental information should be available for consideration before consent is given. It does not require that the decision whether to give consent should be influenced solely or decisively by that information. In particular, the question whether it is in the public interest to proceed with a project of national importance, such as HS2, may be a matter of national political significance. It is partly for that reason that such decisions may be considered appropriate for determination by the national legislature rather than by the ordinary processes of development control. The national legislatures of the member states are of course political institutions, whose decisions are likely to be influenced, possibly decisively, by the policy of the dominant Parliamentary party or parties. Article 1(4) of the EIA Directive is nevertheless based on the premise that the objectives of the Directive can be achieved where the decision is made by a body of that kind. That is not difficult to understand: the influence of party and governmental policy does not prevent the members of national legislatures from giving careful and responsible consideration to the information, including environmental information, which is relevant to the matters that they have to decide. The contention that the procedure currently envisaged by the Government will not permit an adequate examination of the environmental information to take place appears to me to be equally unpersuasive. I observe in the first place that there is nothing either in the text of article 1(4) of the EIA Directive, or in the exegesis of that text by the Court of Justice, to suggest that national courts are required not only to confirm that there has been a substantive legislative process and that the appropriate information was made available to the members of the legislature, but must in addition review the adequacy of the legislatures consideration of that information, for example by assessing the quality of the debate and examining the extent to which members participated in it. These are not matters which are apt for judicial supervision. Nor is there anything to suggest the inevitable corollary: that national courts should strike down legislation if they conclude that the legislatures consideration of the information was inadequate. There is a further difficulty with the contention that EU law requires the internal proceedings of national legislatures to be subject to judicial oversight of this nature. The separation of powers is a fundamental aspect of most if not all of the constitutions of the member states. The precise form in which the separation of powers finds expression in their constitutions varies; but the appellants contentions might pose a difficulty in any member state in which it would be considered inappropriate for the courts to supervise the internal proceedings of the national legislature, at least in the absence of the breach of a constitutional guarantee. Against this background, it appears unlikely that the Court of Justice intended to require national courts to exercise a supervisory jurisdiction over the internal proceedings of national legislatures of the nature for which the appellants contend. There is in addition much to be said for the view, advanced by the German Federal Constitutional Court in its judgment of 24 April 2013 on the Counter Terrorism Database Act, 1 BvR 1215/07, para 91, that as part of a co operative relationship, a decision of the Court of Justice should not be read by a national court in a way that places in question the identity of the national constitutional order (Im Sinne eines kooperativen Miteinanders zwischen dem Bundesverfassungsgericht und dem Europischen Gerichtshof . darf dieser Entscheidung keine Lesart unterlegt werden, nach der diese offensichtlich als Ultra vires Akt zu beurteilen wre oder Schutz und Durchsetzung der mitgliedstaatlichen Grundrechte in einer Weise gefhrdete . , dass dies die Identitt der durch das Grundgesetz errichteten Verfassungsordnung in Frage stellte). Counsel for the appellants relied however upon a statement made by Advocate General Sharpston in the Boxus case at point 84: In my view, in order to assess whether that has happened in any particular case, the national court will need to examine the following aspects (b) process: was the appropriate procedure respected and was the preparation time and discussion time sufficient for it to be plausible to conclude that the people's elected representatives were able properly to examine and debate the proposed project? Similarly in the Nomarchiaki case Advocate General Kokott referred at points 136 137 to a requirement that the legislature performs its democratic function correctly and effectively, and to the need to clarify whether the legislature was able properly to examine and debate the environmental effects of the project. I observe however, first, that those statements were not endorsed by the Court of Justice, and secondly, that their focus is upon the ability of the legislature to examine and debate the proposed project, rather than upon a qualitative assessment of the legislatures actual consideration of the proposal. In the present case, there is in any event no reason to suppose that Members of Parliament will be unable properly to examine and debate the proposed project. Although the environmental statement made available to Members of Parliament may be of a size which reflects the scale of the project and the complexity of its impact upon the environment, it can be expected to include a non technical summary of the information, in accordance with the 2011 Regulations (which transpose, in this respect, Annex IV to the EIA Directive). That can be expected to include information about the reasons for choosing HS2 rather than the main alternatives, as required by Annex IV to the Directive. Members of Parliament can also be expected to be provided with a summary of the comments received on the environmental statement, prepared by an independent assessor, in accordance with SO 224A. That summary can be expected to encompass any comments made by the appellants which advance the case for their optimised alternative. Members of Parliament can be expected to have that information well in advance of the second reading debate on the bill: as I have explained, the summary of the comments received must be submitted to the House at least 14 days prior to the bills receiving its second reading; and it is implicit in SO 224A that the environmental statement must itself have been submitted at least three months or so earlier (since the public must be allowed a period of at least 56 days to comment on the statement, and the assessor must be allowed at least 28 days to prepare the summary). It is in any event unrealistic for the appellants to focus solely upon the second reading debate, as if it were the only opportunity for Members of Parliament to consider the environmental information. Active political debate on the HS2 project, including its environmental impact, has already been under way for some time, and it is reasonable to expect that Members of Parliament have been, and will continue to be, contacted about it by their constituents and lobbied by interested organisations, such as the appellants. As the bill proceeds through Parliament, and political interest in the project becomes more intense, Members of Parliament will have even more reason to be, and to wish to be, well informed about the project. As counsel for the respondents observed in relation to the opportunities for Members of Parliament to consider and discuss the proposal, the second reading debate is in reality the tip of the iceberg. Without therefore considering the fundamental constitutional objection to this line of argument that the court would be presuming to evaluate the quality of Parliaments consideration of the relevant issues, during the legislative process leading up to the enactment of a statute I conclude that the argument is based on an incorrect interpretation of the EIA Directive, and is in addition unsupported by the evidence as to the procedure which might be followed. I do not consider that the court is under any obligation to make a preliminary reference to the Court of Justice before reaching a decision on this matter. The Court of Justice has already given a clear account of the relevant principles: the passages which I have cited from its Nomarchiaki judgment have been repeated time and again, in judgments which include two given by a Grand Chamber of the court (in Nomarchiaki itself, and in the earlier case of Boxus and others [2011] ECR I 9711, [2012] Env LR 320). The court has made it clear that it expects national courts to apply the principles which were established in those judgments in the context of their own national systems. Conclusion For these reasons, and those given by Lord Carnwath and Lord Sumption, I would dismiss the appeals. I wish also to express my agreement with the additional observations of Lord Neuberger and Lord Mance. LORD SUMPTION (with whom Lord Neuberger, Lord Mance, Lord Kerr and Lord Reed agree) I agree that this appeal should be dismissed for all the reasons given by Lord Carnwath and Lord Reed. I also agree with the additional observations of Lord Neuberger and Lord Mance. My purpose in adding yet another judgment is to explain why, like Lord Carnwath, I regard the proposition that the Governments command paper falls outside the scope of the SEA Directive as acte clair and as such unsuitable for a preliminary reference to the Court of Justice of the European Union. The starting point is that the SEA Directive plainly does not require an environmental assessment to be carried out for all plans or programmes whose implementation would have a major impact on the environment. Even on the footing that a plan or programme is required (or regulated) by legislative, regulatory or administrative provisions within Article 2(a) and has a significant environmental effect within Article 3.1, an environmental assessment is still not required unless the plan or programme in question set[s] the framework for future development consent within Article 3.2(a). The rationale for this is straightforward. It is common for development consent for specific projects to be affected by modern schemes of development control at different levels of generality. For example, in England planning policies may currently be laid down by the National Planning Policy Framework or local development plans or by national policy statements for nationally significant infrastructure projects. Areas may be zoned for more or less intensive standards of planning control, or for particular types of development or none, or for the application by planning authorities of special criteria in defined areas. The legal effect of these general policies may be weaker or stronger. In some cases development consent must be given or refused in accordance with the policy subject to limited exceptions, while in others the obligation of the planning authority is only to have regard to or take account of it. Similar approaches to planning policy can be found in other European countries. The effect of the EIA Directive is that subject to limited exceptions an environmental impact assessment is required before development consent can be granted for any specific project of a kind specified in the Annexes which is likely to have a significant environmental impact. The effect of the SEA Directive is that where the grant or refusal of development consent for a specific project is governed by a policy framework regulated by legislative, regulatory or administrative provisions, the policy framework must itself be subject to an environmental assessment. The object is to deal with cases where the environmental impact assessment prepared under the EIA Directive at the stage when development consent is granted is wholly or partly pre empted, because some relevant factor is governed by a framework of planning policy adopted at an earlier stage. None of this means that the only policy framework which counts is one which is determinative of the application for development consent, or of some question relevant to the application for development consent. What it means is that the policy framework must operate as a constraint on the discretion of the authority charged with making the subsequent decision about development consent. It must at least limit the range of discretionary factors which can be taken into account in making that decision, or affect the weight to be attached to them. Thus a development plan may set the framework for future development consent although the only obligation of the planning authority in dealing with development consent is to take account of it. In that sense the development plan may be described as influential rather than determinative. But it cannot be enough that a statement or rule is influential in some broader sense, for example because it presents a highly persuasive view of the merits of the project which the decision maker is perfectly free to ignore but likely in practice to accept. Nor can it be enough that it comes from a source such as a governmental proposal or a ministerial press statement, or a resolution at a party conference, or an editorial in a mass circulation newspaper which the decision maker is at liberty to ignore but may in practice be reluctant to offend. All of this is inherent in the concept of a framework and in the purpose of the Directive. It is consistent with the requirement of Article 2(a) that the plan or programme must be regulated by legislative, regulatory or administrative provisions, for whatever may precisely be meant by that, it clearly indicates a degree of prescription. It corresponds to the test adopted by the CJEU in Terre Wallonne ASBL and Inter Environnement Wallonie ASBL v Rgion Wallonne (Joined Cases C 105/09 and C 110/09) [2010] ECR I 5611 at para 55 (contains measures compliance with which is a requirement for issue of the consent); in Inter Environnement Bruxelles ASBL v Rgion de Bruxelles Capital (Case C 567/10) [2012] 2 CMLR 909 at para 30 (define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures). That test was adopted and restated by the Grand Chamber in Nomarchiaki Aftodioikisi Aitoloakarnanias v Ipourgos Perivallontos Khorotaxias kai Dimosion Ergon (Case C 43/10) [2013] Env. LR 2 453, at para 95 (defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny). The two last named cases considered the point in the context of an issue about the definition of plans and programmes in Article 2(a). But the required content of a plan or programme was clearly relevant to that definition, and it was to this that the Court was referring. These statements echo the language of the Commissions Guidance paper, Implementation of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment (2001) at paras 3.5 and 3.6, where Article 3.2(a) is described, at para 3.23, as referring to a plan or programme which: contains criteria or conditions which guide the way the consenting authority decides an application for development consent. Such criteria could place limits on the type of activity or development which is to be permitted in a given area; or they could contain conditions which must be met by the applicant if permission is to be granted; or they could be designed to preserve certain characteristics of the area concerned (such as the mixture of land uses which promotes the economic vitality of the area). The main reason why the command paper cannot require an environmental assessment under the SEA Directive is that it is nothing more than a proposal. Naturally, the fact that it is a government proposal and appears in a command paper makes it influential in the broader sense that I have mentioned above. It means it is politically more likely to be accepted. But the command paper does not operate as a constraint on the discretion of Parliament. None of the factors which bear on the ultimate decision whether to pass the hybrid bill into law have been pre empted, even partially. I accept that this means that governments may in some cases be able to avoid the need for an environmental assessment by promoting specific legislation authorising development. But that is not because the SEA Directive has no application to projects authorised in that way. It is because (i) the SEA Directive does not require member states to have plans or programmes which set the framework for future development consent, but only regulates the consequences if they do; (ii) where development consent is granted by specific legislation there are usually no plans or programmes which set the framework for that consent; and (iii) legislative grants of development consent are exempt from the EIA Directive by virtue of Article 1(4), subject to conditions which replicate some of the benefits of a requirement for an environmental impact assessment, and which like every other member of the Court, I consider to be satisfied by the proposed hybrid bill procedure. We have not heard argument on the possibility floated by Lady Hale that the hybrid bill itself, if passed, might set the framework for future development consent. It is not an issue on this appeal and it would be premature to raise it at a stage when the bill has only recently been published and the final form of any legislation is not known. I therefore express no final view on the point. But as at present advised, I think it clear that the bill if passed will not set the framework for future development consent. Clause 19 deems planning permission to be granted and authorises the development. An Act in these terms would not be part of the process by which the development consent is granted. It would be the ultimate decision. It would not set the framework for future development consent, because it would itself be the development consent. The decision whether to make a preliminary reference under Article 267 of the Treaty on the Functioning of the European Union is for the national court alone. As the court of final appeal for the United Kingdom, the Supreme Court must make a reference unless the correct application of Community law [is] so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved: Srl CILFIT v Ministry of Health [1982] ECR 3415 at para 16. A proposition may be obvious because on a question of interpretation the meaning of the text is beyond reasonable dispute, or because the CJEU has decided the question. In formal Recommendations issued following upon the adoption of new rules of procedure in September 2012 (OJ C338/1, 6.11.2012), the Court of Justice put the matter in this way: 12. However, courts or tribunals against whose decisions there is no judicial remedy under national law must bring such a request before the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case law may be applied in that instance), or unless the correct interpretation of the rule of law in question is obvious. 13. Thus, a national court or tribunal may, in particular when it considers that sufficient guidance is given by the case law of the Court of Justice, itself decide on the correct interpretation of European Union law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful when there is a new question of interpretation of general interest for the uniform application of European Union law, or where the existing case law does not appear to be applicable to a new set of facts. The question whether the command paper is within the scope of the SEA Directive is in my view wholly unsuitable for a preliminary reference to the CJEU. In the first place, although there may be room for argument about what constitutes a plan or programme required by legislative, regulatory or administrative provisions, article 3.2(a) of the SEA Directive is couched in plain, untechnical language. The concept of setting a framework for future development consent is perfectly straightforward against the undisputed background that modern systems of development control commonly lay down criteria for granting development consent for specific projects. Second, in two recent decisions, one being by a Grand Chamber, the CJEU has ruled that the Directive covers measures which define the criteria and detailed rules for development. It is now for national courts to apply the law as the CJEU has declared it. The relevant statements of principle are brief, as they commonly are in judgments of the CJEU. But there is nothing unclear about them, and nothing in the context of the command paper which makes the application of the test uncertain or problematical. No purpose would be served by referring to the CJEU the question whether they really meant it. Third, even if we were to refer that question, the nature and status of a command paper of this kind is a question of national law and practice. The outcome of such a reference would be determined by our finding that the command paper was no more than a proposal and not a framework for decision making. On the question whether to refer the question of the application of the EIA Directive to the hybrid bill procedure. I am content like the rest of the Court to adopt the observations of Lord Reed. LADY HALE I have not found this an easy case. HS2 will be the largest infrastructure project carried out in this country since the development of the railways in the 19th century. Whatever the economic and social benefits it may bring, it will undoubtedly have a major impact upon the environment. There has never been a full environmental assessment of HS2 as against the alternative ways of developing the railway system, including ways which do not involve constructing new railway lines capable of carrying trains travelling at 250 miles per hour, such as the so called optimised alternative favoured by the 51M, the body to which the local authorities involved in this case (and others) belong. One might have thought that it was the object of Directive 2001/42/EC, commonly called the Strategic Environmental Assessment Directive (the SEA Directive), but actually entitled on the assessment of the effects of certain plans and programmes on the environment, to ensure that such an assessment took place. Recitals (4) and (5) to the SEA Directive say this: (4) Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption. (5) The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision making. The inclusion of a wider set of factors in decision making should contribute to more sustainable and effective solutions. As Advocate General Kokott explained in her opinion in Terre wallonne ASBL and Inter Environnement Wallonie ASBL v Rgion Wallonie (Joined Cases C 105/09 and C 110/09) [2010] I ECR 5611, the environmental assessment for which the SEA Directive provides is carried out as part of decision making procedures which precede the procedures for granting consent for individual projects, but may affect them (para 2). Experience with Directive 85/337/EEC, the Environmental Impact Assessment Directive (the EIA Directive), had shown that, at the time when projects came to be assessed, major effects upon the environment had already been established on the basis of earlier planning measures. It was therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context (para 32). She gave this example, which has a clear resonance with this case (para 33): is An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment therefore possibly not assessed when development consent is subsequently granted for a specific road construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included. If a strategic environmental assessment is required, the SEA Directive stipulates a report in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated (article 5). This has to be carried out during the preparation of the plan or programme and before its adoption (article 4). This evaluation of alternatives is of a different order from that required for projects covered by the EIA Directive, which only requires an outline of the main alternatives studied by the developer and an indication of the main reasons for the choice. Ouseley J decided that, if an SEA was required for the HS2 scheme as a whole, it has not yet been done, and the Court of Appeal agreed. This is now common ground between the parties. However, Ouseley J also decided that such a report would not have to cover non high speed alternatives as well as alternative high speed routes and that decision is not under appeal. It would appear, therefore, that even if successful, this litigation would not succeed in achieving what the parties really want. It is clear that the Directive does not require a strategic environmental assessment for all schemes which are likely to have significant effects upon the environment before they are formally adopted. It would have been so much simpler if it did. But, as its title and recital (4) say, it only applies to certain plans and programmes. Two requirements are relevant for our purposes. First, the scheme must fall within the definition of plans and programmes in article 2(a). As far as relevant to this case, this reads: plans and programmes shall mean plans and programmes. as well as any modifications to them which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions; (emphasis supplied) Secondly, the relevant provision requiring an environmental assessment is that contained in article 3(2)(a): . an environmental assessment shall be carried out for all plans and programmes (a) which are prepared for . transport . and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC. (emphasis supplied) Construction of lines for long distance railway traffic is one of the projects listed in Annex I to Directive 85/337/EEC, now consolidated in Directive 2011/92/EU. This litigation is only concerned with the Governments command paper, High Speed Rail: Investing in Britains Future Decisions and Next Steps (2012, Cm 8247) (the DNS). The appellants argue that it was a plan or a programme and that it set the framework for future development consent of a project for the construction of lines for long distance railway traffic. However, the DNS is only one part of a long and complex process and it is entirely possible that no part of that process constitutes a plan or programme within the meaning of the Directive. For our purposes, the process began with the Command Paper, High Speed Rail (2010, Cm 7827), published by the Labour Government in March 2010. This set out the twin goals of new capacity and improved connectivity, to be achieved sustainably, without unacceptable environmental impacts; declared that high speed rail is the most effective way to achieve these goals, offering a balance of capacity, connectivity and sustainability benefits unmatched by any other option; and announced a Y shaped network, linking London to Birmingham, Manchester, the East Midlands, Sheffield and Leeds, connecting onto existing tracks going further north. Formal public consultation on the detailed recommendations for the first phase, from London to Birmingham, on the strategic case for high speed rail, and on the core scheme, would begin in the autumn of 2010. A further consultation would take place in 2012 on the detailed proposals for phase 2. Only after both consultations were completed would the Government make its final decisions, with a view to promoting a hybrid bill to cover the whole of the Y shaped network. When the coalition Government came into power following the general election in May 2010, it declared that it was committed to taking forward high speed rail, but that this would have to be achieved in stages. Formal public consultation on the matters proposed in the March 2010 command paper was opened in February 2011. The Government promised to announce the outcome and its final decisions on its strategy for high speed rail before the end of 2011. The DNS was in fact published in January 2012. This reported the Governments conclusions, both as to the high speed rail strategy and as to the detailed proposals for phase 1 of the route. But instead of a single hybrid bill covering the whole of the core network, it was now proposed to have two bills, the first for phase 1 and the second for phase 2. Steps would also be taken to safeguard the phase 1 route from incompatible development by a Direction under article 25 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184). Following consultation, this was done in July 2013. Public consultation on the preferred route for phase 2 also began in July 2013. The proposals are broadly in line with the strategy set out in the DNS. A hybrid bill for phase 2 is proposed to follow the general election in May 2015. The hybrid bill for phase 1 received its first reading in the House of Commons on 25 November 2013. As expected, it does three main things. First, it gives legal authority to carry out the works, which are described in detail in schedule 1. Second, it gives the necessary planning consents to carry out the development, subject to a few details which are left to local planning authorities. And third, it authorises the Secretary of State compulsorily to purchase or acquire other rights over the land needed to complete the works, modifying the usual procedures for doing so. The bill is accompanied by a massive environmental statement (apparently designed to comply with the requirements of the EIA Directive, should this be necessary). We are being asked in this case to consider whether there should have been an SEA before the DNS was adopted. This raises two questions. First, was the DNS required by legislative, regulatory or administrative provisions within the meaning of article 2(a)? Second, did it set the framework for future development consent of a project for the construction of lines for long distance railway travel, within the meaning of article 3(2)(a)? In Inter Environnement Bruxelles ASBL & Others v Rgion de Bruxelles Capitale (Case C 567/10) [2012] 2 CMLR 909, the European Court of Justice (4th Chamber) held that required included plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them (para 31). As Lord Neuberger and Lord Mance point out, this was an expansive interpretation of a phrase which had been introduced to limit the scope of the plans and programmes covered by the obligation. But I do not find either word, required or regulated, easy to apply to the situation we have here. A massive scheme such as this cannot take place without comprehensive authorisation of the works, the land development they entail, and the compulsory purchase and other measures which will be required to do them. It is obviously completely impracticable to undertake such a scheme depending upon multiple individual applications for planning and related consents, together with the use of ordinary compulsory purchase powers. As Sullivan LJ pointed out in the Court of Appeal, development consent for a nationally important project such as HS2 could have been sought by way of the development consent procedure for nationally significant infrastructure projects under the Planning Act 2008, or by way of an order for a scheme of national significance under the Transport and Works Act 1992. As he also observed, the Government accepted that if either of these procedures had been adopted, the DNS would have set the framework because it would have been a material consideration which the decision maker under the 2008 Act or the 1992 Act would have been under a legal obligation to take into account (para 151). He found it difficult to accept that the fact that the Government has chosen instead to adopt the hybrid bill procedure makes all the difference. I have considerable sympathy with him. Can it be said that the command paper which preceded the Bill was required or regulated by our administrative provisions? It is, of course, how one would expect such a scheme to proceed with a succession of government proposals, consultations and conclusions. A complex Bill like this does not suddenly spring onto the Parliamentary stage without any prior consultation with the public. Formal consultations such as this are governed by the Governments Code of Practice on Consultation. The 2010 command paper, High Speed Rail, promised formal consultations on each phase, followed by decisions and a hybrid bill. The only change since then has been to split the scheme into two phases. In that sense, the 2010 command paper did determine the competent authorities for adopting them and the procedure for preparing them, but of course it did not do so in any legally binding sense. In the Court of Appeal, both the majority and the minority judgments regarded the two questions as inter linked. Both agreed that, if the DNS did indeed set the framework within the meaning of article 3(2)(a), it would be difficult to say that it was not required by administrative provisions for the purpose of article 2(a): [2013] EWCA Civ 920; [2013] PTSR 1194, paras 71 and 180. This is akin to the process of reasoning adopted by the CJEU adopted in Inter Environnement Bruxelles ASBL v Bruxelles: because the Court regarded the measure as setting the framework, they reasoned backwards that it was regulated even if not legally required and thus fell within article 2(a). But in any event did the DNS set the framework? It is clear from the Terre wallonne case, that a scheme adopted by national legislation can indeed be a plan or a programme within the meaning of article 2(a). The debate in that case was about how binding its provisions had to be upon subsequent planning decisions. Advocate General Kokott pointed out that plans and programmes may, however, influence the development consent of individual projects in very different ways and, in so doing, prevent appropriate account from being taken of environmental effects. Consequently the SEA Directive is based on a very broad concept of framework (para 64). The term had to be construed flexibly. It does not require any conclusive determinations, but also covers forms of influence that leave room for some discretion (para 65). She concluded: To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources (para 67). In Walton v Scottish Ministers [2012] UKSC 44, [2013] PTSR 51, para 17, Lord Reed quoted paragraphs 64 and 65 of Advocate General Kokotts opinion. He also pointed out that, in cases where an SEA is not automatically required by article 3(2)(a), but may be required by article 3(3) or 3(4), Member States are required by article 3(5) to take into account the criteria set out in Annex II. These include the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources. It is implicit in this, he observed, that a framework can be set without the location, nature, or size of the projects being determined. This supports the view that influence will do. The actual question in Terre wallonne was whether action programmes required by Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources were plans and programmes for the purpose of the SEA Directive. Neither the Advocate General nor the Court of Justice had any difficulty in deciding that they were. Hence the Court did not address itself to the degree of influence upon later decisions which the plan or programme had to have. It answered the question thus: . an action programme adopted pursuant to article 5(1) of Directive 91/676 is in principle a plan or programme covered by article 3(2)(a) of Directive 2001/42 since it constitutes a plan or programme within the meaning of article 2(a) of the latter directive and contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Directive 85/337 (para 55) (emphasis supplied). Nor did the Grand Chamber answer the question directly in Nomarchiaki Aftodioikisi Aitoloakarnanias & Others (Case C 43/10) [2013] Env LR 453. It quoted a phrase used by the Court in Inter Environnement Bruxelles ASBL v Bruxelles, when rejecting the submissions of the Belgian, Czech and UK Governments that the Directive did not apply to measures which were not required by rules of law: That interpretation would thus run counter to the Directives aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures (para 30). (emphasis supplied) Thus in Nomarchiarcki, the Grand Chamber stated that: It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (para 95) (emphasis supplied). It is, however, obvious that both the Chamber in Inter Environnement Bruxelles and the Grand Chamber in Nomarchiaki were addressing the question of whether the project fell within the definition of a plan and programme in article 2(a). They were not directly addressing the further question of whether it set the framework within the meaning of article 3(2)(a) at all. Rather, the Court in Inter Environnement Bruxelles was reasoning that certain plans and programmes which clearly did set the framework for the purpose of article 3(2)(a) in the sense described would be excluded if a narrow view were taken of required for the purpose of article 2(a). The upshot, it seems to me, is that the Court has not yet adopted the expansive view of setting the framework proposed by Advocate General Kokott in Terre wallonne. But neither has it expressly rejected it, because the question simply did not arise in that case. Nevertheless, it could be said that the words used in Nomarkchiaki are consistent with what the Court did say in Terre wallonne, when addressing the framework question (emphasised at para 147 above). It could also be said that, when the Grand Chamber referred in Nomarchiaki to the Directives aim it must have been referring to recitals (10) and (11), each of which refers to setting a framework for future development consent of projects. This lends support to the view, so cogently explained by Lord Sumption, that the framework has to be one which those granting such consent must at the very least take into account. But even if we do regard the emphasised words in both cases as an exhaustive definition, I originally found it hard to see how they would not apply to the hybrid Bill. Once passed, it would be at the end of the spectrum, referred to by the Court of Appeal in the passage quoted by Lord Carnwath at para 29 above, where the plan or programme conclusively determines whether consent is given and all material conditions (their para 54). Article 2(a) expressly contemplates that a plan or programme may not only be prepared and adopted by a national, regional or local authority, but may be prepared by an authority for adoption through a legislative procedure by Parliament or Government. In Terre wallonne, Advocate General Kokott explained that this did not mean that every possible law should be subject to an environmental assessment. The requirement that it be required meant that freely taken political decisions on legislative proposals are not therefore subject to the obligation to carry out assessments (para 41). But that requirement is at least arguably fulfilled in our case. This litigation is solely about the DNS. We have not heard any argument about the Bill itself. There may be answers to the question of the Bill, as there so often are when issues are exposed to the glaring light of adversarial argument. The most obvious one is that the Act will do more than set the framework: it will grant the necessary planning consents, and a great deal more, itself. It may well be, therefore, that we leap straight from a mere Government proposal in the DNS to the full blown development consent in the Act without anything which sets the framework in between. Hence I have considerable sympathy with Sullivan LJ: An interpretation of framework in article 3(2)(a) which would enable the governments of member states to carve out an exemption from the SEA Directive for those projects for which they choose to obtain development consent by specific acts of national legislation would be contrary to the purposive approach to the interpretation of the Directive adopted by the Court of Justice in the Terre wallonne and Inter Environement Bruxelles cases. (para 164) I also think that the disagreement in the Court of Appeal was more properly characterised by him as a disagreement as to whether the fact that a member state chooses to adopt a process of granting development consent for a major project which will have a significant environmental effect by way of an act of national legislation is sufficient, of itself, to place the Governments adoption of its plan or programme outwith the scope of the European wide strategic environmental protection conferred by the SEA Directive (para 188). I was therefore attracted to the suggestion that we should refer a question along the following lines to the CJEU: are plans and programmes which set the framework for the purpose of article 3(2(a) of the SEA Directive limited to those which define criteria and detailed rules for the development of land or may they include measures which will have a powerful but not necessarily constraining or determinative effect upon the ultimate decision maker? This is not the same as asking the CJEU whether the DNS is such a plan or programme. I entirely agree that that is a matter for us. The question is what test we should adopt when considering it. I have, however, been persuaded that such a reference is unnecessary, for four main reasons. First and foremost, however briefly, the Grand Chamber in Nomarchiaki has adopted a definition which is consistent with the aims of the Directive as set out in the Recitals. Secondly, the aim of the Directive is not to ensure that all development proposals which will have major environmental effects are preceded by a strategic environmental assessment; rather, it is to ensure that future development consent for projects is not constrained by decisions which have been taken upstream without such assessment, thus pre empting the environmental assessment to be made at project level. Thirdly, it is by no means clear that quashing the DNS would de rail the Bill process, at least now that the Bill has received its first reading; we have no power to prevent Parliament from considering it; it is a matter for Parliament whether there is a sufficient risk that the Act itself would fall within the Directive to justify taking the precautionary step of commissioning a strategic environmental assessment at this stage (we are told that it would take six to 12 months to complete). Fourthly, however, it has been decided that such an assessment need not do what many, if not all, of the parties and the objectors would wish it to do, which is to compare the environmental effects of HS2 with those of the alternative methods of increasing capacity and connectivity on our railways. Mere delay is not a good reason for making a reference (although some might think it a good reason for asking for one). I have not, however, entertained similar doubts in relation to the EIA Directive. In that respect I am in full agreement with the judgment of Lord Reed. But the conclusion is that I, too, would dismiss these appeals. Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Sumption, Lord Reed and Lord Carnwath agree) We agree that these appeals should be dismissed. The issues arising under the Directives However, the issues that have had to be addressed only arise as a result of decisions of the European Court of Justice, which we have found problematic and which call for some further observations. The first decision concerns the word required in the phrase required by legislative, regulatory or administrative provisions in article 2(a) of the SEA Directive. The Fourth Chamber of the Court of Justice has on 22 March 2012 held, disagreeing with Advocate General Kokotts Opinion, that required means, not required, but regulated (Inter Environnement Bruxelles Asbl v Rgion de Bruxelles Capitale Case C 567/10, [2012] 2 CMLR 909). The second set of decisions concerns the exclusion in article 1(5) of the Directive 85/337/EC (amended by Directive 2003/35/EC) the predecessor of article 1(4) of the EIA Directive of projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process. The Court has held that this word since means, in effect provided that so that the exclusion only operates subject to satisfaction of a condition that the objectives of the Directive, including that of supplying information, must be achieved through the legislative purpose (World Wildlife Fund (WWF) v Autonome Provinz Bozen Case C 435/97, [1999] ECR I 5613, para 57, Nomarchiaki Aftodioikisi Aitoloakarnanias Case C 43/10 [2013] Env LR 453, para 79) and only applies where the legislative process has enabled the objectives pursued by the Directive . to be achieved (State of the Grand Duchy of Luxembourg v Linster Case C 287/98 [2000] ECR I 6917, para 59). We return to the implications below. The constitutional basis of European Union legislation Under the European Treaties, the Council of Ministers, now acting jointly with the European Parliament, serves as the European legislator; the Commission proposes legislative measures and oversees the application of European law; and the Court of Justice is charged to ensure that, in the interpretation and application of the Treaties, the law is observed and to give rulings on the interpretation of Union law as well as the validity of acts adopted by the European institutions: articles 220 and 234 of the pre Lisbon EC Treaty and now articles 16 and 19(1) TEU and article 267 TFEU. The Council of Ministers is composed of representatives of the elected national governments of Europe, and the European Parliament adds an additional democratic element to the enactment of European legislation. It was and is at the heart of the Community and now Unions legitimacy that decisions reached by the Council of Ministers, in conjunction with the European Parliament, are given effect. The principle of legal certainty is also a fundamental principle of European law: Edward and Lane on European Union Law, para 6.134, citing R (International Association of Independent Tanker Owners (Intertanko)) v Secretary of State for Transport Case C 308/06 [2008] 2 Lloyds Rep 260, para 69 where the Court said: The general principle of legal certainty, which is a fundamental principle of Community law, requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly (see [Belgium v Commission (Case C 110/03) [2005] ECR I 2801, para 30, and IATA and ELFAA (Case C 344/04) [2006] ECR I 403, para 68]). The principle is part of the legal order of the Community, now the Union, as the Court said in Deutsche MilchKontor GmbH v Federal Republic of Germany Joined Cases 205 215/82 [1983] ECR 2633, para 30. Union citizens and others need to know and are entitled to expect that the legislation enacted by their European legislator will be given its intended effect. That does not exclude the vital role of case law in interpreting legislation. But interpretation is only necessary when legislation, construed in the light of its language, context and objectives, is unclear. A national court is required under European law to refer to the Court of Justice any question of interpretation unless it reaches the conclusion that the answer is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved( CILFIT Srl v Ministry of Health (Case 283/81) [1982] ECR 3415, para 16). The well known principles are stated in CILFIT and were reiterated in Junk v Khnel (Case C 188/03) [2005] ECR I 885. The Court of Justice warned national courts in CILFIT that: (i). before coming to such a conclusion, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice (para 16), (ii). the existence of such a possibility must be assessed on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise (para 17), (iii). To begin with, it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions (para 18), (iv). It must also be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States (para 19). The Court concluded with a more general observation about the principles according to which it will interpret European legislation: Finally, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. (para 20) In Edward and Lane on European Union Law, 3rd Ed (2013), the authors, after setting out the passages quoted in paras 167(iii) and (iv) above, continue as follows: In the event of discrepancy, real or apprehended, the court will therefore have recourse to all versions, within the context of the purpose and general scheme of the rules of which they form part, in order to determine their correct (and uniform) meaning. To assist it will also have recourse to travaux prparatoires (of legislation none exists for the Treaties) to a much greater extent than is normally the case in national law. For these reasons, a literal interpretation of Union law texts is inappropriate. (para 6.24) The starting point in interpretation is therefore the different language versions of the text, to understand their purpose and scheme. But regard must be had to the objectives of the relevant provisions of Union law as a whole and its state of evolution, and recourse to the travaux prparatoires may be an important aid to identification of the correct meaning. It is a common place in legislation that objectives may not be fully achievable or achieved. Compromises or concessions have to be made if legislators are to achieve the enactment of particular provisions. This is perhaps especially so at the international European level, in the case of measures agreed by the Council of Ministers where different Member States may only have been prepared to go part of the way with a Commission proposal (or Parliamentary proposal for amendment) and qualifications may have to be introduced to arrive at any agreement. The structure of the European Union involves a balance of interests which must be respected if the structure is to be stable. When reading or interpreting legislation, it can never therefore be assumed that particular objectives have been achieved to the fullest possible degree. Limitations on the scope or application of a legislative measure may have been necessary to achieve agreement. There may also have been good reasons for limitations, of which courts are unaware or are not the best judge. Where the legislature has agreed a clearly expressed measure, reflecting the legislators choices and compromises in order to achieve agreement, it is not for courts to rewrite the legislation, to extend or improve it in respects which the legislator clearly did not intend. There are important practical consequences, if citizens and other users of the law cannot be confident that European legislation will be given its intended and obvious effect. First, there is a risk of loss of confidence at national level in European Union law, and a risk of impairment of the all important dialogue between national courts and the Court of Justice, with its vital role of interpreting and consolidating the role of European law. Second, national courts will find it much more difficult to decide whether a point of EU law is acte clair or not. This would lead to the risk of the Court of Justices already heavy caseload becoming over loaded with references, and many more cases where the parties have to face the delay and expense of a reference. Third, it will make more difficult the drafting of Directives and Regulations, and, still more importantly, make it more difficult in future to achieve agreement upon such measures. Where a member state has, like the United Kingdom in some areas, the right not to opt into a measure, unpredictability about the meaning which might be attached to it may also encourage caution about opting in. The SEA Directive In Inter Environnement Bruxelles Asbl v Rgion de Bruxelles Capitale Case C 567/10, [2012] 2 CMLR 909, the Opinion prepared by Advocate General Kokott contains a careful analysis of the different language versions of the SEA Directive, of the legislative history and travaux prparatoires and of the legislative intent [AG14 AG30]. On that basis, she concluded that the word required meant what it says, that is that it covers only plans or projects which are based on a legal obligation. She also cited logical reasons for the Council of Ministers decision to that effect. She was supported in her conclusion by all three Governments (Belgian, Czech and United Kingdom) represented before the Court, as well as by the European Commission: see the Courts judgment, paras 26 and 27. Far from casting any doubt on the literal and natural meaning of the word required, all the factors discussed by the Advocate General provide strong one would have thought conclusive confirmation of its clear meaning: based on a legal obligation. It would be unhelpful fully to repeat or to try to improve on the Advocate Generals logical and impeccable analysis. As she noted, all the language versions with one exception are unequivocal (exigs par des dispositions lgislatives, rglementaires ou administratives; que sean exigidos por disposiciones legales, reglamentarias o administrativas; die aufgrund von Rechts oder Verwaltungsvorschriften erstellt werden mssen; die door wettelijke of bestuursrechtelijke bepalingen zijn voorgeschreven. etc). The one possible exception is Italian (che sono previsti da disposizioni legislative, regolamentari o amministrative). But previsti is quite capable of being understood as meaning required, and, as Advocate General Kokott concluded, it must in the context of the other language versions and of the legislative history be so understood. The legislative history is particularly striking. Advocate General Kokott summarised it as follows: AG18 Neither the original Commission proposal [COM(96) 511 final, December 4, 1996] nor an amended version of it [COM(1999) 73 final, February 22, 1999] included the condition that the plans and programmes covered must be required by law. After the proposal proved unsuccessful in this regard, the Commission, supported by Belgium and Denmark, proposed that the directive should at least apply to plans and programmes which are provided for in legislation or based on regulatory or administrative provisions. [Council document 13800/99, December 8 1999, p.5]. The legislature did not take up those proposals either, however. AG19 Instead, the Council explained the rules that were eventually adopted, to which the Parliament did not object . With this elucidation, the matter came before the Fourth Chamber of the Court. The Chamber recited that the applicants (seeking to annul certain provisions of a Belgian planning code) had argued that a mere literal interpretation of the relevant phrase in article 2(a) would entail the dual risk of not requiring the assessment procedure for land development plans which normally have major effects on the territory concerned and of not ensuring uniform application of the directive in the Member States various legal orders, given the differences in the formulation of the relevant national rules (para 25). The Fourth Chamber went on to recite that various Governments had on the other hand submitted that both the language of article 2(a) and the travaux prparatoires showed that required meant required (para 26) and that the Commission also considered that the test of being required was met where an authority was subject to a legal obligation (para 27). The Chamber then simply said that It must be stated that an interpretation which would exclude from the scope of the SEA Directive plans and programmes regulated by rules of law in the various national legal systems, solely because their adoption was not compulsory in all circumstances, cannot be upheld (para 28). The Chamber no doubt used the phrase in all circumstances because the position, under the relevant national law, was that in certain cases (among them the case before the Chamber) the municipal authority might refuse to prepare a specific land use plan (para 18). Cases in which the authority had no option but to prepare such a plan would on any view obviously fall within the word required. However that may be, the Chamber concluded that required means regulated, so as to catch even cases where no plan was required to be prepared. The only reasons it gave were that to read required as meaning required would have the consequence of restricting considerably the scope of the scrutiny (para 29) or compromise, in part, the practical effect of the directive, having regard to its objective, which consists in providing a high level of protection of the environment and thus run counter to the directives aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment . (para 30). If, instead of required, one must read the word regulated, the question arises what it means. Is it sufficient that legislative, regulatory or administrative provisions grant powers to some authority wide enough to permit a plan or programme to be prepared? Or must such provisions actually refer to a possibility that such a plan or programme will be prepared? Or must they specify points and/or conditions that such a plan or programme, if prepared, must address and/or fulfil? The Chamber referred to provisions which determine the competent authorities for adopting them [i.e. the relevant plan or programme] and the procedure for preparing them (para 31). If this is what is meant by regulated, then not all plans and programmes can on any view be covered by the SEA Directive, and the desire for comprehensive regulation of plans and programmes likely to have significant effects on the environment cannot be met. In any event, it follows from the fact that the SEA Directive only applies to plans and programmes which set the framework for future development consent of projects, that it is not exhaustive and does not cover every form of plan and programme simply because it could be said to be likely to have significant environmental effects: see Lord Carnwath and Lord Reeds judgments. The SEA Directive and its terms must be read as a whole. Any condition attached to the scope or application of a legislative measure is capable of affecting its impact. As we have already noted, legislators cannot always agree everything that the most ardent supporters of its general objectives would like them to have achieved. On the Courts own approach, the SEA Directive cannot and does not cover all plans and programmes. They must be regulated by legislative, regulatory or administrative provisions. Had the meaning of article 2(a) come before the Supreme Court without there being any European Court of Justice decision to assist, we would unhesitatingly have reached the same conclusion as Advocate General Kokott, and for the reasons she (as well as the Governments and the Commission represented before the Fourth Chamber) so convincingly gave. We would, like her, have concluded that that the legislature clearly did not intend plans and programmes not based on a legal obligation to require an environmental assessment, even though they might have significant effects on the environment [AG20]. We would also have regarded this as clear to the point where no reference under the CILFIT principles was required. The reasons given by the Fourth Chamber of the Court of Justice would not have persuaded us to the contrary. While they allude, in the briefest of terms, to the fact that the Governments made submissions based on the clear language of article 2(a) and on the legislative history, they do not actually address or answer them or any other aspect of Advocate General Kokotts reasoning. In the result, a national court is faced with a clear legislative provision, to which the Fourth Chamber of the European Court of Justice has, in the interests of a more complete regulation of environmental developments, given a meaning which the European legislature clearly did not intend. For this reason, we would, had it been necessary, have wished to have the matter referred back to the European Court of Justice for it to reconsider, hopefully in a fully reasoned judgment of the Grand Chamber, the correctness of its previous decision. The EIA Directive We turn to the exclusion in article 1(4) of the EIA Directive (formerly article 1(5) of Directive 85/337/EC) of projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process. Again, one might have thought that the language of the Directive was clear enough. The Court of Justice has however read the word since as if it said provided that; and has treated article 1(5), the predecessor of article 1(4), as subject to a pre condition that the legislative process must have enabled the objectives pursued by the Directive to be achieved. The case law has on this basis developed a set of detailed requirements which any national legislature must satisfy. The following propositions emerge: (i). The legislature must have available to it information equivalent to that which would be submitted to the competent authority in an ordinary [planning] procedure meaning that the minimum information to be supplied must be in accordance with article 5(2) of Directive 85/337/EC and Annex III thereto (after the amendments made by Directive 2003/35/EC, these provisions became article 5(3) and Annex IV): Luxembourg v Linster, at paras 54 and 55, Boxus v Rgion Wallonne Cases C 128/09 C 131/09, C 134/09 and C 135/09, [2012] Env L R 320, at paras 41 43, Solvay v Rgion Wallonne Case C 182/10, [2012] Env L R, 545, at para 37, Nomarchiaki at para 85. (ii). [T]he legislative act adopting a project must include, like a development consent all the elements of the project relevant to the environmental impact assessment: Boxus, [39], Solvay, [57], Nomarchiaki, [81]. (iii). The national court must be able to verify that such conditions have been satisfied, taking account both of the content of the legislative act adopted and of the entire legislative process, which led to its adoption, in particular the preparatory documents and parliamentary debates: Boxus, [at paras 47and 48, Solvay, at para 59, Nomarchiaki, at para 90. (iv). According to the Fourth Chamber in Solvay, at paras 53 and 59 61, it follows that all the reasons for [the] adoption of the relevant legislative act must either be contained in it or communicated separately. Lord Reed has quoted substantial passages from Nomarchiaki, the Courts most recent decision in the field. The case law was decided under Directive 85/337/EC, the language of which is the same in material respects as that of the EIA Directive. Directive 85/337/EC reads: [5] Whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent procedures governing public and private projects likely to have a major effect on the environment; [6] Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question; [7] Whereas the principles of the assessment of environmental effects should be harmonized, in particular with reference to the projects which should be subject to assessment, the main obligations of the developers and the content of the assessment; [8] Whereas projects belonging to certain types have significant effects on the environment and these projects must as a rule be subject to systematic assessment; . [11] Whereas, however, this Directive should not be applied to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process; [12] Whereas, furthermore, it may be appropriate in exceptional cases to exempt a specific project from the assessment procedures laid down by this Directive, subject to appropriate information being supplied to the Commission, . Article 1 1. This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment. 5. This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process. Article 2 3. Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive. Article 1(5) gives effect to the eleventh and article 2(3) to the twelfth recital. A materially identical position exists under the EIA Directive, in which article 1(4) gives effect to recital (22), while article 2(4) gives effect to recital (23). Looking back over the case law, it is possible to see how the Court in Luxembourg v Linster, at paras 53 and 54, sought to justify its conclusion that the exclusion in article 1(5) only applied where the legislature had available to it information equivalent to that which would be submitted to the competent planning authority in an ordinary procedure. It did so by reference to the sixth recital of Directive 85/337/EC. But the Court failed in this connection to address recital (para 11), now (para 22), recording expressly that the Directive as a whole was not to apply to projects the details of which were adopted by a specific act of national legislation. It was not until twelve years later, when the Court came to consider the Directive once again in Boxus v Rgion Wallone that Advocate General Sharpston analysed article 1(5) and recognised some of the difficulties which different readings might present. She identified as alternatives that it connoted (a) an automatic presumption that the adoption by specific act of national legislation process met the Directives objectives or (b) a disapplication of the Directive provided that the legislative process achieved such objectives, and went on: AG62 Neither reading is without its drawbacks. The first might unduly widen the scope of the legislative exclusion from a directive which aims to ensure better decision making in environmental matters. The consequence might be that, even where an administrative project was clothed in the flimsiest of legislative cloaks, the exclusion would none the less apply. The second interpretation might involve a degree of judicial activism which could lead to confusion as to the exact duties of the legislature in environmental cases. In its most extreme form, it might render the exclusion itself virtually meaningless by requiring the legislature to meet all the same procedural requirements as an administrative authority. It was only after examining the cases of World Wildlife Fund v Autonome Provinz Bozen and Luxembourg v Linster that she concluded [AG72] that they, appear[ed] clearly to favour construing article 1(5) as containing a prior condition that the objectives of the EIA Directive must be achieved by the legislative process, rather than a presumption that they are so achieved. The Court in its Grand Chamber in Boxus endorsed this without further discussion, feeding in the express requirement of judicial review of the entire legislative process (paras 37 48). The most recent decision, Solvay v Rgion Wallone, reiterates this position. The case law does not identify any textual or contextual basis for the conclusions reached in respect of article 1(5) (now 1(4)). Its reasoning was based exclusively on the objectives of the Directive. But the extent to which the European legislature concluded that these general objectives could and should be met, must be gathered from the Directive. On its face, the word since explains why specific legislative acts are excluded. It does not introduce a condition to their exclusion. In the light of the representation of the governments of Europe in the Council of Ministers and the mutual trust between them upon which Europe is founded, it is difficult to see why it should be supposed that the Council of Ministers as the European legislator intended a condition, or intended the word since to have anything other than its ordinary meaning. As it stands, the European Court of Justices case law in respect of article 1(5) (now 1(4)), raises the question what is meant by the condition that the legislative process must have enabled the objectives pursued by the Directive to be achieved. As Lord Reed has observed, the appellants treat the condition as if the Court had in effect read back into the Directive in relation to specific legislative acts the provisions of the Directive governing projects subject to the ordinary planning process. There is some support for this in the Courts own invocation of, and insistence on compliance with, the information requirements of article 5(2) and Annex III of Directive 85/337/EC: para 191(i) and (ii) above. The statement in Solvay (para 191(iv) above) that all the reasons for the adoption of the relevant legislative act must be contained in it or communicated separately finds inspiration in article 9 of Directive 85/337/EC. The basis for requiring a possibility of judicial review of the entire legislative process is article 10a of Directive 85/335/EC as inserted by Directive 2003/35/EC, or now article 11 of the EIA Directive. In Solvay (para 59) reference was also made to a passage in R (Mellor) v Secretary of State for Communities and Local Government Case C 75/08 [2009] ECR I 3799, [59] under Directive 85/335/EC as amended, which repeats a passage from Union Nationale des Entraineurs v Heylens Case 222/86 [1987] ECR 4097, (para 15), on the general right to judicial review of decisions for their legality: Effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general that the court to which the matter is referred may require the competent authority to notify its reasons. In Boxus Advocate General Sharpston thought that it followed that a court must not only assess whether the legislature had before it sufficiently detailed and informative information, but must also consider whether the legislative process respected the appropriate procedure and allowed [sufficient] preparation and discussion time for it to be plausible to conclude that the peoples elected representatives were able properly to examine and debate the proposed project [AG84]. Advocate General Kokott in Nomarchiaki took this up and said that it had made clear that the EIA Directive is not about formalism, but is concerned with providing effective EIAs for all major projects, and that it must therefore be clarified in the main proceedings whether the legislature . was able properly to examine and debate the environmental effects of the project [AG136 137]. Not perhaps surprisingly in the light of the above, the present appellants have argued that it is for the Supreme Court now not only to consider the adequacy of the information placed before members of both Houses of Parliament, but also to take the step of scrutinising the likely adequacy or otherwise of their procedures and debates, including the extent to which individual members are likely to direct attention to and understand, and apply an independent mind to, any issue falling for decision by the legislature within article 1(4) of the EIA Directive. We have as a result had to give careful consideration to where European law has gone and might yet go, and whether in particular it is necessary for us to make a reference to Luxembourg in order for us to decide the issues which are before us under the EIA Directive. We have however come to the conclusion that this is not necessary. The European Court of Justice was itself careful to use a general formulation, invoking the objectives of the Directive, when it re interpreted since to mean provided that in article 1(5). It did not say that the Directive or its provisions applied to a specific legislative act. It said that it was a condition of their disapplication that their objectives were met by the legislative process. The Court was careful not to endorse the very wide formulae, used by the two Advocates General in Boxus and Nomarchiaki, which suggested close scrutiny by national judges of the legislative process to see whether the peoples elected representatives had been able properly to examine and debate the proposal or had perform[ed] their democratic function correctly and effectively. There was good general reason for this. Whatever other adjustments in meaning it might make by way of interpretation, the Court was here concerned with the fundamental institutions of national democracy in Europe. It was concerned with a provision which deliberately distinguished projects approved by legislative process from projects approved by the ordinary planning process. It is not conceivable, and it would not be consistent with the principle of mutual trust which underpins the Union, that the Council of Ministers should, when legislating, have envisaged the close scrutiny of the operations of Parliamentary democracy suggested by the words used by Advocates General Sharpston and Kokott. The Court will also have been well aware of the principles of separation of powers and mutual internal respect which govern the relations between different branches of modern democracies (as to which see, in the United Kingdom context, R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262, (para 125, per Lord Hope of Craighead). The Court cannot have overlooked or intended to destabilise these. In a not so dissimilar context, the German Federal Constitutional Court noted in its judgment of 24 April 2013 1 BvR 1215/07, (para 91) that decisions of the European Court of Justice must be understood in the context of the cooperative relationship (Im Sinne eines kooperativen Miteinanders) which exists between that Court and a national constitutional court such as the Bundesverfassungsgericht or a supreme court like this Court. In the case of the United Kingdom, the approach suggested by the two Advocates General would raise a particular issue of a kind which article 1(4) (formerly 1(5)) was no doubt intended to avoid. It is, we recognise, one that may be specific to the United Kingdom. Article 9 of the Bills of Rights, one of the pillars of constitutional settlement which established the rule of law in England in the 17th century, precludes the impeaching or questioning in any court of debates or proceedings in Parliament. Article 9 was described by Lord Browne Wilkinson in the House of Lords in Pepper v Hart [1993] AC 593, 638, as a provision of the highest constitutional importance which should not be narrowly construed. More recently, in the Supreme Court case of R v Chaytor and others [2011] 1 AC 684, para 110, Lord Rodger of Earlsferry said this: [I]n his Commentaries on the Laws of England, 17th ed (1814), vol 1, Bk 1, chap 2, p 175, under reference to Cokes Institutes, Blackstone says that the whole of the law and custom of Parliament has its original from this one maxim: that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere. The principle enshrined in article 9 is recognised and buttressed by a series of constitutional cases which Lord Reed has mentioned in his para 78 above. To take just one example, in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, the trial judge had suggested that a statute was inoperative if, in breach of the rules of Parliament, no notice had been given to the defendant. Lord Campbell (in observations echoed by Lord Cottenham and Lord Brougham) said, at p 725, that: I cannot but express my surprise that such a notion should ever have prevailed. There is no foundation whatever for it. All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages It may well be that it would involve no breach of this well established principle for the courts to inquire into the information which the executive collects and places before Parliament in connection with a Bill falling within the ambit of Article 1(4) of the EIA Directive see for instance Bank Mellat v Her Majestys Treasury (No 2) [2013] 3 WLR 179, (paras 38 49), per Lord Sumption. However, even in that connection, we note that Bank Mellat was not concerned with primary legislation, but with a statutory instrument where different considerations apply. For present purposes, and in the light of Lord Reeds conclusions as to the adequacy of the information which will be put before Parliament, it is unnecessary to go further into that particular aspect. impeaching (i.e. condemning) Parliaments Under the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law: R v Secretary of State, Ex p Factortame Ltd (No 2) [1991] 1 AC 603. That was a significant development, recognising the special status of the 1972 Act and of European law and the importance attaching to the United Kingdom and its courts fulfilling the commitment to give loyal effect to European law. But it is difficult to see how an English court could fully comply with the approach suggested by the two Advocates General without addressing its apparent conflict with other principles hitherto also regarded as fundamental and enshrined in the Bill of Rights. Scrutiny of the workings of Parliament and whether they satisfy externally imposed criteria clearly involves questioning and potentially internal proceedings, and would go a considerable step further than any United Kingdom court has ever gone. The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation. We are not expressing any view on whether or how far article 9 of the Bill of Rights would count among these, but the point is too important to pass without mention. We would wish to hear full argument upon it before expressing any concluded view. It is not a point upon which the parties before us proposed to make any submissions until it was raised by the Court. We were then told that the attention of the Parliamentary authorities (and we deliberately use a vague expression) had been drawn to this appeal, and they elected not to be represented. If and when the point does fall to be considered, the Parliamentary authorities may wish to reconsider whether they should be represented, and, particularly if they still regard that course as inappropriate, it may well be the sort of point on which the Attorney General should appear or be represented. Important insights into potential issues in this area are to be found in their penetrating discussion by Laws LJ in the Divisional Court in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151, (The Metric Martyrs case), especially paras 58 70, although the focus there was the possibility of conflict between an earlier constitutional and later ordinary statute, rather than, as here, between two constitutional instruments, which raises yet further considerations. As it is, however, we have come to the conclusion that the step mentioned in paras 200 and 206 above is one which the European legislature in this instance clearly provided by article 1(4) (formerly 1(5)) need not and should not be taken, and which the European Court of Justice has not endorsed. The Court of Justices more limited approach in this respect is also borne out by an examination of the objectives of the Directive. Nothing in the Directive suggests that it is aimed at excluding either political involvement or reasoning based on political policy decisions from planning decisions. On the contrary, the recognition that projects may legitimately be approved by specific legislative act constitutes express recognition of the legitimacy of such factors. The appellants case, that the Parliamentary process will be tainted by considerations such as whipping or collective ministerial responsibility or simply by party policy, amounts to challenging the whole legitimacy of Parliamentary democracy as it presently operates. There would doubtless be a similar problem in most, probably all, the democracies of the Union. Finally, we note that article 10 TEU itself recognises that, in a Union founded on representative democracy, whose citizens are directly represented in the European Parliament, [p]olitical parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. This, though it may at present be largely aspirational in so far as it refers to pan European political parties, undermines any suggestion that the ordinary workings of political democracy can or should be seen as suspect under article 1(4) of the EIA Directive. In the upshot, there is, as Lord Reed concludes, no basis under the EIA Directive for the wide ranging review of Parliamentary process advocated by the appellants, whether this be to assess the quality of the consideration given in Parliament or the extent to which the members of either House will be free of party influence when deciding how to vote; and we further agree that this is clear to a point where is no need for a reference to the European Court of Justice. Conclusion It follows, as stated above, that the appeals should be dismissed under both Directives.

UK-Abs

These appeals arise out of the decision of the Government to promote the high speed rail link from London to the north known as HS2. The decision was announced in a command paper, High Speed Rail: Investing in Britains Future Decisions and Next Steps (Cm 8247, 10 January 2012) referred to as the DNS. The DNS included confirmation of the Governments high speed strategy and a summary of its decisions, and set out the process by which the Government intended to obtain development consent for HS2 through two hybrid bills in Parliament. The appellants commenced judicial review proceedings in April 2012. The appellants claim was upheld in relation to certain aspects of the consultation process but dismissed on the issues relevant to these appeals. The Court of Appeal gave judgment dismissing the appellants appeal in July 2013. The main issues for this court are first, whether the DNS should have been preceded by a strategic environmental assessment (SEA) under Directive 2001/42/EC (the SEA Directive), and secondly, whether the hybrid bill procedure, as currently proposed, will comply with the procedural requirements of Directive 2011/92/EU (the EIA Directive). The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment on the first issue, with which Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption and Lord Reed agree. Lord Reed gives the lead judgment on the second issue, with which the other justices agree. Lord Sumption and Lady Hale give separate concurring judgments. Lord Neuberger and Lord Mance give a joint concurring judgment, with which the other justices agree, on the case law of the CJEU which forms the basis of the issues in the appeals. The SEA Directive and the Aarhus Convention The purpose of the SEA Directive is to prevent major effects on the environment being predetermined by earlier planning measures before the environmental impact assessment (EIA) stage is reached. The concept of a plan or programme embodied in the SEA Directive is not something which simply defines the project or describes its merits, but sets the framework for the grant of consent by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects [35 36]. The DNS is an elaborate description of the HS2 project, including the thinking behind it and the governments reasons for rejecting alternatives. However, it does not constrain the decision making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any criteria contained in previous Government statements [38 39]. Setting a framework implies more than mere influence [41]. There is a distinction in the context of the SEA Directive between merely influencing subsequent consideration and setting limits on the scope of what can be considered. Until Parliament has reached its decision, the merits of all aspects of the HS2 project remain open to debate [49]. There is also no reason to assume that plans or programmes covered by article 7 of the Aarhus Convention must also be subject to the SEA procedure. The SEA Directive must be interpreted and applied on its own terms [51 52]. It is not necessary to make a reference to the CJEU on this point [53]. Hybrid bill procedure and the EIA Directive The second question is whether the hybrid bill procedure is compliant with the requirements of the EIA Directive and whether it is appropriate for the court to consider the compatibility of the Parliamentary procedure at the present stage [56]. It was argued that the effect of (1) the whipping of the vote at the second and third readings, (2) the limited opportunity provided by a debate in Parliament for the examination of the environmental information, and (3) the limited remit of the select committee following second reading, is to prevent effective public participation, contrary to article 6(4) of the EIA Directive [73]. It is appropriate to consider the appellants contention at the present stage rather than waiting until legislation may have been enacted. The principal advantages are practical. The Parliamentary procedure will be costly and time consuming. It is convenient to have the point of law decided before further time and expense are incurred on the basis of what is argued to be a mistaken understanding by Government. The court can consider the effect of the Directive without affecting or encroaching upon any of the powers of Parliament [93 95]. The question whether it is in the public interest to proceed with a project of national importance, such as HS2, may be a matter of national political significance. It is partly for that reason that such decisions may be considered appropriate for determination by the national legislature rather than by the ordinary process of development control. The national legislatures of member states are political institutions whose decisions are likely to be influenced by the policy of the dominant Parliamentary party or parties. The influence of party and government policy does not prevent the members of national legislatures from giving careful and responsible consideration to information, including environmental information, which is relevant to the matters that they have to decide. The contention that the procedure currently envisaged by the Government will not permit an adequate examination of the environmental information to take place is unpersuasive. There is no reason to suppose that Members of Parliament will be unable properly to examine and debate the proposed project [108 113]. There is no need for the court to make a preliminary reference to the CJEU before reaching a decision on this matter [117]

It is a common assumption that young people of succeeding generations become increasingly sophisticated and worldly wise. Certainly, the young people of today have access to a range of external experiences, particularly through social media, that would have been inconceivable even 20 years ago. But the street urchins of Dickens day were, arguably, just as knowing vis vis their elders, as are todays youth. The seeming sophistication or worldliness of todays children does not mean that they are not as inherently immature as have been children throughout the ages. Apparent social sophistication is not to be equated with a lack of naivet. Giving the appearance of being older than their years should not be confused with possession of mature judgment. Protection of our children from the consequences of their immaturity and the preservation of their innocence are just as vital as they have ever been. The young man who is the appellant in this case is now 18 years old. He was born on 16 July 1996. On 23 and 26 July 2010 two newspapers, the Derry Journal and the Derry News respectively, published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the appellants photographs and those of others who had been involved in public disorder in Londonderry was part of a police campaign known as Operation Exposure which was designed to counteract sectarian rioting at what are called interface areas in parts of Derry. Interface areas are situated at the boundaries of parts of the city which are predominantly inhabited by one or other of the two main communities. The appellant argues that publication of photographs of him constituted a violation of his article 8 rights. The Divisional Court in Northern Ireland (Morgan LCJ, Higgins and Coghlin LLJ) dismissed his application for judicial review on 21 March 2013. Factual background Mr McGleenan QC, counsel for the Chief Constable, has described the factual background as convoluted and that is certainly not an exaggeration. The case made on the appellants behalf in the judicial review proceedings, by which he sought to challenge the legality of the police operation, was made largely through affidavits from his father. On 14 July 2010 the Derry Journal had published images of closed circuit television (CCTV) pictures which had been taken during serious rioting in Derry in July 2010. In the first of his affidavits, the appellants father claimed that these included images of his son. He also claimed that leaflets published and distributed by police on 16 August 2010 which again contained CCTV images of young people involved in rioting identified the appellant. When the application for leave to apply for judicial review was first heard, two particular images from the 14 July issue of the Derry Journal and the leaflets were stated by his counsel to be those of the appellant. It was later established that, not only were these not images of the appellant, he did not appear at all in that particular issue of the newspaper or in the leaflets. The appellant had been interviewed by police on 1 July 2010. He was questioned about his involvement in rioting on 24 May 2010 and 8 June 2010. He was shown CCTV footage of both incidents and he claimed to be able to identify himself from the footage of both incidents. He was also shown a booklet of some 115 photographs of persons involved in rioting on various dates in May and June 2010. These included the images contained in the leaflets which were later published by police on 16 August 2010. The appellant did not identify himself in any of these images. In light of the statement by counsel for the appellant at the leave hearing that the appellants image did appear in one of the photographs contained in the leaflet, he was interviewed again in relation to the incident portrayed in that photograph. During this second interview the appellant and his father were shown CCTV footage. As a result of this viewing, both concluded that, contrary to what had been said on his behalf at the application for leave to apply for judicial review, the appellant was not depicted in the image in the leaflet which had formerly been chosen as having identified him. So far as the image in the Derry Journal of 14 July 2010 was concerned, it was established that this was of someone else entirely. In sum, in neither of the particular images which counsel had told the court were of the appellant, was he in fact portrayed. Following the second interview, a further affidavit was prepared for the appellants father. It is claimed that this affidavit has been filed in the proceedings. Apparently, it has never been sworn, so it seems unlikely that it has actually been filed. In any event, in this affidavit, it was claimed that the appellants image appeared in issues of the Derry Journal and the Derry News published on 23 and 26 July 2010 respectively. Both issues contained the same photograph. The appellants father stated that the image came from video footage of an incident which he believed had occurred on 6 June 2010. It is now accepted by the respondent that the appellant is the figure shown in the photograph reproduced in these two issues of the newspapers but the appellants image was captured on 5 June rather than the sixth as the appellants father believed. The appellants father also claimed in this second affidavit that, during the interview on 1 July 2010, his son had identified himself as the child throwing stones in the photograph that was published in the Derry Journal and the Derry News on 23 and 26 July 2010. This is disputed by the respondent. In affidavits filed on his behalf, the interviewing officer has said that, although CCTV footage of events on 5 June had not been shown during the interview on 1 July 2010, the appellant and his father were shown the image later reproduced in the newspapers on 23 and 26 July but the appellant had not been identified at that stage. Indeed, formal identification of the appellant was not made as the person shown in the photograph published on those dates until 11 May 2011. By that time, the six month limitation period that applies to any charge that might have been preferred against the appellant had elapsed. Accordingly, no action was taken against him. The appellant was involved in offences other than those relating to the publication of his photograph. On 6 August 2009 he was arrested on a charge of riotous behaviour which had occurred on 13 July 2009 at Butchers Gate, Derry. This was dealt with by a restorative caution on 29 June 2011. He was also charged with two separate offences of riotous behaviour alleged to have occurred on 6 June and 8 June 2010 and with possession of an offensive weapon and attempted criminal damage on the latter date. A youth conference was directed by Public Prosecution Service on 16 December 2010. The appellant failed to engage with this and on 31 May 2011 it was decided that he should be prosecuted for these offences. The riotous behaviour charges were dealt with by a youth conference ordered by the court on 23 October 2012. The possession of offensive weapon and attempted criminal damage charges were not proceeded with. Operation Exposure Chief Inspector Chris Yates is the area commander of Police Service of Northern Ireland (PSNI) for the Foyle District of Londonderry. He has described how interface violence between the two communities in this district was a regular occurrence during periods of heightened tension such as when parades were taking place. The number of incidents of violence decreased significantly during the period from 2006 to early 2009. But in the early part of 2009 it was observed that the number of such incidents at one particular location, the Bishop Street/Fountain estate interface, had increased substantially. This was of particular concern to the police because there is a residential home for the elderly and vulnerable in the vicinity. Inter community violence in the area again became a regular occurrence, flaring up significantly during two parades in July and August. The level of violence increased yet again during May and June 2010. It was more serious and prolonged than any experienced by Mr Yates since he had begun service in the Foyle district. Intelligence received by police suggested that vigilante groups were being formed on one side and dissident republicans were encouraging violence on the other side. Community representatives on the nationalist side informed police that they had lost influence over the youths in their area; indeed they had been confronted on occasions by dissident republican elements. Police officers on the ground reported on the absence of community representatives from either side during the disturbances. The ongoing violence drained police resources and, in the estimation of Mr Yates, threatened to undermine community confidence in PSNIs response. Indeed, police were criticised for having failed to deal with the continuing disorder. The issue was raised at a meeting of the district police partnership on 16 June 2010. This is composed of, among others, local councillors and community representatives. The ongoing violence was discussed at the meeting and general concern was expressed. The matter was discussed again on 1 July 2010 when Chief Inspector Yates was present at a meeting of the City Centre Initiative. This was attended by representatives of various political parties and community groups. Everyone present agreed that the violence at the interface had to be brought to an end. The chief inspector informed those present that the young people engaged in the recent public disorder had to be identified in order to ensure an effective response to the interface violence. He produced a booklet of photographs and asked all who were present to inspect these and to help him identify those captured in the images. He said that if the persons involved were not identified at the meeting or at later private meetings which he offered to hold with any of the representatives present, he would consider having them published in the local press. None of those depicted in the photographs was identified. The chief inspector was asked to defer placing the images in the newspapers and he agreed to do so for a period of two weeks. In the event, he was not contacted by anyone who had attended the meeting and he proceeded to arrange for the publication of the photographs in the local press. The final decision as to whether particular images should be released to the press or contained in leaflets to be distributed by the police fell to Temporary Superintendent Sam Donaldson. In an affidavit filed on behalf of the respondent, Mr Donaldson explained how the strategy of seeking public assistance in identifying offenders from still images and CCTV footage had been developed in G police district in 2008 and 2009. (Foyle is in G police district). The strategy had proved to be a particularly effective tool in identifying offenders involved in interface violence and acts of public disorder. What follows in the next six paragraphs is Mr Donaldsons account of how the strategy is implemented. Operation Exposure is a system of investigation of crime which comprises an elaborate series or stages of inquiry. The first stage involves the investigating officer inspecting the details of the individual offence which have been entered on the police database. At the next stage the officer follows what might be described as conventional lines of inquiry. This can include the recording of statements from injured parties and witnesses, the interviews of suspected offenders and, if the state of the evidence justifies it, the preparation of a prosecution file. When part of the criminal inquiry involves taking possession of CCTV or still photographic images, the investigating officer is not automatically entitled to make use of these to pursue the inquiry. He or she is required to ensure that all reasonable steps have been taken to identify a suspect by a less intrusive means. These may include door to door inquiries; forensic examination of items of evidence; circulation of details among other police officers; intelligence research; and liaison with other police services including An Garda Siochana. When it is clear that all lines of reasonable inquiry have been exhausted, the investigating officer is authorised to request the CCTV unit to develop the best image from the available footage. This is then uploaded to police internal electronic briefing pages in order to facilitate identification of suspects. All serving police officers have access to these pages. As part of the Operation Exposure process, the briefing pages carry photographs of the persons that the police wish to identify, together with details of the incident under investigation. Officers are reminded to speak to the Operation Exposure officer if they are able to identify anyone from the images. Particular attention is paid to the role of neighbourhood officers because of their local knowledge and the greater likelihood of their being able to identify individuals. These officers are regularly briefed and it is the responsibility of the Operation Exposure officer to ensure that this particular line of inquiry has been pursued before proceeding to the next stage. If it proves impossible to identify a suspect by internal police procedures, the question of releasing images to outside agencies is considered. The Operation Exposure officer must ensure that all other lines of inquiry have been fully pursued before seeking authorisation to release the images. A senior officer such as Mr Donaldson is briefed on the circumstances of the case, the lines of inquiry which have been pursued and the steps that the investigating officer has taken in relation to the identification of the suspect. The senior officer is also informed about the location of the incident under investigation; the injuries, if any, involved in the suspected offence; the ages of the injured parties and the estimated age of the offender. All of this is recorded in an official journal, together with any queries that may have been raised, for instance, about whether all necessary steps have been taken to identify a suspect by some other means. Consideration of the reasons in favour of and those against the release of a specific image is also recorded. All these steps are prescribed by an Operation Exposure guidance document which is modelled on national guidance issued by the Association of Chief Police Officers. In accordance with specific provisions in the guidance documents, human rights issues are also considered. The authorising officer requires to be satisfied that not only have all other reasonable lines of inquiry been pursued but that the release of the image will have a positive effect on the investigation. The proportionality of an order for release is also considered this involves considering whether it is in the public interest that it be released; the risk to the community should the individual depicted in the image remain unidentified; the frequency of the type of offence involved; and the consequences of it continuing to be committed. Operation Exposure was not specifically designed as a general aid in the investigation of crimes committed by juveniles but where it is clear that the image to be released is that of a young person, particular care is taken and greater weight is given to the potential implications of the release of the image. Inquiry is made as to whether liaison has taken place with the local police officer who has a particular knowledge of young people in his area (the police youth diversion officer). Consideration is given to whether there is a risk to the young person from the community (in other words, whether he or she might be the target for a so called punishment beating). The apparent age of the young person is taken into account. Unfortunately, it is the police experience that some young people involved in interface violence may be below the age of criminal responsibility. Where the authorising officer considers that this might be the case, release of the image will not be authorised. Finally, a decision whether to release the image of a young person will involve consideration of where the best interests of the child lie. The authorising officer addresses this question in terms of whether it would be more beneficial to allow the young person to remain unidentified with the possibility that he or she would continue in the unlawful conduct or that it is better to intervene, in order to protect the young person from the dangers associated with involvement in public disorder. This examination takes place against the background that the preferred choice of the police service is to deal with an offending child in ways that do not involve the criminal justice system. The most common result of a child being identified as having taken part in this type of offending is what are described as lower level interventions such as parent/guardian involvement or youth diversion opportunities. Mr Donaldson stated that these are often the desired, and most appropriate outcome. The circumstances in which the appellants image came to be published were explained by Inspector Jon Burrows. He described the sectarian violence that had occurred between April and July 2010 at the Fountain Street/Bishop Street interface. In that period there were at least 46 sectarian incidents there and over 100 offences were committed. Approximately 75 young people were involved. Police warnings were issued informing the public that CCTV filming of the disorder would take place. Notwithstanding this, violence at the interface continued unabated. The inspector then considered whether to seek authorisation for the publication of images of those involved in the disorder. Before applying for this he conducted a risk assessment. This included addressing the risk that young people who were identifiable from the images might be targeted. This was considered to be low but mitigation measures were put in place, involving the obtaining of intelligence on the likelihood of targeting taking place and ensuring that all images published would be accompanied by a caption which referred to the presumption of innocence. Inspector Burrows realised that the use of Operation Exposure carried a risk that young people identified by it would become criminalised and stigmatised. He sought to counteract this by adopting a no positive charge policy, in other words that there would be a presumption in favour of diversion away from sectarianism and crime rather than prosecution. Highlighting the use of engagement procedures whereby the police and other agencies engage with the young person was an integral part of the Operation Exposure exercise. The inspector produced a copy of the internal police guidance that had been prepared in order to regulate the implementation of the Operation Exposure policy. This stipulated that all other means of identifying and tracing the suspect must have been exhausted before images were published. It also required that special care be taken when release of images of suspects under 18 years was being contemplated. The test for disclosure would be more rigorously applied in those instances. Social services should be approached and offered the opportunity to view the images so that release of such images to the media could be kept to a minimum. All of these steps were taken before the Operation Exposure exercise in July 2010 was authorised. Subsequently, in August 2011 that exercise was retrospectively analysed. The results analysis revealed that 102 offences had been committed between 24 May and 30 June 2010. The release of images in July 2010 had resulted in the identification of 37 persons (including the appellant) who had been engaged in interface violence. Of these 37, only five had been charged with criminal offences. The others had been dealt with through the youth diversion or the youth conferencing facility. This was despite the fact that, in Inspector Burrows estimation, there was sufficient evidence to charge the young people involved with criminal offences. The reason that he gave for this was that the overarching objective of the exercise was to identify the offenders and help them to divert from the type of offending that they had been engaged in. The results analysis also disclosed that there had been a 50% reduction in sectarian crimes in the Foyle district in July and August 2010 from the number committed in the same months the previous year. The report also recorded a marked reduction in sectarian incidents at the interface at Fountain Street, Londonderry. The issues The case made on behalf of the appellant before the Divisional Court was that the publication of photographs of him in the Derry Journal and the Derry News constituted a breach of his right to respect for a private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). This was the single issue. And the question certified by the Divisional Court reflected that position. It was in these terms: Whether the publication of photographs by the police to identify a young person suspected of being involved in riotous behaviour and attempted criminal damage can ever be a necessary and proportionate interference with that persons article 8 rights. On the hearing of the appeal to this court, the appellant sought to introduce an argument that the retention of images of him by the police constituted a separate violation of article 8. Separate, that is, from the claim that supplying photographs of the appellant to the newspaper for publication was a breach of his article 8 rights. Unsurprisingly, the respondent objected to this new ground of challenge. The question of the legality of retaining the images (as opposed to publishing them) had not been considered by the Divisional Court because that court had not been addressed on the issue. Indeed, Morgan LCJ at para 22 of his judgment had said this about the nature of the application with which the court was dealing: This application is not concerned with the taking of photographs of the riotous and disorderly activity or the retention and distribution of those photographs internally to police officers for the purpose of identifying offenders. The complaint is focused on the provision of those photographs to the media and solely concerns the decision to do so in circumstances where it was apparent that some of the photographs were images of children. It was decided that the appellant should not be permitted to introduce this new ground of challenge before this court. As the respondent pointed out, evidence about the reasons for retention of the appellants photographs and whether these were to be retained for any particular length of time had not been given. To allow this particular challenge to proceed in the absence of such evidence would plainly be wrong. The sole remaining issue, therefore, is whether the publication of the photographs of the appellant constituted a breach of his article 8 right. Is article 8 engaged? The majority in the Divisional Court held that article 8 was engaged. Morgan LCJ dealt with this at para 30: In this case the photograph is not just an image of the child. It is part of a context which discloses to the public that the child in the image is at least wanted for interview in connection with possible involvement in serious public disturbances. At the time of publication it had not been established that the child had participated in any offence. The domestic and international provisions set out at paras 23 to 26 above [section 53 of the Justice (Northern Ireland) Act 2002, article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998, the Beijing Rules, the United Nations Convention on the Rights of the Child (UNCRC)] indicate the importance of respecting the privacy of children in the criminal justice system because of the risk that they will become stigmatised with a consequent effect on their reputation and standing within the community. If participation in criminal activity is established their rehabilitation may thereafter be impaired. Given the breadth of the concept of private life the publication of photographs suggesting that police wished to identify this child in connection with these serious offences was an intrusion into his private life. Higgins LJ did not agree. He considered that article 8 was not engaged. In para 63 of his judgment he said: The answer to the question whether a private life right exists in a public setting will be found by considering whether the person had a reasonable expectation of privacy in the public circumstances in which he placed or found himself. In this case the applicant placed himself in public view among a crowd of other persons engaged, allegedly, in public disorder. He was open to public view by anyone who happened to be watching, be they police or civilians. He took the risk of his presence and any activities being observed and noted down or otherwise recorded. What was the aspect of his private life which was in issue at that stage? None has been ventured. There must be an onus on the applicant to establish the aspect of his private life which he states is engaged at that stage or to characterise the interest which he seeks to protect. As in Kinloch there can have been no expectation of privacy in the circumstances of the instant case. The criminal nature of his activities or his presence, (if that is what they are), are not aspects of his life which he is entitled to keep private. Such activities should never be an aspect of private life for the purposes of article 8. In my view a criminal act is far removed from the values which article 8 was designed to protect, rather the contrary. In this case the applicant was photographed by the police, rather than his presence or activities simply noted down. I do not consider that is a material distinction. The photograph is probably a more accurate record of what is on going. In my view the taking of the photographs of the claimant, in the particular circumstances of this case, did not amount to a failure to respect any aspect of the claimants private life within article 8(1). Before this court the respondent argued that the appellant could not be said to have any reasonable expectation of privacy where he had willingly engaged in acts of disorder in a public street. Ms Higgins QC (who appeared for the appellant) countered this by submitting that reasonable expectation of privacy was not in general a prerequisite for the engagement of article 8 and certainly not in the case of a child or young person. Alternatively, she suggested that, at best, reasonable expectation was a factor to be taken into account. It was not to be treated as determinative of the issue whether the Convention right was engaged. In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at para 20, Lord Nicholls of Birkenhead identified as the initial question in a claim that a persons article 8 rights had been violated by the publication of material about them, the issue whether the published information engaged article 8 at all by being within the sphere of the complainants private or family life. He then gave this warning in para 21: Accordingly, in deciding what was the ambit of an individuals private life in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. (emphasis supplied) In Kinloch v HM Advocate [2012] UKSC 62, [2013] 2 AC 93 Lord Hope of Craighead took a similar approach. In that case the appellant complained that police had acted in breach of his article 8 rights in obtaining evidence by surveillance since they had failed to obtain authorisation for the surveillance under the Regulation of Investigatory Powers (Scotland) Act 2000. He was accused of converting and transferring criminal property consisting of large sums of money. Police had covertly observed the appellant and his associates in various public places leaving premises, entering cars and carrying a bag which, when he was searched, was found to contain a large sum of money. At para 19 of his judgment Lord Hope acknowledged that there was a zone of interaction with others that, even in a public context, fell within the scope of private life but where a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy article 8 is not engaged. Article 8 of ECHR is, arguably at least, the provision in ECHR with the broadest potential scope of application. How, after all, are limits to be set on the right to respect for ones private life, ones family life, ones home and ones correspondence? The engagement of the right, as opposed to justification of interference with it, must, of necessity, cover a wide field of an individuals activity. And the potential scope of application of the provision must vary according, not only to the conditions in which it is invoked, but also to the circumstances of the individual concerned. The concept of a reasonable expectation of a right to privacy, connoting, as it might seem to some, the notion that the individual concerned actually expected that his or her personal circumstances, on the occasion of the invasion of that privacy, ought to have been protected, and that that expectation was reasonable, is one to be approached with some caution, in my opinion, particularly in the case of children. There is, at the least, a possible tension between the application of a reasonable expectation of privacy test and the well established principle that any decision affecting a child should give prominence to his or her best interests. Moreover, an unduly rigorous use of the reasonable expectation test is impossible to reconcile with the breadth of possible application of article 8. As ECtHR said in PG v United Kingdom (2001) 46 EHRR 1272: Private life is a broad term not susceptible to exhaustive definition. Article 8 also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. (para 56) It is clear from the next paragraph of the Strasbourg courts judgment in PG that it did not consider that the reasonable expectation of privacy was a touchstone test of whether article 8 is engaged, if, by that expression one means that it is determinative of the issue. In para 57, the court said: There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a persons reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of article 8, even where the information has not been gathered by any intrusive or covert method. The court has referred in this context to the Council of Europe's Convention of January 28, 1981 for the protection of individuals with regard to automatic processing of personal data, which came into force on October 1, 1985 and whose purpose is: [T]o secure in the territory of each Party for every individual . respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him. Such data being defined as any information relating to an identified or identifiable individual.(emphasis supplied) The italicised sentence in this passage clearly indicates that where someone engages in activities (such as public disorder) which are liable to be recorded or reported, what is reasonable to expect as to protection of his or her privacy is a factor to be taken into account in deciding whether article 8 is engaged but it will not automatically determine that issue. Other factors such as the use to which a photograph might be put or whether the individual concerned has objections to its publication are also relevant. Thus in Reklos v Greece (2009) 27 BHRC 420, photographs taken of a day old infant constituted a breach of his article 8 rights because his parents objected to the taking of his photograph. At para 42 the court said: . the court finds that it is not insignificant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request of the applicants, who exercised parental authority, that the negatives be delivered up to them. Admittedly, the photographs simply showed a face on portrait of the baby and did not show the applicants son in a state that could be regarded as degrading, or in general as capable of infringing his personality rights. However, the key issue in the present case is not the nature, harmless or otherwise, of the applicants sons representation on the offending photographs, but the fact that the photographer kept them without the applicants consent. The babys image was thus retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents (see, mutatis mutandis, PG and JH v The United Kingdom 46 EHRR 1272, para 57). The significance of taking and using a persons photograph, in the context of article 8, was emphasised by the court in para 40: A persons image constitutes one of the chief attributes of his or her personality as it reveals the persons unique characteristics and distinguishes the person from his or her peers. The right to the protection of ones image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individuals right to object to the recording, conservation and reproduction of the image by another person. As a persons image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case , obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image. Prima facie, therefore, the taking and use of a photograph of an individual will lie within the ambit of article 8. The essential question is whether it is removed from that ambit because of the activity in which the person is engaged at the time the photograph was taken and because the person could not have a reasonable expectation that his or her right to respect for a private life arose in those particular circumstances. The fact that the activity in which the person is engaged is suspected to be criminal will not, by reason of that fact alone, be sufficient to remove it from the possible application of article 8. In R (L) v Comr of Police of the Metropolis (Secretary of State for the Home Department intervening) [2009] UKSC 3, [2010] 1 AC 410, this court held that disclosing criminal records during a Criminal Records Bureau check fell within article 8 because a persons private life could be affected by the stigma of having it revealed that he or she had criminal convictions. Although the appellant in that case had not been convicted of a criminal offence, in the course of making available to her employers the result of an enhanced criminal record certificate, the Secretary of State disclosed certain information which had been supplied by the police commissioner. This was to the effect that the appellants son had been placed on the child protection register under the category of neglect. It was stated that the appellant had refused to co operate with social services. This information caused her employers to discontinue her employment. After reviewing several Strasbourg authorities (including X v Iceland (1976) 5 DR 86; Niemietz v Germany (1992) 16 EHRR 97; Sidabras v Lithuania (2004) 42 EHRR 104; Rotaru v Romania (2000) 8 BHRC 449; Segerstedt Wiberg v Sweden (2006) 44 EHRR 14, and Cemalettin Canli v Turkey, (Application No 22427/04) (unreported) given 18 November 2008), Lord Hope, at para 27, said that this line of authority from Strasbourg shows that information about an applicants convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicants private life when it is released. If disclosure of a persons actual criminal convictions falls within the scope of article 8, it is difficult to see how publication of an image of someone, such as the appellant, who was photographed when it was suspected he was engaged in criminal activity, would not likewise come within its ambit. In Sciacca v Italy (2005) 43 EHRR 400 ECtHR held that article 8 could be engaged by the publication of a persons photograph in newspapers even where they were under investigation for (and subsequently convicted of) criminal behaviour. In that case the applicant had been charged with criminal association, tax evasion and forgery of official documents. Revenue police compiled a file on her containing, among other things, her photographs and fingerprints. A public prosecutor held a press conference in which the allegations against the applicant and others were discussed. Photographs from the police file were supplied to newspapers. Following this, two newspapers published the photographs of the applicant in articles which stated that she and others had been charged with serious offences. The case against the applicant ended with a special procedure for imposition of a penalty agreed between the applicant and the prosecution. The penalty involved the imposition of a term of imprisonment and a fine. On the question of whether there had been an interference with Ms Sciaccas article 8 rights, the court said this at para 29: Regarding whether there has been an interference, the court reiterates that the concept of private life includes elements relating to a persons right to their picture and that the publication of a photograph falls within the scope of private life. It has also given guidance regarding the scope of private life and it has found that there is: a zone of interaction of a person with others, even in a public context, which may fall within the scope of a private life (Von Hannover v Germany (2004) 40 EHRR 1, paras 50 53) In the instant case the applicants status as an ordinary person enlarges the zone of interaction which may fall within the scope of private life, and the fact that the applicant was the subject of criminal proceedings cannot curtail the scope of such protection. Accordingly, the court concludes that there has been interference. Of course, clear distinctions can be drawn between the Sciacca case and the present appeal. In that case it was not considered necessary, as it was here, to publish the applicants photograph for the purpose of identifying her. Also, she was not engaged in criminal activity at the time the photograph was published. Moreover, it might be said that she had a reasonable expectation that a photograph taken as part of conventional police procedures would not be published without her consent. But the case is notable in the present context for its unqualified statement of principle that the publication of a photograph falls within the scope of a private life. Thus, while even a 14 year old child might not have a reasonable expectation that his photograph would not be taken if he engaged in rioting in a public place, different considerations arise when it comes to the publication of the photograph. The fact that the appellant was technically a child at the time of the publication of his photograph plays an important part in the decision whether that publication fell within the scope of his article 8 rights. The criminal justice system is geared to protect the identity of young offenders from disclosure. This is precisely to avoid the risks of criminalisation and stigmatisation. This is why such emphasis is placed by the police service and the prosecution service on youth conferences and other diversionary options. And it is why, if a child is involved in criminal proceedings, specific provision is made to ensure that his or her identity is not revealed. Article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (SI 1998/1504 (NI 9)) contains express provisions about the protection of a childs identity: (1) Where a child is concerned in any criminal proceedings (other than proceedings to which paragraph 2 applies) the court may direct that (a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and (b) no picture shall be published as being or including a picture of the child, except in so far (if at all) as may be permitted by the direction of the court. (2) Where a child is concerned in any proceedings in a youth court or on appeal from a youth court (including proceedings by way of case stated) (a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and (b) no picture shall be published as being or including a picture of any child so concerned, except where the court or the [Department of Justice], if satisfied that it is in the interests of justice to do so, makes an order dispensing with these prohibitions to such extent as may be specified in the order. (3) If a court is satisfied that it is in the public interest to do so, it may, in relation to a child who has been found guilty of an offence, make an order dispensing with the prohibitions in paragraph 2 to such extent as may be specified in the order It does not lie easily with the scheme of protection of a childs identity envisaged by this provision that the publication of his photograph, for the very purpose of enabling those who know or recognise him to identify him in the course of criminal activity, should not fall within the scope of a Convention provision which guarantees his right to respect for a private life. Moreover, as is common case, the nature and content of a childs right under article 8 must be informed by relevant international treaty provisions. Article 3(1) of UNCRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The United Nations Committee on the Rights of Children, in its comment on the significance of this provision in May 2013, said this in para 1 of its report: Article 3, paragraph 1 of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 3, paragraph 1, as one of the four general principles of the Convention for interpreting and implementing all the rights of the child, and applies it is a dynamic concept that requires an assessment appropriate to the specific context. And this at para 4: 1. The concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child. The Committee has already pointed out that an adults judgment of a childs best interests cannot override the obligation to respect all the childs rights under the Convention. It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the child's best interests and no right could be compromised by a negative interpretation of the child's best interests. And, finally, this at para 5: The full application of the concept of the child's best interests requires the development of a rights based approach, engaging all actors, to secure the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity. The notion that a childs best interests can be properly catered for by supposing that when he or she engages in criminal activity in a public place, because he or she cannot therefore have a reasonable expectation of privacy, publication of his or her photograph, while engaged in that activity, does not come within the ambit of article 8 is, at best, incongruous, and is distinctly out of step with the philosophy which underpins article 3(1) of UNCRC. That philosophy, so far as it relates to criminal proceedings against children, is prominently proclaimed in article 40(2)(vii) of the Convention which requires states who are party to the Convention to ensure that the childs privacy is fully respected at all stages of the proceedings. The Beijing Rules accord similar importance to the need to insulate children from the disclosure of their identity when they are involved in criminal proceedings. They were adopted by the General Assembly resolution 40/33 of 20 November 1985. Rule 8 provides: 8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling. 8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published. The commentary on this rule is to the following effect: Rule 8 stresses the importance of the protection of the juveniles right to privacy. Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as delinquent or criminal. Rule 8 stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case (for example the names of young offenders, alleged or convicted). The interest of the individual should be protected and upheld, at least in principle. Taken as indicators as to how article 8 should be interpreted in this case, these provisions are reasonably unmistakable. A childs identity should be protected even (or, perhaps, especially) when he or she has been subject to criminal proceedings. The ambit of article 8 of ECHR must be seen as including within its embrace the need to protect a child from exposure as a criminal. That it should apply to the publication of a photograph of a child while, apparently, engaged in criminal activity, must follow inexorably. I consider, therefore, that there has been an interference with the appellants article 8 right. This conclusion does not depend on the abandonment of the test of reasonable expectation of privacy as a measure of whether a particular form of activity carried out in a public place comes within the ambit of article 8. In appropriate circumstances, this will be of considerable importance and its application to those circumstances may lead to only one possible conclusion such as, for instance, an adult person engaging in crime in a public forum. Such a person could not have a reasonable expectation of privacy for his criminal activity. As in Kinloch he could not expect that police would not be entitled to carry out surveillance of his criminal behaviour. That consideration may occupy a position of such importance in the question of whether particular circumstances come within the ambit of article 8, that no other factor could outweigh it. But it is important to understand that reasonable expectation of privacy, as a test of whether article 8 is engaged, cannot be accorded a status of unique importance with that automatic consequence in every conceivable circumstance where it can be said that a reasonable expectation of privacy was not present. The present case exemplifies the point. If reasonable expectation of privacy was to be treated as the be all and end all of whether article 8 was engaged, it might be supposed that only one answer was possible. For the reasons that I have given, a more nuanced approach is warranted. The fact that the appellant was a child; the fact that the mooted interference with his article 8 right involved not only the taking of his photograph but also its publication, with the consequent risk of stigmatisation; and the fact that the consent of the appellant and his parents was neither sought nor given, combine to more than offset the importance of the reasonable expectation of privacy test in his case. The test for whether article 8 is engaged is, essentially, a contextual one, involving not merely an examination of what it was reasonable for the person who asserts the right to expect, but also a myriad of other possible factors such as the age of the person involved; whether he or she has consented to publication; whether the publication is likely to criminalise or stigmatise the individual concerned; the context in which the activity portrayed in the publication took place; the use to which the published material is to be put; and any other circumstance peculiar to the particular conditions in which publication is proposed. To elevate reasonable expectation of privacy to a position of unique and inviolable influence is to exclude all such factors from consideration and I cannot accept that this is a proper approach. As I have said, reasonable expectation of privacy will often be a factor of considerable weight; it might even be described as a rule of thumb but to make it an inflexible, wholly determinative test is, in my opinion, to fundamentally misunderstand the proper approach to the application of article 8 and to unwarrantably proscribe the breadth of its possible scope. Von Hannover v Germany (2004) 16 BHRC 545 is not authority for giving reasonable expectation of privacy this unique status. It is true that in para 51 of its judgment (quoted by Lord Toulson in para 84) the court referred to the reasonable expectation of privacy but this was for the purpose of making clear that where there was such an expectation, that was a factor in favour of the engagement of article 8. The court did not suggest that, if there was no reasonable expectation of privacy, that would be determinative of the issue. Indeed, it did not even address that question. Moreover, the courts discussion in para 52 about the Commissions reference to the use to which photographs might be put was quite separate from the question of whether a there was a reasonable expectation of privacy. It is clear that the Commission (and the court) considered that the dissemination of photographs to the general public could alone give rise to interference with the article 8 right, irrespective of whether there was a reasonable expectation of privacy. That approach is plainly inconsistent with the view that, unless there was such an expectation, there could never be an interference with article 8 rights. In para 22 of R (Wood) v Comr of Police for the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR 123, Laws LJ outlined what he described as three safeguards against the overblown use of article 8. The second of these was that the touchstone for the engagement of the article was a reasonable expectation of privacy. Laws LJ said that, absent such an expectation, there is no relevant interference with personal autonomy. His authority for this proposition appears to rest on Van Hannover the opinions of Lord Nicholls and Lord Hope in Campbell and the judgment of Sir Anthony Clarke MR in Murray v Express Newspapers plc [2008] 3 WLR 1360 (see para 24 of Laws LJs judgment). For the reasons given earlier, I consider that Von Hannover does not support the proposition for which it was cited by Laws LJ. In relation to the opinions of Lord Nicholls and Lord Hope in Campbell, it is, I believe, significant that neither suggested, in quite the sweeping way that Laws LJ did, that reasonable expectation of privacy was a sine qua non of article 8 engagement. Neither stated in terms that if a reasonable expectation of privacy was not present, there could never be an interference with personal autonomy. True it is that Lord Nicholls referred to reasonable expectation of privacy as the touchstone of private life but that is a far cry from saying that this is an indispensable criterion for the engagement of article 8. It is to be remembered that Campbell was a breach of confidence case. Such a case is more likely to give rise to consideration of what it was reasonable for the person who claimed that his or her article 8 rights had been infringed to expect. Moreover, too much can easily be read into the use of the word, touchstone. Understood, as I suggest it should be, as an expression connoting no more than a means by which the significance of the material to be assessed is considered or as a form of litmus test, the mistake of treating it as an obligatory condition is revealed. Laws LJs reliance on the judgment of Sir Anthony Clarke MR in Murray does not take further the debate as to whether reasonable expectation of privacy is an essential prerequisite of article 8 engagement. It is clear that the Master of the Rolls conceived the reasonable expectation of privacy test as one to be applied in a broad and general way. At para 36 he said: As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher. This passage does not partake of an approach which starts the inquiry into whether article 8 is engaged by asking, in a context free way, whether there was a reasonable expectation of privacy. Rather, it commends an examination of all the circumstances of the case in order to determine whether such an expectation can be said to exist. This approach is echoed in the judgments of Lord Clarke and Lord Toulson in the present case. As I understand those judgments, it is suggested that considerations such as the age of the child, the circumstances in which the avowed interference took place, the purpose of the publication of photographs and whether consent had been obtained are relevant only in so far as they may be said to conduce to the overarching touchstone of a reasonable expectation of privacy. The reason for adopting such an approach is not explained other than by reference to earlier authority which, in turn, does not contain any analysis of why reasonable expectation of privacy should be given such unique and overweening status. There is certainly no obviously logical reason for approaching the question of engagement of article 8 in this way. The factors outlined earlier are unquestionably capable of bearing on the issue on a freestanding, autonomous footing and, absent any rational basis for treating them merely as a sub set of reasonable expectation of privacy, this is how they should be evaluated. I am therefore of the firm view that the reasonable expectation of privacy is but one of a number of factors which may be relevant to the issue of the engagement of article 8. That this is the correct approach is, it seems to me, clear from the judgment of Richards LJ in R (C) v Comr of Police for the Metropolis (Liberty intervening) [2012] EWHC 1681 (Admin) , [2012] 1 WKR 3007. Dealing with Laws LJs judgment in Wood, Richards LJ said at para 36: What Laws LJ said about the taking of photographs on arrest was obviously obiter. More importantly, it relied on Strasbourg decisions prior to S v United Kingdom which, as already explained, have to be re assessed in the light of the judgment in that case; and it was based on a test of reasonable expectation of privacy which, as the recent Strasbourg cases show, is not the only or determinative factor. In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, at para 21, Lord Nicholls of Birkenhead said, in relation to article 8.1, that [e]ssentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. But that was plainly not the specific test applied by the Strasbourg court in S v United Kingdom; and the judgment in PG v United Kingdom makes clear, at para 27, that it is not the only test and that other considerations come into play, in particular, in relation to the retention of personal data . Kinloch does not throw doubt on the correctness of Richards LJs analysis. As it happens, and unsurprisingly, the patent lack of any reasonable expectation of privacy in that case was a weighty factor which militated strongly against a finding that article 8 was engaged but nothing in Lord Hopes judgment in that case lends support to the notion that that factor must in all circumstances be present for engagement of the article to arise. The criminalisation of a childs activities and his possible stigmatisation by publishing photographs of him while apparently engaged in such activities are factors which were not in play in Kinloch. But they are distinctly in play in this case. Surveillance was the complained of activity in Kinloch; here it is the publication of photographs of the appellant which is in issue. That publication was, for reasons that I shall discuss below, justified. But it is extremely important not to conflate the question of justification with the issue of whether article 8 is engaged. It is wrong, in my judgment, to draw from cases such as Kinloch the notion that, because the occasion of possible interference involves the recording of what appears to be criminal activity, the subsequent use of that material can never engage article 8. This point was clearly made by Lord Sumption in R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland (Equality and Human Rights Commission intervening) [2015] UKSC 9, [2015] 2 WLR 664. In the passage which succeeds that quoted by Lord Toulson in para 10, Lord Sumption said this: In one sense [the reasonable expectation of privacy] test might be thought to be circular. It begs the question what is the privacy which may be the subject of a reasonable expectation. Given the expanded concept of private life in the jurisprudence of the Convention, the test cannot be limited to cases where a person can be said to have a reasonable expectation about the privacy of his home or personal communications. It must extend to every occasion on which a person has a reasonable expectation that there will be no interference with the broader right of personal autonomy recognised in the case law of the Strasbourg court. This is consistent with the recognition that there may be some matters about which there is a reasonable expectation of privacy, notwithstanding that they occur in public and are patent to all the world. In this context mere observation cannot, save perhaps in extreme circumstances, engage article 8, but the systematic retention of information may do. When one focuses, as one must, on the publication of the photographs of the appellant, rather than the activity on which he was engaged, and when one recognises the potential effect that their publication might have on the life of the child that he then was, it is not difficult to understand that article 8 must be engaged. It would be facile to say that, because he was rioting, he cannot have expected that a right to respect for private life would be engaged and, on that account alone, it was not engaged. A childs need for protection can go beyond what, if he was an adult, he would be reasonably entitled to expect. Whether, therefore, one approaches the question of whether article 8 was engaged on the basis that reasonable expectation of privacy is but one factor in the equation or that that concept should be adjusted to take into account what the effect would be on the child, irrespective of his personal expectation, I am satisfied that there was an interference with his Convention right and that the essential issue in this case is whether that interference was justified. Justification Justification of interference with a qualified Convention right such as article 8 rests on three central propositions. The interference must be in accordance with law; it must pursue a legitimate aim; and it must be necessary in a democratic society. Proportionality is a particular aspect of the last of these requirements. The appellant takes no issue with the respondents assertion that the interference with his article 8 right pursued a legitimate aim. It is claimed, however, that it was not in accordance with law and was not necessary in a democratic society. As the Lord Chief Justice stated in para 32 of his judgment, section 32 of the Police (Northern Ireland) Act 2000 imposes a general duty on police officers to prevent the commission of offences and, where an offence has been committed, to take measures to bring the offender to justice. In light of its acknowledged responsibilities to children the police service devised Policy Directive 13/06 entitled PSNI Policing with Children and Young People. It aims to identify children and young people at risk of becoming involved in offending and works with partner agencies in the provision of support and intervention. It contains an express commitment to adhere to ECHR rights as well as the international standards in the UNCRC and the Beijing Rules. Policy Directive 13/06 is available to the public. Publication of the appellants photograph was subject to the Data Protection Act 1998. The photograph of the appellant constituted sensitive personal data (section 2(g) of the Act) and its publication was processing of the data under section 1(1) of the Act. The police service is a registered data controller and must therefore comply with the data protection principles in relation to all personal data which it holds as data controller. Under section 29 of the Act, personal data is exempt from the first data protection principle, if processed for the purposes of the prevention and detection of crime and the apprehension and prosecution of offenders, except insofar as it required compliance with Schedule 2 and/or Schedule 3 to the Act. Since the processing related to sensitive personal data, the requirements of both Schedules were engaged. If any of the conditions in these Schedules was satisfied, the respondent is deemed to have acted in accordance with the Act. A condition common to both schedules is that the processing be necessary for the administration of justice. Plainly, this applies in the appellants case. There was therefore no breach of the Data Protection legislation and I am satisfied that the publication of the appellants photograph was in accordance with law. Necessary in a democratic society Clearly, the detection and prevention of crime, the prosecution and rendering to justice of those guilty of criminal offending and the diversion of young people from criminal activities, which may be said cumulatively to constitute the objective of the Operation Exposure campaign, are necessary in a democratic society. The essential question which arises under this rubric, therefore, is whether the devising and the application of the policy were proportionate. As Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department (Aire Centre intervening) [2011] UKSC 45, [2012] 1 AC 621, para 45 and Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, 790, paras 72ff explained, this normally requires that four questions be addressed: i) fundamental right?; ii) connected to it?; iii) are they no more than are necessary to accomplish it?; and iv) do they strike a fair balance between the rights of the individual and the interests of the community? is the legislative objective sufficiently important to justify limiting a are the measures which have been designed to meet it rationally The importance of detecting and prosecuting criminal offenders, the prevention of future crime and the diversion of young people from criminal activity are self evidently objectives of the first order of importance. In concrete terms in this case, dealing with sectarian violence at interfaces in Derry, which showed alarming signs of persistence and escalation, was obviously a pressing police and community priority. This was reflected in the concerns expressed by community leaders in the meetings referred to in paras 13 and 14 above. There is no question therefore that the objective of Operation Exposure was sufficiently important to justify an interference with the article 8 right. One must concentrate, therefore, on the three remaining questions to be answered, as outlined in Lord Wilsons and Lord Reeds analysis. First, is Operation Exposure rationally connected to the objective that it sought to achieve? A number of possible options were available to police as to how to deal with the sectarian violence that was taking place in 2009 and 2010. In his affidavit, Inspector Burrows explained why arresting individuals involved in rioting at the Fountain Street interface was extremely difficult. These reasons have not been challenged. In short summary, they were that police in full riot gear could easily be outrun by young rioters who would descend a grassy slope into the Bogside area of Derry as soon as any arrest operation at the scene was attempted. Pursuing them into this area and attempting to carry out arrests was almost certain to bring about further disorder and community disaffection. Deciding to identify young rioters after the rioting had ended and either prosecuting them or securing their co operation on diversionary alternatives had an obviously rational connection with the objective of detecting crime, preventing further disorder and diverting young people from criminal activity. The rational connection between Operation Exposure and its objective is plainly established. Are the measures no more than is necessary to achieve the objective? In Bank Mellat Lord Reed, in outlining the fourfold test of proportionality, followed the approach of Dickson CJ in the Canadian case of R v Oakes [1986] 1 SCR 103. In expressing the third element of the test, he endorsed the approach that one should ask whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. The painstaking approach taken by the police service to the objective of identifying young offenders such as the appellant has been explained by Chief Inspector Yates and Superintendent Robinson. Internal police inquiries were made; community leaders and social services were asked whether they could identify those involved; and it is ironical that the appellant and his father were shown the photograph that was later published. Had they identified the appellant, no publication would have occurred. Plainly, some means of identifying those involved in the rioting had to be found. Sectarian violence at interfaces in Derry could not be allowed to continue. This not only put at risk vulnerable and elderly people living in the area, as well as the young people involved in the violence themselves. It was corrosive of the good community relations in Derry which so many agencies are trying to promote. I am satisfied that publication of the photographs was, in this instance, truly a measure of last resort. I do not consider that a less intrusive means of achieving the objective of Operation Exposure was feasible. The third condition is satisfied, in my opinion. A fair balance? The final element in the proportionality examination is whether a fair balance has been struck between the rights of the individual and the interests of the community. The importance of the article 8 right and of the need to protect children and young persons from the risk of criminalisation and stigmatisation have been discussed above. The need for the decision maker to be guided by the primary consideration of the best interests of the children has also been explained. Striking the balance between the rights of the individual and the interests of the community should not, in this instance, be viewed solely as a competition between two opposing benefits. The appellant himself stood to gain by the opportunities afforded him to be diverted from the criminal activity in which he had been engaged. It was very much in his long term interests that he should become a law abiding and useful member of his community. The interests to the community generally are obvious. Quite apart from the deep unpleasantness and, indeed, danger to which those who lived in the area were subjected by these recurring riots, the peril in which they placed inter community harmony is undeniable. The fact that the Operation was so successful in reducing the number of interface confrontations cannot be left out of account either. For these reasons and for the reasons given by the Lord Chief Justice in para 37 of his judgment, the balance fell firmly on the side of pursuing the option of publication of the appellants photographs and those of others involved. The way in which he and others who were thus identified have been dealt with is testament to the benefit that was available to them by following that course. The benefit to the community is as unquestionable as it is considerable. Disposal I would dismiss the appeal. LORD TOULSON: (with whom Lord Hodge agrees) I agree that this appeal should be dismissed but, unlike Lord Kerr, I do not consider that the conduct of the police amounted, prima facie, to an interference with the appellants right to respect for his private life, so as to fall within the scope of article 8 of the European Convention on Human Rights and Fundamental Freedoms. Article 8.1 provides that Everyone has the right to respect for his private and family life, his home and his correspondence. In the leading case of Von Hannover v Germany (2004) 16 BHRC 545, concerning press photographs of the applicant engaged in various informal activities with members of her family or friends in locations outside her own home, the Strasbourg court said: 50. The court reiterates that the concept of private life extends to aspects relating to personal identity, such as a persons name (see Burghartz v Switzerland [1994] ECHR 16293/90 at para 24) or a persons picture (see Schussel v Austria (Application No 42409/98) (admissability decision, 21 February 2002)). Furthermore, private life, in the courts view, includes a persons physical and psychological integrity; the guarantee afforded by article 8 of the convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, Niemietz v Germany [1992] ECHR 13710/88 at para 29, and Botta v Italy (1998) 4 BHRC 81 at para 32.) There is therefore a zone of interaction with others, even in a public context, which may fall within the scope of private life (see, mutatis mutandis, PG v UK [2001] ECHR 44787/98 at para 56, and Peck v UK (2003) 13 BHRC 669 at para 57.) 51. The court has also indicated that, in certain circumstances, a person has a legitimate expectation of protection and respect for his private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant would have had a reasonable expectation of privacy for such calls (see Halford v UK (1997) 3 BHRC 669 at para 45). 52. As regards photos, with a view to defining the scope of protection afforded by article 8 against arbitrary interference by public authorities, the Commission had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public (see, mutatis mutandis, Friedl v Austria [1995] ECHR 15225/89, (1995) 21 EHRR 83, Friendly Settlement, Commission opinion, at paras 49 52; PG v UK [2001] ECHR 44787/98 at para 58; and Peck v UK (2003) 13 BHRC 669 at para 61). This passage highlights three matters: the width of the concept of private life; the purpose of article 8, ie what it seeks to protect; and the need to examine the particular circumstances of the case in order to decide whether, consonant with that purpose, the applicant had a legitimate expectation of protection in relation to the subject matter of his complaint. If so, it is then up to the defendant to justify the interference with the defendants privacy. In an impressive analysis of the scope of article 8, Laws LJ said in R (Wood) v Comr of Police of the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR 123: 20. The phrase physical and psychological integrity of a person (Von Hannover v Germany (2004) 16 BHRC 545 (para 50), S v UK (2008) 25 BHRC 557 (para 66) is with respect helpful. So is the persons physical and social identity (see S v UK at para 66 and other references there given). These expressions reflect what seems to me to be the central value protected by the right. I would describe it as the personal autonomy of every individual 21. The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individuals personal autonomy makes him should make him master of all those facts about his own identity, such as is name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the zone of interaction (Von Hannover v Germany (2004) 16 BHRC 545 (para 50) between himself and others 22. This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individuals liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think that there are three safeguards, or qualifications. First, the alleged threat or assault to the individuals autonomy must (if article 8 is to be engaged) attain a certain level of seriousness. Secondly, the touchstone for article 8(1)s engagement is whether the claimant enjoys on the facts a reasonable expectation of privacy (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to article 8(2). I shall say a little in turn about these three antidotes to the over blown use of article 8. I have set out this passage at length because I agree with it and cannot improve on it. We are concerned in this case with the second of Laws LJs qualifications the touchstone of whether the claimant enjoyed on the facts a reasonable expectation of privacy or legitimate expectation of protection. (I take the expressions to be synonymous.) In support of that part of his analysis Laws LJ cited Von Hannover v Germany at para 51 (set out above), Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 and Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481. In Campbells case Lord Nicholls said at para 21 that Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. He also warned that courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Applying Campbells case, Sir Anthony Clarke MR said in Murrays case at para 35 that The first question is whether there is a reasonable expectation of privacy. He said at para 36 that the question is a broad one which takes account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which the claimant was involved, the place at which it was happening, and the nature and purpose of the intrusion. The principled reason for the touchstone is that it focuses on the sensibilities of a reasonable person in the position of the person who is the subject of the conduct complained about in considering whether the conduct falls within the sphere of article 8. If there could be no reasonable expectation of privacy, or legitimate expectation of protection, it is hard to see how there could nevertheless be a lack of respect for their article 8 rights. More recent authorities to the same effect are Kinloch v HM Advocate [2012] UKSC 62, [2013] 2 AC 93 and R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland (Equality and Human Rights Commission intervening) [2015] UKSC 9, [2015] 2 WLR 664. In Kinlochs case the police carried out covert surveillance of the applicant as part of a criminal investigation which led to his prosecution and conviction for laundering criminal property consisting of large sums of money. He complained that the form of surveillance and use of the resulting evidence at his trial involved a breach of his article 8 rights. Lord Hope said in a judgment with which the other members of the court agreed: 19. There is a zone of interaction with others, even in a public context, which may fall within the scope of private life: PG v United Kingdom, 46 EHRR 1272, para 56. But measures effected in a public place outside the persons home or private premises will not, without more, be regarded as interfering with his right to respect for his private life. Occasions when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy, will fall into that category: PG v United Kingdom, para 57. 20. The Strasbourg court has not had occasion to consider situations such as that illustrated by the present case, where a persons movements in a public place are noted down by the police as part of their investigations when they suspect the person of criminal activity 21. I think that the answer to it is to be found by considering whether the appellant had a reasonable expectation of privacy while he was in public view as he moved between his car and the block of flats where he lived and engaged in his other activities that day in places that were open to the public. The criminal nature of what he was doing, if that is what it was found to be, was not an aspect of his private life that he was entitled to keep private. Citing Campbells case and Kinlochs case, Lord Sumption said in R (Catt) v ACPO at para 4: In common with other jurisdictions, including the European Court of Human Rights and the courts of the United States, Canada and New Zealand, the courts of the United Kingdom have adopted as the test for what constitutes private life whether there was a reasonable expectation in the relevant respect. Lord Kerr considers that caution is needed in applying the reasonable expectation of privacy test especially in a case involving a child, where the test may be in tension with the principle that any decision should give prominence to the childs best interests. Lord Kerr draws attention to the observation of the Strasbourg court in PG at para 57: There are a number of elements relevant to a consideration of whether a persons private life may be concerned by measures effected outside a persons home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a persons reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. (Emphasis added.) The court did not expand on its thinking in the second sentence of this passage. The linkage between the two halves of the sentence is intriguing but obscure. It may be that the court had in mind that a person may have a reasonable but mistaken expectation of privacy. Be that as it may, I have difficulty in reading the court as meaning to suggest that a situation may come within the scope of article 8 even where the person concerned had no reasonable expectation of privacy, and it is difficult to see why that should be so. It is perhaps unfortunate that the point was not developed, but the case pre dated Von Hannover, where the court referred to a legitimate expectation of protection, and the succeeding line of domestic authorities (including three decisions of the House of Lords or Supreme Court), which have adopted and applied the reasonable expectation test. Sciacca v Italy (2005) 43 EHRR 400 was, as Lord Kerr has explained at para 44, a case where the police released to the press a photograph taken of the applicant while under arrest. There is no difficulty is seeing that the applicant had a legitimate expectation that the police would not make use of her photograph in that way, but it is a very different question whether a member of a crowd engaged in a violent disturbance in a public place has a legitimate expectation of protection from the police seeking the help of the public to identify those involved. In a footnote to the passage in para 29 of the courts judgment (set out by Lord Kerr at para 45), the court cited paras 50 to 53 of the judgment in Von Hannover as the foundation of its observations. I have set out (at para 3) the relevant passage in Von Hannover, including the reference to a legitimate expectation of protection which is an important part of the guidance given by the court in that case. The court has not gone so far as to suggest that the taking or use of a photograph of a person is all circumstances an interference with a persons private life. The fact that the appellant was a child at the relevant time is not in my opinion a reason for departing from the test whether there was a reasonable (or legitimate) expectation of privacy, but it is a potentially relevant factor in its application. In the case of a child too young to have a sufficient appreciation of the idea of privacy there must obviously be some modification, but this caused no difficulty to the court in Murray v Express Newspapers plc. Sir Anthony Clarke MR approved (at para 37) the approach taken by the trial judge, Patten J, who had said [2007] EWHC 1908 (Ch) at para 23: A proper consideration of the degree of protection to which a child is entitled under article 8 has to be considered in a wider context by taking into account not only the circumstances in which the photograph was taken and its actual impact on the child, but also the position of the childs parents and the way in which the childs life as part of that family has been conducted. The question whether a child in any particular circumstances has a reasonable expectation for privacy must be determined by the court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their childrens lives in a public place should remain private. Ultimately it will be a matter of judgment for the court with every case depending upon its own facts. The point that needs to be emphasised is that the assessment of the impact of the taking and the subsequent publication of the photograph on the child cannot be limited by whether the child was physically aware of the photograph being taken or published or personally affected by it. The court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing. In considering whether, in a particular set of circumstances, a person had a reasonable expectation of privacy (or legitimate expectation of protection), it is necessary to focus both on the circumstances and on the underlying value or collection of values which article 8 is designed to protect. I therefore do not agree with Lord Kerrs suggestion (para 56) that the test of reasonable expectation of privacy (or legitimate expectation of protection), excludes from consideration such factors as the age of the person involved, the presence or absence of consent to publication, the context of the activity or the use to which the published material is to be put. The reasonable or legitimate expectation test is an objective test. It is to be applied broadly, taking account of all the circumstances of the case (as Sir Anthony Clarke said in Murrays case) and having regard to underlying value or values to be protected. Thus, for example, the publication of a photograph of a young person acting in a criminal manner for the purpose of enabling the police to discover his identity may not fall within the scope of the protection of personal autonomy which is the purpose of article 8, but the publication of the same photograph for another purpose might. Nor am I persuaded by Lord Kerrs reading of Von Hannover (in para 57 of his judgment) that the Commission and the court treated dissemination to the general public as a self standing test. The facts set out by Morgan LCJ at para 37 included the following: the violence at this [the Fountain Street/Bishop Street] interface (i) was persistent, extending over a period of months, and was exposing vulnerable people to fear and the risk of injury. (ii) There was, therefore, a pressing need to take steps to bring it to an end by identifying and dealing with those responsible. (iii) Detection by arresting those at the scene was not feasible so use of photographic images was necessary. (iv) All reasonably practicable methods of identifying those involved short of publication of the photographs had been tried. These facts have obvious relevance to the issue of justification, but it is also relevant to understand the nature of the activity in which the appellant was involved in considering whether the scope of article 8 extends to his claim (or, to use language familiar to lawyers, whether article 8 is engaged). When the authorities speak of a protected zone of interaction between a person and others, they are not referring to interaction in the form of public riot. That is not the kind of activity which article 8 exists to protect. In this respect the case is on all fours with Kinloch. Lord Hopes words are equally applicable to the appellant: The criminal nature of what he was doing, if that was what it was found to be, was not an aspect of his private life that he was entitled to keep private. If, for example, members of the public gave descriptions of a rioter from which an artist prepared an indentikit, would its use by the police for the purpose of his identification be an infringement of his right to privacy? I consider not. I should make it clear that I do not suggest that there could never be circumstances in which publication of the photographs which are the subject of this case could fall within the scope of the appellants article 8 rights. Photographs can become historic and re publication of material which was once properly in the public domain may give rise to a valid complaint. In R (Catt) v ACPO the court, applying the test of reasonable expectation of privacy, held that the systematic retention of personal details about a person on police files for a period of years was within the scope of article 8. But we are concerned with publication, in the recent aftermath of criminal activity, of photographs taken of public rioting for the purpose of identifying those involved. I agree with Higgins LJ that this situation is far removed from the values which article 8 was designed to protect. The court was referred to the provisions of the Police (Northern Ireland) Act 2000 and the Justice (Northern Ireland) Act 2002. Under the Police Act, section 32, it is the duty of the police to protect life and property; to preserve order; to prevent the commission of offences; and where an offence has been committed, to take measures to bring the offender to justice. Under the Justice Act , section 53, it is the principal aim of the youth justice system to protect the public by preventing offending by children; all persons and bodies exercising functions in relation to the youth justice system must have regard to that principal aim, with a view (in particular) to encouraging children to recognise the effects of crime and to take responsibility for their actions; but all such persons and bodies must also have regard to the welfare of children with a view to furthering their personal, social and educational development. I do not consider that these provisions affect the question whether the conduct of the police in releasing the CCTV images for publication was prima facie an interference with the appellants right to respect for his private life. If, contrary to my opinion, there was an interference by the police with the appellants right to respect for his private life, I agree fully with Lord Kerr that it was justified and there is nothing which I would wish to add on that issue. LORD CLARKE: (with whom Lord Hodge agrees) The facts giving rise to this appeal are set out in detail by Lord Kerr. I agree with Lord Kerr and Lord Toulson that this appeal must be dismissed on the basis that, if the facts fall within article 8.1 of the ECHR so that (as it is often put) article 8.1 is engaged, the conduct complained of was justified so that there was no breach of article 8 because of the provisions of article 8.2. Like Lord Toulson, I do not wish to address the justification issue. However, I wish to add a short judgment on the question whether article 8.1 is engaged. I do so because Lord Kerr and Lord Toulson have reached different conclusions. The question which divides them is whether article 8 is only engaged where the alleged victim has a legitimate expectation of privacy or a reasonable expectation of protection and respect for his private life. As Lord Toulson shows at para 84, the latter expression was used by the European Court of Human Rights in the leading case of Von Hannover v Germany (2004) 16 BHRC 545 at para 51. The expression reasonable expectation of privacy is found in a number of English cases. I agree with Lord Toulson that the two expressions have the same meaning. Subject to one point, I also agree with him that Laws LJ expressed the position correctly in R (Wood) v Comr of Police of the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR 123 at paras 20 22, which he quotes at para 86. Laws LJ said at para 22 that the touchstone for the engagement of article 8.1 is whether the claimant enjoys on the facts a reasonable expectation of privacy. Laws LJ went so far as to say that, absent such an expectation, there is no relevant interference with personal autonomy so as to engage article 8. As appears below, I would not go quite as far as that. As Lord Toulson noted, Laws LJ cited para 51 of Von Hannover, together with two English cases, namely Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 and Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481. The more recent domestic cases cited by Lord Toulson in paras 8 to 10, namely Kinloch v HM Advocate [2012] UKSC 62, [2013] 2 AC 93 and R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland (Equality and Human Rights Commission intervening) [2015] UKSC 9, [2015] 2 WLR 664, are to the same effect. That is to my mind true in Catt even though, as Lord Kerr says at para 62, the whole passage in para 4 of Lord Sumptions judgment reads as follows: In common with other jurisdictions, including the European Court of Human Rights and the courts of the United States, Canada and New Zealand, the courts of the United Kingdom have adopted as the test for what constitutes private life whether there was a reasonable expectation in the relevant respect: see Campbell para 21 (Lord Nicholls of Birkenhead) and Kinloch paras 19 21 (Lord Hope of Craighead DPSC). In one sense this test might be thought to be circular. It begs the question what is the privacy which may be the subject of a reasonable expectation. Given the expanded concept of private life in the jurisprudence of the Convention, the test cannot be limited to cases where a person can be said to have a reasonable expectation about the privacy of his home or personal communications. It must extend to every occasion on which a person has a reasonable expectation that there will be no interference with the broader right of personal autonomy recognised in the case law of the Strasbourg court. This is consistent with the recognition that there may be some matters about which there is a reasonable expectation of privacy, notwithstanding that they occur in public and are patent to all the world. In this context mere observation cannot, save perhaps in extreme circumstances, engage article 8, but the systematic retention of information may do. Lord Sumption was not suggesting that any test other than the legitimate expectation of privacy might be appropriate. All the domestic cases support the proposition that, as Lord Nicholls put it, the touchstone of private life is whether the person in question had a reasonable expectation of privacy or, as Lord Sumption put it in Catt, the test for what constitutes private life is whether there was a reasonable expectation in the relevant respect. Lord Kerr places some reliance on para 36 of the judgment of Richards LJ in R (C) v Comr of Police of the Metropolis [2012] EWHC 1681 (Admin), [2012] 1 WLR 3007 as follows: What Laws LJ said [in Wood] about the taking of photographs on arrest was obviously obiter. More importantly, it relied on Strasbourg decisions prior to S v United Kingdom [(2008) 48 EHRR 50] which, as already explained, have to be re assessed in the light of the judgment in that case; and it was based on a test of reasonable expectation of privacy which, as the recent Strasbourg cases show, is not the only or determinative factor. In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, at para 21, Lord Nicholls of Birkenhead said, in relation to article 8.1, that [e]ssentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. But that was plainly not the specific test applied by the Strasbourg court in S v United Kingdom; and the judgment in PG v United Kingdom [(2008) 46 EHRR 51] makes clear at para 57, that it is not the only test and that other considerations come into play, in particular, in relation to the retention of personal data . It is true that in S v United Kingdom the court does not expressly refer to the reasonable expectation of privacy but its analysis seems to me to be consistent with it. It is also true that in PG the court said at para 57 that a persons expectations may be a significant, although not necessarily a conclusive, factor. I cannot at present think of a situation where article 8.1 would be engaged in the absence of a reasonable expectation of privacy or a reasonable expectation of protection and respect for the private life of the applicant. It is difficult to see why article 8.1 should be engaged where the applicant has no reasonable expectation of privacy. It is important in this respect to have regard to the fact that the concept of reasonable expectation is a broad objective concept and that the court is not concerned with the subjective expectation of the person concerned, whether that person is a child or an adult. As Laws LJ put it in Wood at para 22, absent a reasonable expectation of privacy, there is no relevant interference with personal autonomy, which (as he explains in para 21) is a central feature of article 8. Although, in the light of the present state of the Strasbourg jurisprudence, I for my part would not go so far as to say that such a case is impossible, the test of reasonable expectation is in my opinion relevant in this class of case. I agree with Lord Toulson that Kinloch is a case of some significance on the facts here. In para 90 he sets out the facts and relies upon paras 19 to 21 of Lord Hopes judgment in this court. The complaint was that the form of surveillance and the use of the resulting evidence involved a breach of the applicants article 8 rights. Lord Hope said: 19. There is a zone of interaction with others, even in a public context, which may fall within the scope of private life: PG v United Kingdom, , para 56. But measures effected in a public place outside the persons home or private premises will not, without more, be regarded as interfering with his right to respect for his private life. Occasions when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy, will fall into that category: PG v United Kingdom, para 57 20. The Strasbourg court has not had occasion to consider situations such as that illustrated by the present case, where a persons movements in a public place are noted down by the police as part of their investigations when they suspect the person of criminal activity 21. I think that the answer to it is to be found by considering whether the appellant had a reasonable expectation of privacy while he was in public view as he moved between his car and the block of flats where he lived and engaged in his other activities that day in places that were open to the public. The criminal nature of what he was doing, if that is what it was found to be, was not an aspect of his private life that he was entitled to keep private. I agree with Lord Toulson that on the facts here the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private. He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different and might well have engaged his rights to respect for his private life within article 8.1. I would not therefore put the point quite as broadly as Lord Hope does in para 21 of Kinloch quoted above. I respectfully differ from Lord Kerr in so far as he distinguishes the position of a child. I adhere to the views I expressed in Murrays case to which Lord Toulson refers at paras 88, 96 and 98. As ever, all depends upon the circumstances of the case and, in the case of a child, the context is of particular importance. So, for example, the attributes of the child, the nature of the activity in which he or she was involved, the place where the activity was happening and the nature and purpose of the intrusion complained of are all relevant factors. I do not think that any of the decisions of the European Court of Human Rights to which we were referred leads to any other conclusion, although I accept that it does not always refer to the reasonable expectation point. As Lord Toulson says at para 96, in Murray the Court of Appeal (comprising Laws, Thomas LJJ and myself) approved the approach of Patten J at first instance so far as a child is concerned. I remain of that view today. All the factors identified by Patten J as quoted by Lord Toulson are relevant or potentially relevant in considering whether article 8.1 is engaged in a particular case. Thus I agree with Lord Toulson at para 98 that the age of the person involved, the presence or absence of consent to publication, the context of the activity and the use to which the relevant material is put are all relevant. The law is to be applied broadly, taking account of all the circumstances of the case. In Lord Steyns famous phrase, in law context is everything. In the instant case, for the reasons given by Lord Toulson at paras 100 to 102, I agree with him that the test is not satisfied on the facts of this case, which involves the publication, in the recent aftermath of criminal activity, of photographs taken of public rioting for the purpose of identifying those involved. I reach that conclusion having regard to all the circumstances of the case, including the fact that the appellant was 14 at the material time.

UK-Abs

The Appellant, referred to in these proceedings as JR38, was involved in serious rioting which took place in Derry in July 2010. At the time he was 14 years old. CCTV images taken of him in the course of rioting were later published in two newspapers as part of a police campaign designed identify individuals involved in the riots and also to discourage further sectarian rioting. The Appellant complained that the publication of the images breached his rights under Article 8 of the European Convention on Human Rights. Dismissing the application, the Divisional Court held that the Appellants Article 8 right was engaged because that the published image was of a child, where it was at least possible he was involved in serious public disturbances. This risked stigmatising the child and impairing his rehabilitation and reputation. The interference with Article 8 was justified, however, because it was necessary for the administration of justice and not excessive in the circumstances. The Supreme Court unanimously dismisses the appeal. Lord Kerr, with whom Lord Wilson agrees, holds that Article 8 is engaged but the interference with the right is justified. Lord Toulson, with whom Lord Hodge agrees, holds that Article 8 is not engaged, but if it were engaged the publication would be proportionate. Lord Clarke writes a separate judgment concurring with Lord Toulson. Lord Kerr examines the Strasbourg jurisprudence on engagement of Article 8 and concludes that a nuanced approach is needed to reach a conclusion on this issue [55]. The test is essentially a contextual one, involving not only whether the person asserting the right had a reasonable expectation of privacy but also many other possible factors such as the applicants age, consent, the risk of stigma and the use to which the published material is put. Reasonable expectation of privacy may be a factor of considerable weight but it is not determinative [56]. In the present case Article 8 is engaged because of JR38s age and the effect which the publication of the photographs may have on him. The emphasis under Article 8 should be on the publication of the photographs rather than the activity in which the Appellant was engaged [65]. Lord Kerr concludes, however, that the interference with Article 8 is justified. The police were entitled to disclose the image under the Data Protection Act 1998 as the publication was for the purposes of the prevention and detection of crime and the apprehension and prosecution of offenders [70]. Publication furthered these objectives as well as seeking to divert young people from criminal activity [73]. The polices painstaking approach showed that this was a measure of last resort [76 77]. The publication struck a fair balance between the interests of the Appellant and the community. Appellant stood to benefit from being diverted from criminal activity, as did his community from the prevention of crime and apprehension of offenders [79 80]. Lord Toulson concludes that Article 8 is not engaged. The touchstone for engagement of Article 8 is whether the person seeking to assert their rights had a reasonable expectation of privacy [88]. The fact that the Appellant was a child at the relevant time does not justify using another test but may be relevant to its application [95]. It is an objective test [98]. There was no reasonable expectation of privacy in these circumstances. Article 8 does not exist to protect rioting and the Appellants involvement in the riot was not an aspect of his private life which he was entitled to keep private [100]. Alternatively, if Article 8 were engaged, any interference with the Appellants Article 8 right was justified for the reasons given by Lord Kerr [103]. Lord Clarke holds that Article 8 was not engaged or, alternatively, that any engagement was justified. The relevant test is whether there was a reasonable expectation of privacy [107]. The Appellant could not have had an objectively reasonable expectation that such photographs would not be published [112].

It will be convenient to describe the appellant and the respondent as the wife and the husband even though they were divorced 22 years ago. The circumstances of the case are highly unusual. The suit for divorce proceeded in the Sunderland County Court and, within weeks of the grant of the decree absolute on 26 October 1992, the court file was transferred to the Gloucester and Cheltenham County Court. But that court has either destroyed or mislaid the file. The current internal instruction to courts is to retain divorce files for 100 years but to allow them to strip them of most documents (including, oddly, the petition) after 18 years from the date of the final order. The fact that not even a stripped file has been found suggests that the whole file has been mislaid. Furthermore neither party presently holds any document relating to the divorce proceedings other than the decree absolute. In 2011 the wife issued an application within the proceedings for financial orders, in particular for an order that the husband should make payment of a lump sum to her in satisfaction of all her claims. She also applied for an order that the husband should make interim periodical payments to her in sums equal to her estimated costs of the substantive application pursuant to the decision of the Court of Appeal in Currey v Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946. The husband cross applied for an order that the wifes substantive application, which had been fixed to be heard for three days beginning on 15 April 2013, be struck out pursuant to Rule 4.4 of the Family Procedure Rules 2010, S1 2010/2955, (the family rules). On 14 December 2012 Mr Nicholas Francis QC, sitting as a deputy judge of the High Court, Family Division, dismissed the husbands cross application and, on the wifes application, ordered the husband to make interim periodical payments to her, indeed directly to [her] solicitors, at the rate of 31,250 per month for four months (ie a total of 125,000) beginning on 2 January 2013 (the costs allowance order). The husband appealed to the Court of Appeal against both orders. By orders dated 13 June 2013 that court (Thorpe, Jackson and Tomlinson LJJ, [2013] EWCA Civ 495, [2013] 1 WLR 3525), set aside the orders of the deputy judge; struck out the wifes substantive application; and ordered that, of the 125,000 which by then the husband had paid in full, the wife should repay to him such sum as exceeded the state of her account with her solicitors on 17 January 2013, which amounted to an order for repayment of 36,677 (the repayment order). The court explained its striking out order and its repayment order in judgments delivered on 8 May and 13 June 2013 respectively. The wife appeals against the orders made by the Court of Appeal and thus seeks the reinstatement of the orders of the deputy judge. Her appeal raises the following questions: (a) What is the extent of the jurisdiction to strike out a spouses application for a financial order under Rule 4.4 of the family rules? In the light of the factors relevant to the determination of the wifes application did the Court of Appeal err in striking it out? If the answer to (b) is yes, what case management directions would be proportionate to the unusual circumstances of the wifes application? Irrespective of the answer to (b), did it err in setting aside the costs allowance order and/or in making the repayment order? (d) (b) (c) THE PARTIES PRESENT CIRCUMSTANCES The wife is aged 55. According to her written evidence, which (as the husband accepts) should be assumed to be true for the purposes of his strike out application, she is in poor health. She lives in a house with three or four bedrooms in Monmouth which in 2010 she purchased from the local authority on a discounted basis under the Right to Buy scheme for 60,000 by virtue of a mortgage in that amount. The house is in a poor state of repair. The wife has the following four children. (a) Emily, who is aged 36. Emily was born to the wife prior to the marriage by a man other than the husband. Emilys father never maintained her. Upon the marriage the husband and the wife treated her as a child of the family. Throughout her life Emily has encountered difficulties which the wife has tried to help her to surmount. Emily lives in the house in Monmouth. She has a daughter, aged four, who lives mid week with the wifes mother and at weekends and during holidays in the house in Monmouth. (b) Dane, who is aged 31. He is a child of the marriage. Thirteen years ago, when he became 18, Dane moved from the house in Monmouth in order to live with the husband and to work for his company. and (d) Robin, who is aged 21, and Jessie, who is aged 18. They were born to the wife long after her separation from the husband by a man who has never maintained them. They live with the wife in the house in Monmouth. (c) The wife subsists partly on her wages generated during periods of low paid employment, albeit punctuated by periods of ill health, and partly on state benefits. The three adult children resident in her household appear to make no more than modest contributions to its running expenses. The husband is aged 53. He has achieved brilliant success and is clearly a remarkable man. For several years following the breakdown of the marriage he was, as I will explain, a new age traveller, protesting loudly against nuclear weapons and, generally, in favour of green solutions to societys needs. His long standing interest in green energy, together with his innate scientific ingenuity, led him in due course, and from the smallest beginnings, to develop the commercial supply of wind power. He is now the sole shareholder of Ecotricity Group Ltd, a company which, through others, provides green electricity to at least 70,000 homes and businesses in the UK from its fleet of turbines. The value of his company is at least 57m. He lives with his second wife, their small son and Dane in a Georgian hill fort overlooking Stroud. THE HISTORY Early in 1981, when she was aged 21, the wife met the husband, who was aged 19. He and some friends were renting a house in Stafford. In the summer 1981 the wife moved with Emily, then aged two, into the house and began to cohabit with him. She enrolled on a degree course at North Staffordshire Polytechnic but, after one term, abandoned it. She says (but he denies) that he persuaded her to abandon it. On 18 December 1981 the parties were married. Thereafter they largely subsisted on state benefits. Late in 1982 they moved to Norfolk. By then the wife was pregnant. She says (but he does not recall) that she enrolled on a degree course at the University of East Anglia but was constrained to withdraw from it when unable to make arrangements for the care of Emily and the coming baby. On 2 May 1983 Dane was born. Late in 1983 the family moved to rented accommodation in Lowestoft but early in 1984 the husband moved into a bed sitting room elsewhere in the town. If brief subsequent reunions alleged by the wife (but denied by the husband) are ignored, their marital cohabitation then came to an end: it had subsisted for just over two years. Then began the husbands life as a traveller. It was to continue for about eight years. In 1984 he left Lowestoft in an old ambulance which had been converted into a camper van. Although the circumstances are disputed, it seems that, during that first year of separation, Dane, albeit aged only one, was spending much of his time with the husband on the road rather than with the wife and Emily in Lowestoft. The wife says (but the husband disputes) that in the summer 1984 she and Emily joined the husband and Dane in the ambulance on a site in Bath and that in the following summer, after Dane had on any view gone back to live permanently with her, she and the children joined the husband at Stonehenge for the summer solstice. Then she moved with the children to Sunderland. From 1985 to 1995 the life of the wife and children, and indeed of the husband, was profoundly unsettled. (a) (b) In 1985 the wife obtained work in a womens refuge in Sunderland. In 1985/86 the husband drove to Spain with a new partner in a 30 year old fire engine which he had converted so as to burn diesel rather than petrol. He stayed there for a year. (c) Following his return to England, the husband rejoined the travelling community but visited Sunderland on various occasions in order to see the children. In 1988 the wife moved with the children to Durham and makes an assertion (about which the husband has no recollection) that she then enrolled on a course at Durham University but had to withdraw from it for lack of his financial support of herself or the children. (d) (e) In June 1989 both the husband and the wife and children attended the Glastonbury festival. The wife introduces it as a reconciliation but on any view they did not resume cohabitation there. (f) At around the same time, allegedly at the husbands request, the wife left Durham with the children in order to live on a local authority travellers site in Swindon. The husband describes the site as akin to a rubbish tip. When not travelling during the summer, he had begun to live with his partner on a site in Stroud, to which the wife and children moved for a few weeks. (h) (g) For almost two years between 1989 and 1991 the wife and children occupied travellers sites in the west country. The three of them lived from hand to mouth. In the autumn 1991 the wife obtained a job picking fruit for a fortnight and this (so she says but the husband disputes) explains why the children went temporarily to live with him in a trailer on another site near Stroud. The wife says that, at the end of the fortnight, the husband refused to return them to her and it seems that, by a ruse and with the aid of her stepfather, the wife spirited them back to Sunderland, where she and the children set up home again. In 1992 the wife and children moved to a house in the Forest of Dean. Shortly afterwards the wife struck up a relationship with the father of Robin and Jessie, who was working there temporarily. He returned to his home in Somerset prior to Robins birth and, when late in 1995, he went to the wifes home in order to visit Robin, Jessie was conceived. In his judgment delivered on 8 May 2013, Thorpe LJ described the wifes relationship with the father of Robin and Jessie as tantamount to marriage and therefore suggested that, during its currency, any claim by the wife against the husband would have carried little credibility; but, with respect and as the husband accepts, that description by the learned lord justice represented a substantial misunderstanding of the evidence. (i) Early in 1994 Emily, who was then aged 15 and who was beginning to present the difficulties which have since beset her, moved to live with the husband and his partner. But, after about a year, she returned to live with the wife. (j) Shortly after Emilys departure from it, the wife, Dane and Robin were evicted from the house in the Forest of Dean and, according to the wife (k) (as to which the husband has no recollection), moved to live in a shelter for the homeless. In 1995 the local authority let to the wife the house in Monmouth which she has since bought from it. There she, Emily, Dane, Robin and, following her birth in 1996, Jessie all began to reside; and there they continued to live from hand to mouth, largely on state benefits. A Hazard Awareness Notice issued by the local authority in 2010 stated that the house was heated by only two electric fires; that there was no hot water in the kitchen; that the house was damp; and that the back door could not be locked. LEGAL PROCEEDINGS Meanwhile, in 1991, there had been legal proceedings between the parties. They were precipitated by the wifes removal of the children back to Sunderland. The husband issued an application in the Sunderland Family Proceedings Court for an order that both children should reside with him. No copy of the courts order survives but it is agreed that early in 1992 the justices instead ordered that the children should reside with the wife. It may also have made an order for contact, perhaps for reasonable contact, in favour of the husband. The parties agree that the justices also ordered that the husband should make nominal periodical payments to the wife for the benefit of the children. For the general removal of the ability of a court to exercise its jurisdiction to make an order for child maintenance was not to take effect until a year later: section 8(3) of the Child Support Act 1991. Early in 1992, in the Sunderland County Court, the wife issued the petition for divorce which resulted in the decree absolute dated 26 October 1992. Did she include in her petition applications for the full range of financial orders for the benefit of herself? In the absence of any copy of it, we can make only an educated guess which is that she did so. Such was the usual practice. But it matters not for, in the absence of her remarriage (which would have precluded her doing so: section 28(3) of the Matrimonial Causes Act 1973 (the 1973 Act)) it was open to her to initiate applications for them in 2011 or at any time. Then the potentially important further question arises: assuming that in her petition she included applications for financial orders, what orders, if any, were then made upon them? The husband asserts a clear recollection that, following the transfer of the proceedings to the Gloucester and Cheltenham County Court, it ordered that [he] did not have to pay [the wife] any money. His asserted recollection is of course, consistent with each of three hypotheses: (a) (b) (c) that the court made only a nominal order for the husband to make periodical payments to the wife; or that its order on her applications was no order or (which amounts to the same thing) that it never addressed them; or that it dismissed all the wifes applications; in that event it would not be open to her to bring the present proceedings. The Court of Appeal considered it likely that no order was sought or made, ie it favoured hypothesis (b). I agree. The court added that hypotheses (a) and (c) were possible. Hypothesis (a) is indeed a significant possibility but in my view hypothesis (c) is so remote a possibility as entirely to be discounted. Notwithstanding the shortness of the marital cohabitation and its expiry eight years previously, I cannot imagine that the court would have dismissed the financial applications of the wife (who was also a young mother) in the absence either of her consent or of a capital payment by the husband, neither of which is suggested to have been forthcoming. FAILURE TO SUPPORT THE CHILDREN The wife strongly relies on the husbands lack of financial support of Dane until 2001. She also relies on his failure to support Emily from 1984 onwards save during the year when she lived with him. But in respect of Emily, treated as a child of the family, the husband would be able to point out that the extent of his obligation to maintain her at any time during her minority would have been influenced by the extent, if at all, to which he had at an earlier time assumed responsibility for maintaining her: section 25(4)(a) of the 1973 Act. The wife contends that, from about 1994, the husband gave pocket money to Dane during periods of contact; that once he bought a computer and a desk for him; but that, despite repeated pleas on her part, he never made payments to her for the support of Dane or indeed of Emily. The husbands case differs only in degree. He contends that he made occasional cash payments to the wife of up to 200; that from time to time he provided her with second hand cars; and that there was a period of unspecified length during the later years when he provided her with regular monthly cash payments of 200. Although for present purposes the wifes case must be taken at face value, it happens in any event to be virtually common ground that during all those years the husband did not provide the wife with any substantial payments of maintenance for either of the two children; and that she struggled to maintain a home for them in circumstances of real privation bordering upon poverty. For most of those years the husbands failure to pay maintenance reflected his inability to pay it. It is clear that, in making only a nominal order in favour of the children the justices in Sunderland in 1992 were satisfied that he was unable to provide support. Equally in March 1997 the Child Support Agency, to whom the wife had applied for support, assessed the husbands liability to support Dane at nil. The wife adds that both in 1994 and in 1996 she consulted solicitors in an attempt to extract maintenance for herself and the children from the husband but that, no doubt for the same reason, nothing came of it. Meanwhile the husband was taking those first steps which, in retrospect, can be seen to have led to his phenomenal success. One year early in the 1990s, at the Glastonbury festival, he fixed a windmill to the top of an old pylon, installed batteries at its foot, plugged in four large mobile telephones and offered festival goers a wind powered phone service. Then he went to Cornwall to inspect Britains first wind turbines. Thereupon he and a partner began to make wind monitoring equipment. Then in 1996, following the grant of planning permission and with the aid of a substantial bank loan, he and two others, through a limited company, erected a wind turbine on the top of a hill at Nympsfield, near Stroud, by which they generated and sold electricity. Suddenly the company began to generate a substantial net pre tax profit: it was 236k in 1997 and it doubled within the following three years. There is no need to chart the later expansion of the husbands businesses. The fact is, therefore, that it was only in the final years of Danes minority that the husband was in a position to pay substantial maintenance for him. STRIKE OUT IN FAMILY PROCEEDINGS Rule 4.4 of the family rules, which contains the power to strike out an application in family proceedings, has no parallel in any of the preceding sets of rules which governed what are now called family proceedings. There has always been an inherent jurisdiction, at any rate in the High Court, to protect the court by striking out material abusive of its process; but there is no value in today considering its extent. Paragraph (4) of Rule 4.4 provides that paragraph (1) does not limit any other power of the court to strike out a statement of case but no one suggests that the deputy judge had an inherent jurisdiction to strike out which went wider than that set by paragraph (1). In my view family courts may, like civil courts, now safely proceed on the footing that, were their power under the rules not to go so far as to enable them to strike out the statement, their inherent jurisdiction, if any, would go no further: Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004, para 42. The family rules came into force on 6 April 2011 and, prior to the decision of the Court of Appeal in the present case, there was no reported authority on the construction of Rule 4.4. So far as is material, the rule, which does not apply to proceedings in relation to children, provides: (1) the court may strike out a statement of case if it appears to the court a) that the statement of case discloses no reasonable grounds for bringing or defending the application; b) that the statement of case is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings Rule 4.4(1) is modelled upon Rule 3.4(2) of the Civil Procedure Rules 1998, S1 1998/3132, (the civil rules), which came into effect on 29 April 1999. Indeed, of the words in Rule 4.4 quoted in para 19 above, only one differs from those in Rule 3.4(2), which refers at (a) to bringing or defending the claim rather than the application. It would be odd if in family proceedings the words in Rule 4.4(1) extended to a situation to which, if transposed to civil proceedings, the words in Rule 3.4(2) would not extend. Although the principal task is to construe the words no reasonable grounds and abuse of the courts process in (a) and (b), Rule 4.4(1) poses a preliminary conundrum. The power is to strike out a statement of case if that statement is an abuse or (which in particular generates the conundrum) if it discloses no reasonable grounds. Rule 4.1(1) provides that, in Part 4, statement of case means the whole or part of an application form or answer. The form to be used in applying in divorce proceedings for a financial order is Form A: see Rule 5.1 and Table 2 in Practice Direction 5A supplementary to that rule. The conundrum stems from the fact that Form A in effect requires the applicant to do no more than to identify the names and addresses for service of herself and the respondent and to specify the financial order or orders for which she is applying. The form does not enable the applicant there to set out the grounds of her application. Instead she will no doubt do so in her financial statement, which, save as otherwise directed, must be in Form E and must be filed and served at least five weeks prior to the first appointment: Rules 9.14 and 5.1 and Table 2 in Practice Direction 5A. It would therefore make no sense to ask, as a literal construction of the rules would require, whether the Form A discloses reasonable grounds for bringing the application: for it never discloses any grounds at all. We must do our best to make the rules operate sensibly and I suggest that, pending possible reconsideration by the Family Procedure Rule Committee either of Rule 4.1(1) or of Rule 4.4(1)(a) and (b), the phrase statement of case in (a) and (b) should be taken to refer to the statement in support of the application for a financial order as well as to the application in Form A itself. So, then, to the principal task, namely the construction of the words no reasonable grounds and abuse of the courts process. In this respect subparagraphs 1 and 2 of paragraph 2 of Practice Direction 4A, which supplements Rule 4.4, are helpful. They say: 2.1 The following are examples of cases where the court may conclude that an application falls within rule 4.4(1)(a) (a) (b) (c) those which set out no facts indicating what the application is about; those which are incoherent and make no sense; those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent. 2.2 An application may fall within rule 4.4(1)(b) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill founded. Subparagraphs 1 and 2 are closely modelled on subparagraphs 4 and 5 of paragraph 1 of Practice Direction 3A, which supplements Rule 3.4 of the civil rules. Apart from having, intriguingly, chosen to replace vexatious with frivolous in subparagraph 2, the makers of the family rules chose to adopt the examples given by the makers of the civil rules in effect word for word. One might, in the light of this parallel, even more confidently have inferred that the makers of the family rules intended that their reference to no reasonable grounds and abuse of the courts process should carry the same meaning as in the civil rules. The civil rules, however, expressly confer a further power, namely to give summary judgment. Rule 24.2 empowers the court in civil proceedings to give summary judgment if it considers that the claimant or defendant has no real prospect of successfully prosecuting or defending the claim and if there is no other compelling reason why the case should be disposed of at a trial. In the civil rules Practice Direction 3A draws a link between the powers to strike out and to give summary judgment in civil proceedings. Paragraph 1.2 explains that they are two distinct powers which may be used to achieve the summary disposal of issues which do not need full investigation at trial. Paragraph 1.7 is as follows: A party may believe he can show without a trial that an opponents case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under Rule 3.4 or Part 24 (or both) as he thinks appropriate. It is indeed common practice in civil proceedings to join an application to strike out under Rule 3.4 with an application for summary judgment under Rule 24.2. But in Swain v Hillman [2001] 1 All ER 91 at p 92 Lord Woolf MR observed that the power under Rule 24.2 was wider than the power under Rule 3.4 and that under the latter, unlike the former, the general focus of the court was only upon the statement of case which was alleged to disclose no reasonable grounds for bringing the claim. Or, as my Lady, then Hale J, crisply put it three months later, the essence of a strike out is that one does not look at the evidence on the claim: Bridgeman v Brown, Court of Appeal, 19 January 2000, All England Official Transcript, p 4. Now arises the complication. On the one hand the family rules contain no power analogous to Rule 24.2 of the civil rules to give summary judgment. On the other hand paragraph 2.4 of Practice Direction 4A, which supplements Rule 4.4 of the family rules, provides: A party may believe that it can be shown without the need for a hearing that an opponents case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 4.4. The paragraph is of course modelled on paragraph 1.7 of Practice Direction 3A in the civil rules, set out at para 24 above. In giving the leading judgment in the Court of Appeal, with which Jackson and Tomlinson LJJ agreed, Thorpe LJ based the decision to strike out the wifes application on Rule 4.4(1)(a), namely on the absence of any reasonable grounds for bringing it. But, in giving a concurring judgment with which in turn Thorpe and Tomlinson LJJ also agreed, Jackson LJ identified an alternative basis for the decision. He suggested that it was unfortunate that the family rules contained no rule equivalent to Rule 24.2 of the civil rules; that the effect of the omission could not be that an application for a financial order which had no real prospect of success had to proceed to trial; that the solution lay in Rule 4.4(1)(b), namely that an application which had no real prospect of success was an abuse of the courts process; and that the wifes application was a classic example of it. As a result of the fuller argument with which this court has been presented, it is clear to me that, with respect, Jackson LJ was wrong to insinuate into the concept of abuse of process in Rule 4.4(1)(b) of the family rules an application for a financial order which has no real prospect of success. The learned Lord Justice did not (and could not) suggest that the omission from the family rules of any rule analogous to Rule 24.2 of the civil rules was accidental. It was deliberate; and so it was bold for him to say that nevertheless the effect of that rule was to be discerned elsewhere in the family rules. Although the power to strike out under Rule 4.4(1) extends beyond applications for financial remedies, for example to petitions for divorce, no doubt it is to such applications that the rule is most relevant. The objection to a grant of summary judgment upon an application by an ex spouse for a financial order in favour of herself is not just that its determination is discretionary but that, by virtue of section 25(1) of the 1973 Act, it is the duty of the court in determining it to have regard to all the circumstances and, in particular, to the eight matters set out in subsection (2). The determination of an application by a court which has failed to have regard to them is unlawful: Livesey (formerly Jenkins) v Livesey [1985] AC 424 at p 437, Lord Brandon of Oakbrook. The meticulous duty cast upon family courts by section 25(2) is inconsistent with any summary power to determine either that an ex wife has no real prospect of successfully prosecuting her claim or that an ex husband has no real prospect of successfully defending it. Indeed, were the latter conclusion to be appropriate, how should the court proceed to quantify the ex wifes claim? For in applications for financial orders there is no such separation as exists in civil proceedings between issues of liability and those of quantum. Procedures for the courts determination of applications for financial orders, which both respect its duty under section 25(2) of the 1973 Act and yet cater for such applications as may be fit for an abbreviated hearing, are now well in place: see para 29 below. I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 of Practice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable. Applications made after the applicant had remarried or after an identical application had been dismissed or otherwise finally determined would be examples of applications not legally recognisable. Since the greater includes the lesser, it is no doubt possible to describe applications which fall foul of Rule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4 of the Practice Direction remains in my view an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment. Rule 1.2 of the family rules requires the court to seek to give effect to the overriding objective when it interprets any of the rules or exercises any power thereby given to it. Rule 1.1(1) defines the overriding objective as enabling the court to deal with a case justly, which, by rule 1.1(2)(b) and (e), includes dealing with it in ways proportionate to the nature of the issues and allotting to it an appropriate share of the courts resources. Such should therefore be the courts objective in determining whether the wifes statement of case falls foul of Rule 4.4(1)(a) and/or (b) and if so whether (being perhaps only nominally a separate question) to exercise its resultant discretion to strike it out. No one argues that the wifes Form A and supporting affidavit represent an abuse of the process of the court save in the extended sense proposed by Jackson LJ; if his proposal is wrong, subparagraph (b) does not apply. In my view subparagraph (a) is equally inapplicable: for, keeping closely in mind that it does not encompass inquiry into the existence or otherwise of a real prospect of success, one cannot say that the form and the affidavit fail to disclose either a legally recognisable application or, in any other relevant sense, reasonable grounds for bringing it. Although, however, the wifes appeal against the strike out should succeed and her application should proceed, it is essential at this stage to conduct a provisional evaluation of the issues. For, by Rule 1.4(1) of the family rules, the court must further the overriding objective by actively managing cases, which, by Rule 1.4(2)(b)(i) and (c), includes promptly identifying the issues, isolating those which need full investigation and tailoring future procedure accordingly. This exercise will dictate the nature, and in particular the length, of the substantive hearing. No doubt the High Court judge who, in the present case, directed, even prior to the filing of evidence on either side, that the wifes application should be fixed to be heard for three days was seeking to help the parties to procure an early fixture. But, by so doing, he was not discharging his duty under Rule 1.4. Family courts have developed specific procedures for the determination of certain types of financial application. The obvious example is the determination of an application on a summons to a respondent to show cause why the order should not be in the terms with which, prior to an attempt to resile from them, she or he had agreed either following the separation (Dean v Dean [1978] Fam 161) or prior to the marriage (Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467). In both cases, however, the court stressed that the show cause procedure did not obviate the need for the court to discharge its duty under section 25 of the 1973 Act, powerful though the effect of the agreement would, within that exercise, probably prove to be. Indeed Sir James Munby, President of the Family Division, has recently directed that a spouse attempting to reject an award made following her or his submission to arbitration by a member of the Institute of Family Law Arbitrators should also be subject to the show cause procedure: S v S (Arbitral Award: Approval), Practice Note, [2014] EWHC 7 (Fam), [2014] 1 WLR 2299. I do not suggest that the wifes application is suited to the show cause procedure but, in the light of the analysis of the issues to which I now turn, it may well be suited to tight directions pursuant to Rule 1.4. ANALYSIS OF THE ISSUES The wifes application faces formidable difficulties. (a) The marital cohabitation subsisted for scarcely more than two years. (b) (c) The standard of living enjoyed by the parties prior to the breakdown It broke down 31 years ago. could not have been lower. (d) The husband did not begin to create his current wealth until 13 years after the breakdown. (e) The wife has made no contribution, direct or indirect, to its creation. Furthermore, (f), the wifes delay in bringing the application appears to be inordinate. She can explain the first 13 years of it: there was no point in pressing financial applications against the husband while he had no money. But what about the delay for the 14 years from say 1997 until 2011, when her application was issued? She says that, for the first several of those years, she did not realise that the husband was becoming wealthy and that, for example, his continued failure to maintain Dane led her to assume that there was no significant change in his financial circumstances. But that point takes the wife to no further than 2001 when, on becoming an adult, Dane went to live with the husband. She points to the legacy of discouragement from seeking financial provision from the husband which arose from the justices nominal order in 1992, from the agencys nil assessment in 1997 and from unproductive consultations with local solicitors in 1994 and 1996. But there is no explanation for much of the more recent delay. Consistently with the potentially life long obligations which attend a marriage, there is no time limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce. Sections 23(1) and 24(1) of the 1973 Act provide that such orders may be made on granting a decree of divorce or at any time thereafter. Yet there is a prominent strain of public policy hostile to forensic delay. The court will look critically at explanations for it; and, even irrespective of its effect upon the respondent, will be likely, by reason of it and subject to the potency of other factors, to reduce or even to eliminate its provision for the applicant. Nevertheless it remains important to address its effect upon the respondent. In some cases, albeit not in the present, a respondent can show that he has assumed financial obligations or otherwise arranged his financial affairs in the belief that the applicant would make no claim against him and that he has done so in a way which, even if it were possible, it would not be reasonable for him to put into reverse. Sometimes, instead, he can point to factual issues of which the dimming of memories or the disappearance of witnesses over the period of the delay no longer permits accurate determination. But, were this wifes application to proceed to substantive determination, the need for resolution of factual issues would be slight. All that is said on behalf of the husband in the present case is that the delay has deprived him of the chance of establishing that, around 1992, the wifes financial applications were dismissed; but, as already indicated, a dismissal is so unlikely that it should be entirely discounted. Confronted by the difficulties identified at (a) to (f) in paras 30 and 31 above, what might the wife assert so as to carry her application forward to possible success? It is, standing alone, insufficient that the husband is now so wealthy that (as has readily been agreed) he can meet whatever award, if any, might reasonably be made in her favour and there is no need for any exploration of his financial circumstances. But the wife asserts needs, both for a better home for herself and her family and, in the light of the severe limitations on her earning capacity, for a fund out of which to maintain herself for the rest of her life. These, with questionable forensic wisdom, she quantifies at 0.55m for the home and 1.35m for the fund, and thus at a total of 1.9m. Even at this stage one can say that, in the light of the negatives, an award approaching that size is out of the question. It is a dangerous fallacy, albeit currently propounded by those who favour reform along the lines of the Divorce (Financial Provision) Bill currently before the House of Lords, that the current law always requires rich men to meet the reasonable needs of their ex wives. As Thorpe LJ said in North v North [2007] EWCA Civ 760, [2008] 1 FLR 158, at para 32, it does not follow that the respondent is inevitably responsible financially for any established needs [h]e is not an insurer against all hazards In order to sustain a case of need, at any rate if made after many years of separation, a wife must show not only that the need exists but that it has been generated by her relationship with her husband: see Miller v Miller, McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, para 138 (Lady Hale). Apparently the wife aspires to argue that, but for the thwarting of her attempts in 1981, 1982 and 1988 to secure a degree and thereby to raise her earning capacity, her needs would not have reached their current level. In this regard she would also argue that her responsibility for the care for Dane and Emily over the years has inhibited her establishment of a higher earning capacity; but the husband would counter by reference to her responsibility for the care of her two younger children and to her poor health over the years. It is not at this stage clear to me that the wife will be able to sustain her claim on the basis of need. But the wife has a point which may prove to be much more powerful. The deputy judge addressed it in detail but unfortunately the Court of Appeal omitted to refer to it. In the discharge of its duty under section 25 of the 1973 Act the court will be required, by subsection (2)(f), to have regard to the contributions which each of the parties has made to the welfare of the family, including any contribution by looking after the home or caring for the family. Such contributions are not limited to those made prior to the separation or even during the marriage. The wife strongly relies on (a) her care of Dane from 1985 to 2001; (b) her care of Emily from 1984 to 1994, from 1995 to her becoming an adult in 1997, and perhaps in the light of her difficulties even thereafter; the absence of any significant financial or other contribution on the part of the husband to their care during those years; and (c) (d) the conditions of poverty in which she was constrained to provide such care to Dane and Emily during those years. The wife suggests that it is no answer to this part of her case for the husband to point to his inability to make significant payments for the children for most of those years, as recognised by the justices in 1992 and by the agency in 1997. The husband (so she contends) mischaracterises her case as one in which she seeks either to investigate the amount of child support that he should have paid during those years or indirectly to appeal against, for example, the determination of the agency in 1997. Her case is no more than that, for whatever reason, the heavy burden fell upon her and, in effect, upon her alone. In Pearce v Pearce (1980) 1 FLR 261 the parties separated in 1969 and for nine years the wife cared single handedly for the three children. Until 1977 the husband was an undischarged bankrupt and made no financial contribution to the running of the wifes household, which was sustained by state benefits. In 1978 the husband inherited from his father a house worth 19,000 and liquid capital of 15,000. The wife then applied for an order for a lump sum. The Court of Appeal upheld an award to her of a lump sum of 12,000. Ormrod LJ, with whom Orr LJ agreed, said, at p 264, that courts would not encourage applications long after the divorce but that the justice of the case might require an award notwithstanding a lapse of time. He continued: One has here a husband who has never paid a penny piece for the maintenance of his former wife or his three children since, at the latest, 1969 and it means that the wife has lived in great difficulty on social security with all the responsibilities for bringing up these three girls unaided, all that length of time, so that on the merits, in my judgment, she has a strong case. Her claim on the merits certainly goes a long way to eliminating the contrary factor, the lapse of time. Ormrod LJ added, at p 266: The husband has never attempted to discharge his obligations in relation to these three children. The whole responsibility has been placed on the wife, whose life must have been made very difficult all these years. Is there any reason whatever why, now that the husband has come into a certain amount of money, she and the children should not have the opportunity of benefiting to some extent from it? Finally Ormrod LJ held, at p 267, that, in the light of his lack of contribution to the wifes household, the fact that the husbands capital had come to him by inheritance long after the separation was no ground for exempting it from partial redistribution to the wife and that the award gave her an opportunity of perhaps living in something a little bit better than the poverty which she has been living in all these years. For another example of a short marriage, a substantial contribution on the part of the wife in caring for the children, a 30 year delay in her bringing her application (following an overseas divorce) and a significant capital award, see M v L (Financial Relief After Overseas Divorce) [2003] EWHC 328 (Fam), [2003] 2 FLR 425. In my view this court should direct the swift referral of the wifes application to a Financial Dispute Resolution (FDR) appointment before a judge of the Family Division, who, in the absence of settlement, will indorse or impose the time estimate of the substantive hearing and, in accordance with Rule 9.17(9)(b) of the family rules, will direct the fixing of dates for it. Subsequently, at the Pre Trial Review, the allocated trial judge will decide which issues need full investigation and hearing for the purposes of Rule 1.4(2)(c)(i) and, in the light of his decision, will insert the time for cross examination of each party (to be measured, surely, in hours rather than days) into the template prepared in accordance with the Statement on the Efficient Conduct of Financial Remedy Final Hearings issued, in relation to the High Court, by Mostyn J, with the authority of the President, on 5 June 2014. It may however be helpful to suggest that the major issues requiring limited investigation by way of oral evidence seem at this stage to be the wifes delay on the one hand and the disparate contributions to the care of the children on the other. These are, to my mind, the two magnetic factors. They pull in opposite directions and the question may ultimately prove to be whether, in the light also of the five difficulties identified in para 30 above, the wifes delay is so potent a factor as not just to reduce but even to eliminate what might otherwise have been awarded to her by reference to contributions and possibly also to needs. Had it been relevant, as Jackson LJ considered, to ask whether the wifes application had a real prospect of success, my opinion would have been that it had a real prospect of comparatively modest success, perhaps of an order which would enable her, like the wife in the Pearce case above, to purchase a somewhat more comfortable, and mortgage free, home for herself and her remaining dependants. THE COSTS ALLOWANCE If, as the Court of Appeal held, the wifes application should be struck out, it followed, subject to consequential issues about whether to make a repayment order, that the husbands appeal against the costs allowance order should be allowed. But the husband had argued to the Court of Appeal, and, albeit faintly, continues to argue before this court that, even were her application not to be struck out, the deputy judge should not have made that order. The court now has a statutory jurisdiction to order a party to an application for financial orders in divorce proceedings to make payments to enable the other to pay for legal services for the purposes of pursuing or defending it. It is set out in section 22ZA of the 1973 Act, inserted by section 49(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and it came into force on 1 April 2013. Such provision no longer has to be cast in the form of maintenance pending suit or interim periodical payments. It is a free standing jurisdiction under which the court can order payment of a capital sum albeit, if it so directs, to be made by instalments. Under subsection (3) of section 22ZA the court cannot make an order unless satisfied that otherwise the applicant for it would not reasonably be able to obtain appropriate legal services and, under subsection (4), that in particular she (or he) is not reasonably able to secure a loan to pay for the services and is unlikely to be able to obtain them by granting a charge over any assets recovered as a result of the application. But the deputy judge made his order prior to 1 April 2013. So he was exercising the jurisdiction which was first recognised by Holman J in A v A (Maintenance Pending Suit: Payment of Legal Fees) [2001] 1 WLR 605 and the existence of which was indorsed by the Court of Appeal in the Currey case cited at para 2 above. There I said, at para 20: In my view the initial, overarching inquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery. So there is a close parallel between the criteria articulated in the Currey case and those set out in section 22ZA (3) and (4) of the 1973 Act. The evidence accepted by the deputy judge was that the wifes solicitors had agreed to extend credit to her for services rendered to her until his determination of her application for a costs allowance order but that, were the application to fail, the partners of the firm would meet in order to determine whether, and if so on what basis, they could continue to act for her. According to the husband, this evidence should have led the deputy judge to decline to be satisfied that the solicitors would not continue to act for her until the determination of her application, at any rate in the event that she were to execute a charge in their favour upon whatever she might recover of the sort held to be lawful in Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) [1997] 2 FLR 116. I disagree. In circumstances in which the wife already owed the solicitors about 88,000 for their work done on her behalf on an application in which her ultimate recovery from the husband was likely to be comparatively modest and conceivably even non existent, it was unreasonable to consider that they would, still less should, continue to act for her on that basis against an evidently litigious husband who was causing substantial escalation of the interlocutory costs in a manner which clearly caused him no difficulty. So the deputy judges costs allowance order should be restored and the Court of Appeals repayment order set aside. The court has received energetic argument about the repayment order. It was for repayment of such sum as exceeded the wifes liability to her solicitors on 17 January 2013, being the date when the husband filed his notice of appeal and therefore when, in the opinion of the Court of Appeal, her solicitors should have appreciated the vulnerability of their security under the order. The wifes liability to her solicitors on that date was in the sum of 88,323 so the effect of the order was for repayment of 36,677. The four instalments totalling 125,000 paid by the husband between January and April 2013 had been paid into the client account of the wifes solicitors and, by the date of the hearing in the Court of Appeal had, save for 2539, been released into their office account against invoices delivered to the wife both for 88,323 and for the work more recently done on her behalf referable to the husbands appeal. It may be helpful briefly to notice the wifes argument that, even had the Court of Appeal been correct to have concluded that the costs allowance order should not have been made, it was not open to it to direct repayment of any part of the 125,000 other than 2539. The argument is that the wife could not be ordered to make repayment because she had never received any part of the sum paid; that, while it remained in their client account, the wifes solicitors held it for the benefit not of her but of the husband (hence his entitlement to repayment of 2539); and that, when the balance of the fund was released in stages into their office account, it became the property of the solicitors. In support of this argument the wife cites Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, in which the House of Lords held that a solicitor for a borrower might hold borrowed money in trust not for the borrower but for the lender subject to the solicitors power to apply it by way of loan to the borrower for such purposes as had, to his knowledge, been agreed with the lender. I cannot accept this analysis of the costs allowance order. It provided for the husband to make interim periodical payments to the wife and indeed to make them directly to her solicitors or, in other words, via them. Had he not duly paid under the order, it would have been for her to enforce it. When the instalments were paid into their client account, the solicitors therefore held them for her benefit albeit subject to the terms of the order. If an order for payment made in respect of legal services under section 22ZA of the 1973 Act or made under the preceding jurisdiction recognised in the Currey case has been wrongly made, the appellate court must at least have jurisdiction to order that sums paid under it should be repaid; otherwise such orders would, to the extent implemented, in practice be unappealable. But, as by its order for only partial repayment the Court of Appeal recognised, an appellate court has a discretion whether to exercise its jurisdiction to order repayment in the wake of a successful appeal. Where the payments have been applied to the purchase of legal services in accordance with the order, the court should in that regard carefully consider all the circumstances, including whether the payer, say a husband, should have applied for a stay of the order and whether, in the light of his circumstances and the wifes ability to make repayment to him, it is reasonable to exercise the discretion to order repayment whether unconditionally or subject to a prohibition against enforcement against her without further leave. The exercise should certainly not be equated with that of determining the incidence of costs at the conclusion of an appeal.

UK-Abs

The appellant, Ms Wyatt, and the respondent, Mr Vince, were married on 18 December 1981 [9]. They had a son, and Mr Vince also treated Ms Wyatts daughter from a previous relationship as a child of the family. They separated in 1984 [10]. For around 8 years after that, Mr Vince pursued a new age travelling lifestyle [11]. Ms Wyatt brought up the children in straitened circumstances, and Mr Vince was not in a position to make any substantial financial contribution for them [17]. The couple divorced and their decree absolute was granted on 26 October 1992. Since the court file has apparently been mislaid it is unknown what, if any, order was made at the time regarding financial provision, but the court has no reason to believe that Ms Wyatts claims were dismissed [14]. Ms Wyatt went on to have two more children. From the late 1990s Mr Vinces green energy business took off [18] and he became a multi millionaire [7]. In 2001, the couples son went to live with Mr Vince. Ms Wyatts financial circumstances continued to be, and remain, very modest [6]. In 2011 Ms Wyatt made an application in the divorce proceedings for financial provision in the form of a lump sum. She also applied for interim payments to fund her legal costs [2]. Mr Vince cross applied for Ms Wyatts substantive application to be struck out pursuant to Rule 4.4 of the Family Procedure Rules 2010 (the family rules), which provides: (1) the court may strike out a statement of case if it appears to the court a) that the statement of case discloses no reasonable grounds for bringing or defending the application; b) that the statement of case is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings On 14 December 2012 a deputy High Court judge dismissed Mr Vinces strike out application and ordered him to make interim periodical payments in respect of legal costs directly to Ms Wyatts solicitors (the costs allowance order). Mr Vince appealed, successfully, to the Court of Appeal to have the deputy judges orders set aside. The Court of Appeal struck out Ms Wyatts application for financial provision and ordered her to repay part of the money received under the costs allowance order [2]. She appealed to the Supreme Court. The Supreme Court unanimously allows the appeal [29] and directs that the wifes application proceed in the Family Division of the High Court [36]. The deputy judges costs allowance order is restored and the Court of Appeals repayment order set aside [41]. Lord Wilson (with whom Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge agree) gives the judgment. The court examines the jurisdiction under Rule 4.4 of the family rules to strike out an ex spouses application for a financial order [3]. It can be inferred that the references to no reasonable grounds and abuse of the courts process in Rule 4.4 are intended to bear the same meaning as the equivalently worded strike out provisions in the Civil Procedure Rules (the civil rules) [23]. The civil rules also confer upon the court a further power to give summary judgment on the basis that the claimant or defendant has no real prospect of success and there is no other compelling reason why the case should be disposed of at a trial [24]. However, there is no equivalent power of summary judgment in the family rules [25]. This omission is deliberate. When an ex spouse applies for a financial order, the court has a duty under section 25(1) of the Matrimonial Causes Act 1973 (the 1973 Act) to determine that application having regard to all the circumstances, including the eight matters set out in subsection (2); this assessment is not apt for summary determination. The Court of Appeal was therefore wrong to insinuate a test analogous to summary judgment into the family rules. Both limbs of Rule 4.4 should be construed without reference to real prospects of success. An application has no reasonable grounds for the purposes of Rule 4.4(1)(a) only if it is not legally recognisable, e.g. because there has already been a final determination of the proceedings or because the applicant has remarried. Neither should an application be viewed as an abuse of process falling within Rule 4.4(1)(b) solely on the basis that it has no real prospect of success [27]. Ms Wyatts application is legally recognisable and is not an abuse of process [28] and her appeal against the strike out therefore succeeds [29]. Lord Wilson identifies the issues in the application for the purpose of efficient future case management [29]. Ms Wyatt faces formidable difficulties in seeking to establish that a financial order should be made in her favour, including the short duration of the marriage and the long delay since then [30 31]. It is not clear whether she will be able to sustain her claim on the basis of need generated by her relationship with Mr Vince [33]. However, section 25(2)(f) of the 1973 Act obliges the court to have regard to the contributions which each of the parties has made to the welfare of the family, including any contribution by looking after the home or caring for the family. Ms Wyatt will no doubt rely on her much greater contribution to the upbringing of the couples children over many years [34], a factor which may justify a financial order for a comparatively modest sum [36]. The court also considers the costs allowance order [3]. Mr Vince argued that even if Ms Wyatts application were not to be struck out, the deputy judge had been wrong to make the costs allowance order [37]. The threshold test for making such an order was whether Ms Wyatt could reasonably secure legal services by any other means [39]. Given that it would be unreasonable to expect her solicitors to continue to act without payment until the determination of her substantive application (as contended by Mr Vince), this test was satisfied [40].

Her Majestys Attorney General for England and Wales has referred to this Court under section 112(1) of the Government of Wales Act 2006 (GWA 2006) the question of whether, on the proper construction of section 108 and Schedule 7 to the GWA 2006, the Agricultural Sector (Wales) Bill 2013 (the Bill) is within the legislative competence of the National Assembly of Wales (the Assembly). The Bill was passed on 17 July 2013 primarily to establish a scheme for the regulation of agricultural wages in Wales. As we shall explain in more detail, the Agricultural Wages Act 1948 had until 2013 provided a regime for regulating agricultural wages for England and Wales under the superintendence of the Agricultural Wages Board. The Board made its last Order in July 2012. In 2013 the United Kingdom Parliament enacted the Enterprise and Regulatory Reform Act. Section 72 of that Act abolished the Agricultural Wages Board for England and Wales. Schedule 20 repealed or amended many of the provisions of the Agricultural Wages Act 1948 and other statutory provisions and subordinate legislation relating to the agricultural wages regime. The Welsh Assembly Government (the Welsh Government) decided that it wished to retain a regime for the regulation of agricultural wages in Wales. The Assembly seeks through the Bill to implement this policy by establishing for Wales such a regime through an Agricultural Advisory Panel for Wales. The Assembly considers that it has the legislative competence to do so, relying on section 108 of, and Schedule 7 to, the GWA 2006, which give it competence to make legislation which relates to: Agriculture. Horticulture. Forestry. Fisheries and fishing. Animal health and welfare. Plant health. Plant varieties and seeds. Rural development. The submission of the Attorney General and the Counsel General is that the GWA 2006 has to be interpreted against the legislative background of the regulation of agricultural wages in the United Kingdom and the development of the devolution settlement for Wales. When so considered, the Attorney General submits that in reality the Bill does not relate to agriculture but to employment and industrial relations, which have not been devolved. In the submission of the Counsel General, the Bill relates to agriculture; and that is sufficient to bring it within the legislative competence of the Assembly, as a matter of the proper interpretation of section 108 and Schedule 7. For the reasons explained below, the Bill falls in our judgment within the competence of the Assembly. The approach to the construction of the GWA 2006 The sole issue before the court is the proper interpretation of the GWA 2006. It is common ground that the principles to be adopted are those set out by Lord Hope in Local Government Byelaws (Wales) Bill 2012 reference by the Attorney General for England and Wales [2012] UKSC 53; [2013] 1 AC 792, paras 78 81, following on from the guidance given in Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, paras 44 53 and Imperial Tobacco v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153 paras 7 15. Those principles can be summarised as follows: The question whether a provision is outside the competence of the i) Assembly must be determined according to the particular rules that section 108 of, and Schedule 7 to, the GWA 2006, have laid down: see the Local Government Byelaws (Wales) Bill 2012 case at para 79. ii) The description of the GWA 2006 as an Act of great constitutional significance cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute: Local Government Byelaws (Wales) Bill 2012, para 80. iii) When enacting the GWA 2006 Parliament had to define, necessarily in fairly general and abstract terms, permitted or prohibited areas of legislative activity. The aim was to achieve a constitutional settlement. It is proper to have regard to that purpose if help is needed as to what the words mean: see the Local Government Byelaws (Wales) Bill 2012 case at para 80. The legislative background: the regulation of agricultural wages It is convenient first to set out the legislative background relating to the regulation of agricultural and other wages in the United Kingdom and the operation of the Agricultural Wages Act 1948 (the 1948 Act) in relation to Wales between 1964 and 1998. The early legislation An Agricultural Wages Board was first established under the Corn Production Act 1917. Provisions of that Act imposed on an Agricultural Wages Board the duty to set a minimum wage for agricultural workers and gave it other powers and duties. Prior to that Act the Board of Trade had been given power under the Trade Boards Act 1909 to regulate wages in certain specified trades in the clothes making and related industries, and to establish a Wages Board to fix minimum wages in any branch of such trades where an exceptionally low wage was paid. The Corn Production Act 1917 incorporated some of the provisions of the Trade Boards Act 1909. Between 1917 and 1948 there were several statutes which provided for amended schemes for agricultural wages. Trade boards were also established to regulate wages in other industries. It is not necessary to refer to the amendments to the agricultural wages schemes or to the schemes for other industries. It is sufficient to note that the Agriculture Act 1920 provided that separate powers should apply with respect to Wales but, unlike Scotland, no separate Board of Agriculture was established for Wales; the functions in Wales were carried out by the Minister for Agriculture and Fisheries. That Act also established a Central Agricultural Wages Committee for Wales which was to exercise the powers of the Agricultural Wages Board in Wales. Those provisions did not survive long, as the Agricultural Wages (Regulation) Act 1924 set up agricultural wages committees in each of the counties of England and Wales and an Agricultural Wages Board for England and Wales. The function of the county agricultural wages committees was to set minimum rates of pay which were then to be notified to the Board, which made an order to carry out the decisions of such committees. In the immediate aftermath of the 1939 45 war the Wages Councils Act 1945 provided for the replacement of trade boards by wages councils across a large number of industrial sectors and the scheme for agricultural wages was further changed. The 1948 Act The 1948 Act consolidated the changes. The scheme as established under that Act was that the Agricultural Wages Board for England and Wales had a duty to set a minimum wage for workers employed in agriculture and also had the power to set other terms and conditions of employment. Agricultural wages committees for counties or combinations of counties in England and Wales had various functions but gradually the functions of these committees became minimal. Under section 16 the Minister was given power to make regulations for giving effect to or modifying the Act so far as it related to holidays and holiday pay. The Act did not extend to Scotland or Northern Ireland. The Act was amended by various Acts including the Agriculture Act 1967, the Equal Pay Act 1970 and the Employment Protection Act 1975. There was separate legislation for Scotland from 1937. It made provision for an Agricultural Wages Board for Scotland and a Scottish Department of Agriculture. The legislation for Scotland was consolidated in the Agricultural Wages (Scotland) Act 1949, with the Secretary of State for Scotland exercising ministerial powers under that Act. By 1993 the scheme for regulating agricultural wages under the 1948 Act was the only scheme for the regulation of wages in industry which remained. In the 1960s and 1970s some wages councils were abolished, and the powers of the remaining wages councils were reduced by the Wages Act 1986. The Trade Union Reform and Employment Rights Act 1993 abolished all the remaining wages councils. With effect from April 1999 the 1948 Act was amended by the National Minimum Wage Act 1998, and the functions and powers of the Agricultural Wages Board were revised. The exercise of powers under the 1948 Act as regards Wales from 1964 to 1998 In October 1964 the Prime Minister created the post of Secretary of State for Wales and the Welsh Office. From that time forward various executive powers of the departmental Secretaries of State and ministries in Whitehall were transferred to the Secretary of State for Wales. Under these arrangements the Transfer of Functions (Wales) (no. 1) Order 1978 (SI 1978/272) transferred to the Secretary of State for Wales with effect from 1 April 1978 many of the functions of the Minister of Agriculture, Fisheries and Food in respect of Wales, to be exercised either solely or concurrently with the Minister. The powers transferred included the enforcement of agricultural wages legislation in Wales, the establishing of agriculture wages committees in Wales, and other powers that were to be exercised jointly with the Minister for Agriculture Fisheries and Food. The assumption of these functions by the Secretary of State for Wales was reflected in the fact that the consultation paper on Agricultural Pay and Conditions: the Operation of the Agricultural Wages Board was published in July 1993 jointly by the Minister of Agriculture, Fisheries and Food and the Welsh Office. As a result of that consultation it was acknowledged that the Agricultural Wages Board had wide acceptance from both sides of the agricultural industry. A further review took place in December 1999, but the Agricultural Wages Board continued to set wages, terms and conditions under the 1948 Act. Before considering the further changes to the 1948 Act and further transfers of functions, it is necessary to refer to the development of devolution to Wales. The first phase of devolution: executive devolution under the Government of Wales Act 1998 The Government of Wales Act 1998 (the GWA 1998) established the first phase of devolution to Wales in the form of what has been described as executive devolution. That Act established the Assembly as a single body corporate. It was given the function to make subordinate legislation in place of the Secretary of State and to elect an Assembly First Secretary who with Assembly Secretaries appointed by him were to exercise administrative functions. Schedule 2 of the GWA 1998 set out 18 fields in which the function to make subordinate legislation was to be transferred to the Assembly either by Orders in Council or new statutory provisions. These were the broad subject areas within which specific powers under UK legislation were to be transferred. The Schedule described the fields in the following terms: 1. Agriculture, forestry, fisheries and food. 2. Ancient monuments and historic buildings. 3 Culture (including museums, galleries and libraries). 4. Economic development. 5. Education and training . Section 22 of the GWA 1998 enabled such functions so far as exercisable by a Minister of the Crown in relation to Wales to be transferred wholly to the Assembly by Order in Council or to be exercisable by the Assembly concurrently with a Minister of the Crown, or to be retained by the Minister on the basis that they could only be exercised with the agreement of, or after consultation with, the Assembly. Acting under section 22 and other provisions of the GWA 1998, Her Majesty in Council made the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672). It transferred most of the functions that the Secretary of State for Wales had accumulated in the period from 1964. Included among the functions transferred were powers to appoint to the Agricultural Wages Board and to appoint inspectors. The function of setting wages remained with the Board. As a result of amendments effected by the Employment Relations Act 2004, section 11A was inserted into the 1948 Act. This gave the Secretary of State for Agriculture power to appoint officers for the enforcement of the Act within England and the Assembly power to do the same within Wales. The second phase of Welsh devolution: the GWA 2006, the split of legislative and executive functions and the competence to legislate under Legislative Competence Orders In 2004 a Commission under Lord Richard of Ammanford recommended significant changes to the scheme of devolution for Wales. As a result the Secretary of State for Wales published in June 2005 a White Paper, Better Governance for Wales (Cm 6582). It proposed a second phase of devolution by separating the legislative and executive functions of the Assembly and creating powers under which the Assembly could be enabled by Orders in Council to make or modify primary legislation. The White Paper also proposed provision for a possible move to a third phase of devolution: 3.22 However, it may prove in the future that even these additional powers are still insufficient to address the Assemblys needs and the option of providing the Assembly with further enhanced law making powers needs to be available. 3.23 This would mean transferring primary legislative powers over all devolved fields direct to the Assembly. The Government is clear that this would represent a fundamental change to the Welsh settlement and would have to be endorsed in a referendum. The Government has no current plans for such a referendum but, in order to avoid the necessity of a third Government of Wales Bill, it proposes to provide for the possibility in this legislation. 3.26 Conferring primary legislative powers on the Assembly would mean that, like the Scottish Parliament, it would be able to make law on all the matters within its devolved fields. This would not include those subjects which remain the responsibility of Whitehall Departments for Wales as well as for England. Like Scotland, these would include Fiscal and Monetary Policy, Immigration and Nationality and Social Security. Also excluded would be fields where the Scottish Executive, and the Secretary of State for Scotland before devolution, have functions but the Assembly does not, such as civil and criminal law, the administration of justice, police and the prison service. The GWA 2006 gave effect to each of these proposals. Parts 1 and 2 separated and redefined the functions of the Assembly i) and the Welsh Assembly Government. ii) Part 3 provided for the second phase of devolution by giving the Assembly competence to make Assembly Measures which could amend primary UK legislation or take effect as primary legislation within the conditions set out in sections 94 95 and Schedule 5. Section 94 enabled the Assembly to make Assembly Measures which related to one or more of the matters specified in Schedule 5. Section 95 enabled Schedule 5 to be amended by Order in Council so as to add, vary or remove matters relating to the fields listed in Schedule 5, and so as to add, vary or remove such fields. As originally enacted, Schedule 5 contained the field agriculture, fisheries, forestry and rural development, but no matters were specified within that field. iii) Section 103 of Part 4 and Schedule 6 provided for a referendum to take place in the future on the question of whether the remaining provisions of Part 4 providing for the Assembly to have power to make Acts within the competence set out in sections 107 109 and Schedule 7 should come into force. The separation of the functions of the Assembly and the Welsh Government came into effect on 4 May 2007 and the powers under Part 3 and Schedule 5 took effect then. Between then and May 2011, during the second phase of devolution, Schedule 5 was amended by Orders in Council, commonly known as Legislative Competence Orders, to provide more specific powers to make Assembly Measures within the fields set out in the Schedule. In particular, the National Assembly for Wales (Legislative Competence) (Agriculture and Rural Development) Order 2009 (SI 2009/1758) inserted into the field of agriculture, fisheries, forestry and rural development Matter 1.1, described as follows: The red meat industry, in relation to (a) increasing efficiency or productivity in the industry; (b) improving marketing in the industry; (c) improving or developing services that the industry provides or could provide to the community; (d) improving the ways in which the industry contributes to sustainable development. The Assembly was thus given competence within the field of agriculture to make Assembly Measures in relation to a variety of aspects of the red meat industry. As is evident from Schedule 5 as amended by the Legislative Competence Orders, the terms on which the Assembly was given legislative competence were narrow and specific. The referendum in 2011 In June 2010 a decision was made to hold a referendum under section 103. Following the referendum in March 2011, the remaining provisions of Part 4 of the GWA 2006 were brought into force on 6 May 2011, giving effect to the third phase of devolution. The third phase of devolution: the power of the Assembly to make Acts under Part 4 and Schedule 7 The legislative scheme for the third phase of devolution under Part 4 of, and Schedule 7 to, the GWA 2006 did not follow the scheme of devolution for Scotland and Northern Ireland. Under those schemes, often referred to as reserved powers models, competence is given to the devolved legislatures in respect of all matters, unless the matter is excepted by way of reservation to the UK Parliament. The GWA 2006, despite the recommendation of the Richard Commission that the reserved powers model of Scotland and Northern Ireland be adopted, gave legislative competence only in respect of enumerated matters, in other words what is referred to as a conferred powers model. Legislative competence under section 108 The legislative method adopted to confer powers on the Assembly is essentially that provided for under section 108. Subsection (1) enables an Act of the Assembly to make any provision that could be made by an Act of Parliament, subject to the qualification, under subsection (2), that an Act of the Assembly is not law so far as any provision of the Act is outside the Assemblys legislative competence. Under subsection (3), a provision is within the Assemblys legislative competence only if it falls within subsection (4) or (5). The material subsection in the present case is subsection (4), which provides: (4) A provision of an Act of the Assembly falls within this subsection if (a) it relates to one or more of the subjects listed under any of the headings in Part 1 of Schedule 7 and does not fall within any of the exceptions specified in that Part of that Schedule (whether or not under that heading or any of those headings), and (b) it neither applies otherwise than in relation to Wales nor confers, imposes, modifies or removes (or gives power to confer, impose, modify or remove) functions exercisable otherwise than in relation to Wales. Subsection (7) provides a definition of the term relates to: (7) For the purposes of this section the question whether a provision of an Act of the Assembly relates to one or more of the subjects listed in Part 1 of Schedule 7 (or falls within any of the exceptions specified in that Part of that Schedule) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. Subsection (6) imposes additional limits on the legislative competence of the Assembly, including incompatibility with EU law or the Convention rights (defined in section 158(1)), and breach of the restrictions set out in Part 2 of Schedule 7, having regard to the exceptions from those restrictions in Part 3 of that Schedule. Schedule 7 Part 1 of Schedule 7 sets out 20 headings under which subjects falling within the legislative competence of the Assembly, and exceptions falling outside its competence, are listed. The first heading, as amended in December 2010 by SI 2010/2968, is Agriculture, forestry, animals, plants and rural development. The paragraph under that heading provides: Agriculture. Horticulture. Forestry. Fisheries and fishing. Animal health and welfare. Plant health. Plant varieties and seeds. Rural development. In this Part of this Schedule animal means (a) all mammals apart from humans, and (b) all animals other than mammals; and related expressions are to be construed accordingly. Exceptions Hunting with dogs. Regulation of scientific or other experimental procedures on animals. Import and export control, and regulation of movement, of animals, plants and other things, apart from (but subject to provision made by or by virtue of any Act of Parliament relating to the control of imports or exports) (a) the movement into and out of, and within, Wales of animals, animal products, plants, plant products and other things related to them for the purposes of protecting human, animal or plant health, animal welfare or the environment or observing or implementing obligations under the Common Agricultural Policy, and (b) the movement into and out of, and within, Wales of animal feedstuff, fertilisers and pesticides (or things treated by virtue of any enactment as pesticides) for the purposes of protecting human, animal or plant health or the environment. Authorisations of veterinary medicines and medicinal products. As section 108(4) excludes from the competence of the Assembly all exceptions specified in Part 1 of Schedule 7, it is necessary to refer briefly to the heading Economic development as illustrative of the way in which the Schedule was drafted. The paragraph under this heading, as amended in December 2010 by SI 2010/2968, provides: Economic regeneration and development, including social development of communities, reclamation of derelict land and improvement of the environment. Promotion of business and competitiveness. It then lists the exceptions, which include: Fiscal, economic and monetary policy and regulation of international trade. Intellectual property, apart from plant varieties. Product standards, safety and liability, apart from in relation to food (including packaging and other materials which come into contact with food), agricultural and horticultural products, animals and animal products, seeds, fertilisers and pesticides (and things treated by virtue of any enactment as pesticides). Consumer protection, including the sale and supply of goods to consumers, consumer guarantees, hire purchase, trade descriptions, advertising and price indications, apart from in relation to food (including packaging and other materials which come into contact with food), agricultural and horticultural products, animals and animal products, seeds, fertilisers and pesticides (and things treated by virtue of any enactment as pesticides). Financial services, including investment business, banking and deposit taking, collective investment schemes and insurance. Occupational and personal pension schemes (including schemes which make provision for compensation for loss of office or employment, compensation for loss or diminution of emoluments, or benefits in respect of death or incapacity resulting from injury or disease), apart from schemes for or in respect of Assembly members, the First Minister, Welsh Ministers appointed under section 48, the Counsel General or Deputy Welsh Ministers and schemes for or in respect of members of local authorities. In the context of the present case, it is relevant to note the exception of occupational pension schemes, including schemes which make provision for loss of office or employment, compensation for loss or diminution of emoluments, or benefits in respect of death or incapacity. This exception relates to specific aspects of employment, and in particular of the remuneration of employees. There is however no general exception in respect of employment or the remuneration of employees. Other matters relating to interpretation Before turning to the issue of interpretation of section 108 and Part 1 of Schedule 7, it is necessary to refer to three other matters which it was argued were relevant to interpretation. Ministerial statements in Parliament The Attorney General referred us to a statement made by the Parliamentary Under Secretary of State for Wales on 23 January 2006 (Hansard (HC Debates), 23 January 2006, col 1248) in a debate on the Bill which became the GWA 2006. In that statement the Minister stated that the purpose of the Bill was not to broaden devolution but to deepen it. The same phrase was used by a Minister in the House of Lords in a debate on 6 June 2006 (Hansard (HL Debates) 6 June 2006 cols 1142 1143). We do not think that the use by the Minister of such a general and ambiguous phrase can properly be of any assistance in the interpretation of the GWA 2006. Correspondence prior to the introduction of the GWA 2006 The Attorney General also sought to rely in aid of interpretation on correspondence between the Wales Office, the Welsh Government and Parliamentary Counsel in October and November 2005 prior to the introduction into Parliament of the Bill that became the GWA 2006. The correspondence set out views of the Secretary of State for Wales and the then Ministers of the Welsh Government as to the scope of the subject Agriculture and whether it should include specific references to legislative competence in respect of the Agricultural Wages Board. This correspondence was never referred to in Parliament. It represented the views of the Welsh Government and the Government in Westminster which were never made public or disclosed to Parliament. In our view it would be wholly inconsistent with the transparent and open democratic process under which Parliament enacts legislation to take into account matters that have passed in private between two departments of the Executive or between the Executive of the UK and a devolved Executive. We therefore refused in the hearing of the reference to admit the correspondence. We refer to it no further. The distribution of powers prior to the third phase of devolution Both the Attorney General and the Counsel General contended that it was helpful to look at the way in which powers were distributed in the first and second phases of Welsh devolution. For example, the Attorney General contended that no power in respect of regulating agricultural wages had been transferred to the Assembly; the function remained with the Agricultural Wages Board; the power under section 16 of the 1948 Act to which we referred at para 11 was simply a power to make regulations, not a power to set agricultural wages. However, although we consider that the Attorney General was correct in his contention as to the effect of section 16 of the 1948 Act, we cannot accept the Attorney Generals further submission that the fact that a power was not transferred under the first or second phases of devolution to Wales should weigh heavily against the intention to transfer such a power in the third phase set out in Part 4 and Schedule 7 to the GWA 2006. In our view each of the successive phases of Welsh devolution significantly increased the legislative competence of the Assembly. The distinction is most marked between the second and third phases of devolution, having regard to the way in which Parliament intended to confer legislative competence on the Assembly and the way in which the second phase of devolution in fact operated. The current legislative competence of the Assembly has to be determined by an interpretation of the terms of Part 4 and Schedule 7 and not by reference to the way in which functions may have been distributed between the UK Parliament and UK Ministers on the one hand and the Assembly on the other in the first and second phases of Welsh devolution. There are therefore no additional matters or materials to be taken into account in the interpretation of section 108 and Schedule 7 in accordance with the principles we have set out at paras 5 and 6 above. The interpretation of section 108 and Schedule 7 the issues As is apparent from the terms of section 108(4), it is necessary to examine whether the Bill relates to one or more of the subjects listed under the headings in Part 1 of Schedule 7, and then whether it falls within any of the exceptions specified in that Part of Schedule 7. It is also necessary to consider whether it is outside the Assemblys legislative competence by reason of any other provisions of the GWA 2006. It is convenient to deal first with the exceptions and other limitations on legislative competence. No one contended that any of the exceptions specified in Schedule 7, or any limitation on competence set out in any of the other provisions of the GWA 2006, applied. This is a matter of real significance as we explain at paras 61 68 below. The sole question therefore is whether the Bill relates to one of the subjects in Schedule 7. This question gives rise to four issues. What is the meaning of agriculture in Schedule 7? The first issue is the determination of the meaning of the relevant subject within Schedule 7, in this case Agriculture as set out in paragraph 1 of the Schedule. No definition of agriculture is set out in the GWA 2006. It was submitted that assistance was to be derived from the dictionary definitions of agriculture. These included the science or occupation of cultivating land or rearing livestock; the science or practice of cultivating the soil or rearing animals. This is not however a case in which the court has to turn to a dictionary in order to find out the meaning of an unfamiliar word. The problem is to decide what Parliament meant by the subject of Agriculture in this specific context: in particular, in the context of the other subjects listed in the schedule. Each is intended to designate a subject matter which is the object of legislative activity. In this context, it is clear to us that agriculture cannot be intended to refer solely to the cultivation of the soil or the rearing of livestock, but should be understood in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry, as it is to that broader subject matter that legislative activity is directed. The Legislative Competence Order to which we referred in para 27, covering such matters as marketing and the provision of services by the red meat industry, is an example of such activity, and would appear to have been based on a similarly broad understanding of the term agriculture where used in Schedule 5 of the GWA 2006. Does the purpose and effect of the Bill relate to agriculture? The second issue that has to be considered is whether the Bill relates to agriculture. As Lord Walker observed in Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, para 49, the expression relates to indicates more than a loose or consequential connection. The issue as to whether a provision relates to a subject is to be determined under section 108 (7) by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. As the section requires the purpose of the provision to be examined it is necessary to look not merely at what can be discerned from an objective consideration of the effect of its terms. The clearest indication of its purpose may be found in a report that gave rise to the legislation, or in the report of an Assembly committee; or its purpose may be clear from its context: Imperial Tobacco v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153, para 16. In its Consultation Document, The Future of the Agricultural Wages Board, issued on 1 May 2013 after the decision of the UK Government to abolish the Agricultural Wages Board, the Welsh Government set out the circumstances relating to agriculture in Wales. 84% of the total land area of Wales was used for agricultural purposes. It was distinct from other sectors in Wales as it was mainly comprised of small employment units. There were 13,300 agricultural workers out of a total number of persons engaged in the agricultural sector of 58,400. There had been a decline in the number of agricultural workers. The Welsh Government set out its objective of protecting the agricultural sector and supporting a sustainable and well trained agricultural workforce in Wales. It sought views as to whether to establish a modernised Agricultural Wages Board for Wales. In the light of the responses to the consultation the Welsh Government decided to introduce the Bill. It appears therefore from the consultation process that led to the Bill that its purpose was to regulate agricultural wages so that the agricultural industry in Wales would be supported and protected. The legal and practical effects of the Bill are consistent with that purpose. An objective examination of its provisions shows that, among other effects, it will regulate agricultural wages and will have a direct effect on the agricultural industry in Wales. The Bill establishes an Agricultural Advisory Panel for Wales with the function of promoting careers in agriculture, preparing agricultural wages orders in draft and submitting them to Ministers for approval and advising Ministers on other matters relating to agriculture. Section 3 provides: (1) An agricultural wages order is an order making provision about the minimum rates of remuneration and other terms and conditions of employment for agricultural workers. (2) An agricultural wages order may, in particular, include provision (a) specifying the minimum rates of remuneration to be paid to agricultural workers (including rates for periods when such workers are absent in consequence of sickness or injury); (b) about any benefits or advantages which, for the purposes of a minimum rate of remuneration, may be reckoned as remuneration in lieu of payment in cash; (c) requiring employers of agricultural workers to allow such workers to take such holidays and other leave as may be specified in the order. (3) An agricultural wages order may specify different rates and make different provision for different descriptions of agricultural workers. (4) An agricultural wages order may not include any provision about the pensions of agricultural workers. (5) No minimum rate of remuneration may be specified in an order under this section which is less than the national minimum wage. The Bill provides by section 4 that Welsh Ministers can make agricultural wages orders. Enforcement powers are given by section 5 and by section 6 powers in respect of holiday entitlement. Thus, although different in detail to the 1948 Act, its purpose and effect, as derived from a consideration of both the purpose of those introducing it and the objective effect of its terms, are to establish a statutory regime for the regulation of agricultural wages and other terms and conditions of employment within the agricultural industry in Wales. The purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales. Like the 1948 Act, the Bill is aptly classified as relating to agriculture. Does the Bill relate to subjects which are not devolved? Although the purpose and effect of the Bill in relation to agriculture are clear, it is necessary as the third issue to consider whether it also relates to other subjects. The Attorney General submitted that the Bill will have an effect on employment and on industrial relations. Although he accepted that the effect would be on employment and industrial relations in the agricultural industry, the consequence of regulating wages and other terms and conditions in that industry would be to differentiate the industry in Wales from that in England (though not in Scotland and Northern Ireland) and also to differentiate it from other industries in Wales and in England. The Bill could also have the effect that employers in that industry could lose flexibility as regards terms and conditions and there could be a patchwork of different regulations in different sectors of the labour market. We accept that the Attorney General is broadly correct in his submission as to these effects. The Attorney General next submitted that the usual approach to employment and industrial relations for most industries is to set minimum standards across the UK. The purpose of that approach is to create a level playing field so that wherever an employer is situated in the UK, and whatever the industry in which he is operating, that employer will be subject to the same employment law as regards pay, terms and conditions. Thus no employer could obtain a competitive advantage by locating in a particular nation within the UK. We accept the general import of that submission. Employment and industrial relations are commonly recognised subjects of legislative activity. They are, for example, matters specifically reserved under the heading employment and industrial relations in section H1 of Part 2 of Schedule 5 to the Scotland Act 1998, though it is be noted that the subject matter of the Agricultural Wages (Scotland) Act 1949 is excepted from the reservation. We therefore accept the contention of the Attorney General that the Bill might in principle be characterised as relating to employment and industrial relations. As the Attorney General pointed out, neither employment nor industrial relations is listed in Schedule 7 to the GWA 2006 as a subject in respect of which the Assembly has legislative competence. The fact that the Welsh Government has the power to fix the terms and conditions and wages of those employed by it or bodies it controls (such as the Welsh NHS) is not relevant. Such powers relate to those within the direct or indirect employment of the Welsh Government; they are not powers which regulate the employment of those employed by other employers. On the other hand, employment and industrial relations are not specified in Schedule 7, or elsewhere in the Act, as exceptions to the legislative competence of the Assembly. Certain aspects of employment are specified as exceptions, as we have explained in para 33, but the very fact that those particular aspects are specified tends to suggest that there was no intention to create a more general limitation on legislative competence. Does the Bill relate to agriculture if it also relates to other subjects which are neither listed as devolved nor specified as exceptions? The model of devolution to Wales in the third phase of devolution, as we have briefly explained at para 29, was to give the Assembly legislative competence only in relation to subjects expressly listed. Whether a provision relates to a listed subject is, as we have explained, to be determined under section 108 by considering the purpose and effect of the provision. In the present case, for the reasons we have given, the Bill might in principle be regarded not only as relating to a subject listed as devolved, but also as relating to subjects which are not mentioned at all in the legislation. Employment and industrial relations are neither listed as devolved subjects, nor specified as exceptions. It is therefore necessary to consider as the fourth issue the position where a Bill which relates to a listed subject might also be regarded as relating to other subjects of legislative activity which, although not specified as exceptions, are not listed as devolved. Is the consequence that such a Bill is not within the legislative competence of the Assembly? It appears unlikely that this issue will frequently arise in relation to Welsh devolution. That is because Schedule 7, although briefer than the schedule of reserved matters in the Scotland Act 1998, contains a considerable number of exceptions which are applicable irrespective of the heading under which the exception is specified. The issue only arises in this reference because there is no exception of employment or industrial relations specified in the GWA 2006. The Attorney General contended that the court should in a case such as this determine the real purpose and objective effect of the Bill. He submitted that in reality the purpose and objective effect of the Bill did not relate to agriculture but to employment and industrial relations. It should therefore be so characterised. This was the way that the UK Ministry, the Department of the Environment Food and Rural Affairs, had characterised the issue when consulting on the future of the Agricultural Wages Board in October 2012. The Government is committed to providing an environment for all sectors of the economy in which private enterprise and businesses can flourish. To do so, the Government wishes to remove unnecessary red tape and administrative burden. A key coalition commitment is a cross Government review of employment related law which is taking forward a number of measures aimed at reducing burdens on business by simplifying employment legislation to give employers the flexibility to run their business effectively and have the confidence to take on staff and grow. The proposed abolition of the agricultural minimum wage and the Agricultural Wages Board is part of that overall wider review. We cannot accept that this is the approach which the language of the GWA 2006 requires or permits. We acknowledge that, in principle, there may be more than one way in which the purpose and effect of a Bill may be capable of being characterised. The present is a case in point. A Bill which establishes a scheme for the regulation of agricultural wages can in principle reasonably be classified either as relating to agriculture or as relating to employment and industrial relations. Which classification is the more apt depends on the purpose for which the classification is being carried out, and on the classificatory scheme which has to be employed. As we explained in para 6, the question whether a provision is outside the competence of the Assembly must be determined according to the particular rules that section 108 of, and Schedule 7 to, the GWA 2006, have laid down. The rules must be interpreted according to the ordinary meaning of the words used. In that way, a coherent, stable and workable outcome can be achieved. As we have explained, the scheme of the conferred powers model adopted for Welsh devolution, as embodied in the GWA 2006, is to limit the legislative powers of the Assembly in relation to subjects listed in Schedule 7 by reference to the express exceptions and limitations contained in the Act, rather than via some dividing up of the subjects in Schedule 7 along lines not prescribed in the legislation. Under section 108(4) and (7), the Assembly has legislative competence if the Bill relates to one of the subjects listed in Part 1 of Schedule 7, provided it is not within one of the exceptions. In most cases, an exception will resolve the issue. Where however there is no exception, as in the present case, the legislative competence is to be determined in the manner set out in section 108. Provided that the Bill fairly and realistically satisfies the test set out in section 108(4) and (7) and is not within an exception, it does not matter whether in principle it might also be capable of being classified as relating to a subject which has not been devolved. The legislation does not require that a provision should only be capable of being characterised as relating to a devolved subject. The Attorney Generals submission would in effect compel us to re write section 108 to make it operate in such a way as to add to the exceptions specified in Schedule 7. Instead of the specific exception which Parliament created in respect of occupational pension schemes, the court would create a much wider exception in respect of the remuneration of employees, or perhaps employment generally. Not only is that impermissible in principle, but it would in practice restrict the powers of the Assembly to legislate on subjects which were intended to be devolved to it: as the present case demonstrates, a Bill which undoubtedly relates to a devolved subject may also be capable of being classified as relating to a subject which is not devolved. Such an interpretation of section 108 would therefore give rise to an uncertain scheme that was neither stable nor workable. In contrast, the application of the clear test in section 108 provides for a scheme that is coherent, stable and workable. Conclusion As we have concluded for the reasons we have set out that the Bill relates to agriculture, it follows that it is within the legislative competence of the Assembly.

UK-Abs

This is a reference by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (GWA 2006). It concerns the question of whether the Agricultural Sector (Wales) Bill 2013 is within the legislative competence of the National Assembly for Wales [1]. The Bill was passed on 17 July 2013 primarily to establish a scheme for the regulation of agricultural wages in Wales. Until 2013, the Agricultural Wages Act 1948 provided a regime for regulating agricultural wages for England and Wales under an Agricultural Advisory Panel for Wales, which was abolished by the UK Parliament under the Enterprise and Regulatory Reform Act 2013. [2]. The Welsh Government wished to retain a regime for the regulation of agricultural wages in Wales. The Welsh Assembly seeks to implement such a regime through the creation of a new Agricultural Wages Panel. It considers that it has competence to do so, relying on section 108 of and Schedule 7 to the GWA 2006. Those provisions give the Assembly competence to make legislation which relates to: Agriculture. Horticulture. Forestry. Fisheries and fishing. Animal Health and welfare. Plant health. Plant varieties and seeds. Rural development. [3] The Attorney General disagrees, submitting that, in reality, the Bill does not relate to agriculture but to employment and industrial relations, which have not been devolved to the Welsh Assembly [4]. In a judgment delivered by Lord Reed and Lord Thomas, the court unanimously concludes that the Bill falls within the competence of the Welsh Assembly. Lord Reed and Lord Thomas explain the courts decision by reference to the legislative background to the regulation of agricultural wages in the UK, and the operation of the 1948 Act in relation to Wales [8 17]. They also draw upon the development of devolution to Wales over three phases, beginning with the executive devolution secured under the under the Government of Wales Act 1998 [19 23] and culminating in the power of the Assembly to make Acts pursuant to Part 4 of, and Schedule 7 to, the GWA 2006 under a conferred powers model of devolution [28 33]. The Justices reiterate the following principles to be adopted in interpreting the GWA 2006 [5 6]: the question whether a provision is outside the competence of the Assembly must be determined according to the rules in section 108 and Schedule 7; the description of the GWA 2006 as an Act of great constitutional significance cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute; and if help is needed to what the words mean, it is proper to have regard to the purpose that lay behind the GWA 2006, namely to achieve a constitutional settlement. In interpreting section 108 and Part 1 of Schedule 7, the court explains that it cannot consider inter governmental correspondence that preceded the GWA 2006 but was never made public or disclosed to Parliament [35 39]. The fact that a power was not conferred during the first or second phases of devolution does not assist, as each of the three phases significantly increased the legislative competence of the Assembly [40 43]. The sole question is therefore whether the Bill relates to Agriculture [46]. Significantly, no one contended that any of the exceptions specified in Schedule 7, or any limitation on competence set out in any of the other provisions of the GWA 2006, applied [45]. The first issue is the meaning of Agriculture. It is clear that agriculture cannot be intended to refer solely to the cultivation of the soil or the rearing of livestock, but should be understood in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry, as it is to that broader subject matter that legislative activity is directed [47 49]. The second issue is whether the Bill relates to agriculture. As the court has previously held, relates to indicates more than a loose or consequential connection. The issue as to whether a provision relates to a subject is to be determined under section 108(7) by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances [50]. It appears from the consultation process that led to the Bill that its purpose was to regulate agricultural wages so that the agricultural industry in Wales would be supported and protected [51 52]. The legal and practical effects of the Bill are consistent with that purpose [53]. Its purpose and effect are to establish a statutory regime for the regulation of agricultural wages and other terms and conditions of employment within the agricultural industry in Wales. The purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales. Like the 1948 Act, the Bill is aptly classified as relating to agriculture [54]. Employment and industrial relations are not specified as exceptions. Although certain aspects of employment and remuneration are specified as exceptions, that suggests that there was no intention to create a more general limitation on legislative competence [59; 68]. Provided that the Bill fairly and realistically satisfies the test set out in section 108(4) and (7) and is not within an exception, it does not matter whether it might also be capable of being classified as relating to a subject which has not been devolved, such as employment and industrial relations. The legislation does not require that a provision should only be capable of being characterised as relating to a devolved subject [67]. The application of the clear test in section 108 provides for a scheme that is coherent, stable and workable [68].

This appeal concerns the interpretation of service charge contribution provisions in the leases of a number of chalets in a caravan park in South Wales. The facts The facts may be summarised as follows (although they are more fully set out by Lord Carnwath in paras 81 to 103). Oxwich Leisure Park is on the Gower Peninsular, and contains 91 chalets, each of which is let on very similar terms. The five leases which we have seen were granted between 1978 and 1991, either for a premium (of less than 20,000) or in return for the lessee constructing the chalet. Each of the 91 chalets was let on a lease which was for a term of 99 years from 25 December 1974 and reserved a rent of 10 per annum increasing by 5 for each subsequent period of 21 years. Para (2) of the recital of each lease contains the statement that the chalets on the Leisure Park were intended to be subject to leases upon terms similar in all respects to the present demise. Clause 3 of each lease contains various covenants by the lessee, and it is introduced by the words: The lessee hereby covenants with the lessor and with and for the benefit of the owners and lessees from time to time during the currency of the term hereby granted of the other plots on the estate so far as the obligations hereinafter mentioned are capable of benefitting them The covenants that follow concern use, repair, alienation and the like. Crucially for present purposes, clause 3(2) is a covenant to pay an annual service charge. Each lease also contains covenants by the lessor. One such covenant is to provide services to the Park, such as maintaining roads, paths, fences, a recreation ground and drains, mowing lawns, and removing refuse. The lessor also covenants in clause 4(8) that leases of other chalets shall contain covenants on the part of the lessees thereof to observe the like obligations as are contained herein or obligations as similar thereto as the circumstances permit. Twenty five of the chalets are said by the respondent, the current owner of the Leisure Park and the landlord under the leases, to be subject to leases containing a service charge provision in clause 3(2), which requires the lessee to pay for the first year of the term a fixed sum of 90 per annum, and for each ensuing year a fixed sum representing a 10% increase on the previous year ie an initial annual service charge of 90, which increases at a compound rate of 10% in each succeeding year. The issue on this appeal is whether the respondents interpretation of clause 3(2) in those 25 leases is correct. Of the 25 leases in question, 21 were granted between 1977 and 1991. Prior to the grant of most of those 21 leases, the other 70 chalets had been the subject of leases granted from the early 1970s. In each of those 70 leases, clause 3(2) was a covenant by the lessee: To pay to the Lessor without any deduction in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services hereinafter set out the yearly sum of Ninety Pounds and value added tax (if any) for the first three years of the term hereby granted increasing thereafter by Ten Pounds per Hundred for every subsequent three year period or part thereof. The effect of this clause, at least on the face of it, is that the initial service charge of 90 per annum was to be increased on a compound basis by 10% every three years, which is roughly equivalent to a compound rate of 3% per annum. The 21 leases referred to in para 6 have two slightly different versions of clause 3(2), but the clause can be set out in the following form (with the words shown in bold included in 14 of the 21 leases, but not in the other seven): To pay to the Lessor without any deductions in addition to the said rent as a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and renewal of the facilities of the Estate and the provision of services hereinafter set out the yearly sum of Ninety Pounds and Value Added tax (if any) for the first Year of the term hereby granted increasing thereafter by Ten Pounds per hundred for every subsequent year or part thereof. To complicate matters a little further, the service charge clause in four of these 21 leases (being three of the seven which did not include the words in bold in the preceding quotation), had the word for before the yearly sum of Ninety Pounds. These four leases also included a proviso to the effect that, so long as the term hereby created is vested in the [original lessees] or the survivor of them, clause 3(2) would be treated as being in the form set out in para 6 above. This proviso has ceased to have effect as these four leases are no longer vested in the original lessees. Finally, the service charge clause in four of the 70 leases referred to in para 6 above were varied pursuant to deeds of variation executed between October 1998 and August 2002 so as to be identical to that set out in para 7 above, including the words in bold. The issues between the parties As already explained, the respondent, the current landlord, contends that the service charge provisions in clause 3(2) of the 25 leases referred to in paras 6 to 9 above have the effect of providing for a fixed annual charge of 90 for the first year of the term, increasing each subsequent year by 10% on a compound basis. The appellants, the current tenants under 24 of the 25 leases, primarily contend that the respondents construction results in such an increasingly absurdly high annual service charge in the later years of each of the 25 leases that it cannot be right. They argue that, properly read, each service charge clause in the 25 leases requires the lessee to pay a fair proportion of the lessors costs of providing the services, subject to a maximum, which is 90 in the first year of the term, and increases every year by 10% on a compound basis. In other words, the appellants argue that, in effect, the words up to should be read into the clause set out in para 7 above, between the words the provision of services hereinafter set out and the yearly sum of Ninety Pounds. The appellants also have an alternative contention, based on the provisions of recital (2), the opening words of clause 3 and the provisions of clause 4(8) of their leases, namely that the lessor cannot recover more by way of service charge than could be recovered under each of the first 70 leases. The evidence Apart from the documents themselves and the published Retail Price Index (RPI) for each of the years 1970 2010, there is no evidence as to the surrounding circumstances in which the 21 leases were executed, other than the fact that the four leases referred to in para 8 above were granted to individuals connected with the lessor. Following a request from the court, we were also told that three of the four deeds of variation referred to in para 9 above were entered into with the lessors daughter as lessee. I do not find it surprising that we have not been provided with any further evidence. So far as the wording of clause 3(2) is concerned, there may have been letters or notes of discussions in connection with the original drafting and granting (and, in the four cases referred to in para 9 above, the amending) of the leases. But, even if such notes or letters had survived, I very much doubt that they would have thrown any light on what was intended to be the effect of the drafting of the various forms of clause 3(2). Even if they had done, they would probably have been inadmissible as I strongly suspect that they would merely have shown what one party thought, or was advised, that the clause meant. If such documents had shown what both parties to the lease in question intended, they would probably only have been admissible if there had been a claim for rectification. As to the possibility of other material, I am unconvinced that, even if it existed, evidence of the original level of services, the original cost of the services or any investigations made on behalf of a potential lessee in relation to the original services and their cost would have assisted on the issue of what clause 3(2) of any of the 25 leases meant. The provisions for increase at the end of clause 3(2) of each lease were plainly included to allow for inflation, and the only evidence which appears to me to be potentially relevant would be contemporary assessments of the actual and anticipated annual rate of inflation, and, as already mentioned, we have the RPI for each of the years in question. Interpretation of contractual provisions Over the past 45 years, the House of Lords and Supreme Court have discussed the correct approach to be adopted to the interpretation, or construction, of contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900. When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any partys intentions. In this connection, see Prenn at pp 1384 1386 and Reardon Smith Line Ltd v Yngvar Hansen Tangen (trading as HE Hansen Tangen) [1976] 1 WLR 989, 995 997 per Lord Wilberforce, Bank of Credit and Commerce International SA (in liquidation) v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21 30. For present purposes, I think it is important to emphasise seven factors. First, the reliance placed in some cases on commercial common sense and surrounding circumstances (eg in Chartbrook, paras 16 26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision. Secondly, when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. That is simply the obverse of the sensible proposition that the clearer the natural meaning the more difficult it is to justify departing from it. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning. If there is a specific error in the drafting, it may often have no relevance to the issue of interpretation which the court has to resolve. The third point I should mention is that commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made. Judicial observations such as those of Lord Reid in Wickman Machine Tools Sales Ltd v L Schuler AG [1974] AC 235, 251 and Lord Diplock in Antaios Cia Naviera SA v Salen Rederierna AB (The Antaios) [1985] AC 191, 201, quoted by Lord Carnwath at para 110, have to be read and applied bearing that important point in mind. Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Experience shows that it is by no means unknown for people to enter into arrangements which are ill advised, even ignoring the benefit of wisdom of hindsight, and it is not the function of a court when interpreting an agreement to relieve a party from the consequences of his imprudence or poor advice. Accordingly, when interpreting a contract a judge should avoid re writing it in an attempt to assist an unwise party or to penalise an astute party. The fifth point concerns the facts known to the parties. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties. Given that a contract is a bilateral, or synallagmatic, arrangement involving both parties, it cannot be right, when interpreting a contractual provision, to take into account a fact or circumstance known only to one of the parties. Sixthly, in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention. An example of such a case is Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56, 2012 SCLR 114, where the court concluded that any approach other than that which was adopted would defeat the parties clear objectives, but the conclusion was based on what the parties had in mind when they entered into the contract (see paras 17 and 22). Seventhly, reference was made in argument to service charge clauses being construed restrictively. I am unconvinced by the notion that service charge clauses are to be subject to any special rule of interpretation. Even if (which it is unnecessary to decide) a landlord may have simpler remedies than a tenant to enforce service charge provisions, that is not relevant to the issue of how one interprets the contractual machinery for assessing the tenants contribution. The origin of the adverb was in a judgment of Rix LJ in McHale v Earl Cadogan [2010] EWCA Civ 14, [2010] 1 EGLR 51, para 17. What he was saying, quite correctly, was that the court should not bring within the general words of a service charge clause anything which does not clearly belong there. However, that does not help resolve the sort of issue of interpretation raised in this case. Discussion: interpretation of clause 3(2) When one turns to clause 3(2) of each of the 91 leases of the chalets in Oxwich Park, the natural meaning of the words used, at least until one considers the commercial consequences, seems clear. The first half of the clause (up to and including the words hereinafter set out) stipulates that the lessee is to pay an annual charge to reimburse the lessor for the costs of providing the services which he covenants to provide, and the second half of the clause identifies how that service charge is to be calculated. The fact that the second half of the clause results in the service charge being a fixed sum, rather than a sum dependent on the costs to the lessor of providing the contractual services is readily explicable. As stated in Wonnacotts The History of the Law of Landlord and Tenant in England and Wales (2012), p 106, clauses which provide for charges which vary with the costs of providing services have resulted, at least since around 1960, in more trouble between landlord and tenant than anything else. Further, legislation which started to come into force in 1972 has rendered it progressively more difficult for an amateur landlord (to use Wonnacotts expression) to recover a disputed service charge calculated on such a basis. The fact that the second half of the clause goes on to provide for a fixed increase in the annual sum is also readily explicable: the parties assumed that the cost of providing the services in sterling terms would increase, or, to put the same point another way, they assumed that the value of money would fall. Davis LJ concisely explained the thinking behind the clause in the course of his judgment in the Court of Appeal, [2013] EWCA Civ 902, para 52: Lack of correspondence between outlay and receipt is the almost inevitable consequence of such a clause if the parties have elected for a fixed charge formula. It has a similarity with a liquidated damages clause: it represents the parties estimate at the outset for the future with neither guarantee nor even expectation of entire coincidence with the eventual outcome. But the advantage is certainty. The parties know from the outset where they stand. Moreover, it is a surrounding circumstance legitimately to be taken into account here that the leases were made at a time of inflation in some years, very significant inflation which the parties, objectively and commercially speaking, could be expected to want to confront. They chose to do so by this particular formula of increase. In those seven leases where the word as is not included, I suppose that it might be said that this is not clear unless words such as quantified in the sum of were included in order to link the two halves of the clause, but that is, to my mind, a really pedantic argument. Although perfectionist drafting might suggest the inclusion of such words, it seems to me that the absence of such words cannot fairly be invoked to suggest ambiguity or a lack of clarity. The reasonable reader of the clause would see the first half of the clause as descriptive of the purpose of clause 3(2), namely to provide for an annual service charge, and the second half as a quantification of that service charge. It is true that the first part of the clause refers to a lessee paying a proportionate part of the cost of the services, and that, unless inflation increases significantly in the next 50 years, it looks likely that the service charge payable under each of the 25 leases may exceed the cost of providing services to the whole of the Leisure Park. However, if, as I believe is clear, the purpose of the second part of the clause is to quantify the sum payable by way of service charge, then the fact that, in the future, its quantum may substantially exceed the parties expectations at the time of the grant of the lease is not a reason for giving the clause a different meaning. As already explained, the mere fact that a court may be pretty confident that the subsequent effect or consequences of a particular interpretation was not intended by the parties does not justify rejecting that interpretation. However, given the way things have turned out, it is tempting to latch onto the absence of words such as quantified in the sum of, and to see the two halves of clause 3(2) as mutually inconsistent in their effect. This would be on the ground that the first half of the clause requires the lessee to pay a proportionate part of the cost to the lessor of providing services, whereas the latter half requires the lessee to pay a sum which could exceed the whole of that cost. On that basis, it might be said that the court can reject or modify one half to give effect to the real intention of the parties see eg Walker v Giles (1848) 6 CB 662. However, as explained in para 24 and 25 above, this argument would, in my view, involve the court inventing a lack of clarity in the clause as an excuse for departing from its natural meaning, in the light of subsequent developments. Were it not for the percentage increases of 10% per annum specified in the 25 service charge clauses which are being considered on this appeal, coupled with the subsequent history of inflation in the United Kingdom, that would be the end of it. Thus, it seems to me that the original 70 leases (referred to in para 6 above), with a clause 3(2), which provided for increases of about 3% per annum (at a time when inflation was running at a significantly higher rate), should plainly be interpreted in the way in which the respondent contends. However, the consequences of the annual sum of 90 being increased annually by 10% on a compound basis are plainly unattractive, indeed alarming, to a lessee holding a chalet under one of the 25 leases. If one assumes a lease granted in 1980, the service charge would be over 2,500 this year, 2015, and over 550,000 by 2072. This appears to be an alarming outcome for the lessees, at least judging by how things look in 2015, because annual inflation in the last 15 years has hardly ever been above 4%, indeed has been under 3% for ten of those years, and has notoriously been falling recently almost to the point of turning negative, whereas the service charge over that period has increased, and will continue to increase, by 10% per annum. The appellants argue that these figures illustrate the extreme unlikelihood of the parties to the 21 leases (or to the four subsequent deeds of variation), and in particular the lessees, having intended to agree that the original 90 service charge would be automatically increased by 10% annually on a compound basis. Accordingly, they contend, the latter half of clause 3(2) should be interpreted as imposing a maximum on the annual service charge recoverable by the lessor. In other words, the effect of the clause is said to be that the lessor is entitled to an appropriate percentage of the annual cost of providing the contracted services, subject to a maximum which was initially 90, but which increases by 10% compound annually. Despite the unattractive consequences, particularly for a lessee holding a chalet under one of the 25 leases, I am unconvinced by this argument. It involves departing from the natural meaning of clause 3(2) in each of those leases, and it involves inserting words which are not there. Further, the appellants argument involves attributing to the parties to the 25 leases an intention that there should be a varying service charge and that the lessor (or some other unspecified person) should assess the total costs of the services and determine the appropriate proportion of the cost of the contractual services to allocate to each chalet. Although I accept that it has an element of circularity, it appears to me that the average reader of clause 3(2) would have thought that those are exercises which the clause seems to have been designed to avoid. Although there are one or two very small errors in the drafting, I do not consider that anything has gone significantly wrong with the wording of clause 3(2) of any of the 25 leases. As already explained, I would reject the notion that, on a natural reading, the two parts of the clause do not relate to each other, or appear to say different things, even in the seven cases where the word as is not included: as the Court of Appeal said, the first half imposes a liability for an annual service charge and the second half explains how it is to be assessed. I do not think that the reference to part of a year in the closing words of the clause (para 7 above refers), or the inclusion of an unnecessary for (para 8 above refers), in some of the 25 leases can possibly justify departing from the natural meaning of clause 3(2). At best the reference to part of a year is meaningless. However, given that the 99 year term of each lease ran from Christmas 1974, all of them would have ended part way through a year, as they would also have been very likely to do if surrendered or forfeited. Furthermore, the fact that some clauses refer not merely to repair maintenance and renewal, but also to renewal of facilities on the Estate seems to me to be irrelevant to the issue on this appeal. Quite apart from the fact that the effect of clause 3(2) appears clear in each lease as a matter of language, I am far from convinced by the commercially based argument that it is inconceivable that a lessee would have agreed a service charge provision which had the effect for which the respondents contend, at least in the 1970s and much of the 1980s. Although I would have expected most solicitors to have advised against it, and imprudent though it undoubtedly has turned out to be (at least so far), a lessee could have taken the view that a fixed rate of increase of 10% per annum on a fixed initial service charge, at a time when annual inflation had been running at a higher rate for a number of years (well over 10% per annum between 1974 and 1981, indeed over 15% per annum for six of those eight years; although it was less than 10% per annum after 1981), was attractive or at least acceptable. If inflation is running at, say 10% per annum, it is, of course, very risky for both the payer and the payee, under a contract which is to last around 90 years, to agree that a fixed annual sum would increase automatically by 10% a year. They are taking a gamble on inflation, but at least it is a bilateral gamble: if inflation is higher than 10% per annum, the lessee benefits; if it is lower, the lessor benefits. On the interpretation offered by the appellants, it is a one way gamble: the lessee cannot lose because, at worst, he will pay the cost of the services, but, if inflation runs at more than 10% per annum, the lessor loses out. The fact that a court may regard it unreasonable to suppose that any economist will be able to predict with accuracy the nature and extent of changes in the purchasing power of money over many decades (to quote Gibbs J in Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3, (1981) 145 CLR 625, 639) is nothing to the point. People enter into all sorts of contracts on the basis of hopes, expectations and assessments which no professional expert would consider prudent, let alone feel able to predict with accuracy. I have little doubt that many fortunes have been both made and lost (and sometimes both) by someone entering into such a contract. In terms of commercial justification, the analysis in paras 34 and 35 above becomes more difficult to invoke the further one moves on from 1981, the last year when inflation was above 10% per annum, although in 1990 it almost hit that figure. Accordingly, while I think the analysis comfortably applies to the 21 leases referred to in paras 6 to 8 above, which were granted between 1977 and 1990, it is unconvincing in relation to the four leases whose service charge provisions were amended around 2000, as mentioned in para 9 above. It seems rather extraordinary that a lessee under a lease which provided for an increase in a fixed service charge at the rate of 10% over three years should have agreed to vary the lease so that the increase was to be at the rate of 10% per annum, at a time when inflation was running at around 3% per annum. However, I do not accept that this justifies reaching a different result in relation to any of the four leases which were varied in 2000. Three of them are relatively easily explicable, as the lessee who agreed the variation was closely connected with the lessor. The fact that they were subsequently assigned is, I accept, remarkable, but that later fact cannot affect the interpretation of the deeds. As to the fourth deed, it was, on any view, an improvident variation to have agreed, but, as already explained, that is not enough to justify the court rewriting the contract under the guise of interpreting it. Further, given that, at least in my view, there could be no ground for suggesting that the original clause 3(2) in the three leases (providing as it did for an annual increase of around 3%) had any effect other than that for which the respondent contends, it is particularly difficult to suggest that the substituted clause, which changed the annual increase to 10%, but was otherwise identically worded (save that it included the word as and was therefore even clearer), should have a different effect. I note in this connection that, at a time when inflation was running at well over 10% per annum from 1974 to 1980 (possibly excepting 1984), the lessor was granting leases which provided, in effect, for increases in the 90 at the rate of about 3% per annum (para 6 above refers). Of course, that cannot be taken into account when interpreting any of the 25 leases, but it shows the lessor was prepared to take what appears to have been an unwise decision which was not entirely dissimilar from the unwise decision which, in my view, the lessees under the 25 leases took. I do not think that this is a case where the approach adopted by this court in Aberdeen City Council can assist the appellants. Unlike that case, this is not a case where one of the parties has done something which was not contemplated by the contract. It is clear that the 10% per annum increase in clause 3(2) was included to allow for a factor which was out of the control of either party, namely inflation. In my judgment, there is no principle of interpretation which entitles a court to re write a contractual provision simply because the factor which the parties catered for does not seem to be developing in the way in which the parties may well have expected. It also appears to me that there is a degree of inconsistency in the appellants case. That case is, of course, ultimately based on the unlikelihood of a lessor and lessee of a single chalet agreeing that an initial annual service charge of 90 should be increased at a rate which could well lead to the annual charge being an absurdly high figure possibly more than the cost of providing the services for the whole Leisure Park. But it is also rather unlikely (albeit less unlikely, I accept) that they will have agreed a ceiling on the annual service charge which would become so absurdly high that it would be meaningless. In other words, it can be said with some force that the appellants solution to the problem which they identify does not actually address the problem: it merely changes its commercial consequences. I should add that, subject to the point dealt with in the next section of this judgment, I am unconvinced that any assistance can be gained from the differences between the various forms of clause 3(2). It seems to me positively unlikely that the lessees under the later 21 leases would have been aware of the terms of clause 3(2) of the earlier 70 leases. But, even if they had been so aware, it seems to me that it would assist the respondents case, not that of the appellants. That is because, given that it appears clear that the second half of clause 3(2) in the earlier 70 leases operated to quantify the service charge, then it seems to me (as explained in the last sentence of para 39 above) that it is very unlikely that the parties can have intended the almost identically worded second half of clause 3(2) in the later 21 leases to have a very different effect from that in the earlier 70 leases. In his judgment at para 116, Lord Carnwath rightly points out that, even after he assigns the lease, the original lessee is bound for the duration (at least if it was granted before 1996). However, I do not see what that adds in this case: on any view, these leases involve long term commitments on both sides. I agree with his view in para 117 that a prospective lessee of a flat in a block or the like (as here) will normally be likely to have less negotiating freedom as to the terms than in relation to a free standing property. But so will the lessor, and either is free to walk away if he regards the terms as unsatisfactory. I am also unconvinced that the remedies available (whether in common law or under statute) to the parties in the event of a breach in connection with services or service charge, as discussed in Lord Carnwaths para 121 123, assists on the issue we have to decide. We are concerned with what a service charge clause means, not how it is being operated. Finally on this first point, Lord Carnwath makes some remarks about service charge provisions in his para 119. There will, I suspect, be many cases where his observations are very much in point: indeed, they may well be normally in point. However, the lessor has no duty to be fair when negotiating the terms of a lease (any more than the lessee does), although it may well be in his interest to be (or at least to appear to be) fair. But, whosever interpretation is correct, clause 3(2) was self evidently not a normal service charge clause: on the respondents case, the landlord might get more or less than the costs of providing the services; on the appellants case, the landlord might get less than the costs of providing the services. Discussion: the effect of clause 4(8) and the terms of the other leases The appellants, at the invitation of the court, argued that clause 4(8), which as explained in para 4 above required leases of chalets to be granted subject to identical or similar obligations, substantially mitigated the effect of clause 3(2) of their leases. They contended that clause 4(8), when read together with the opening words of clause 3 and para (2) of the recital to each lease, referred to in paras 3 and 4 above, enable them to limit the service charge which the landlord could otherwise recover under clause 3(2). The appellants argument in this connection proceeds in two steps. First, as a result of clause 4(8), the opening words of clause 3, and para (2) of the recital in each of their leases, a term was implied into their leases to the effect that clause 3(2) was in the same terms as clause 3(2) of the leases of chalets which had already been granted ie the 70 leases referred to in para 6 above. Secondly, in those circumstances the lessor is now precluded from recovering more by way of service charge than would be recoverable under the terms of the service charge provisions in the 70 leases ie 90 plus 10% compounded every three years. While this argument has obvious attraction, I would reject it. The purpose of clause 4(8), the opening words of clause 3, and recital (2) was, I would accept, to create what is sometimes referred to as a building scheme, but, at least in the present context is more accurately described as a letting scheme. Such a scheme, which is recognised and given effect to by equity, has to be apparent from the terms of the relevant leases (or, very unusually, from a side agreement entered into by each lessee with the lessor). A letting scheme involves properties within a given area being let on identical or similar terms, normally by the same lessor, with the intention that the terms are to be enforceable not only by the lessor against any lessee, but as between the various lessees even by an earlier lessee of one property against a later lessee of another property. There is plainly a strong case for saying the combination of para (2) of the recital, the opening words of clause 3 and the provisions of clause 4(8) establishes that there is such a scheme in relation to the chalets in the Leisure Park. Accordingly, I am prepared to assume that there was envisaged that there would be a degree of reciprocity and mutual enforceability between the lessees of chalets when it came to the covenants they entered into. However, in my view, the appellants reliance on the scheme in order to limit the service charges recoverable under clause 3(2) of their leases faces a number of problems. First, it seems to me to be unclear whether a provision such as clause 3(2) could be or was subject to the scheme. There is room for argument whether a letting scheme can only extend, like freehold schemes, to restrictive covenants, or whether it can also extend to positive covenants (on the basis that positive covenants between lessor and lessee are enforceable as between their respective successors, whereas only restrictive covenants are enforceable as against successors of covenantors in relation to freeholds). Even if a leasehold scheme can extend to positive covenants, it is also questionable whether a lessees covenant to pay a service charge, or any other sum of money to the lessor, can be within the ambit of a scheme. Secondly, in so far as they are dealing with the provisions of leases of other chalets, clause 4(8), and (arguably) the opening words of clause 3 and recital (2) appear to refer to future lettings, not to past lettings. It is quite a bold step to imply a term as to what has happened in the past from an express provision which is limited to the future. Having said that, there is considerable practical force in the contention that the scheme contemplated by the three provisions could only work if leases of all the chalets, past, present and future, were on the same terms. Thirdly, even if the appellants argument based on an implied term was otherwise correct, there would still be considerable force in the contention that it would not exonerate the appellants from complying with their obligations under clause 3(2). It seems clear that, where there is a letting scheme, a tenant can enjoin the landlord from letting a property within the scheme area on terms which are inconsistent with the scheme. However, as far as I am aware, there is no case where the landlord has been held liable to a tenant in damages (or otherwise) for having let a property within the scheme area on such terms, prior to the grant of the tenants lease. Fourthly, even if these arguments are all rejected, the closing words of clause 4(8) clearly permit a degree of variation between the terms of the leases of different chalets. If the second part of clause 3(2) is intended to reflect the level of projected inflation, then the parties may well have regarded it as almost inevitable that any annual or triennial adjustment would vary from time to time. On that basis, there may be no breach of any implied term anyway. However, it is unnecessary to address the four points identified in paras 51 54 above, because, in my judgment, there is a fatal flaw in the appellants argument based on an implied term. In effect, the appellants case is that the implied term in each of the 21 leases is that the lessor was not asking anything of the lessee which had not been, or would not be, required of lessees of other chalets, whether their leases were in the past or the future. However, it seems to me that, assuming everything else in the appellants favour, that would not be the correct term to imply. As I see it, if there is an implied term along the lines argued for, it is that the already existing 70 leases of chalets contain a clause 3(2) identical with that in the appellants leases ie that the 70 existing leases have service charges which increase at the compound rate of 10% per annum as in the 21 leases. In so far as it relates to the 70 existing leases, the implied term suggested by the appellants is inconsistent with both (a) an express term of the appellants leases, namely clause 3(2) itself, and (b) what is implied in relation to future leases. As to point (a), the appellants suggested implied term means that clause 3(2) involves a 10% increase every three years, whereas there is an express term to the effect that the 10% increase is every year; and it is a fundamental principle that one cannot imply a term which is inconsistent with an express term. As to point (b), any reader of an appellants lease who was asked what future leases of chalets would contain by way of a service charge provision would answer that it would be the same as that in the instant lease ie 90 pa subject to an increase of 10% per annum compounded; and the implied term applicable to future leases should be the same as that applicable to past leases. If the appellants are right in their contention that there is an implied term, the term which I would favour (as set out at the end of para 55 above) runs into neither of these difficulties. It amounts to saying that, as clause 3(2) of an appellants lease means that the service charge is to be 90 pa increasing by 10% pa compounded, there is a term implied into the lease that that is what the existing leases provide and it is what future leases will provide. If, as the appellants contend, there is an implied term, but that is its correct characterisation, it is difficult to see how it can help them. An appellant can say that the fact that the 70 existing leases contain a different clause 3(2) means that there is a breach of the implied term, but it is hard to see what damage or other injury has been suffered if the respondent now insists on enforcing clause 3(2) of their leases against the appellants. If an appellant could show that the value of his lease was reduced because the lessor had not granted the first 70 leases with the same clause 3(2) as was in the appellants lease, the consequent reduction in the value of that lease could well be the appropriate measure of damages. But I cannot at the moment see on what basis the breach can assist an appellant in resisting the full financial consequences of the clause 3(2) he entered into. I should add that, if, contrary to my view expressed in para 43 above, the lessees under the later 21 leases would have been aware of the terms of clause 3(2) of the earlier 70 leases (as Lord Carnwath suggests), it would negative any reliance which the lessees under the 21 leases could place on clause 4(8), as just discussed. This is because the later lessees would have known of, and accepted, the departure from the original clause 3(2). Conclusion Accordingly, in agreement with the reasons given by Lord Hodge in this court, Davis LJ in the Court of Appeal and Morgan J in the High Court, I would dismiss this appeal, and I do not consider that the appellants are assisted by the additional argument raised in this court. I should, however, make five final points. First, the Court of Appeal suggested that the only way the lessees under the 25 leases could escape from their problems would be by surrendering or suffering forfeiture. In case this is misinterpreted, it is right to point out that surrender is consensual between lessee and lessor, and forfeiture involves unilateral action by a lessor, and so neither course can be forced on the lessor. Secondly, I have considerable sympathy with Lord Carnwaths conclusion that the appeal should be allowed (not least because it is a much more satisfactory outcome in common sense terms, particularly viewed as at today), and I acknowledge that his reasons are as powerful as his conclusion allows. However, for the reasons I have given, I cannot agree with him. Thirdly, the fact that four leases were granted to associates of the lessor with the proviso described in para 8 above, and that three of the deeds of variation described in para 9 above were entered into with a lessee who was a close relation of the lessor, is worthy of comment. It suggests that the lessor or her advisers may have appreciated the potential disadvantages of the clause now contained in the 25 leases. However, I do not see how it can assist the lessees on the issue in these proceedings, namely the interpretation of the clause in the 25 leases. Fourthly, as Lord Carnwath records in para 155 below, it appears that the respondent realistically recognises the unsatisfactory situation in which the lessees under the 25 leases find themselves, and is prepared to agree appropriate amendments to their leases. I hope that a fair and just amendment can be agreed. Finally, as Lord Carnwath also points out in paras 90 93 below, there are various statutory provisions which protect tenants against unreasonable service charges, but none of them apply here. The present case suggests that there may be a strong case for extending such provisions to cases such as the present, even though they involve a fixed sum payable by way of service charge. But that is a policy issue for Parliament, and there may be arguments either way. LORD HODGE: (agrees with Lord Neuberger) I agree that the appeal must be dismissed for the reasons which Lord Neuberger sets out. But it is a highly unsatisfactory outcome for the chalet tenants who are affected by the annual escalator of the service charge. It is not clear whether there are many long leases containing fixed service charges with escalators which are beyond the reach of statutory regulation. If there are, there may be a case for Parliament to consider extending the provisions that protect tenants against unreasonable service charges. Mr Morshead QC for the appellants submitted in his written case that what was important was (a) that the risk [of inflation falling and remaining substantially below 10%] would have been obvious to the officious, reasonable bystander who must be imagined interrogating the actual parties and (b) that no reasonable person in the position of the parties, looking at the leases in their entirety and in context, would understand them to have intended that the tenants should assume that risk. He envisaged that in a hypothetical dialogue the officious bystander would warn the parties of the risks of their proposed contract and they would make it clear that that was not their intention. In the course of the debate we were referred directly or by reference to several cases concerning the remediation of a mistake by construction or the implication of a term. In my view they do not give the support that Mr Morshead needs. In Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 the mistaken omission of words in a clause was apparent because the bill of lading had been modelled on a standard clause. The person who had transposed the standard clause into the bill of lading had omitted a phrase in the standard clause in which the same word had appeared at the end of two consecutive phrases. The mistake was clear and it was apparent what correction was called for (paras 22 and 23 per Lord Bingham). In Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 a definition, which contained a grammatical ambiguity, made no commercial sense if interpreted in accordance with the ordinary rules of syntax. The background to the deal and the internal context of the contract showed that there was a linguistic mistake in the definition, which the court was able to remove by means of construction. In his speech Lord Hoffmann (at p 1114) referred with approval to the judgment of Carnwath LJ in KPMG LLP v Network Rail Infrastructure Ltd [2007] Bus LR 1336. In that case, which concerned a rent review clause in a lease, it was clear from the terms of the clause that its wording did not make sense. The court was assisted by an earlier agreement which set out the then intended clause containing a parenthesis, of which only part had remained in the final lease. It was not clear whether the parties had mistakenly deleted words from the parenthesis, which they had intended to include, or had failed to delete the parenthesis in its entirety. But that uncertainty as to the nature of the mistake, unusually, did not matter as the outcome was the same on either basis. In Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56, 2012 SCLR 114 the internal context of the contract provided the answer. The sale contract provided for the payment to the vendor of a further sum on disposal of the land by the purchaser. Two of the methods of disposal required the parties to ascertain the market value of the property on disposal in calculating the additional payment and the other used the gross sales proceeds in calculating that payment. The purchaser sold the site at an under value to an associated company, a circumstance which on the face of the contract the parties had not contemplated. The courts at each level interpreted the provision, which used the gross sales proceeds in the calculation, as requiring a market valuation where there was a sale which was not at arms length. They inferred the intention of the parties at the time of the agreement from the contract as a whole and in particular from the fact that the other two methods of disposal required such a valuation. While this line of reasoning was criticised by Professor Martin Hogg ((2011) Edin LR 406) on the ground that it protected a party from its commercial fecklessness, it seems to me to be the correct approach in that case as the internal context of the contract pointed towards the commercially sensible interpretation. The context, whether internal to the contract or otherwise, provides little assistance in this case. Beyond the words of the relevant clauses, there is the context of the other provisions of each of the 25 individual leases which are at issue. They are long leases, having a term of 99 years. The court in interpreting the leases can and should take into account the great difficulty in predicting economic circumstances in the distant future and ask itself whether the parties really intended to do so. The court also can and should take into account the economic circumstances which prevailed at the time each lease was entered into. It is clear from the table which Lord Carnwath has set out in para 100 of his judgment that between 1974 and 1988 the use of a 10% annual escalator achieved a result which was not far off the diminution of the value of money in the difficult economic circumstances that then prevailed. The future was and is unknown. Little else is known and I do not think that it is appropriate to speculate about the extent to which lessees would have known the terms of earlier leases. In my view there is much to be said for the practice, which Lord Drummond Young and other judges have encouraged in Scotland, of requiring parties to give notice in their written pleadings both of the nature of the surrounding circumstances on which they rely and of their assertions as to the effect of those facts on the construction of the disputed words: MRS Distribution Ltd v DS Smith (UK) Ltd 2004 SLT 631, para 14. Such notice of relevant facts, which are either admitted or proved at trial, would avoid disputes on appeal such as whether the affected lessees were aware of the earlier leases. While there are infelicities in the language of the relevant clauses in some of the leases and no clear explanation of minor changes in drafting, I am not persuaded that the meaning of the language is open to question when full weight is given to the very limited factual matrix with which the courts have been presented in this case. We are invited to construe that which reads on a first consideration as a fixed service charge with an escalator to deal with future inflation, as a variable service charge which is subject to a cap to which the escalator applies. I find that very difficult. In my view there is nothing in the relevant context to support the construction of the clause as creating a cap, other than the view, which events have fully justified, that it was unwise of the lessees to agree to a fixed service charge with an escalator based on an assumption that the value of money would diminish by 10% per year. This conclusion is not a matter of reaching a clear view on the natural meaning of the words and then seeing if there are circumstances which displace that meaning. I accept Lord Clarkes formulation of the unitary process of construction, in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, para 21: [T]he exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. This unitary exercise involves an iterative process by which each of the rival meanings is checked against the provisions of the contract and its commercial consequences are investigated (Re Sigma Finance Corp ([2009] UKSC 2) [2010] 1 All ER 571, para 12 per Lord Mance). But there must be a basis in the words used and the factual matrix for identifying a rival meaning. The role of the construct, the reasonable person, is to ascertain objectively, and with the benefit of the relevant background knowledge, the meaning of the words which the parties used. The construct is not there to re write the parties agreement because it was unwise to gamble on future economic circumstances in a long term contract or because subsequent events have shown that the natural meaning of the words has produced a bad bargain for one side. The question for the court is not whether a reasonable and properly informed tenant would enter into such an undertaking. That would involve the possibility of re writing the parties bargain in the name of commercial good sense. In my view, Mr Morsheads formulation (para 67 above), on which his case depends, asks the court to re write the parties leases on this illegitimate basis. Nor is this a case in which the courts can identify and remedy a mistake by construction. Even if, contrary to my view, one concluded that there was a clear mistake in the parties use of language, it is not clear what correction ought to be made. The court must be satisfied as to both the mistake and the nature of the correction: Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, para 21 per Lord Neuberger MR. This is not an unusual case, such as KPMG (above) in which a mistake was obvious on the face of the contract and the precise nature of the correction had no effect on the outcome. My conclusion that the court does not have power to remedy these long term contracts so as to preserve the essential nature of the service charge in changed economic circumstances does not mean that the lessees predicament is acceptable. If the parties cannot agree an amendment of the leases on a fair basis, the lessees will have to seek parliamentary intervention. LORD CARNWATH: (dissenting) Preliminary comments The contractual provisions in this case pose unusual interpretative challenges, which may call for unusual solutions. The leases with which we are concerned are of 25 chalets within Oxwich Leisure Park, in South Wales. It is an estate of 91 such chalets first developed in 1974. It is in an attractive holiday location close to Oxwich Beach on the Gower Peninsular. The challenges arise from a combination of factors. The intention, stated in the preamble to each lease, was that they should be upon terms similar in all respects . Yet we are faced with five forms of service charge provision, agreed over a period of some 20 years, the variations in which at first sight defy rational analysis. As interpreted by the Court of Appeal, they would lead over the course of the leases to supposedly proportionate service charges becoming wholly disproportionate to the costs of the relevant services, to extreme and arbitrary differences between the treatment of different groups of leases within the estate, and to the prospect in the foreseeable future of potentially catastrophic financial consequences for the lessees directly concerned. It does not help that, remarkably, the case has come to us with minimal evidence to explain the circumstances, or factual matrix, in which these variations were agreed at different times, or even simply to add some context or colour to the bare legal and statistical analysis. That applies even to the most recent, and most surprising, of the transactions, effected as recently as 2000, and to which Mrs Arnold the present respondent was herself a party. Nor have we been told anything about how the clauses have been operated in practice at any time: for example how the estate has been managed and what costs incurred by the lessor, what service charge payments have been demanded of the various categories of lessee, and what has happened to any surplus. It is to be borne in mind also that in the early 1970s (when this clause was first devised) variable service charge provisions were a relatively new and modern addition to the law, prompted in part by rapidly increasing prices (see Mark Wonnacott, The History of the Law of Landlord and Tenant in England and Wales (2012) p 105; Hyams v Titan Properties Ltd (1972) 24 P & CR 359). Since then, it is said in the same history (ibid p 106), service charges have caused more trouble between landlord and tenant than anything else, but they have in turn been regulated by statute to such an extent as to make it all but impossible for an amateur landlord to recover (a service charge) in the event of a dispute. Whether or not that extreme view is justifiable, the need for special measures to safeguard the interests of lessees has been acknowledged by the legislature, which has thus for the most part relieved the courts of responsibility for developing a common law response to the problems. As I shall explain, these leases are a rare example of a category of residential lease which has slipped through the statutory net. That is of no direct relevance to the legal issues before us, save that it may help to explain why no ready solutions are to be found in the authorities. Furthermore, in so far as policy has a part to play in the development of the common law, it may be legitimate to seek guidance in the approaches adopted by the legislature in analogous contexts (see Johnson v Unisys Ltd [2003] 1 AC 518 para 37, per Lord Hoffmann). The leases The first lease was granted on 26 October 1974. Of the others most were granted during the 1970s, and are not directly involved in the present dispute. The 25 with which we are concerned were granted (or varied) in the period from 1980 to 2000. Whenever granted, all the leases (with one immaterial exception) were expressed as being for terms of 99 years starting from 25 December 1974, and for a yearly rent of 10, increasing by 5 for every subsequent period of 21 years. Each lease began with a preamble which described the lessor as the owner of the land edged pink on the attached lay out plan (the estate) and stated: (2) It is intended to erect chalets on the estate and to grant leases upon terms similar in all respects to the present demise. The lessees covenants (clause 3) limited the use to that of a holiday residence of a single family from March to October (clause 3(12)). It seems from the examples before us that the earliest leases were granted in return for lessees covenants to construct chalets in accordance with plans approved by the lessors (eg chalet 40 lease dated 9 August 1977, clause 3(3)). Later chalets, presumably after erection of chalets by the lessor or others, were granted without such a covenant but for a premium (eg 13,000 for chalet 76 lease dated 22 September 1980; 16,500 for chalet 96 lease dated 1 July 1985). Otherwise no issue arises on the lessees covenants other than clause 3(2) relating to service charges, to which I will come. The lessors in turn covenanted to provide various common services. They included constructing and maintaining the roads and footways (unless or until becoming maintainable at public expense), mowing lawns, maintaining a recreation ground, keeping fences and drains in good repair, issuing regulations, and arranging refuse collection and a regular patrol to discourage vandalism during the unoccupied period (clause 4). By clause 4(viii) the lessors covenanted: (viii) That the Leases granted by the Lessors of all other plots on or comprised in the estate shall contain covenants on the part of the Lessees thereof to observe the like obligations as are contained herein or obligations as similar thereto as the circumstances permit. Five leases have been selected for the purpose of showing the different versions of clause 3(2) relevant to the dispute. The principal difference is between the original leases, granted between 1974 and 1980, in which an initial service charge figure of 90 is increased by 10% every three years (the triennial formula), and later leases in which it is increased by 10% every year (the annual formula). The five versions were applied as follows (the selected lease in each case is indicated in brackets): i) Version 1 (Chalet 40, dated 9 August 1977) This was the original version, applied to 70 leases granted mainly during the 1970s. The first was granted on 26 October 1974. The rest followed at a steady rate over the next six years at an average of just over 12 per year, until 1980 when seven were granted in this form, the last on 9 July 1980. Four of these leases (granted between August 1977 and July 1980) were varied in 2000 to incorporate the annual formula (see version 5 below). ii) Version 2 (Chalet 76, dated 22 September 1980) This version applied to 14 leases granted between August 1980 and February 1983, the first being dated 11 August 1980. iii) Version 3 (Chalet 96 dated 1 July 1985) This applied to three leases granted between July 1985 and January 1988. iv) Version 4 (Chalet 29 dated 22 March 1991) This applied to four leases granted between December 1988 and March 1991. v) Version 5 (Deed of variation dated 20 August 2000) This applied to four leases previously subject to version 1. The lessors for the first three selected leases in this list were Mr A and Mr B Lewis; for version 4, Mrs J Short; and for version 5, Mrs Arnold, the present respondent. In the result the triennial formula now applies to 66 leases on the estate, the annual formula to 25. dispute: i) I now set out the five clauses, emphasising the parts which are material to the Version 1 triennial (1974 1980) To pay to the Lessors without any deductions in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessors in the repair maintenance renewal and the provision of services hereinafter set out the yearly sum of Ninety Pounds and value added tax (if any) for the first three years of the term hereby granted increasing thereafter by Ten Pounds per Hundred for every subsequent Three year period or part thereof. ii) Version 2 annual (1980 1983) To pay to the Lessors without any deductions in addition to the said rent as a proportionate part of the expenses and outgoings incurred by the Lessors in the repair maintenance and renewal of the facilities of the Estate and the provisions of services hereinafter set out the yearly sum of Ninety pounds and Value Added tax (if any) for the first year of the term hereby granted increasing thereafter by ten pounds per hundred for every subsequent year or part thereof. Apart from the change from the triennial to the annual 10% rate, other differences are the lengthening of the expression renewal and the provision of services to renewal of the facilities of the Estate and the provisions (sic) of services, and the inclusion of as before a proportionate part. iii) Version 3 annual (1985 1988) To pay to the Lessor without any deductions in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services hereinafter set out the yearly sum of Ninety Pounds and Value Added tax (if any) for the first Year of the term hereby granted increasing thereafter by Ten Pounds per hundred for every subsequent year thereof. Changes from version 2 are: reversion to the expression renewal and the provision of services, the omission of as before a proportionate part, and the omission at the end of or part (thereof). iv) Version 4 annual subject to triennial proviso (1988 1991) To pay to the Lessor without any deductions in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services hereinafter set out for the yearly sum of Ninety Pounds and value Added tax [if any] for the first year of the term hereby granted increasing thereafter by Ten Pounds per Hundred for every subsequent year thereof. This version was subject to a proviso: Provided always and it is hereby expressly agreed that whilst the term hereby created is vested in the said William Richard Short and the said Janice Short or the survivor of them then maintenance shall be calculated as follows: To pay to the Lessor without any deduction in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services hereinafter set out the yearly sum of Ninety Pounds and value added tax (if any) for the first three years of the term hereby granted increasing thereafter by Ten Pounds per Hundred for every subsequent three year period or part thereof. The main clause is identical to version 3 save for the insertion of for before the yearly sum. The proviso had the effect of substituting temporarily the triennial formula as in version 1, but that has ceased to be operative following the disposal of the lease by the Shorts. v) Version 5 varied from triennial to annual (2000) In four of the original 1970s version 1 leases (triennial), a Deed of Variation dated 20th August 2000, at the same time as revising the extent of land demised, substituted with effect from the beginning of the lease a new clause 3(2) in the form of version 2 (annual formula). Although we have been invited to consider all five versions, the most important for the purposes of interpretation are the first (October 1974) and the second (August 1980), and the circumstances surrounding them. The first is not directly in issue but set the drafting pattern, and provided the background to what followed. The second saw the first incorporation of the controversial annual formula. The later versions are of more limited relevance, save in so far as they throw some light on how the clauses were interpreted in practice, or help to illustrate the relative merits of the rival interpretations. The statutory provisions By sections 18 19 of the Landlord and Tenant Act 1985, a service charge (as defined) payable by a tenant of a dwelling, is limited to an amount which reflects the costs reasonably incurred in the provision of services. The controls originally applied only to flats but were extended by amendment in 1987 to include dwellings as defined (Landlord and Tenant Act 1987 section 60). It is not in dispute, in these proceedings at least, that the chalets are dwellings for this purpose. The issue is whether the charges are service charges as defined by section 18(1): service charge means an amount payable by the tenant of a dwelling as part of or in addition to the rent (a) which is payable, directly or indirectly, for services, repairs, maintenance, improvements or insurance or the landlord's costs of management, and (b) the whole or part of which varies or may vary according to the relevant costs. The lessees submit that properly interpreted the clause imposes an obligation to pay a proportionate part of the costs incurred, subject only to an upper limit or cap determined by reference to the formula in the second part of the clause. On this footing it is an amount which varies or may vary according to the relevant costs (section 18(1)(b)). The respondent submits that charge is outside the statutory definition because the annual amount is fixed by that formula, without any reference to the costs actually incurred by the lessor. If the lessees are right, the amount of the charge is limited to the amounts reasonably incurred. If the lessor is right, there is no statutory limit or other control. Other safeguards for lessees were introduced by the 1987 Act, but none covers the present situation. Thus it introduced a new right for any party to a long lease (not only the lessee) of a flat to apply to the court (now the first tier tribunal) for an order varying a lease on the grounds that it fails to make satisfactory provision in respect of various matters, one being the computation of service charges, but this did not apply to other forms of dwelling such as in this case. There is a more general provision, for application by a majority of parties for variation of a number of leases under a single lessor (section 75), but again it applies only to flats. On the other hand, section 40, which allows similar applications for variation of insurance provisions, applies to dwellings in general. It is difficult to detect any legislative purposes for these distinctions. The present case illustrates the potentially unfortunate consequences for parties to those rare forms of residential lease which for no apparent reason fall outside any of the protections given by the legislative scheme. For completeness, I note also that no issue arises in the present proceedings as to the possible application of other more general protections relating to unfair contractual terms. Sections 2 to 4 of the Unfair Contract Terms Act 1977 do not in any event apply to contracts relating to the creation or transfer of interests in land (Schedule 1, paragraph 1(b)). No such limitation appears in the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083), which give effect in this country to EC Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. The Directive was first transposed in 1994 Regulations (SI 1994/3159) which were later replaced by the 1999 Regulations. The 1994 Regulations came into effect on 1 July 1995, and therefore would not it seems apply to contracts concluded before that date (regulation 1; Chitty on Contracts para 37 087). Accordingly, it could be relevant if at all only to version 5 (2000). The proceedings We know very little about the background to the present dispute. It first reached the courts in September 2011 in the form of an application by the appellant lessees to the county court for pre action disclosure. The application was said to be in anticipation of a representative application to resolve an ambiguity in the service charge clause, which appears to result in a variable service charge but on the other hand create a fixed service charge. It also spoke of the lessees concerns that the sums collected by way of service charge were exceeding the amount of legitimate expenditure by such a substantial amount as to produce a credit balance that should be held in a service charge trust account; and also that the lessor had disposed of the former clubhouse for the park to provide accommodation for her daughter. They sought disclosure of information about the sums collected as service charge and the amounts expended since 2005. An order for disclosure was made on 20 September 2011, but was quickly met by an application by the lessor for declaratory relief relating to the interpretation of the service charge clause, following which the disclosure order was stayed pending the determination of these proceedings. The application sought in particular a declaration that on the true interpretation of the service charge clause, the sum payable was not a service charge within the meaning of section 18 of the Landlord and Tenant Act 1985. In the county court, HHJ Jarman QC determined the issue in favour of the lessees. But his decision was reversed on appeal to Morgan J, whose judgment was upheld by the Court of Appeal (Richards, Davis and Lloyd Jones LJJ). The lessees appeal to this court with permission granted by the court itself. The issue between the parties has throughout been very narrow: that is, whether the figure of 90 as inflated is to be read as a fixed amount, or as an upper limit or cap. That in turn depends on whether it is permissible and appropriate to read in such words as limited to (Judge Jarmans words) or up to before the reference to ninety pounds. As Mr Morshead submits in his printed case: There is no need to undertake an elaborate drafting exercise. The necessary effect can be achieved by implying the words up to before the words Ninety pounds; and, in versions 2 and 5, deleting the word as. Giving the single judgment in the Court of Appeal, Davis LJ rejected that approach, holding in substantial agreement with Morgan J that the addition of these words would involve subverting the proper process of construction of the language actually used and would in truth involve the court rewriting the bargain the parties have made. (para 45) He rejected the argument that this interpretation would consign the first part of the clause to mere surplusage. Its function was to identify the character of the payment to be made. The words a proportionate part were apt for a situation where other lessees also are contributing to the overall service charge, which is in consequence to be apportioned between them. Although he accepted that the word incurred was the language of actual outlay, it was entirely explicable when one appreciates that this part of the sub clause identifies the character of the payment being made (paras 48 49). He also pointed to other difficulties in Mr Morsheads interpretation, in particular the problems of calculating a proportionate amount, and the lack of any protection for the lessor if the inflation regularly exceeded 10% (para 53). Inflation calculations The judge was shown without objection two sets of tables, one showing the annual Retail Price Index (RPI) from 1948 to 2012, taken from figures published by the Office of National Statistics (the inflation table); the other, the effect of the increases of service charge compounded over the period of the leases in accordance with respectively the annual and the triennial formula (the compounding table). As I understand it, the information in these tables is accepted as forming part of the factual matrix against which it is appropriate to judge the parties contractual intentions at the relevant dates. There are some minor but apparently immaterial differences between the hard copy and electronic versions of the compounding table; I have used the latter. It is helpful to focus on the rates which would have been in immediate contemplation of the parties at dates when each of the five versions was first agreed: that is, 26 October 1974 (the date of the first lease on the estate incorporating version 1, rather than the 1977 lease which was used as an example at the hearing); 11 August 1980 (the first version 2 lease); 1 July 1985 (version 3); 1 December 1988 (the first version 4 lease); 20 August 2000 (version 5). The table below includes also the rate in contemplation at the date of the county court hearing (June 2012), and in the last year of the lease (2072). The figures in the compounding table are given for 25 December 1974, the commencement of the lease period, and for the same date in each subsequent year. For illustrative purposes I have taken the rate for the year commencing after each of the identified dates (ie 25 December next following each such date), which would have been the rate applicable to the first complete year under each new lease. The resulting figures (rounded) for annual service charges at each such years: 1974 1980 1985 1988 2000 2012 2072 Triennial 90 109 132 145 212 311 1,900 Annual 90 159 257 342 1,073 3,366 1,025,004 [Actual inflation] 90 219 310 350 557 794 N/A [The last column shows for purposes of comparison the equivalent figures implied by actual inflation, arrived at by increasing the initial 90 by the recorded price increases over the period from 1974 to each of the selected years. Though not in evidence before us, those figures have been taken from the inflation calculator on the Bank of Englands website, and are used for illustration only.] The rate of price increase during the 1970s can also be contrasted with the pattern in the previous and subsequent decades. Average annual inflation in the 1950s and 1960s was of the order of 3.5 4%. (It had averaged 2.5% in the 50 years from 1900 to 1950.) It then rose sharply to 6.4% in 1970 and 9.3% in 1973, followed by a much steeper rise to 16% in 1974 and an annual peak of 24.2% in 1975. It dropped to 8.3% in 1978 before rising again to 16% in 1980. The annual rate fell to 12% in 1981, and then to around 5 6% in the period 1983 85 (immediately before version 3), 4 5% in 1986 1988 (before version 4), and 3% in 2000 (version 5). It has remained at, or below, that low level ever since. The compounding table enables comparisons to be drawn between the contributions made respectively by the 66 triennial and the 25 annual leases over different periods, if the lessor is correct. For example, on the 1988 figures, the triennial leases would have contributed a total of 8,712 (66 x 132), slightly more than the total contribution of the annual leases (8,550 = 25 x 342). On the basis of the figures in the third column, the combined total (17,262) was still much lower than the figure required to keep pace with actual inflation since 1974 (91 x 350 = 31,850). The figures at or about the time of the hearing show a very different picture. On the 2012 figures the triennial leases would have been contributing a total of 18,612 (66 x 282) compared to 84,150 (25 x 3,366) contributed by the annual leases. The total amount (102,762) was now substantially more than that required to keep pace with inflation (91 x 794 = 72,254). (These figures differ slightly from those in the submitted tables due to rounding.) The table also shows the amounts that, on the lessors interpretation, would be payable under each formula over the whole period from 24 December 2013 to the end of the term (2072). The total amount payable during that period under each annual lease would be 11,238,016, compared to 53,386 payable for the same period under each triennial lease. Inflation and the factual matrix There is no difficulty in principle in taking account of the calculations in the compounding table, which require no outside information, and could have been carried out by the parties (or a reasonable observer) at any of the relevant dates. On the Court of Appeals interpretation, the figures show increases which appear extraordinary in themselves, in the light of modern conditions of low inflation. No less importantly, they result in dramatically increasing, and ultimately grotesque, differences between the amounts payable by the two different groups of lessees on the same estate. This consequence could and should have been anticipated at the time, certainly by the lessors who were parties to both groups of leases and responsible for maintaining reasonable equivalence between them. The use to be made of the historic inflation figures raises rather different questions. By agreeing to their use, the parties impliedly ask us to assume that the figures up to and including those for each of the relevant years (or the then most recently published figures) would been have been known to the parties at the time, and therefore must be taken as part of the relevant factual matrix. This is no doubt a reasonable working assumption to indicate the general trend as known to the public. It is however highly artificial to be asked to take account of the bare statistics, without reference to the political and economic circumstances which surrounded them, so far as they were common knowledge at the time. We are not required to assume total ignorance of current events, in the parties or their reasonable observers. It would not have been difficult to obtain information about contemporary perceptions of the direction of inflation, whether from official reports of the time, or from reports in the South Wales press. Even without such evidence, we are entitled in my view to assume knowledge of some of the key events: for example, of the dramatic rise in oil prices at the end of 1973 and again in 1979, each followed by a sharp increase in inflation in the following year; and also of the election in 1979 of a new Conservative government committed to controlling inflation. We are not required to assume that predictions about future inflation were made in a vacuum. We are also entitled, as part of the factual matrix, to take account of the nature and circumstances of the estate, as they would have been perceived by potential purchasers. It was planned as a holiday estate close to a popular beach. Potential buyers were likely to come from people already familiar with the area from previous visits with their families. It is fair to assume also that they would have regarded the acquisition of a holiday chalet, not simply as source of pleasure, but also as a long term investment for them and their families. They would have been keen to avoid undue financial burden or risk. It would be strange if they had not taken the opportunity to talk to existing residents about their own experiences of the estate and its management, and of the associated costs. This will become relevant when considering what knowledge of previous terms should be attributed to the first version 2 lessees. Approach to interpretation In an unusual case such as this, little direct help is to be gained from authorities on other contracts in other contexts. As Tolstoy said of unhappy families, every ill drafted contract is ill drafted in its own way. However, the authorities provide guidance as to the interpretative tools available for the task. The general principles are now authoritatively drawn together in an important passage in the judgment of Lord Clarke JSC in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, paras 14 30. As that passage shows, there is often a tension between, on the one hand, the principle that the parties common intentions should be derived from the words they used, and on the other the need if possible to avoid a nonsensical result. The former is evident, as Lord Clarke emphasised, in the rule that where the parties have used unambiguous language, the court must apply it (para 23). However, in view of the importance attached by others to the so called natural meaning of clause 3(2), it is important to note that Lord Clarke (paras 20 23) specifically rejected Patten LJs proposition that unless the most natural meaning of the words produces a result so extreme as to suggest that it was unintended, the court must give effect to that meaning. In Lord Clarkes view it was only if the words used by the parties were unambiguous that the court had no choice in the matter. He illustrated the other side of the coin by quotations from Lord Reid in Wickman Machine Tools Sales Ltd v L Schuler AG [1974] AC 235, 251: The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result, the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear. and Lord Diplock in Antaios Cia Naviera SA v Salen Rederierna AB (The Antaios) [1985] AC 191, 201: If detailed and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense it must yield to business common sense. As a rider to the last quotation, Lord Clarke cited the cautionary words of Hoffmann LJ (Co operative Wholesale Society Ltd v National Westminster Bank plc [1995] 1 EGLR 97, 99): This robust declaration does not, however, mean that one can rewrite the language which the parties have used in order to make the contract conform to business common sense. But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement. I agree with Mr Morshead (questioning in this respect the approach of Davis LJ, para 35) that it may be unnecessary and unhelpful to draw sharp distinctions between problems of ambiguity and of mistake, or between the different techniques available to resolve them. In Chartbrook Ltd v Persimmon Homes Ltd [2009]1 AC 1101, para 23, Lord Hoffmann cited with approval a passage of my own (in KPMG LLP v Network Rail Infrastructure Ltd [2007] Bus LR 1336, para 50) where I discussed the role of what is sometimes called interpretation by construction. I criticised the tendency to deal separately with correction of mistakes and construing the paragraph as it stands, as though they were distinct exercises, rather than as aspects of the single task of interpreting the agreement in its context, in order to get as close as possible to the meaning which the parties intended. Lord Hoffmann added: What is clear from these cases is that there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant. (para 25) Another permissible route to the same end is by the implication of terms necessary to give business efficacy to the contract. I refer again to Lord Hoffmanns words, this time in Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988, para 22, explaining the two important points underlined by that formulation: The first, conveyed by the use of the word business, is that in considering what the instrument would have meant to a reasonable person who had knowledge of the relevant background, one assumes the notional reader will take into account the practical consequences of deciding that it means one thing or the other. In the case of an instrument such as a commercial contract, he will consider whether a different construction would frustrate the apparent business purpose of the parties. The second, conveyed by the use of the word necessary, is that it is not enough for a court to consider that the implied term expresses what it would have been reasonable for the parties to agree to. It must be satisfied that it is what the contract actually means. Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56 is a useful recent illustration in this court of how these various principles may be deployed, to enable the court to achieve a commercially sensible result in the face of apparently intractable language. A contract for the sale of development land gave the council the right to an uplift (described as the profit share) in certain defined circumstances, one being the sale of the property by the purchaser. The issue was the calculation of the profit share, which the contract defined as a specified percentage of the estimated profit (defined by reference to open market value) or the gross sale proceeds. The issue was how the definition should be applied in the case of a sale by the purchaser to an associated party at an undervalue. The court held in agreement with the lower courts that, in that event, notwithstanding the apparently unqualified reference to gross sale proceeds, the calculation should be based on open market value. In a concurring judgment, with which all the members of the court agreed, Lord Clarke referred to his own judgment in Rainy Sky as indicating the ultimate aim, that is: to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant; the relevant reasonable person being one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (para 28) As he pointed out, on the face of it the reference in the contract to the gross sale proceeds was a reference to the actual sale proceeds received by the appellants. It was not easy to conclude as a matter of language that the parties meant, not the actual sale proceeds, but the amount the appellants would have received on an arm's length sale at market value of the property; nor was it easy to conclude that the parties must have intended the language to have that meaning. He referred to the comment of Baroness Hale in the course of the argument that: unlike Rainy Sky, this is not a case in where there are two alternative available constructions of the language used. It is rather a case in which, notwithstanding the language used, the parties must have intended that, in the event of an on sale, the appellants would pay the respondents the appropriate share of the proceeds of sale on the assumption that the on sale was at a market price. He thought the problem should be solved by implying a term to the effect that, in the event of a sale which was not at arms length in the open market, an open market valuation should be used. As he explained: If the officious bystander had been asked whether such a term should be implied, he or she would have said of course. Put another way, such a term is necessary to make the contract work or to give it business efficacy. He preferred the use of an implied term to a process of interpretation, although the result is of course the same. (paras 30 33) As Mr Morshead observes, the result in Aberdeen City could probably have been explained equally as a case of correction by interpretation. In any event, this example provides support for his proposition that, where an ordinary reading of the contractual words produces commercial nonsense, the court will do its utmost to find a way to substitute a more likely alternative, using whichever interpretative technique is most appropriate to the particular task. Residential leases Long residential leases are an exceptional species of contract, and as such may pose their own interpretative problems. In no other context is a private individual expected to enter into a financial commitment extending for the rest of his or her life, and probably beyond. The original lessee may have been unaware that (at least under contracts before the Landlord and Tenant (Covenants) Act 1995) he was taking on a personal legal commitment which could continue even after he had disposed of any interest in the property itself (Norwich Union Life Insurance Society v Low Profile Fashions Ltd (1991) 64 P & CR 187). So far as it relates only to ground rent, the commitment is unlikely to be burdensome, and it may be readily accepted as a necessary incident of a valuable property interest. Service charges are a different matter, since the amounts may be substantial, and, apart from statute, the lessee is likely to have no direct control over the lessors expenditure. Where the lease is for one of a number of units in a managed building or estate, provision has to be made for expenditure by the lessor on common services and maintenance, and for the cost to be shared between the lessees. Substantial equivalence of rights and obligations under such leases is normally important for all parties, both for the good management of the building or estate, and for harmony among those living within it. Equivalence can only be achieved by the lessor, who alone is party to them all. After the first lease has been negotiated and granted, later incoming lessees will usually have little choice in practice but to accept the covenants in the form dictated by the lessor. Their reasonable expectation will be that all have been granted in like terms, both in terms of covenants and in terms of sharing financial responsibility for services, with a view to ensuring fair distribution of the overall cost. Often that expectation and the lessors responsibility for achieving it, will be expressed in the terms of the lease (as here, in the preamble and clause 4(viii)). Mr Daiches submits, correctly in my view, that the effect of such words is to create a letting scheme, or local law, of negative obligations mutually enforceable in equity between all occupiers of the properties on the estate. He cites authorities such as In re Dolphins Conveyance [1970] Ch 654, which related to an estate of freehold properties. Examples of the same principle as applied to leasehold developments are given in the textbooks (see Megarry & Wade Law of Real Property 8th ed (2012), para 32 079). As I understand his argument, he asks us to infer that a clause such as 4(viii) has to look to the future not the past, and that accordingly it is not to be construed as containing any implied representation as to previous leases. I cannot agree. In my view, the existence of such a scheme reinforces the view that each lessee has a legitimate interest in the form and content of all leases within the development, whenever granted. Even if, as in clause 4(viii), the lessors responsibility is expressed as an obligation in respect of future leases, it should in its context (including the preamble) be read also as containing an implied representation that leases previously granted are also in substantially the same form. Provision for services is normally dealt with by reciprocal covenants, positive in form: by the lessor to arrange and pay for the carrying out of the necessary services, and by the lessees to pay their respective shares of the costs so incurred. There is no common format for such service charge covenants, and they can and do vary greatly between different buildings or estates. Unlike negative covenants, it seems that they are not mutually enforceable as such, but the expectation is that they will have been drafted to ensure that the lessees financial obligations are shared fairly between them all. Again this is in the interests of good management and harmony within the development for both lessor and lessees. Differences may be necessary to cater for differences in size of the individual units or other features, but otherwise they will normally be in a standard form in all the leases. In the courts below there was some discussion of the restrictive approach said to be appropriate to service charge provisions (McHale v Earl Cadogan [2010] 1 EGLR 51, para 17 per Rix LJ). I agree, if by this it is meant that the court should lean towards an interpretation which limits such clauses to their intended purpose of securing fair distribution between the lessees of the reasonable cost of shared services. Support for this approach is to be found also in the disparity in practice between the potential remedies available to each party for breach by the other. A lessor who fails to maintain services at the level thought appropriate by the lessees is in principle open to enforcement action in court. But the practical effect of such action for the lessees is uncertain in the absence of a precise definition of what he is required to provide. If there has been a complete breakdown of services, they may be able to obtain injunctive relief or appointment of their own manager. In less extreme circumstances the form of remedy or the extent of any damages may be difficult to define. By contrast, the lessors remedies for breach of the service charge clause are all too clear. In the Court of Appeal, Davis LJ was apparently content to assume that the charges might in extremis, force some of these lessees into surrender or forfeiture (para 57). However, if by this he intended to imply that either escape route would be available to the lessees other than by agreement with the lessors, he would have been wrong. Apart from any special provision, the lessees obligation, once the service charge has been determined, will have crystallised into a contractual obligation to pay a fixed amount. That is in principle enforceable by a simple action through the courts, and ultimately by forfeiture and bankruptcy. The legislature intervened long ago to provide some statutory relief against forfeiture (Law of Property Act 1925, section 146). But that provides no protection against enforcement of the personal liability to pay the contractual amount. As already explained, the scope for abuse has been recognised by the legislature in the special provision made for controlling variable charges as defined in the 1987 Act. Fixed service charges do not normally give rise to the same risk of abuse. The lessee is given the certainty of a fixed financial commitment, and the lessor has the advantage of simplified administration. Provision is needed to deal with price inflation. But if this is fixed by reference to an independent formula, such as an official inflation index, there is no significant risk to either party. The approach adopted in this case seems highly unusual, if not unique. Even where the legislature has not intervened, the courts have a responsibility in my view to ensure that such clauses are interpreted as far as possible not only to give effect to their intended purpose, but also to guard against unfair and unintended burdens being placed on the lessees. Interpretation of clause 3(2) Against that general background, I come to consider the construction of clause 3(2) in its various versions. At first sight, the main principles seem reasonably clear: i) The intention was that all the leases should be on terms as similar as the circumstances permit, and that it was the lessors responsibility to achieve such equivalence (necessarily, since only they would be party to all of them) (preamble (2); clause 4(8)) ii) The commercial purpose of clause 3(2) was to enable the lessor to recover from the lessees the costs incurred by him in maintaining the estate on their behalf, the payment by each lessee being intended to represent a proportionate part of the expenses so incurred. iii) Although there was a general description of the services which the lessor was contractually obliged to provide, the extent of those services was not precisely defined by the lessors covenants (clause 4), which left to them a large measure of discretion as to the amounts to be spent in practice. In themselves, these features are typical and uncontroversial. It is at the next stage, in giving effect to those principles, that the clause becomes problematic. It is clear to my mind that something has gone wrong with the drafting, at least in the original wording, as it appeared in the 1974 version, and (apart from the change of inflation formula) was repeated in 1985 and 1988. The clause imposes an obligation to pay, but contains two different descriptions of the payable amount: by reference, first, to a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services , and secondly, to a yearly sum determined by reference to a fixed formula. There are two linguistic problems. First, there is no grammatical connection to show the relationship between the two descriptions. Secondly, they are mutually inconsistent. A figure can be determined as a proportionate part of some other variable amount, or it can be a yearly sum, fixed by a predetermined formula; but it cannot be both. There is an inherent ambiguity which needs to be resolved. In the Court of Appeal Davis LJ thought that the first part of the clause was designed simply to identify the character of the payment to be made (para 48). I find that unconvincing. If the intention was to indicate no more than the purpose of the payment, one would have expected some such general words as by way of contribution to the services, not a detailed and specific formula. Conversely, if the character of the contributions was to be that of payments determined by reference to a fixed formula and nothing else, the description in the first part was neither accurate nor useful. Proportionality had no part to play in such a fixed calculation, nor any relation to reality after 1980 if the courts interpretation is correct. Nor is it easy to explain the purpose of the specific reference to expenses and outgoings incurred by the lessor on a defined range of services, unless it was intended to play some material part in the calculation. At this point it is convenient to note the minor differences of wording in some later versions. A change such as the omission of the words or part in version 3 can readily be dismissed as a copying error. Others give more room for argument. It would be tempting to read more significance into the word as, which appears for the first time in the important 1980 version 2. Grammatically, it may be said (with Davis LJ para 54), the insertion of the word as implies that the operative text is in the second part of the clause, the first part being merely descriptive. There are two difficulties with that explanation. First, for the reasons I have given, neither the reference to proportionality nor the detail of the formula in the first part is compatible with that limited sense. Secondly, there are linguistic indications the other way. The word as did not survive into any of the later versions, except the 2000 deed of variation (version 5), which seems to have been copied directly from version 2. Version 2 itself also saw the introduction of a new reference to expenditure on the renewal of the facilities of the estate, which is hard to explain if the detail of the first part had no practical significance. Version 4 added to the mystery by adopting a different connecting word for, this time in front of the second description (for the yearly sum of ninety pounds). That is even more difficult to interpret, but if anything it seems to imply that it was the first part of the clause which was the primary description. In the end I conclude that no persuasive guidance, one way or the other, is to be derived from these minor changes. There are only two realistic possibilities for the second part of the clause, which are those respectively adopted by Judge Jarman, on the one hand, and Morgan J and the Court of Appeal, on the other. Either it is a fixed amount which in effect supplants any test of proportionality under the first part; or it is no more than an upper limit to the assessment of a proportionate amount. I reject the theoretical alternative that it was designed as a lower limit for the benefit of the lessors. That interpretation would have made no sense at all in relation to version 1, agreed at a time when the possibility of inflation falling below 3% would have occurred to no one as a risk requiring special provision, particularly for the lessor who unlike the lessees was in control the level of his own expenditure. There is thus no doubt that this part of the clause was originally designed for the benefit of the lessees, and I see no reason to think that its purpose had radically changed by the time of version 2. Davis LJ was concerned as to the practicalities of determining the proportionate amount of the qualifying expenditure. Morgan J (para 51) described it as workable but not ideal. I do not see any great difficulty. The relevant items are precisely defined. The lessor has simply to demonstrate (to the lessees and if necessary to the court) that the expenditure has been properly incurred on those items, and that it has been divided proportionately between the lessees. I note that in Hyams v Titan Properties (see para 82 above), which was decided two years before the first of these leases, the court had to fix the terms of a new business lease under the Landlord and Tenant Act 1954 taking account of rapid price inflation. Buckley LJ recorded that the modern practice generally accepted was to make service charges payable on a proportional basis. In that case (where there were nine units) the court approved a clause requiring the tenant to pay one ninth of the cost of providing the services under the covenant in addition to the rent payable under the lease. There was no suggestion that this formulation was defective in the absence of specific machinery to settle the figure. The first half of clause 3(2) follows the same model, allowing for the fact that the precise number of units was probably not known at the outset, so that it was not possible to put in a specific fraction. The use of the same figure of 90 in all the leases (whatever its precise purpose) would have been a strong indication that equal shares were intended. I turn therefore to consider the two alternatives as applied to each of the five versions in its own context. In the words of the authorities, we must inquire what a reasonable person would have understood the parties to have meant, that person being one who had all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, and who would have also taken into account the practical consequences of deciding that it means one thing or the other. Where necessary the reasonable observer can be invited notionally to take on the more active role of officious bystander, in order to interrogate the parties as to their common intentions. The five versions in context Version 1 (October 1974 July 1980) It is impossible to do more than guess at the common intentions of the parties to the first lease in relation to this part of clause 3(2). It is hard at first sight to see any rational basis for selecting a rate of 10% every three years, at a time when annual inflation was running at around twice that rate. At little over 3% per year, it was a little low even by reference to the inflation of the two previous decades, although it was in line with the historic long term average. In such inflationary conditions, there is no difficulty in understanding why it was acceptable to the lessees. It is the lessors thinking which needs explaining. We know nothing of the first lessors (the Lewises). They may perhaps have been builders, themselves involved in the development of the estate, and so more able to absorb the initial costs of maintenance in their other expenditure. If so, to make the estate attractive to purchasers, they may have gambled on being able to bear the price increases during the early years, in the expectation of inflation falling to more reasonable levels in the near future. (Comparable optimism seems to have been reflected in their view of ground rent, which was to be increased by only 50% every 21 years.) In any event, their apparent generosity would be more explicable if, as may have been the case, the figure of 90 was based not simply on an estimate of current costs, but gave a reasonable margin for anticipated inflation in the short term. That possibility is borne out to some extent by the fact that the triennial formula survived, apparently without question, for six years of high inflation. If so, it is certainly possible that, even during that period, it was treated as a cap, the contributions being based on a share of actual expenditure from year to year. (Unlike Morgan J para 32 I see no basis, in the absence of evidence, for any positive inference that service charges were paid, then or later, in accordance with the lessor's interpretation.) Since version 1 is not in issue, it is unnecessary to decide between the alternative interpretations at this stage. Version 1 does however provide the necessary background to the contentious versions which came later. It makes clear that the inclusion of a specific figure for inflation was designed originally for the benefit of the lessees not the lessor. It may also enable one to discount any intention on the part of the Lewises at least to take unfair advantage of their lessees. Version 2 (August 1980 February 1983) As I have said, the fact that it took the Lewises six years to react to the apparent disparity between the triennial formula and actual inflation suggests that, one way or another, they were able to maintain expenditure within the initial figure for some time. The change of heart may well have been triggered by the renewed jump in inflation in 1979, which reached its peak in summer 1980, although it is notable that the last version 1 lease was granted as late as July 1980. If the Court of Appeal is right, there was then in August 1980 a dramatic change in their thinking, from the exaggerated optimism which had prevailed over the last six years, to such abject pessimism about the future of the economy that they thought it reasonable to assume continuing 10% inflation for the remaining 93 years of the leases, and to expect their purchasers to share that assumption. If that is the correct interpretation, they would have been contemplating an impossibility, even for economists. In Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3, (1981) 145 CLR 625, 639 Gibbs J spoke of the reasons for making no allowance for inflation in awards for future loss: It is unreasonable to suppose that any economist will be able to predict with accuracy the nature and extent of changes in the purchasing power of money during a period extending for several decades ahead. Whether inflation increases or is brought under control depends upon political and economic events and decisions at home and abroad as to whose occurrence it is not possible to do more than conjecture. Predictions as to the economic future in 30 years time may perhaps be made by a soothsayer but expert evidence cannot rationally be given on such a subject. (cited with approval by Lord Hope in Helmot v Simon [2012] UKPC 5, para 45) If that is unreasonable for an economist, how much less likely is it as an explanation of the thinking of the lessors or lessees of these modest holiday chalets in August 1980? The improbability becomes even more striking when one compares the figures for the new and old groups of lessees. It is true that, even as a cap, the annual formula would result in the new lessees paying more initially than the existing lessees (159 in 1980, compared to 109 under version 1). But over the period of the lease the differences become grotesque. On the Court of Appeals interpretation the parties were accepting, as a mathematical certainty, that by the end of the lease period each lessees service charges would have totalled over 11m, more than 200 times the amounts payable by the existing lessees. Put the other way, if the assumed prediction were correct, the lessees of more than two thirds of the chalets on the estate would by then have contributed 200 times less than the figure necessary for the lessors expenditure to keep pace with inflation. Even from the lessors point of view, that scenario implied commercial disaster. Whatever the lessors state of mind, it beggars belief that the new lessees would have been content to proceed on that basis. It is particularly improbable for a person of ordinary means investing perhaps limited savings in a holiday home. It is simply inconceivable that such a potential purchaser would have been willing to accept a prediction of continuing inflation at that level for over 90 years, and to take that as a basis for undertaking a contractual obligation lasting for the rest of his life and beyond without any escape route. There has been some discussion before us as to whether the lessees would have known of the comparable clauses in the previous leases. Mr Daiches asks us (and through us the reasonable observer) to proceed on the basis that the new lessees in 1980 would have been unaware of the triennial formula used in the previous leases, and says that is the basis on which the case has been approached hitherto. I am unwilling to make that assumption, which I regard as wholly unrealistic. It is not on any view an assumption that can be made in respect of versions 4 and 5, where the change was apparent on the face of the documents (see below). Even without direct information in the documents, a potential purchaser in 1980 could be expected to have wanted to satisfy himself about the existing arrangements within the estate, and would have had a legitimate interest in doing so. Absent bad faith, it is hard to see any reason why the lessor would have wished or felt able to hide information about the previous leases. In any event, it could readily have been discovered by talking to other lessees within the estate. In Lord Clarkes words, it would have been background knowledge reasonably available to the parties in the circumstances of the contract. I would accordingly approach the interpretation of version 2 on the assumption that both parties (like their reasonable observer) would have been aware of the proposed change from the triennial formula, and that they are to be taken as having accepted the change for what they regarded as good reasons. On the basis that it was intended as a cap, the lessees thinking is understandable. They would have needed persuasion to take the leases on less generous terms than their predecessors. On the other hand, they would have understood that any assumptions made in 1974 about the prospects of an early fall in inflation had been falsified by events. They would have understood also that the lessor would find it difficult to support reasonable expenditure on services without some adjustment. We do not of course know what if anything may have been said about increasing future contributions from the existing lessees to ensure fair distribution. But from their own point of view, with current inflation at or around 20%, substitution of a limit of ten per cent might have been seen by them as an acceptable compromise for the immediate future, while allowing for a return to more normal levels in the medium term. That may not be a complete explanation, but it is at least plausible, unlike the alternative. As in the Aberdeen Council case, we can imagine the responses of lessor and lessee to questioning by the officious bystander as to the purpose of the clause. Did they really intend to enter into a contract which had the extraordinary long term implications outlined in the previous paragraphs? I find it hard to conceive of any other response than of course not; it is a cap not a fixed amount. The alternative would have seemed absurd and unreasonable to both, as much to the lessor as to the lessees. The Court of Appeal thought they were applying the natural meaning of the clause, and that it was not the task of the court to relieve the lessees of a bad bargain entered into in different circumstances, albeit possibly without having done their arithmetic. For the reasons I have given, I am not convinced that the natural meaning is that adopted by the Court of Appeal, at least once one discounts the inclusion of the word as in version 2, or that, even if it is, it relieves the court of the obligation to seek a sensible result. On the other side of the coin, I agree with Mr Morshead that bad bargain is a gross understatement of the implications of their interpretation, which as he says were from the outset not only stark but disastrous. Nor do I see any reason to assume that these contracting parties, treated (in Lord Hoffmanns words) as alive to the practical consequences of the alternative interpretations, should have been ignorant of the ordinary principles governing compound interest. Version 3 (1985) By this time inflation had fallen significantly to around 5 6%. Pessimistic thoughts about the future direction of inflation for the foreseeable future would have largely dissipated. If it was difficult in 1980, it would surely be impossible now, for the reasonable observer to imagine the parties committing themselves, even in the medium term, to a fixed inflation figure of almost double the current rate. As a cap, it would hardly have attracted attention. Version 4 (1988) By this time annual inflation had fallen to less than 5%. The annual formula produced a figure more than double that implied by the triennial formula, but one closely comparable to that resulting from actual inflation since 1974 (342 compared to 350, in the table at para 100 above). If the then lessor, Mrs Short, was still charging her pre 1980 lessees by reference to the lower triennial rate, it raises a question of how she was covering her own expenditure on services, in circumstances where two thirds of the leases were contributing at only half the rate implied by inflation since 1974. That may suggest either that she was able in practice to keep expenditure to a level significantly below that implied by inflation, or possibly that in order to maintain services at a reasonable level some of the pre 1980 lessees had been persuaded to pay more than their strict obligation. The only novel feature of this version is that it was subject to a proviso in effect substituting the triennial formula during the tenure of the named lessees. It appears to have escaped notice in the courts below that the example used for this version was in a lease between the lessor, Mrs J Short, and herself and a Mr W R Short (her husband) as joint lessees. Since the hearing it has been confirmed that she had the same interest in the other three proviso leases granted between 1988 and 1991. They were clearly not arms length transactions. We know nothing about Mrs Short, or her thinking. It is difficult to understand how this special personal protection could have been reconciled with her obligation to the other post 1980 leases (under clause 4(viii)) to ensure that the covenants in these leases were as similar as the circumstances permit. It is even more difficult, at least on the Court of Appeals interpretation, to understand how she would have explained the change to her future assignees, who were to lose that protection. The contrast between the two versions could not have been drawn more clearly to their attention. On the basis that the revised percentage figure was no more than a cap, they may plausibly have been content to accept an obligation to keep pace with inflation, in line with other post 1980 lessees. The alternative assumes that, at time when inflation rates were less than 5% and apparently falling, they knowingly accepted a continuing obligation to pay service charges increasing at twice that rate for the rest of the term. On any view that is absurd. Version 5 (2000) By this time inflation had fallen to about 3%. The clause 3(2) figure was by now more than five times greater under the annual formula than under the triennial formula. As Mr Daiches accepts, the parties to these transactions were fully aware of the differences between the two versions. In those circumstances, whatever the changes in the extent of their holdings, there is on the face of it no rational explanation for four lessees agreeing not only to the loss of the protection of version 1, but to the substitution of a permanent obligation to pay service charges increasing at a rate three times the then current rate of inflation. Since these variations were agreed only 15 years ago, and since by this time the respondent, Mrs Arnold, was herself directly involved, it might have been thought that she at least would be able to throw some light on these extraordinary transactions. After the hearing, the parties were put on notice of the courts concern on this point, and invited to comment. It has emerged that three out of the four variations were agreed between Mrs Arnold and her daughter, Mrs Fraser (signed under a power of attorney by Mrs Arnolds son). The fourth was a Mrs Pace, of whom no information has been provided, save that she is apparently still the owner of the chalet, and she is named as one of the defendants in these proceedings. If there was in Mrs Arnolds thinking a rational explanation for these particular variations, she has not taken the opportunity to disclose it. Instead of such direct evidence, Mr Daiches remarkably asks us to imagine a series of inferences drawn by the parties (including his client and her daughter) and the reasonable observer. They would have inferred, he says, that version 1 lessees were paying less than the rates required by inflation and that there were in consequence historic shortfalls in the lessors service charge income; and that the multiplier was to be increased, not only to take account of actual inflation since 1974, and to reflect the fact that it might once again rise to levels above that implied by the triennial formula, but also to compensate the lessor both for past shortfalls, and for the risk that he or she might not be able to persuade other lessees to agree to similar increases in the future. With respect to Mr Daiches I have to say that, even in this extraordinary case, I find these submissions quite astonishing. Given that his client and her daughter were the principal parties to these transactions, why on earth should the court be expected to draw inferences as to what was in their minds? Why should we speculate as to the extent of any historic shortfalls, when she presumably has access to the actual accounts, and has resisted the lessees requests for disclosure? What evidence is there that by 2000 anyone was seriously concerned about an imminent risk of return to double digit inflation? Finally, what possible reason would these lessees have had for wishing to compensate the lessor for the past or future financial consequences of imperfections in leases for which they were not responsible? With regard to the only independent party, Mrs Pace, Mr Daiches asks us to note that her variation was agreed shortly after the sale of the lease to her by the respondent herself. It should not be difficult, he says, to infer that the purchase price paid by her to the respondent reflected her agreement to increase the multiplier. Although she is apparently one of the appellants represented by Mr Morshead, he has not volunteered any specific explanation on her behalf. He merely points to the difficulty of imagining any price reduction or other inducement sufficient to compensate her for the devastating implications of the multiplier if it operates as Mrs Arnold contends. In the absence of further evidence from either side, it is impossible to draw any clear conclusions about the purpose of these curious transactions. It is enough to observe that, viewed objectively, they are at least consistent with an interpretation which limits the lessees future exposure to actual inflation, within a defined limit. On the lessors interpretation, as with version 4, they make no sense at all. Conclusion The true explanation for these wretchedly conceived clauses may be lost in history, but the problems for the parties are all too present and deeply regrettable. No doubt in recognition of such considerations, Mr Daiches, on behalf of Mrs Arnold, indicated that his client fully understands the appellants predicament and is sympathetic to it, and that if the appeal fails there would have to be a re negotiation of the leases for pragmatic if not for legal reasons. She wished it to be stated openly that she is willing for the appellants leases to be renegotiated on terms that would, among other things, involve the leases being varied by substituting an adjustment linked to the Consumer Price Inflation index instead of the current fixed adjustment of 10% per annum. Although on its face this indication seems helpful and realistic, it is not clear what it would mean in practical terms. It rightly acknowledges that the problems may well be incapable of truly satisfactory resolution by conventional legal analysis. The main obstacle may be that hinted at in Mr Daiches post hearing submission. That is the need to find some way of making good the shortfall resulting from the unrealistically low contributions required from more than two thirds of the lessees under the pre 1980 leases. Even if the lessees interpretation prevails, it will still leave an unhappy imbalance between these lessees, and the version 1 lessees, who will be left paying substantially less than their proportionate share. Whatever the strict legal position, the other lessees may perhaps be persuaded that they have a common interest in the good management of the estate, and at least a moral obligation to contribute their fair share of its costs. A long running dispute of this kind can hardly be conducive to the atmosphere appropriate to a holiday location, even for those not directly involved. It is to be hoped that some way can be found of bringing them into the discussions. On any view, the case seems to cry out for expert mediation, if it has not been attempted before, preferably not confined to the present parties. If thought appropriate, one possibility might be an application by consent to the President of the First Tier Tribunal (Property Chamber Residential Property) to appoint as mediator a senior judge of that tribunal, with the benefit of that tribunals experience of dealing with service charge issues under statute. However, that must be a matter for the parties not this court. It is necessary therefore to return to the essential question: what in the view of a reasonable observer did clause 3(2) mean? It will be apparent from my detailed analysis that I regard the consequences of the lessors interpretation as so commercially improbable that only the clearest words would justify the court in adopting it. I agree with HH Judge Jarman QC that the limited addition proposed by the lessees does not do such violence to the contractual language as to justify a result which is commercial nonsense. For these reasons, in respectful disagreement with the majority, I would have allowed the appeal and restored the order of HH Judge Jarman QC.

UK-Abs

Oxwich Leisure Park contains ninety one chalets, each of which is let for a period of 99 years from 25 December 1974 on very similar terms. The Appellants are the current tenants under 25 of the leases. 21 of these leases were granted between 1978 and 1991. Clause 3(2) of each lease contains a covenant to pay a service charge. Each lease also contains covenants by the lessor. One such covenant is to provide services to the Park, such as maintaining roads, paths, fences, a recreation ground and drains, mowing lawns, and removing refuse. The lessor also covenants in clause 4(8) that leases of other chalets shall contain covenants on the part of the lessees thereof to observe the like obligations as are contained herein or obligations as similar thereto as the circumstances permit. The Respondent, the current landlord, argues that the service charge provision in clause 3(2) requires the lessee to pay an initial annual service charge of 90, which increases at a compound rate of 10% for the first 70 chalets to be let, every three years, but for the last 21 chalets to be let, every year. The service charge provisions in four of the 70 leases were subsequently varied so that the increases were yearly rather than every three years. The language of the clause 3(2) differs in small respects between the leases, but a typical example is a covenant to To pay to the Lessor without any deduction in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services hereinafter set out the yearly sum of Ninety Pounds and value added tax (if any) for [the first three years OR the first year] of the term hereby granted increasing thereafter by Ten Pounds per Hundred for every subsequent [three year period OR year] or part thereof. The issue on this appeal is whether the Respondents interpretation of clause 3(2) in those 25 leases, where the increase is to be every year, is correct. The Supreme Court holds that the Respondent is correct and therefore dismisses the tenants appeal by a majority of 4 1 (Lord Carnwath dissenting). Lord Neuberger (with whom Lord Sumption and Lord Hughes agree) gives the lead judgment and Lord Hodge gives a concurring judgment. When interpreting a written contract, the court must identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean, focussing on the meaning of relevant words in their documentary, factual and commercial context. However, subjective evidence of any partys intentions must be disregarded [14 15]. In the present case, while reliance must be place on commercial common sense, this should not undervalue the importance of the language of the provision [17]. Commercial common sense cannot be invoked by reference to facts which arose after the contract was made; it is only relevant to ascertaining how matters would or could have been perceived as at the date of the contract. The fact that an arrangement has worked out badly or even disastrously is not a reason for departing from the natural meaning of the language; neither is the fact that a certain term appears to be very imprudent. It is not the function of the court interpreting a contract to relieve a party from the consequences of imprudence or poor advice [19 20]. Moreover, there exists no special principle of interpretation that service charge clauses are to be construed restrictively [23]. The natural meaning of clause 3(2) is clear; the first half of the clause provides that the lessee is to pay an annual charge to reimburse the lessor for the costs of providing the services which he covenants to provide, and the second half of the clause identifies how that service charge is to be calculated, namely as a fixed sum, with a fixed annual increase. This choice is readily explicable; the parties assumed that the cost of providing the services would increase, and they wished to avoid arguments as to the cost of the service and the apportionment between the tenants. The reasonable reader of the clause would see the first half of the clause as descriptive of the purpose of clause 3(2), namely to provide for an annual service charge, and the second half as a quantification of that service charge [24 27]. In the case of the 21 (now 25) leases which provide for an annual increase in the service, it is true that this has an alarming consequence; if one assumes a lease granted in 1980, the service charge would be over 2,500 this year, 2015, and over 550,000 by 2072. However, despite such consequences, this is not a convincing argument for departing from the natural meaning of clause 3(2) [30 32]. Although there are one or two small errors in the drafting, nothing has gone significantly wrong with the wording of the clause in any of the 25 leases [34]. Moreover, during the 1970s and much of the 1980s, annual inflation had been running at a higher annual rate than 10% for a number of years; the clause could be viewed as a gamble on inflation for both parties [35 36]. In relation to the leases which were varied between 1998 and 2002, it is extraordinary that a lessee under a lease which provided for an increase in a fixed service charge at the rate of 10% over three years should have agreed to vary the lease so that the increase was to be at the rate of 10% per annum, at a time when inflation was running at around 3% per annum. However, this does not justify reaching a different result [39 40]. The purpose of clause 4(8) and the opening words of clause 3 may well have been to create a letting scheme such that properties within a given area are intended to be let on identical or similar terms, normally by the same lessor, so that the terms are to be enforceable not only by the lessor against any lessee, but as between the various lessees [47 49]. The Appellants case is that there is an implied term in each of the 21 leases granted between 1977 and 1991 such that the lessor is not asking anything of the lessee which had not been required of lessees of other chalets, whether their leases were in the past or future. Even assuming that there is such a scheme, this would not be a correct term to imply. A term that the already existing 70 leases have services charges which increase at the compound rate of 10% p.a. as in the existing 21 leases would be inconsistent with an express term of the appellants leases [50 56]. Accordingly, the appeal should be dismissed [60 65]. In his dissenting judgment, Lord Carnwath considers that the commercial purpose of clause 3(2) was to enable the lessor to recover from the lessees the costs of maintaining the estate on their behalf, the payment by each lessee being intended to represent a proportionate part of the expenses incurred. He is of the view that the clause contained an inherent ambiguity between the two halves of the clause. [125 126]. There are only two realistic possibilities for the meaning of the second part of the clause; either it is a fixed amount which supplants any test of proportionality under the first part or it is no more than an upper limit to the assessment of a proportionate amount [128]. Lord Carnwath considers the consequences of the lessors interpretation to be so commercially improbable that only the clearest words would justify adopting it. For this reason he would have allowed the appeal [158 159].

The issues in this appeal are (i) whether the Protection from Eviction Act 1977 (PEA 1977) requires a local housing authority to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under Part VII of the Housing Act 1996 (the 1996 Act), and (ii) whether a public authority, which evicts such a person when its statutory duty to provide such interim accommodation ceases without first obtaining a court order for possession, violates that persons rights under article 8 of the European Convention on Human Rights (ECHR). Factual background CN was born on 3 August 1994. His mother (JN) applied to the London Borough of Lewisham (Lewisham) for assistance under Part VII of the 1996 Act in August 2009 and Lewisham arranged for a housing association to grant her an assured shorthold tenancy which commenced in May 2010. JN and her family became homeless in November 2011 after the housing association obtained an order for possession because of arrears of rent. JN again applied to Lewisham for homelessness assistance. On 15 November 2011 Lewisham, fulfilling its duty under section 188 of the 1996 Act, granted JN a licence of a five bedroom house with communal kitchen and bathroom pending its inquiries under section 184 of that Act as to whether she was eligible for assistance and, if so, what duty, if any, was owed to her. The property was privately owned. Its owner licensed it to Lewisham for use as temporary accommodation for homeless persons. On 15 December 2011 Lewisham wrote to JN to intimate its decision under section 184 of the 1996 Act (the section 184 decision). It stated that its duty to house her had come to an end because she had become homeless intentionally from the housing association property. Lewisham informed her that it would terminate the temporary accommodation within 28 days and that she would be served with a notice to vacate shortly. It stated that it was under a duty to provide her with advice and assistance in her efforts to secure accommodation and invited her to contact its housing options centre for that purpose. The letter also informed her of her right to request a review under section 202 of the 1996 Act and enclosed a leaflet explaining the review process. Lewishams Homeless Families Floating Support Service carried out a needs assessment on 12 January 2012 and concluded that the family did not need the support which that service provided. On 5 March 2012 JN requested a review of the section 184 decision and instructed solicitors to represent her. Lewisham extended her interim accommodation pending the outcome of the review. On 27 March 2012 Lewisham wrote to inform her that the review officer had upheld the section 184 decision and had found that she had become homeless intentionally. It intimated that its duty to secure accommodation for her had come to an end and gave her 28 days to leave the property. Lewisham informed her that she was entitled to advice and assistance from its housing options centre and that she could appeal to the county court on a point of law against the outcome of the section 202 review. JN chose not to do so. Thereafter JNs solicitors requested an assessment under the Children Act 1989. On 29 April 2012 the solicitors wrote to challenge Lewishams decision to evict her without a court order and before completing an assessment under the Children Act 1989. Lewisham extended the provision of temporary accommodation until the outcome of that assessment. Lewisham wrote on 30 April 2012 with a copy of the assessment and intimated that the accommodation would cease on 1 May 2012. In response, CN issued the judicial review claim which has given rise to the appeal to this court. ZH was born on 23 March 2012. His mother (FI) was born in 1991 and has a younger sister (MI) who was born in 1994. FI had an assured tenancy of a house in Liverpool. She left Liverpool in October 2011 to live with her aunt in London. In August 2012 her aunt asked FI to leave and on 7 September 2012 FI applied to the London Borough of Newham (Newham) for assistance under Part VII of the 1996 Act. In a letter dated 26 November 2012 Newham, acting under section 188 of the 1996 Act, granted FI a licence to occupy a two bedroom self contained flat on a day to day basis. Newham had licensed the property from a private sector company (RC) which provided spot booked bed and breakfast and nightly let accommodation for homeless and other persons. In a letter dated 19 February 2013 Newham advised FI that it had decided that she was homeless and in priority need but that she had become homeless intentionally by giving up her assured tenancy in Liverpool. Newham stated that it would help her search for alternative accommodation and allow her to stay in her current accommodation until 18 March 2013. Newham also provided her with written advice and informed her of her right to review the decision. On the same day solicitors acting for ZH asked Newham to review the decision and for accommodation pending the review. The solicitors also informed RC of their view that RC could not evict without first obtaining a court order. In a letter dated 14 March 2013 Newham refused to provide accommodation pending a review and told FI that she must leave the property by 21 March 2013. ZH commenced judicial review proceedings on 18 March 2013 in which he challenged the decision to evict without first obtaining a court order. After an assessment under the Children Act 1989 Newham undertook to provide interim accommodation and financial support to assist FI in securing private rented accommodation. Newham also carried out a section 202 review which FI appealed to the county court. That appeal settled after Newham, in September 2013, accepted that it owed FI a full housing duty under section 193(2) of the 1996 Act, namely to secure that accommodation was available for her to occupy (the full housing duty). By that stage ZHs case had been linked to CNs case in the Court of Appeal. The legal proceedings CN was initially refused permission to proceed with the judicial review claim. That decision was appealed and on 23 November 2012 Davis LJ granted permission for the judicial review and ordered the claim to be retained in the Court of Appeal for a hearing. On 9 May 2013 Sales J gave ZH permission for his judicial review and transferred it to the Court of Appeal. The two judicial review claims were heard in June 2013; and on 11 July 2013 the Court of Appeal handed down judgment dismissing the claims. Interim injunctions have protected CNs occupation of accommodation and on 23 November 2012 Davis LJ continued the injunction pending final disposal of the appeal. Although Newham has provided ZH with accommodation in accordance with its full housing duty, the parties agreed that it was appropriate that his case should be considered with that of CN in this appeal. The homelessness legislation For many years Governments in the United Kingdom have sought to alleviate the suffering caused by homelessness. In Part III of the National Assistance Act 1948 local authorities were placed under a duty to provide temporary accommodation to persons who were in urgent need of it. The accommodation was to be provided in premises which the relevant local authority or another local authority managed or in the premises of a voluntary organisation to which the local authority made appropriate payments (sections 21 and 26). The local authority was empowered to make rules for the management of the premises which entitled it to require a person to leave the premises if he was no longer entitled to receive accommodation under that Part of the Act (section 23). The Housing (Homeless Persons) Act 1977 replaced the provisions of the 1948 Act, by which only temporary accommodation was provided, with a statutory regime which also provided longer term accommodation for the homeless. That regime in its essentials survives in the 1996 Act. In particular, the 1977 Act introduced: i) the concept of priority need (section 2), ii) the obligation on the local housing authority to provide temporary accommodation while it investigates whether the applicant is homeless and in priority need and whether he or she is homeless intentionally (section 3), and iii) the duties, arising from the results of that investigation, (a) to provide advice and appropriate assistance, (b) to provide temporary accommodation for a period to give a reasonable opportunity to secure other accommodation, or (c) to secure that accommodation becomes available for occupation (section 4). The 1977 Act was consolidated into wider housing legislation in Part III of the Housing Act 1985. That in turn was repealed by the 1996 Act, which in Part VII provides the current statutory regime for tackling homelessness. I need only summarise the relevant provisions of the 1996 Act. When an applicant applies for accommodation or assistance in obtaining accommodation (section 183), the local housing authority carries out inquiries to satisfy itself whether he or she is eligible for assistance and, if so, what if any duty is owed (section 184). Of central importance in this appeal is the interim duty to accommodate under section 188. Section 188(1) provides: If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part. Section 188(3) provides: The duty ceases when the authoritys decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). The authority may secure that accommodation is available for the applicants occupation pending a decision on a review. The possible results of section 184 investigation, so far as relevant, are as follows. If the local housing authority is satisfied that the applicant is homeless, eligible for assistance but homeless intentionally, its duty, if he or she has a priority need, is (a) to secure that accommodation is available for a period to give a reasonable opportunity of securing accommodation for occupation and (b) to provide advice and assistance in attempts to secure accommodation (section 190(2)). If not satisfied that the applicant has a priority need, the authoritys duty is confined to (b) above (section 190(3)). If the authority is satisfied that the applicant is homeless and eligible for assistance, not satisfied that he or she is intentionally homeless, but also not satisfied that he or she has a priority need, the duty is to provide advice and assistance as in (b) above (section 192). If the authority is satisfied that the applicant is homeless, eligible for assistance and has a priority need and is not satisfied that he or she became homeless intentionally, it is under a duty to secure that accommodation is available for occupation by the applicant (section 193(2)). In this appeal we are concerned only with whether an applicant is entitled to both a set period of notice and a court order before eviction if, on completing the section 188 investigation, a local authority finds him or her to be homeless intentionally or otherwise not entitled to the full housing duty under section 193 of the 1996 Act. The logic of the answer to that question will apply also to other temporary accommodation provided under Part VII of the 1996 Act, namely sections 188(3) (above), 190(2) (above), 200(1) (accommodation pending a possible referral to another authority), and 204(4) (accommodation pending the determination of an appeal). Protection from eviction legislation Abuses by private sector landlords in the 1950s and 1960s led to measures to regulate the eviction of tenants in section 16 of the Rent Act 1957 and Part III of the Rent Act 1965. PEA 1977 consolidated those provisions and related enactments. Section 1 makes the unlawful eviction or harassment of a residential occupier a criminal offence. Section 3 prohibits eviction without due process of law. Of particular relevance are section 3(1) and (2B). Section 3(1), which, subject to an immaterial amendment, is in the same terms as originally enacted, provides: the tenancy (in this section referred to as the former Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and (a) tenancy) has come to an end, but (b) of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises. the occupier continues to reside in the premises or part Section 3(2B), which was inserted by the Housing Act 1988, provides: Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions let and tenancy shall be construed accordingly. Section 3A, which the 1988 Act also introduced, listed excluded tenancies and licences. The listed exclusions now include among others a tenancy or licence granted as a temporary expedient to a trespasser (section 3A(6)), a tenancy or licence to occupy premises for a holiday (i.e. a holiday let) or if granted otherwise than for money or moneys worth (i.e. a bare licence) (section 3A(7)), a tenancy or licence granted to provide accommodation under Part VI of the Immigration and Asylum Act 1999 (i.e. accommodation provided to asylum seekers and their dependants) (section 3A(7A)) or temporary accommodation to displaced persons (section 3A(7C)), and a licence which confers rights of occupation in a hostel provided by specified bodies (section 3A(8)). There is no general exclusion in section 3A of accommodation provided under Part VII of the 1996 Act or in particular under section 188 of that Act. Section 5(1A) of PEA 1977 provides that a notice to determine a periodic licence to occupy premises as a dwelling (other than an excluded licence) is valid only if it is in writing and contains prescribed information and is given not less than 4 weeks before the date on which it is to take effect. Accordingly, where a person grants a licence to which PEA 1977 applies, he must give notice of at least 28 days and also obtain a court order to regain possession of the premises. While counsel could not agree on the likely timescale of average court proceedings, it is likely that, in uncontested proceedings, a local authority might often have to wait several months to recover possession of a property provided as interim accommodation if such accommodation is subject to PEA 1977. In contested proceedings the wait would probably be longer. Lewishams experience is that it can take between 3 and 6 months to recover possession in undefended proceedings in the county court. Newhams experience is that such undefended proceedings take between 3 and 4 months. The first issue: the appellants challenge On the first issue the appellants case was straightforward. Mr Arden submitted (i) that PEA 1977 requires a court order to recover possession of premises occupied as a dwelling under a licence (section 3(2B)) and (ii) that Parliament had set out comprehensively in section 3A of PEA 1977 the tenancies and licences which were to be excluded from the scope of section 3 of that Act. As a result, an owner can take possession of the accommodation provided by a local housing authority under section 188 of the 1996 Act only after he has obtained a court order. The court must give effect to the clear words of Parliament. In support of his submission he also referred, by way of contrast, to other legislation which contained express exclusions and, he submitted, supported the view that Parliament viewed temporary accommodation provided to the homeless as being let as a separate dwelling, a phrase which has long been the key definition of property which was subject to statutory rent restrictions and security of tenure. He submitted that, if premises were let as a separate dwelling, they were necessarily let as a dwelling in section 3 of PEA 1977. He referred to the Housing Act 1985, which in Schedule 1 paragraph 4 expressly excluded all tenancies granted under Part VII of the 1996 Act from the security of tenure which the Housing Act 1980 had introduced for public sector tenants. Similarly, section 209 of the 1996 Act (adapting earlier provision in section 1(6) of the Housing Act 1988) provides that a tenancy granted by a private landlord under arrangements which a local housing authority makes in pursuance of its interim duties under sections 188, 190, 200 or 204(4) cannot be an assured tenancy before the end of 12 months after the date on which the applicant is notified of the relevant decision or outcome of the appeal unless the landlord has given notice to the contrary. In short, he submitted that Parliament had exempted the temporary provision of accommodation to homeless persons from security of tenure but not from PEA 1977. If that was correct, the extension of PEA 1977 to cover licences in 1988 meant that temporary accommodation provided to a homeless person under a licence also fell within the scope of that Act. He also drew attention to section 130 of the Social Security Contributions and Benefits Act 1992, which gives an entitlement to housing benefit when a person is liable to make payments in respect of a dwelling which he occupies as his home. Housing benefit is often paid to people who occupy temporary accommodation under Part VII of the 1996 Act. This supported the view that such accommodation should be treated as a dwelling under PEA 1977. Discussion of the first issue (i) licence to occupy premises as a dwelling The first issue is whether the premises, which the authorities provided to CN and ZH as temporary occupation under section 188 of the 1996 Act, were licensed for occupation as a dwelling. Counsel agreed that the phrases let as a dwelling under a tenancy in section 3(1) and premises occupied as a dwelling under a licence in section 3(2B) of PEA 1977 both addressed the purpose of the tenancy or licence rather than the use of the premises by the occupier. I also agree: section 3(2B) (para 18 above) applies section 3(1) to licensed premises; as section 3(1) looks to the purpose of the lease, so also must section 3(2B) look to the purpose of the licence. Unless that licence is superseded by a later contract, either express or inferred from the parties actions, which provides for a different user, the court looks to the purpose of the original licence. See the judgments of the Court of Appeal on analogous provisions in the Rent Acts in Wolfe v Hogan [1949] 2 KB 194 and Russell v Booker (1982) 5 HLR 10. See also, in the context of accommodation initially provided under section 188 of the 1996 Act, the judgment of Elias J in Rogerson v Wigan Metropolitan Borough Council [2005] HLR 129, at paras 33 and 34. Accordingly, as there is no suggestion that the legal basis of the occupation by CN and ZH changed since the licences were granted, PEA 1977 instructs us in each case to look to the purpose of the licence to see if it is for occupation as a dwelling. The word dwelling is not a technical word with a precise scientific meaning. Nor does it have a fixed meaning. Words such as live at, reside and dwell are ordinary words of the English language, as is home. It is clear, as the respondent local authorities submitted, that the word dwelling in the phrase, let as a dwelling has been used in PEA 1977 in the same sense as that word was used in the phrase let as a separate dwelling in the Rent Acts. Section 3 of PEA 1977 had its origin in section 32 of the Rent Act 1965 and section 5 in section 16 of the Rent Act 1957. There is no reason to think that Parliament intended the word dwelling to have a different meaning in sections on protection from eviction from its meaning in provisions relating to rent restriction and security of tenure. In Skinner v Geary [1931] 2 KB 546, Scrutton LJ (at 564) said that the Rent Acts did not protect a tenant who was not in occupation of a house in the sense that the house was his home. More recently, in Uratemp Ventures Ltd v Collins [2002] 1 AC 301 the speeches in the House of Lords showed that the word dwelling had different shades of meaning. Lord Bingham of Cornhill (at para 10) said that a dwelling house was the place where someone dwells, lives or resides. Lord Steyn (at para 15) suggested that the court should not put restrictive glosses on the word which conveyed the idea of a place where someone lived. Lord Millett said (at para 30): The words dwell and dwelling are not terms of art with a specialised legal meaning. They are ordinary English words, even if they are perhaps no longer in common use. They mean the same as inhabit and habitation or more precisely abide and abode, and refer to the place where one lives and makes ones home. They suggest a greater degree of settled occupation than reside and residence, connoting the place where the occupier habitually sleeps and usually eats, In my view there is no strict hierarchy in terms of settled occupation between the words live at, reside and dwell and much may depend on the context in which the words are used. But there are nuances and as a general rule I agree with Lord Millett that dwelling suggests a greater degree of settled occupation than residence. 28. Under the Rent Acts when the court considers whether a property is let as a separate dwelling it looks to the purpose of the tenancy. That involves a consideration of both the terms of the contract and the factual matrix of the letting. Thus a tenancy at will is the letting of a dwelling, notwithstanding the precariousness of the contractual right to occupy, where it is clear that the indeterminate period of authorised occupation is consistent with an intention that the tenant establishes a home in the property. In ascertaining the nature of the tenancy the court looks at the lease, which is a practical document dealing with a practical situation (Danckwerts J in Levermore v Jobey [1956] 1 WLR 697 CA, 708), and also the surrounding circumstances. It considers the parties contract, the nature of the premises and also the statutory intention. Thus, for example, in Martin Estates Ltd v Watt and Hunter [1925] NI 79 (CA), in which police officers occupying police barracks sought to resist the recovery of possession on the basis that the property was let as a dwelling house, the Northern Irish Court of Appeal rejected the defence. Moore LJ (86 87) held that housing let for the public service and occupied by public servants was not a dwelling for the purposes of the Rent Acts and that policemen in police barracks, patients in hospital and inmates in a gaol could not claim security of tenure. 30. A similar approach is appropriate here. The court, in deciding whether the accommodation involved in these appeals falls within the meaning of dwelling in section 3(1) of PEA 1977, must construe the terms of the relevant licences in the context of the applicable provisions of the 1996 Act. Section 188(1) imposes on the local housing authority a duty with a low threshold. It arises if the authority has reason to believe that the applicant may be homeless, eligible for assistance and have a priority need. The duty is to secure that accommodation is available for his or her occupation pending the authoritys section 184 decision. The authority is not under a duty to provide a particular form of accommodation or to provide the same accommodation for the applicant throughout the period pending its decision. It can require the applicant to transfer from one address to another more than once during that period. The duty to secure short term accommodation under section 190(2), in order to give someone who is found to be homeless intentionally a reasonable opportunity to secure alternative accommodation for occupation, is similarly limited. So too are the powers under sections 188(3) and 204(4) to provide accommodation pending a decision on a review or pending an appeal. In some cases the authority can reach a section 184 decision very quickly. Other cases require more complex inquiries. The Homelessness Code of Guidance for Local Authorities (2006), which the Government issued under section 182 of the 1996 Act, suggested (at para 6.16) that inquiries should whenever possible be concluded within 33 working days. In CNs case Lewisham notified JN of its section 184 decision within one month after it provided the interim accommodation. Newhams inquiries took almost 3 months after it granted FI the licence of the temporary accommodation. 32. The licences granted to the applicants in these cases are consistent with the limited and short term nature of the authoritys duty. Lewishams licence to JN was an offer of interim nightly paid accommodation for about two weeks. It stated: 31. As this is nightly paid temporary accommodation it is likely that you will be moved with short notice. When this occurs you will be expected to move on either the same day or the next working day. Also, if you plan to not stay at your accommodation for more than 1 night you must inform the council. JN also undertook in the licence that only the persons named in her application for assistance would occupy the accommodation. Newhams licence to FI was for interim accommodation on a day to day basis while it decided whether it had a duty to provide her with re housing. Newham explained that it had entered into arrangements with accommodation providers to provide self contained accommodation and hotel accommodation which it let on a day to day basis. It stated: You occupy interim accommodation on a day to day basis. You do not therefore have the rights of security of a tenant. In the event that the proprietor does not want to continue to allow the council to use the property, we shall have to withdraw our permission for you to live there and ask you to move to other accommodation which we shall provide. If there is a need to move you we shall endeavour to tell you that as soon as we can. As you do not enjoy the rights of a tenant, if you are required to leave the interim accommodation and refuse there is no obligation on the proprietor of the premises or the council to obtain a Court Order requiring you to leave the premises. 33. Newham also required FI to sign a daily register and restricted those allowed to reside in the accommodation to three named individuals, namely FI, ZH and MI. In my view there are a number of features that militate against such licences being licences to occupy premises as a dwelling. First, there is the statutory context of the licence in the 1996 Act, namely the provision by the local housing authority to a homeless person of short term accommodation at one or more locations and in one or more forms of accommodation pending the section 184 decision, the outcome of a review or appeal, or the expiry of the reasonable period under section 190(2). The statutory duty in section 188 of the 1996 Act is to secure accommodation for the applicant, not necessarily at one location, for a short and determinate period. Most significantly, a person who is given temporary accommodation under Part VII of the 1996 Act does not cease to be homeless. To hold otherwise would defeat the scheme of the 1996 Act. In Moran v Manchester City Council [2009] 1 WLR 1506, this was a matter of concession (paras 54 and 55) and Lady Hale (at para 65) stated an analogous principle that in most cases a woman who has left her home because of domestic (or other) violence within it remains homeless even if she has found a temporary haven in a womens refuge. Such temporary accommodation is not intended to provide a home. Another way of looking at the matter is that having a roof over your head in such short term accommodation does not give you a fixed abode. 34. Secondly, consistently with that statutory regime, each licence is a day to day or nightly licence which recognises that the authority may require the applicant to transfer to alternative accommodation at short notice. The licence in each case confers private law rights in relation to the property to which it relates, but the licence must be construed and the nature of those rights must be assessed in the context of the authoritys duties under the 1996 Act. 35. Thirdly, the imposition of the requirements of PEA 1977 would significantly hamper the operation by the authorities of the statutory scheme under the 1996 Act and its predecessor Acts. An authority would not be able to transfer an applicant from one location to another without either his or her consent or, alternatively, the obtaining of a court order. The authority, while awaiting the court order for possession, would have to provide accommodation to someone about whom it had made an adverse section 184 decision and to whom it had already given a reasonable opportunity to obtain alternative accommodation, thereby tying up scarce housing resources. In a time of strained public finances this may deprive other applicants who may have priority need of suitable accommodation and also restrict the authoritys ability to provide accommodation where it has a discretion to do so, as under sections 188(3) and 204(4) of the 1996 Act. Further, there seems little purpose in requiring court proceedings to recover possession as it is difficult to see what a homeless person could advance as a defence to the application, particularly as the 1996 Act contains its own provisions for challenging adverse decisions of the local authority by way of review and appeal to the court (para 69 below). In my view the policy considerations of the third point would not by themselves be determinative, but the features in combination, the legislative and factual context of licences, point to the conclusion that the temporary accommodation, which the authority provides in performance of its duties under section 188 of the 1996 Act, is not provided as a dwelling for the purpose of PEA 1977. I turn to the case law on which the respondent authorities relied for the more general proposition that a temporary residence cannot be a dwelling. There 36. 37. are dicta in those cases which support the proposition; but they also must be seen in context. Many of the judicial statements were made in cases in which a person alleged that he or she had two homes and the court had to decide if a second home fell within the scope of the Rent Acts. Walker v Ogilvy (1974) 29 P & CR 288 concerned a tenant of a flat which he used principally at weekends and for short holidays. The tenant had another permanent residence. Ormrod LJ (at p 293) stated that Parliament in passing the Rent Act 1968 never intended to protect people in occupation of what were in effect holiday houses. Regalian Securities Ltd v Scheuer (1982) 5 HLR 48 concerned the right of a protected tenant to become a statutory tenant on the termination of the protected tenancy under section 2(1)(a) of the Rent Act 1977, which required him to occupy the dwelling house as his residence. In that case the tenant occupied the flat as a temporary expedient for part of the time when the house, which his wife had purchased and in which they and their children lived, was let to others during the winter. The Court of Appeal held that his residence in the flat did not have the quality needed to attract the protections of the Rent Acts. Cumming Bruce LJ (at p 56) asked whether the second residence was used as a home rather than a place of convenient resort. Eveleigh LJ (at p 59) and May LJ (at p 62) took a similar approach, the latter asking whether there was occupation as a home. Cumming Bruce LJ (at p 58) stated two principles that were relevant in that context: First, the court enquires what is the extent and what are the characteristics of the user of the residence? When that is ascertained the court also enquires: Is the nature of the residence during the period that it persisted the kind of residence that is within the contemplation of the Rent Act? Is this the kind of residence that Parliament intended should clothe the tenant with the right to claim statutory protection? 38. In Swanbrae Ltd v Elliott (1986) 19 HLR 86 the Court of Appeal considered the quality of residence required where a person claimed to be a statutory tenant in succession to her mother, who had been a protected tenant, because she had resided in the premises with her before she died. The appellant had visited frequently and then had moved in on a part time basis to nurse her sick mother while retaining a home elsewhere. The Court held that residing with meant more than living at; a person claiming a statutory tenancy had to show that she had made her home in the premises. Swinton Thomas J (at p 90) distinguished the earlier case of Collier v Stoneman [1957] 1 WLR 1108 on its facts because Mrs Elliott had a tenancy of her own while in that case the claimant did not. He concluded (at p 95) that Mrs Elliott had not shown that she had made her home at the premises and become part of the household. Kerr LJ (at p 96) agreed and made the same distinction from other cases because Mrs Elliott had a permanent home of her own. 39. Similarly, in Freeman v Islington London Borough Council [2010] HLR 6, another succession to tenancy case in which the focus was on the statutory words resided with, the Court of Appeal adopted a similar approach, looking at the claimants actions and ascertaining whether they exhibited a home making intention rather than merely staying with the tenant for a limited time and a limited purpose: Jacob LJ at paras 28 and 33. In my view the statutory successor cases are of only limited assistance. Because of the different statutory provisions the court in each case looked objectively at the quality of the claimants residence and at her intention when living with the protected tenant. They establish that occupation which has the quality of home building is needed to obtain protection as a successor of a protected tenant. They did not entail an assessment of the purpose of a letting or licence, which the current case involves. 40. 41. MacMillan & Co Ltd v Rees [1946] 1 All ER 675 was not a case which involved an allegation that someone had two homes. It concerned the lease of premises as an office in which the tenant or her business partner were authorised to sleep when required. The Court of Appeal drew a distinction between an authorised user of merely sleeping or eating on premises and use as a dwelling house. Authorised acts, which were residential in character, did not make the business premises a dwelling house: Evershed J, delivering the judgment of the court at pp 677 678. 42. The respondent authorities and the Secretary of State also relied on the two Court of Appeal cases which have directly addressed the question whether PEA 1977 applies to temporary accommodation provided under section 188 of the 1996 Act or its predecessor Act. In Mohamed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439, the Court of Appeal was concerned with the predecessor provisions in section 63 of the Housing Act 1985 under which the local authority arranged for the provision to the claimant of interim bed and breakfast accommodation in a private hotel. Auld LJ (at p 450) held as a matter of construction that occupied as a dwelling under a licence in section 3(2B) of PEA 1977 did not apply to bed and breakfast accommodation provided as a temporary arrangement pending what is now a section 184 decision. He also stated that it did not accord with the ordinary use of language to describe temporary accommodation in a hotel or hostel for this purpose as premises occupied as a dwelling under a licence. Nourse LJ agreed and stated (at p 451) 43. 44. I rest my decision primarily on the simple proposition, derived from a purposive construction of both statutes, that accommodation made available for an applicant pursuant to section 63(1) of the Housing Act 1985 pending a decision as a result of the local housing authoritys inquiries under section 62 cannot, as a general rule, be premises let as a dwelling under a tenancy of premises occupied as a dwelling under a licence within section 3(1) and (2B) respectively of the Protection from Eviction Act 1977. [I]t cannot be a purpose of the 1977 Act to give protection to persons whose entirely transient needs bring them within section 63(1). Henry LJ agreed with both judgments. In Desnousse v Newham London Borough Council [2006] QB 831, which also concerned the application of PEA 1977 to arrangements entered into under section 188 of the 1996 Act (in that case a self contained flat), the Court of Appeal applied Mohamed v Manek in the face of a sustained challenge by Mr Arden which Lloyd LJ analysed in detail. The court held that the ratio of Mohamed v Manek was not confined to accommodation of the nature of a hotel or hostel but was a general proposition. The court was divided on whether the reading of section 3(2B) of PEA 1977 in Mohamed v Manek was compatible with article 8 of ECHR. Lloyd LJ (at para 143) held that it was not and that section 3 of the Human Rights Act 1998 required the court to apply section 3 of PEA 1977 to the occupation of self contained residential accommodation provided in pursuance of the local authoritys duties under section 188(1) or 190(2)(a) of the 1996 Act. Tuckey LJ and Pill LJ disagreed. I discuss article 8 of ECHR in paras 57 73 below. In Mohamed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547 the House of Lords held that the occupation by a homeless person of interim accommodation provided under section 188 of the 1996 Act could be normal residence for the purpose of establishing a local connection under section 199(1)(a) of that Act. Lord Slynn of Hadley, with whom the other Law Lords agreed, stated (at para 18) that words like ordinary residence and normal residence take their precise meaning from the context of the legislation in which they appear. He suggested that the place that a person voluntarily accepts and in which he eats and sleeps is for the relevant time where he normally resides. The fact that the local authority had given him interim accommodation in performance of its statutory duty under section 188 of the 1996 Act did not prevent that accommodation from being the place where he was for the time normally resident. This is consistent with the view that Lord Millett expressed in Uratemp (para 26 above) that dwelling generally connotes a greater degree of settled occupation than residence. 45. Pulling together the threads of the case law, in my view the following can be stated: (i) the words live at, reside and dwell are ordinary words of the English language and do not have technical meanings, (ii) those words must be interpreted in the statutes in which they appear having regard to the purpose of those enactments, (iii) as a matter of nuance, dwelling as a general rule suggests a more settled occupation than residence and can be equated with ones home, although residence itself can in certain contexts (such as the two home cases) require such an equation, and (iv) under the 1996 Act a person remains homeless while he or she occupies temporary accommodation provided under sections 188(3), 190(2), 200(1) or 204(4) of the 1996 Act so long as the occupation is properly referable to the authoritys performance or exercise of those statutory duties or powers. In my view it is consistent with this approach to conclude in the context of PEA 1977 that an overnight or day to day licence of accommodation pending the making of a decision under section 184 or on review or appeal does not show any intention to allow the homeless applicant to make his or her home in that accommodation. (ii) The exclusions in section 3A of PEA 1977 47. 46. Mr Arden also contended that section 3(1) and (2B) of PEA 1977 covered all residential tenancies or licences unless they were expressly excluded by section 3A of that Act. The exclusions in section 3A included several arrangements which were likely to be temporary in nature. He submitted that by defining the excluded tenancies and licences, Parliament had expressed an intention that all other residential tenancies and licences were subject to the protections in sections 3 and 5 of PEA 1977. I am not persuaded that that submission is correct. If, by providing the exclusions, Parliament meant that otherwise the excluded tenancies or excluded licences would have been within the concepts of let as a dwelling or occupied as a dwelling under a licence (section 3(1) and (2B)), that would have had the effect of altering the meaning of dwelling from that of the Rent Acts, in which the protection against eviction originated. As mentioned above, it is clear from prior case law (Walker v Ogilvy) that holiday lets did not fall within the expression let as a separate dwelling. But such lets are expressly excluded in section 3A(7)(a). Similarly, the Rent Acts treated a tenancy under which the occupier shared accommodation with the landlord and other persons as a restricted contract rather than a protected tenancy: Rent Act 1977 section 21. Yet such was expressly excluded in 48. section 3A(2). In my view Parliament, by providing those exclusions, sought to confirm the scope of the statutory protection which the provisions of the Rent Acts or case law established rather than alter the concept of dwelling. While it is correct that, as Mr Arden submitted, the Housing (Homeless Persons) Act 1977, which was enacted at the same time as PEA 1977, could have excluded its provision of temporary accommodation from the scope of the latter Act, it was not necessary to do so. It may be correct, as both Mr Hutchings for the respondent local authorities and Mr Chamberlain for the Secretary of State contended, that several of the express exclusions of temporary accommodation involve circumstances in which the occupation may continue for significant periods of time. The exclusion in section 3A(6) of a tenancy or licence granted as a temporary expedient to a trespasser is an example of an exclusion of a letting which was intended to be temporary. But such lettings are on occasion intended to last for several years. See, for example, Smart v Lambeth London Borough Council [2014] HLR 7, in which a local authority granted a licence to a housing association which in turn allowed a housing cooperative to provide accommodation to former squatters on a licence which was initially for 5 years but was extended. But for the exclusion, such accommodation by providing settled occupation could readily fall within the scope of section 3 of PEA 1977. Similarly, the tenancy or licence granted to provide accommodation under Part VI of the Immigration and Asylum Act 1999 (section 3A(7A)) or under the Displaced Persons (Temporary Protection) Regulations 2005 (SI 2005 No 1379) (section 3A(7C)) can in some cases involve the provision of accommodation for prolonged periods which might prima facie bring it within section 3 of PEA 1977. The exclusions remove accommodation so provided from the scope of PEA 1977. But I do not rely on distinctions between certain types of temporary accommodation and another type. Rather I base my view on the meaning of dwelling in section 3 and the absence of any evidence of an intention on the part of Parliament to extend that meaning to cover accommodation which would not have been treated as a dwelling under the Rent Acts. 49. Absent an intention to re define the meaning of dwelling, it appears to me that Parliament in enacting and amending section 3A created several of the exclusions for the avoidance of doubt. One must address the prior question as to what is a dwelling. The absence of an exclusion for accommodation provided under section 188 of the 1996 Act does not mean that such accommodation falls within section 3 of PEA. (iii) Inferences from other statutes 50. As set out in para 22 above, Mr Arden also invited the court to draw an inference of parliamentary intention in PEA 1977 from provisions in other statutes. I am not persuaded that such inferences should be drawn. Section 209 of the 1996 Act, adapting the earlier provisions in the Housing Act 1985 (section 79(2) and Schedule 1 paragraph 4), and section 1(6) and (7) of the Housing Act 1988, prevents a tenancy from being an assured tenancy before the end of 12 months after the relevant decision by the local authority. But a tenancy which continued for such a period after a decision under section 184 or on review or appeal would in most cases have ceased to be properly referable to the provision of interim accommodation pending the decision (see para 24 above). 51. Housing benefit under section 130 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) has been given to people provided with temporary accommodation under the 1996 Act. That section provides: A person is entitled to housing benefit if he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; It is argued that, if an applicant in temporary accommodation is entitled to housing benefit because she is occupying a dwelling as her home, she is also occupying a dwelling under a licence for the purposes of section 3(2B) of PEA 1977. But there are two answers which to my mind contradict this view. First, the social security legislation is in a different field of human activity from PEA 1977 and looks to the fact of occupation rather than the purpose of the letting. I see no reason why in the context of the 1992 Act temporary occupation of premises should not be treated as occupation as a home while in other legislation, which has different policy objectives, a different conclusion is reached. Secondly, the 1992 Act defines dwelling by reference to the type of building rather than its intended use. The definition of dwelling in section 137 is in these terms: any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self contained premises. (iv) Settled practice and policy considerations 52. Mr Hutchings submitted that it had for years been a widespread practice of local housing authorities in London to arrange for the re possession of temporary accommodation provided under section 188 of the 1996 Act without first obtaining a court order. They had adopted and followed that practice in good faith and might face criminal sanctions if this court were to change the law. Their practice was consistent with the Secretary of States guidance in the Homelessness Code of Guidance for Local Authorities (2006) which (at para 7.11) refers to the general rule that accommodation provided under section 188(1) does not create a tenancy or licence under PEA 1977 but notes that the general rule may be displaced by an agreement between the authority and the applicant or if the accommodation is allowed to continue on more than a transient basis. 53. Mr Chamberlain further argued that Parliament had endorsed the Secretary of States construction of PEA 1977. Parliament, he submitted, should be taken to have been aware of the Court of Appeals judgments in Mohamed v Manek and Desnousse (the former having been decided in 1995 and the latter in 2006) and had not reversed those decisions although there had been opportunities to do so in legislation which amended either PEA 1977 or the 1996 Act. Lord Carnwath has set out this argument in more detail in his concurring judgment. It suffices for me to say that where Parliament re enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re enacted provision to bear the meaning that case law had already established: Barras v Aberdeen Sea Trawling and Fishing Co Ltd [1933] AC 402, Viscount Buckmaster at pp 411 412. Applying that in the present case, one can readily conclude, as I have, that the word dwelling in the phrase let as a dwelling in PEA 1977 must bear the same meaning as it had in section 31 of the Rent Act 1965 and in the phrase let as a separate dwelling in the Rent Acts. Inferences from parliamentary inaction are more difficult. In my view, the settled practice principle, of which Lord Carnwath writes, is available where there is ambiguity in a statutory provision. But for the reasons set out above, I detect no ambiguity in section 3 of PEA 1977 in its application to a licence to a person who is and remains homeless throughout the period of interim accommodation: it does not apply. 54. Counsel also referred to considerations of policy. I accept, as Mr Arden submitted, that families with young children and other vulnerable people often invoke the homeless persons provisions of the 1996 Act. They are clearly worthy of protection. But that does not mean that a court order for eviction must be obtained when the authority has reached an adverse section 184 decision and terminates its licence of temporary occupation. As the respondent local authorities argued, private sector providers of accommodation for homeless persons depend on the local authorities for their business, which they would lose if they behaved irresponsibly in re possessing their properties. They are also subject to the Protection from Harassment Act 1997 and section 6 of the Criminal Law Act 1977 which prohibits the use or threats of violence to secure entry to premises. Further, as Mr Chamberlain submitted, good administration requires local housing authorities to use scarce public resources effectively in providing support for homeless persons. He referred to Auld LJ in Mohamed v Manek who stated (at pp 449 450): A councils ability efficiently to perform their public duty as a local housing authority could be seriously affected if the protection of the 1977 Act were automatically to attach to every temporarily housed unsuccessful applicant for housing just because he had been able to satisfy the low threshold under [section 184] for investigation of his application. In my view policy considerations do not point in one direction as a homeless person might prefer a court officer to control his or her eviction, and, in any event, as I have said (para 35 above) the inconvenience to local authorities is not sufficient by itself to determine the outcome this appeal. 55. For reasons which I discuss below, I do not consider that article 8 of ECHR requires a different, broader interpretation of the scope of section 3(1) and (2B) of PEA 1977. (v) Further clarification 56. I recognise that the conclusion which I have reached on this first issue has not found favour with Lord Neuberger or Lady Hale. It may be helpful if I comment briefly on some areas of disagreement. First, the provisions of PEA 1977 in issue in this appeal, which extended section 3 to licences and introduced the exclusions, were enacted in 1988, over a decade after the Housing (Homeless Persons) Act 1977, which created the new homelessness regime, came into operation. Thus while the concept of let as a dwelling predated the new homelessness legislation, its extension to licences and the enactment of the exclusions did not. Secondly, my emphasis on the terms of the licences which should be construed against the background of the interim duties of the 1996 Act (paras 33 and 34 above) entails a recognition that mere precariousness of occupation, as in a tenancy at will, would not exclude the statutory protection of PEA 1977 if one could infer that the property was let as a home; see para 29 above. It is not the mere precariousness of the occupation but the wider statutory context in which the licences were granted that reveals the true nature of the arrangement and supports the exclusion of section 3 of PEA 1977. Accordingly my interpretation does not provide a green light to unscrupulous landlords in other contexts. 57. Thirdly, I accept that, if other things were equal, the fact that a person is homeless for the purposes of the 1996 Act would not mean that as a matter of statutory interpretation he or she did not dwell in the provided accommodation for the purpose of another statute. I adopt a similar approach in my discussion of the 1992 Act in para 51 above. But if, as is my view, the Rent Acts and by extension PEA 1977 require a contract that is intended to give the occupant a degree of settled occupation, in other words a home, the context of the 1996 Act in which the licences were granted points clearly against their being licences of a dwelling for the purpose of PEA 1977. The second issue: Article 8 of ECHR 58. The appellants submission in short was that it is inherent in article 8 of ECHR that a public authority must always use court proceedings before it evicts someone from his or her home. Mr Arden submitted that it did not matter that the owner of the property in each case was a private sector landlord as the authority controlled the whole process. The authority decided whom it placed in accommodation and when the licence ended in each case. 59. Article 8 of ECHR, which section 1 of the Human Rights Act 1998 created as a Convention right in our domestic law, provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 60. The respondent local authorities and the Secretary of State all conceded that article 8.1 was engaged in these appeals. But they did not accept that article 8 was engaged in all cases of temporary accommodation provided under Part VII of the 1996 Act and questioned whether a public authority was responsible for interference with an article 8 right when it was the private sector landlord who was evicting the homeless persons. I do not think that it is necessary to reach a concluded view on those matters or on the question of horizontal effect in this case. It is better to leave such issues to a case in which they have to be determined. Because of the view that I have reached on the position if article 8.2 were engaged, I am content to proceed on the basis that both article 8.1 and 8.2 are engaged. Discussion of the second issue 61. Article 8 of the ECHR so far as relevant is concerned with a persons right to respect for his or her home and regulates interference by public bodies with that right. In article 8 the concept of home is autonomous and does not depend on classification under domestic law. It is concerned with occupation in fact, and it is not limited to premises which are lawfully occupied or have been lawfully established. It is concerned with the existence of sufficient and continued links with a specific place. See among others Hounslow London Borough Council v Powell [2011] 2 AC 186, Lord Hope para 33; Prokopovich v Russia (2006) 43 EHRR 10, para 36; Kryvitska and Kryvitskyy v Ukraine App No 30856/03, para 40. Thus premises may not be let as a dwelling under PEA 1977 and yet be a home for the purposes of article 8 of the ECHR. 62. As is well known, an interference with an article 8 right must be in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society for that aim. The latter notion implies a pressing social need and requires that measure to be proportionate to the legitimate aim pursued: Blei v Croatia (2005) 41 EHRR 13, at paras 55 59. Proportionality involves striking a fair balance between the interests of the individual and those of the community as a whole. The ECHR guarantees rights that are practical and effective. A public authority that interferes with a persons right to respect for his or her home, especially when it intervenes in the most extreme way by removing him or her from that home, must have in place a fair procedure in order to show that respect. This requires the occupier to be involved in the decision making process in order to protect his or her rights. In assessing the effectiveness of the procedure to achieve respect for the safeguarded rights the court looks to the whole proceedings involving the interference with the home. See Tysic v Poland (2007) 45 EHRR 42 paras 113 and 115; Blei v Croatia para 68; Zehentner v Austria (2011) 52 EHRR 22 para 54. 63. A fair procedure requires the occupant to have a right to raise the issue of the proportionality of the interference and to have that issue determined by an independent tribunal: Manchester City Council v Pinnock [2011] 2 AC 104, Lord Neuberger MR para 45; McCann v United Kingdom (2008) 47 EHRR 40, para 50; Kay v United Kingdom (2012) 54 EHRR 30, para 68; Pauli v Croatia [2009] ECHR 1614, para 43; Buckland v United Kingdom (2013) 56 EHRR 16, para 65. The appellants submit that that procedural protection requires the owner to obtain a court order before evicting the occupant, thus enabling the latter to raise the issue of proportionality as a defence. The respondent local authorities and the Secretary of State disagree and submit that it suffices if there are procedures by which the occupant can raise the issue before an independent tribunal. 64. The authoritys assessment of an applicants circumstances as a result of its inquiries under section 184 of the 1996 Act is intimately linked to the decision to end the provision of temporary accommodation. The authority provides the accommodation while undertaking the inquiries and its decision as to its housing duties brings to an end its obligation to provide the interim accommodation. In my view, when one looks at the procedures as a whole, the procedural safeguards contained in the 1996 Act, the procedures available under the Children Act 1989 and the possibility of judicial review of the authoritys section 202 decision by a court with enhanced powers are sufficient to comply with article 8 of ECHR in this context. See paras 70 and 71 below. Article 8s procedural guarantee does not require further involvement of the court in granting an order for possession. The interim accommodation which an authority provides under section 188 of the 1996 Act is but transient accommodation, a stop gap pending the completion of inquiries and a decision on the scope of the authoritys duties towards a homeless person. As I have set out above, domestic law requires less formal procedures at the final stage of the recovery of possession in such circumstances than when the occupier has a more substantial and long term connection with the accommodation. It is only in very exceptional cases that the applicant will succeed in raising an arguable case of a lack of proportionality where an applicant has no right under domestic law to remain in possession of a property: Kay v Lambeth London Borough Council [2006] 2 AC 465, Lord Bingham para 29, Lord Nicholls paras 53 54; McCann v United Kingdom para 54; Kay v United Kingdom, para 73; Manchester City Council v Pinnock, Lord Neuberger MR para 54. In my view this is so particularly where an authority seeks to recover possession of interim accommodation provided under section 188 of the 1996 Act: if court proceedings are necessary, and the day of the court hearing arrives, what would be the homeless persons defence? 65. 66. 67. It is for the occupier to raise the question of proportionality: Pauli v Croatia [2009] ECHR 1614, para 43; Orli v Croatia [2011] ECHR 974, para 66. The court may deal with such an argument summarily unless it is seriously arguable: Manchester City Council v Pinnock, Lord Neuberger MR para 61; Hounslow London Borough Council v Powell [2011] 2 AC 186, Lord Hope paras 35 37, Lord Phillips para 92. In an appropriate case the court, if satisfied that eviction was disproportionate, could prohibit the eviction for as long as that was the case, for example if the local authority did not provide alternative accommodation: Manchester City Council v Pinnock, Lord Neuberger MR paras 45 and 64.; Hounslow London Borough Council v Powell, Lord Hope paras 62 and 63. I turn to the application of an article 8 analysis to the facts of these cases. First, in each case the termination by the authority of the occupiers licence and the private owners actions to recover possession of the property are both in accordance with the law see the discussion of the first issue above and in pursuit of a legitimate aim. The local authority, faced with the pressing social problem of homelessness and charged with duties to provide accommodation for the homeless with priority need, will wish to make the accommodation available to other applicants who are entitled to benefit from the provision of interim accommodation under the 1996 Act. The private owner of the property seeks to recover possession of it in accordance with his or its right of ownership and to put the property to economic use by obtaining income from the local authority for its occupation. These are legitimate aims which fall within the protection of the rights and freedoms of others: Hounslow London Borough Council v Powell, Lord Phillips para 80. 68. Secondly, in my view recovery of possession is proportionate to the aim which is being pursued and is therefore necessary in a democratic society under article 8. It is well known that authorities have limited resources to provide accommodation to individuals who claim to be homeless and in priority need. As a general rule there can be no justification for preferring those whose claims have been investigated and rejected over those whose claims are still the subject of inquiry under section 184 of the 1996 Act and who may be found to be homeless, to have priority need, and to be the objects of the authoritys full housing duty. There are also safeguards in the decision making process that allow the occupant to be involved in the process and, through an appeal to the county court or by judicial review in the Administrative Court, give an opportunity for him or her to raise the question of proportionality before an independent tribunal. There is no need for an additional procedural hurdle which would impose costs on an authority without any significant benefit to the applicant. 69. Those safeguards include the following. First, the authority must give the applicant written notice of the reasons for an adverse section 184 decision, thus enabling the applicant to understand the basis of the decision: section 184(3) and (6). In so doing the authority must inform the applicant of his or her right to request a review of the decision under section 202: section 184(5). Secondly, the Governments Homelessness Code (2006) (at para 7.1.10) requires the authority to give the applicant/occupier a reasonable period of notice to vacate the accommodation. The general practice of authorities is to give 28 days notice. Thirdly, where the individual has become homeless intentionally, the authority is under a duty to give the applicant advice and assistance in his or her attempts to obtain alternative accommodation: section 190(2) and (3). If the applicant, who has become homeless intentionally, has a priority need the authority is under a duty to secure that accommodation is available to give him a reasonable opportunity of securing alternative accommodation. 70. Fourthly, the applicant is entitled to have the adverse decision reviewed: sections 202 and 203. The purpose of the review is, as Lord Hope stated in Hounslow London Borough Council v Powell (at para 42) to correct errors and misunderstandings. The authority is under a duty to inform the applicant of the reasons for the decision on review and inform him of his right to appeal: section 203(4) and (5). Fifthly, that right is a right to appeal the decision on review to the county court on a point of law: section 204. 71. Sixthly, the decisions of this court in 2011, in Manchester City Council v Pinnock and Hounslow London Borough Council v Powell, extended the powers of the county court when hearing applications by a local authority to recover possession of a property in order to comply with article 8 of ECHR. It appears to me that it is necessary for the same reason to interpret section 204 of the 1996 Act as empowering that court to assess the issue of proportionality of a proposed eviction following an adverse section 184 or 202 decision (if the issue is raised) and resolve any relevant dispute of fact in a section 204 appeal. As there is no other domestic provision involving the court in the repossession of the accommodation after an adverse decision, the section 204 appeal, which reviews the authoritys decision on eligibility for assistance, is the obvious place for the occupier of the temporary accommodation to raise the issue of the proportionality of the withdrawal of the accommodation. Alternatively, as Moses LJ stated in this case ([2013] EWCA Civ 804) at para 89, the occupier of the temporary accommodation may raise the issue of proportionality of such an eviction by way of judicial review in the Administrative Court, which similarly could resolve relevant factual disputes. An occupier might have to resort to judicial review if an authority were not willing to continue the provision of interim accommodation pending a review. 72. Finally, where a child forms part of the homeless family, the authority is under a duty in section 213A of the 1996 Act to seek the consent of the applicant to refer the facts of the case to the social services authority or department. That authority or department will carry out an assessment of the childrens needs as part of its general duty under section 17 of the Children Act 1989 to promote the welfare of children in need. Lewisham made such an assessment of CN, which it completed on 27 April 2012. The assessment concluded that if his family did not find private accommodation, the authority would seek to provide him with accommodation as a child in need. Newham completed an assessment of ZH under the Children Act 1989 on 1 May 2013. As a result the authority gave appropriate interim accommodation and financial support to assist FI in securing private rented accommodation, until, in the course of an appeal to the county court against its section 202 decision, Newham accepted that it owed FI a full housing duty. It is correct that the current arrangements involve eviction at the hands of the landlord or his agent, if the occupant does not vacate voluntarily in response to notice, while an enforcement officer would, if necessary, carry out an eviction after a court made an order for possession. But that does not in my opinion alter the balance between the interests of the individual and those of the community so as to render the eviction disproportionate. 73. 74. Having regard to the proceedings as a whole, there are several opportunities for the applicant to involve himself or herself in the decision making process and also procedures by which an independent tribunal can assess the proportionality of the decision to re possess the accommodation and determine relevant factual disputes. In my view there are sufficient procedural safeguards to satisfy the applicants article 8 rights. The article 8 challenge therefore fails. Conclusion 75. I would dismiss both appeals. LORD CARNWATH 76. I agree that the appeals should be dismissed for the reasons given by Lord Hodge. I add some comments on an argument which has been advanced in various forms on behalf of both the local authorities and the Secretary of State: that particular weight should be given to the Court of Appeals interpretation of the relevant statutory words, in effect because it has stood the test of time. 77. This, it is said, is reflected in the facts that the reasoning in Mohammed v Manek has stood without challenge for 20 years and was confirmed by the same court eight years ago in Desnousse v Newham LBC; that since at least 2006 it has been adopted without criticism or comment in the Departments statutory code of guidance; that it has been applied on numerous occasions by local authorities and the lower courts without apparent problems or injustice; and that Parliament has not legislated to reverse its effect despite many opportunities to do so. As Kitchin LJ observed in the Court of Appeal, when refusing permission to appeal in this case: Those opportunities include the Homelessness Act 2002, the Housing and Regeneration Act 2008 and the Localism Act 2011, each of which amended Part VII of the 1996 Act; and the Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Acts of 2002 and the Immigration, Nationality and Asylum Act 2006, each of which amended the 1977 Act. (para 83) 78. Mr Chamberlain for the Secretary of State goes further, drawing to our attention the committee debates on what became the Housing and Regeneration Act 2008 (HC Deb (2007 08), 24 January 2008 (afternoon), cc 512 516), in which the responsible minister apparently relied on the reasoning of the Court of Appeal in those cases when resisting a proposed amendment to extend the protection available to those in temporary accommodation under this legislation. 79. Appealing as such arguments may be as a matter of common sense, they need to be based on sound legal principle, if they are to be accepted as a ground of decision on an issue of statutory interpretation. Subject to narrowly defined exceptions (such as under Pepper v Hart [1993] AC 593), it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments (Wilson v First County Trust Ltd (No 2) [2003] UKHL40; [2004] 1 AC 816 at [67] per Lord Nicholls). The courts primary task therefore is to ascertain the intention of Parliament from the language it has used. If that does not conform to the way it has been applied in practice, the conventional remedy, pending legislative amendment, is to correct the practice, not rewrite the law. 80. Notwithstanding that general principle, support for the use of subsequent practice as an aid to interpretation may be found in the textbooks and the authorities there cited. Mr Chamberlain groups them under two headings: tacit legislation and customary meaning. Tacit legislation 81. Under this heading, Mr Chamberlain relies on a passage in Bennion on Statutory Interpretation (6th ed.), p.661: Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions. If therefore Parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and adopts it. This is an aspect of what may be called tacit legislation. 83. 82. With respect to that distinguished author, I have difficulty with the phrase tacit legislation, if it is intended to connote some form of silent endorsement by Parliament implied from its failure to act. As Lord Nicholls made clear, Parliament legislates by what it says, or what is said under its authority, not by what it does not say. Anything else can only be justified, if at all, as judge made law, and the criticisms implicit in that expression must be faced. It is true that this passage in Bennion was cited with approval by the Divisional Court in R (Woolas) v The Parliamentary Election Court [2010] EWHC 3169 (Admin), para 86, per Thomas LJ. But the context was quite different from the present. Following judicial interpretation of a particular statutory provision, which Parliament had re enacted in substantially the same form, the court held that the previous interpretation continued to apply. The principal authority relied on, Barras v Aberdeen Sea Trawling Co Ltd [1933] AC 402, was to similar effect. The House of Lords held that the word wreck or loss of a ship as interpreted by the Court of Appeal under the Merchant Shipping Act 1894 must be treated as having the same sense when re enacted in a 1925 statute. The House approved (at p 412 per Viscount Buckmaster) the statement of the rule by James L.J. in Ex parte Campbell: L. R. 5 Ch. 703, 706: Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them. 84. The principle has been often applied (a very recent illustration of the principle and its limits can be found in Manchester Ship Canal Co Ltd v United Utilities Water plc [2014] UKSC 40). However, account also needs to be taken of the comments of members of the House of Lords in the cases referred to by Lord Neuberger. Whatever the true scope of the principle, I do not find the expression tacit legislation a very apt description. In such cases Parliament has not remained silent. Rather, the previous court decision (even at a level below the highest court) is relevant, because it is part of the background against which Parliament has spoken, and by reference to which accordingly its intention can properly be ascertained. In any event, we were referred to no authority which has applied that principle to a case where, as here, the most that can be said is that Parliament has failed to take what might have seemed an obvious opportunity to legislate. Absence of legislation may be governed by many factors which have nothing to do with the perceived merits of a possible change, not least Parliamentary time and other government priorities. 85. 86. Nor, with respect to Mr Chamberlains initial submissions (in fairness, not strongly pressed on this point), can the argument be bolstered by reference to Ministerial statements to Parliament in response to possible amendments which were not in the event carried. The special exception allowed by Pepper v Hart is directed at Ministerial statements in support of legislation, and even then the circumstances in which reference is permissible are closely defined. It provides no support for reference to such a statement in relation to proposed legislation which was not in the event adopted. In the same context Mr Hutchings (for the two local authorities) sought support in words of Lord Neuberger in Williams v Central Bank of Nigeria [2014] 2 WLR 355, concerning the meaning of the word trustee in the Limitation Act 1980. That I read as no more than an application of another familiar principle, that Parliament is taken to use legal words in their ordinary legal sense. As Lord Neuberger said, it would have been surprising if a statute concerned with consolidating the law governing the powers and duties of trustees did not adopt an orthodox definition of trust and trustee (para 69). It provides no assistance in the present case. 87. 88. Other common law countries have also attempted to grapple with this issue but there does not appear to be a settled or uniform approach. The presumption applied in Barras v Aberdeen Steam Trawling has been restated in Australian and Canadian case law on numerous occasions: see e.g. the unanimous High Court bench of seven justices in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; 123 ALR 193 and the Supreme Court of Canada in Studer v Cowper [1951] SCR 450. However, the common law position has been modified by statute in both countries: see e.g. section 18 of the Acts Interpretation Act 1915 (South Australia) and section 45(4) of the Interpretation Act (RSC 1985). These provisions expressly remove the presumption that Parliament is taken to have approved or adopted any judicial construction of an enactment when it is re enacted. However, courts may still draw appropriate inferences from the legislative history of a statutory provision even in the absence of any common law presumption. The US Supreme Court has sometimes inferred that inaction on the part of Congress can be taken as approving or acquiescing in a judicial construction of a provision, especially where the construction has been brought to the attention of the public and Congress: see e.g. United States v Rutherford 442 US 544 (1979) and Bob Jones Univ v United States 461 US 574 (1983). Customary meaning 89. In the alternative Mr Chamberlain relies on what he calls the customary meaning of the words of the statute. He refers to the judgment of Lord Phillips in this court, in Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546, para 57 60. The appeal concerned the meaning of the phrase landed in the United Kingdom in the context of a levy imposed on those engaged in the sea fish industry. Lord Phillips gave a judgment agreeing with the majority but he was on his own on this issue. He drew attention to the the unusual feature that for nearly thirty years everyone concerned had proceeded on the basis of a broad interpretation of the phrase, that the levy had been collected on that basis, and the funds so raised disbursed in payment for schemes intended to benefit the sea fish industry activities which if the decision of the Court of Appeal were correct, must be drastically curtailed. He thought that in such circumstances there must be, at the very least, a powerful presumption that the meaning that has customarily been given to the phrase in issue is the correct one. 90. He quoted from a judgment of my own (Isle of Anglesey County Council v Welsh Ministers [2009] EWCA Civ 94, [2010] QB 163 para 43): Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach. He commented that this had the air of pragmatism rather than principle, but agreed that courts are understandably reluctant to disturb a settled construction and the practice that has been based on that construction (referring to Bennion on Statutory Interpretation, 5th ed (2008), section 288 at p 913 and the authorities there cited). 91. He thought that a more principled justification for the principle would be that of contemporaneous exposition, citing Clyde Navigation (Trustees of) v Laird & Sons (1883) 8 App Cas 658, where Lord Blackburn had regarded the levying and payment of statutory dues on a particular basis without protest for twenty five years as a strong indication that there must exist some legal ground for exacting the dues. He noted, however, that Lord Watson had not agreed with this approach (except possibly in relation to very old statutes). Lord Phillips commented: An important element in the construction of a provision in a statute is the context in which that provision was enacted. It is plain that those affected by the statute when it comes into force are better placed to appreciate that context than those subject to it thirty years later. (para 61) 92. I doubt if contemporary exposition, in the sense described by Lord Phillips, would have provided a satisfactory answer in the Anglesey case. The issue was not one of linguistic usage, but of application in practice whether fishery rights granted by an 1868 Act should be treated as purely personal, rather than capable of assignment as had been the general understanding (and the basis on which subordinate legislation had been drafted) over the intervening century and a half. 93. The sentence quoted by Lord Phillips from my judgment was part of a longer section (paras 39 44) discussing the question left unresolved by Lord Blackburn and Lord Watson, that is the relevance of subsequent history as an aid to statutory interpretation. I referred to authorities cited in that connection in Halsbury's Laws Vol 44(1) Statutes, paras 1427 1430, which disclosed no consistent or settled view. They ranged from the contrasting views expressed in 1883 in the Clyde Navigation case, to much more recent observations in R (Jackson) v Attorney General [2006] 1 AC 262, by Lord Nicholls (paras 68 9) and by Lord Carswell (para 171), which tended to support Lord Blackburns approach. I concluded: My own respectful view is that Lord Blackburn's more liberal view is supported by considerations of common sense and the principle of legal certainty. Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.(para 43) Legal certainty and settled practice 94. Review of these authorities shows how varied are the contexts in which a settled understanding or practice may become relevant to issues of statutory interpretation. Concepts such as tacit legislation or customary meaning provide no more than limited assistance. The settled understanding may emerge from a variety of sources, not necessarily dependent on action or inaction by Parliament, or particular linguistic usage. Nor can the debate, exemplified by the difference 130 years ago between Lord Watson and Lord Blackburn, be reduced to one between principle and pragmatism, as Lord Phillips suggested. Rather it is about two important but sometimes conflicting principles legal correctness and legal certainty. In drawing the balance between them, as in most areas of the law, pragmatism and indeed common sense have a legitimate part to play. In my view this case provides an opportunity for this court to confirm that settled practice may, in appropriate circumstances, be a legitimate aid to statutory interpretation. Where the statute is ambiguous, but it has been the subject of authoritative interpretation in the lower courts, and where businesses or activities, public or private, have reasonably been ordered on that basis for a significant period without serious problems or injustice, there should be a strong presumption against overturning that settled practice in the higher courts. This should not necessarily depend on the degree or frequency of Parliamentary interventions in the field. As in the Anglesey case, the infrequency of Parliamentary intervention in an esoteric area of the law may itself be an added reason for respecting the settled practice. On the other hand it may be relevant to consider whether the accepted interpretation is consistent with the grain of the legislation as it has evolved, and subsequent legislative action or inaction may be relevant to that assessment. 95. 96. This would not be new law, even at this level. The approach receives strong endorsement, in a context close to the present, from the House of Lords decision in Otter v Norman [1989] AC 129. In interpreting the phrase payments in respect of board in the Rent Acts, the House of Lords placed weight on the obiter observations of the Court of Appeal in a case decided more than 60 years before, in the absence of legislative intervention in the ensuing period on this particular point (in spite of the enactment of more precise statutory definitions on related aspects). Lord Bridge (giving the only substantive speech) said: There has been no reported English decision bearing upon the point after Wilkes vs Goodwin [1923] 2 KB 86. But Parliament chose not to interfere in relation to board, and it seems to have been assumed ever since that the majority view in Wilkes vs Goodwin, albeit expressed obiter, correctly stated the law, in the words of Bankes LJ, at p 93, that any amount of board which is more than de minimis will suffice to exclude a tenancy from statutory protection. Thus successive editions of Sir Robert Megarry's standard text book on the Rent Acts (Megarry, The Rent Acts) have stated that: In practice, the dividing line appears to fall between the early morning cup of tea on the one hand and 'bed and breakfast' on the other:" see 10th ed (1967), p 141. The same view has been adopted in Scotland: see Holiday Flat Co. vs Kuczera, 1978 SLT (Sh.Ct.) 47. My Lords, I think we must assume that for many years many landlords and tenants have regulated their relationships on this basis, and even if I thought that a different construction could reasonably be placed on section 7(1) of the Act of 1977 I would not think it right to adopt it now and to upset existing arrangements made on the basis of an understanding of the law which has prevailed for so long. (p 145 6) 97. This provides direct authority for the application of the settled practice principle in a situation closely analogous to the present. That case was concerned with the basis on which private landlords and tenants had regulated their relationships. I see no reason why the same principle should be less relevant to relations between housing authorities and those for whom they are responsible under the homeless persons legislation. Indeed, given the pressures facing authorities in this area, and the financial constraints under which they are acting, it is particularly important that the legal and policy context in which they act should be clear and settled. One of the purposes of the departmental code is to provide such guidance. Although the guidance may not compete in terms of legal scholarship with Sir Robert Megarrys great work on the Rent Acts, it has the underpinning of statute, and the authorities were bound to have regard to it. If that practice is now overturned, they have been responsible, albeit acting in good faith, for many unlawful evictions. It may be that this result would have to be accepted, if the statute properly construed permitted no other reasonable interpretation. But this is not such a case. With respect to Lord Neuberger I do not consider that the authority of Lord Bridges words is undermined by the absence of any reference to Barras or Farrell. As I have explained they were dealing with a different issue, which had nothing directly to do with the issue of settled practice as an aid to interpretation. 98. For these reasons, even if the issues were more finely balanced than indicated by Lord Hodges judgment, the settled practice principle would in my view be an additional reason for dismissing the appeal. LORD NEUBERGER: Introductory 99. The two issues raised by these appeals are identified by Lord Hodge in para 1 of his judgment, and I gratefully adopt his explanation of the factual and legal background as see out in paras 2 19 and 58 60 of his judgment. 100. While I agree with Lord Hodge on the second issue, the first issue gives rise to a difficult point, on which I have reached a different conclusion. 101. The first issue, in a nutshell, is whether accommodation occupied pursuant to a temporary licence granted to a homeless person by a local housing authority under section 188 of Part 7 of the Housing Act 1996 (the 1996 Act), while the authority investigates whether she is eligible for assistance and if so what if any duty is owed to her under Part 7, is occupied by that person as a dwelling under a licence within the meaning of section 3(2B) of the Protection from Eviction Act 1977 (PEA 1977), as amended by the Housing Act 1988. 102. I agree with what Lord Hodge says at para 23, namely that the effect of section 3(2B), when read together with section 3(1) of PEA 1977 and cases such as Wolfe v Hogan [1949] 2 KB 194, is that the issue can, at least normally, be reformulated as being whether, in the light of the terms of the licence and the circumstances in which it was granted, the purpose of the licence, objectively assessed, was to enable the licensee to occupy the accommodation in question as a dwelling ie was the accommodation licensed for occupation as a dwelling? 103. I include the qualification at least normally, because it is possible that, after the grant of the licence, something may have been said or done which justifies the conclusion that the parties agreed or must have intended a change in the purpose of the licence. However, the mere fact that the occupation continues longer than expected, for instance while the investigation or appeal process continues under Part 7 of the 1996 Act, would, on its own, be insufficient to change the objectively assessed intention of the parties. The relevance of court decisions in relation to the Rent Acts 104. The words occupied as a dwelling under a licence have to be interpreted in their context, as is illustrated by the point made in para 102 above. The statutory history may be a legitimate factor to take into account as part of the context, given that PEA 1977 consolidated section 16 of the Rent Act 1957 and Part III of the Rent Act 1965, at the same time as Parliament was consolidating the rest of the Rent Act legislation (with certain amendments) in the Rent Act 1977. Prior to that, almost all of the Rent Act legislation had previously been in the Rent Act 1968, which itself consolidated all the previous Rent Act legislation (with the exception of those provisions which were consolidated in PEA 1977). 105. However, there are many judicial warnings against the use of previous statutory provisions when interpreting the words in a consolidating statute. The law on the topic was authoritatively discussed in R v Environment Secretary Ex p Spath Holme Ltd [2000] UKHL 61, [2001] 2 AC 349. Lord Bingham said at p 388 that it is plain that courts should not routinely investigate the statutory predecessors of provisions in a consolidation statute, particularly where the issue concerns the construction of a single word or expression, although he added that it seems to me legitimate for the court even incumbent on it to consider the earlier, consolidated, provision in its social and factual context for such help as it may give, the assumption, of course, being (in the absence of amendment) that no change in the law was intended. Lord Nicholls, having referred to the legislative history as a potential external aid on the previous page, said at p 398 that the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity, Lord Hope said at pp 405 406 that there is no doubt that, as general rule, it is not permissible to construe a consolidating enactment by reference to the repealed statutes which that enactment has consolidated, but added that an exception may be made where words used in the consolidation Act are ambiguous or where the purpose of a statutory word or phrase can only be grasped by an examination of the social context in which it was first used. To the same effect at p 409, Lord Hutton said that the underlying principle which emerges from the cases is that in construing a consolidation Act a court should not have regard to earlier enactments unless the language of the Act is unclear or ambiguous or there is something in the context of the Act or the relevant section which causes the court to consider that it should look for guidance to an earlier enactment or enactments. 106. Accordingly, any reliance in the present appeals on decisions as to the meaning of words such as dwelling and residence in the Rent Act legislation, which stretches back to 1915, may be hard to justify. Nonetheless, the statutory history is at least be worth examining because of the division of opinion in this court as to the meaning of the words, the fact that dwelling and even residence are words not greatly in current use, and also because so much judge made law has been added to, even incorporated in the Rent Act legislation. Quite apart from this, we were referred to many cases concerned with the meaning of dwelling and residing in the Rent Act context, and so it may be helpful to start by considering those cases and the statutory history of PEA 1977. The Rent Act context 107. Since 1968 (reflecting a combination of previous statutory and judge made law), the Rent Acts have provided that (i) a tenancy was protected provided that, inter alia, it was a tenancy of a dwelling house, which could be a house or part of a house, which was let to the tenant as a separate dwelling (section 1 of the Rent Act 1968, now section 1 of the Rent Act 1977), (ii) after such a tenancy expired, the tenant had a statutory tenancy, ie a right to retain possession, so long as he occupie[d] the dwelling house as his residence (section 3(1)(a) of the Rent Act 1968, now section 2(1)(a) of the Rent Act 1977), and (iii) oversimplifying things a little, after a statutory tenant died, a relation who had been residing with him could succeed to the tenancy (Schedule 1 to the 1968 Act, now Schedule 1 to the Rent Act 1977). 108. The expressions dwelling house and let as a separate dwelling were included in the Rent Act legislation from the start, namely in section 2(2)(a) of the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915. However, the requirement that a tenant must occupy the dwelling house as a residence if he was to enjoy a statutory tenancy was developed by the courts, perhaps most significantly in Haskins v Lewis [1931] 2 KB 1 and Skinner v Geary [1931] 2 KB 546. The courts developed the rule that a tenant who was absent from the dwelling house had to establish animus revertendi and corpus possessionis, inward and outward manifestations of residential occupation, before he could be held to be occup[ying] the dwelling house as his residence see eg Brown v Brash [1948] 2 KB 247. Similarly, it was decided that a tenant who had another principal home could occupy a dwelling house as a residence, provided it was a genuine home, and not merely a resort of convenience see Beck v Scholz [1953] 1 QB 570. 109. Residence only became a statutory requirement of a statutory tenancy in section 3 of the Rent Act 1968, subsection (2) of which, somewhat unusually, provided that the expression occupies as his residence was to be construed as it had been by the courts since 1920 (now re enacted in section 2(3) of the Rent Act 1977). The distinction between a dwelling house let as a dwelling and occupie[d] as a residence was thus that a tenancy of a dwelling house let as a separate dwelling remained protected by the Rent Acts until it determined, whereas the question of the tenants residence only arose after the contractual tenancy came to an end. As for the residing with requirement for succession to a statutory tenancy, it was introduced early on see section 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. 110. Turning to the cases on the Rent Acts to which we were referred, I do not consider that cases on the residence requirement for statutory tenants, such as Skinner, Walker v Ogilvy (1974) 29 P&CR 288 and Regalian Securities v Scheuer (1982) 5 HLR 48, are helpful in the present context. The primary issue on these appeals is whether premises are let as a dwelling (or licensed for occupation as a dwelling) in circumstances where the occupier has no other home. Those cases were concerned with a different issue, namely whether the tenant was occupying the relevant premises as a residence, which is a different expression, with a different statutory history and a different statutory purpose. But at least as importantly, in each of those cases the tenant had another residence, which was his principal home. 111. The words dwelling and dwelling house in the Rent Acts are used in a phrase dealing with the objective purpose of the letting of the premises in question, whereas the word residence considered in those cases was used in a phrase dealing with the subsequent use of, and attitude of the occupier to, those premises. Further, in all the cases mentioned in para 110, the tenant had another home, and the court was considering whether the tenants intermittent use of, or long absence from, the premises concerned, defeated his contention that he occupie[d] the dwelling house as his residence, given that he undoubtedly had another home, which even on his case was his principal home. These appeals are concerned with individuals for whom the premises in question would be their only home as they would otherwise be homeless, and therefore the quality or intensity of their use of the premises is not in issue. What is in issue on these appeals is the effect of the precarious, provisional, and short term nature of their occupation of what is their only accommodation, which was not a feature of the two homes cases on residence. 112. Even more unhelpful in my view are cases such as Collier v Stoneman [1957] 1 WLR 1108, Swanbrae v Elliott (1986) 19 HLR 86 and Freeman v Islington LBC [2010] HLR 6, which were concerned with the question whether a person was residing with a statutory or assured tenant who has died, and therefore had a right to succeed to a statutorily protected tenancy. Not only do many of the problems described in the immediately preceding two paragraphs apply, but, additionally, there are the consequences of the important word with which has to be taken into account, and which of course plays no part in the instant case. 113. Previous decisions concerned with the question whether premises were a dwelling house which was let as a dwelling under the Rent Acts are potentially more in point. The history of the courts approach to the expressions was discussed illuminatingly by Wilson LJ in Pirabakaran v Patel [2006] EWCA Civ 685, [2006] 1 WLR 3112. As he explained in para 22, dwelling house has been given a broad meaning ever since Epsom Grandstand Association Ltd v Clarke [1919] WN 171. However, as in Wilson LJs discussion in Pirabakaran at paras 24 29, almost all of the cases to which we were referred which addressed the question of whether premises were let as a [separate] dwelling were concerned with premises let for commercial purposes, but with some residential use. In my view, those cases are of no real assistance in the present case as the issue was very different. Although each case involved someone (normally the tenant) sleeping in the premises concerned, the landlords argument in almost all the cases was that the premises had been let for a very different purpose. 114. Thus, cases such as Wolfe or MacMillan & Co Ltd v Rees [1946] 1 All ER 675 involved premises which had been let primarily for commercial use, and the issue was whether the indulgence of the landlord permitting the tenant to sleep on the premises brought the letting within the Rent Acts. The facts did not require the court to consider the quality of the contemplated habitation (to use a neutral word) required for the premises to be let as a dwelling. Having said that, it is perhaps worth noting that Evershed J made the point in MacMillan at 677H that to sleep on particular premises at night, or to have one's meals upon them by day, or both, ought not ipso facto to have the effect in law of making those premises a dwelling house . In Martin Estates Co Ltd v Watt [1925] NI 79, officers who slept in police barracks were held not to be protected by the Rent Acts. However, that was because the barracks had been let for the public service, and the court held that the surrounding circumstances and nature of the demised premises made it clear that the purpose of the letting was not as a dwelling. As was explained in the judgment, premises let for use as a prison, or as a hospital, would not be held to be let as a dwelling simply because prison officers, or doctors and nurses, slept and ate on the premises, even if that was contemplated at the time of the letting. Again, that is very different issue from that raised in these appeals, because it is ultimately concerned with living accommodation, which was very much ancillary to the purpose of the letting. 115. The issue in such cases was explained by Romer LJ in Whiteley v Wilson [1953] 1 QB 77, 85, in these terms: [T]he question in such cases, where the subject matter of the tenancy is one building used partly as a dwelling house and partly as a shop, and no purpose is specified in the tenancy agreement, is whether the building should in a broad sense be regarded as a dwelling house which is partly, or even substantially used for a shop, or on the other hand as a shop which is used in part for residential purposes. It is not without significance that Romer LJ seems to have regarded residential purposes as being effectively synonymous with dwelling house let as a dwelling. In the same case, Sir Raymond Evershed MR similarly treated the letting of a dwelling house as a dwelling as equivalent to the premises concerned being used for residential purposes at p 83. Uratemp Ventures v Collins [2001] UKHL 43, [2002] 1 AC 301 116. Although the issue in the House of Lords case of Uratemp Ventures v Collins [2001] UKHL 43, [2002] 1 AC 301 concerned the question whether certain premises were a dwelling house let as a dwelling, the issue was, again, very different from that in these appeals. It was whether a room was precluded from being within the Housing Act 1988 (section 1(1) of which uses the expression dwelling house let as a separate dwelling, obviously taken from the Rent Acts), because the tenant was forbidden to cook in it. The decision of the House of Lords removed some long standing and artificial distinctions which many people assumed had been built up by the courts over the years (in particular, the quaint notion that a tenancy of a room without washing facilities could be a letting of the room as a separate dwelling, whereas a tenancy of a room without cooking facilities could not). 117. Further, I must confess to a little confusion as to the precise nature of the ratio of the case other than the simple point that the prohibition on cooking did not prevent such a room being a dwelling house let as a separate dwelling. Thus, Lord Irvine LC seems to have addressed the question by reference to the composite expression see para 2. However, Lord Bingham, with whom Lord Irvine and Lord Steyn agreed, approached the issue on the basis that it was whether the room was a dwelling house see paras 9, 10 and 13. So did Lord Steyn (with whom Lord Irvine and Lord Bingham agreed), who apparently thought it plain that the room had been let as a separate dwelling see paras 13 15, especially the third sentence of para 13. Lord Millett, with whom Lord Irvine, Lord Steyn and Lord Hobhouse agreed, considered the issue by reference to the expression let as a separate dwelling see paras 30 and 40ff. Although this can be said to represent a divergence of approach, it is fair to say that all their Lordships were concerned with the meaning of dwelling, whether as part of the composite noun dwelling house, or in the expression let as a separate dwelling or both. 118. However, some general guidance was given in Uratemp. Lord Steyn said at para 15 that dwelling house is a word of wide import used interchangeably with lodging, and conveys the idea of a place where somebody lives. He continued: The setting in which the word appears in the statute is important. It is used in legislation which is intended to afford a measure of protection to tenants under assured tenancies. This context makes it inappropriate for the court to place restrictive glosses on the word dwelling. On the contrary, the courts ought to interpret and apply the word dwelling house in [the Housing Act 1988] in a reasonably generous fashion. This observation is supported by Lord Irvines deprecation in para 2 of a restrictive interpretation given that the statutory purpose was to give some protection to tenants in modest rented accommodation. It is also supported by Lord Bingham in para 10, where he said that a dwelling house describes a place where someone dwells, lives or resides, and stated that the legislation should be interpreted bearing in mind that it was directed to giving a measure of security to those who make their homes in rented accommodation at the lower end of the housing market. 119. Lord Millett took a slightly different approach, saying at para 30 that: The words dwell and dwelling are ordinary English words, even if they are perhaps no longer in common use. They mean the same as inhabit and habitation or more precisely abide and abode, and refer to the place where one lives and makes one's home. They suggest a greater degree of settled occupation than reside and residence, connoting the place where the occupier habitually sleeps and usually eats, but the idea that he must also cook his meals there is found only in the law reports. And in the following paragraph he added this: In both ordinary and residential accommodation is a dwelling if it is the occupier's home (or one of his homes). It is the place where he lives and to which he returns and which forms the centre of his existence. Just what use he makes of it when living there, however, depends on his mode of life. literary usage, 120. Unsurprisingly, on these appeals the respondent Housing Authorities and the Secretary of State relied on Lord Milletts suggestion that dwell and dwelling involve a greater degree of settled occupation than reside and residence. However, at least to me, the two types of word do not have this rather subtle distinction: a temporary dwelling is as natural a concept as a temporary residence, and carries the same meaning. Further, I would have thought that, particularly in the context of the Rent Acts and associated legislation, such a subtle distinction between two words which are effectively synonyms is of questionable value in that it is likely to lead to over subtle distinctions. Indeed, as already mentioned in para 115 above, Evershed MR and Romer LJ seem to have thought that premises were a dwelling house let as a separate dwelling if the principal use was intended to be residential, using the latter word in its normal way. And in Beck at pp 575 576, Evershed MR plainly treated home, a rather more frequently used word, as a synonym for residence. And I note that what many people think of as the bible on the topic, Megarry on The Rent Acts, treats residence as synonymous with dwelling when discussing the meaning of dwelling in the phrase let as a separate dwelling see 11th edition (1988) pp 109 117. 121. In any event, as a matter of statutory interpretation, in the context of the Rent Acts it seems pretty plain to me that Lord Milletts suggested distinction is demonstrably wrong. As explained briefly in paras 107 111 above, the law relating to residence had been conceived and developed up by the courts between 1920 and 1968, so that, as a matter of policy, a degree of intensity of occupation of the premises (in the case of intermittent use), or physical and mental commitment to the premises (in the case of absence), was required on the part of the tenant before the court was prepared to hold a tenant resident in a dwelling house, and the law as thus developed was incorporated into the statutory scheme in 1968. No such requirements as to the quality of the tenants use of the dwelling house were developed in relation to the issue of whether premises were let as a dwelling; on that aspect, issues arose either because of the mixture of residential and commercial uses, or because the demised premises lacked an allegedly essential functionality. 122. Furthermore, given the structure of the opening few sections of the Rent Act 1968 (and the Rent Act 1977), as summarised in para 107 above, the draftsman must, in my view, have assumed that a tenant of a tenancy of a dwelling house let as a separate dwelling could lawfully occup[y] the dwelling house as his residence. That is because it seems unlikely that he would have envisaged that it would be impermissible for a tenant to occup[y] a dwelling house as his residence if it was a dwelling house let as a separate dwelling. This must logically mean that the draftsman considered that dwelling was at least as wide as residence. 123. That point is reinforced when one considers the two homes cases such as those referred to in paras 109 110 above, and more fully discussed by Lord Hodge in paras 36 38 of his judgment. In those cases, the occupier was held to have no statutory tenancy, because his use of the premises concerned was insufficient to enable him to establish that he occupie[d] the dwelling house as his residence. Yet there was no suggestion in any of those cases that the premises were not a dwelling house or had not been let as a separate dwelling. Indeed, in Walker at p 290, Orr LJ specifically referred to the premises in that case as the dwelling house that is the flat. Conclusion on the Rent Act cases 124. In my view, therefore, even in the absence of the concerns expressed in Spath Holme as to the appropriateness of relying on the meaning of words or expressions in predecessor legislation, only limited assistance can be safely gathered from the history of the Rent Act legislation or the decided cases on the meaning of those statutes, as to the meaning in 3 of PEA 1977 of the expression let as a dwelling or licensed for occupation as a dwelling. 125. However, para 15 of Lord Steyns opinion in Uratemp is valuable to the extent that it emphasises that (i) dwelling is an ordinary English word, (ii) it is of wide import, and (iii) in the Rent Act type of context, it is to be interpreted generously. Lord Milletts suggestion in the same case that dwelling implies a more permanent meaning than residence may be said to be inconsistent with the latter two observations, but, for the reasons I have given, it seems to me to be wrong as a matter of ordinary language as well as in the context of the Rent Acts. The Protection from Eviction Act 1977 126. The effect of section 3(1), (2A) and (2B) of PEA 1977 is to render it an offence for the owner of premises, which are let as a dwelling, or occupied as a dwelling under a licence, albeit subject to exclusions identified in section 3A, to take possession of the premises otherwise than by proceedings in court, where the occupier continues to reside in the premises, provided, according to subsection (2), that that occupation is lawful. 127. As mentioned in para 120 above in relation to the wording of the Rent Acts, the wording of section 3(1) of PEA 1977 indicates that the concept of dwelling is at least as wide as residing, as the draftsman appears to have proceeded on the basis that it would be lawful to reside in any premises let as a dwelling. Indeed, I consider that the structure of section 3(1) of PEA 1977 makes the point even more clearly than sections 1 and 3 of the Rent Act 1968 (or sections 1 and 2 of the Rent Act 1977). The words continues to reside in section 1(1)(a) of PEA 1977 seem to me plainly to assume that the premises let as a dwelling house will have been resided in at the inception of the tenancy, and therefore ex hypothesis, that they can lawfully be resided in. Furthermore, PEA 1977 has no equivalent to section 3(2) of the Rent Act 1968 (see para [11] above), so reside must be assumed to have its ordinary meaning, and is not encrusted with the case law to which section 3(2) of the 1968 Act makes reference. Thus, any premises let as a dwelling for the purpose of section 1(1) can be resided in for the purpose of section 1(1), ergo a dwelling has at least as wide a meaning as residence. This is not called into question by section 3(2) of PEA 1977, which appears to me to be included simply to exclude unlawful occupiers from the protection of PEA 1977. 128. This conclusion is also supported by section 5 of PEA 1977, which requires a notice to quit premises let as a dwelling (or a notice to determine a licence to occupy premises as a dwelling) to give at least four weeks notice, but which makes no reference as to how the premises are occupied whether as a residence or otherwise. It would be curious if any premises, other than those subject to an excluded tenancy or excluded licence, which were lawfully occupied as a residence, were not subject to that provision, which again suggests that the meaning of dwelling is at least as broad as residence. Other cases on statutory provisions referring to residence and dwelling 129. As Lord Hodge rightly implies in para 51 in relation to the appellants argument based on the inclusion of the word dwelling in section 130 of the Social Security Contributions and Benefits Act 1992, one has to be careful before taking into account statutes in different fields even where they use the same words. However, although they are of limited value, I consider that observations made in two House of Lords cases, Railway Assessment Authority v Great Western Railway Co [1948] AC 234 and Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57, [2002] AC 547, about the normal meaning of the words residing and dwelling are of some relevance to the present case. As to Railway Assessment, the fact that dwelling and dwelling house are somewhat archaic expressions suggests that real help may be obtained from a highly authoritative source considering their meaning at a time when they were in more current usage. And the fact that Mohamed v Hammersmith is a House of Lords case concerned with accommodation provided under section 188 of the 1996 Act means that it is at least worth considering in another case involving the same provision. 130. Railway Assessment concerned the expression occupied as a dwelling house in the context of a rating statute. The property in question was a hostel in Didcot, which had a canteen and many furnished cubicles, in which railway company employees were permitted to live there while they were temporarily working away from their home stations see at pp 236 237. Although it is a rather different context from the present, Lord Thankerton (who gave the only reasoned opinion) made it clear at p 238, that he thought that the words occupied as a dwelling house must be given their ordinary meaning. He went on to explain that the accommodation in that case had been provided for staff while they were working far from home, because there was insufficient lodging house accommodation at Didcot. He then said that [w]hile they are at their work, these members of the staff may properly be said to dwell or reside in the hostel, or to inhabit the hostel. On three subsequent occasions at pp 238 239, he again used the expression dwell or reside or residence or dwelling, treating the concepts of residing and dwelling as meaning much the same thing. At p 240, Lord Thankerton rejected the view that the occupation by the employees was not as a dwelling because it was too transient and their families lived elsewhere, saying that the fact that the occupants of the cubicles do reside in the hostel through all the periods of their duty, and do not leave the hostel until their employment at Didcot terminates, provides a sufficient element of permanence. He added that he could not think that the presence of families and household goods is an essential element. 131. It appears to me that this decision provides a measure of support for a number of propositions. First, and perhaps least relevantly for present purposes, it shows the width of the term dwelling house, as used in normal parlance. Secondly, it confirms the notion that the normal concept of dwelling includes a relatively temporary residence even where the premises concerned consist of a room in an employees hostel and the occupier has a permanent home where his family remains. Thirdly, the reference to lodging house accommodation strikes the same note as Lord Steyns observation in Uratemp (see para 118 above). Fourthly, the discussion supports the notion that, as a matter of ordinary language, the concepts of dwelling and residing are very similar, and can often be used interchangeably (consistently with the way in which Evershed MR and Romer LJ expressed themselves in Whiteley). 132. In relation to the ordinary meaning of the word residence, I consider that the decision of the House of Lords in Mohamed v Hammersmith is of assistance. That case is also rather more in point on the facts than any of the other cases so far discussed, as the issue was whether a person was normally resident (for the purposes of section 199 of the 1996 Act) in accommodation provided under section 188 of the 1996 Act, the very section under which accommodation was provided to the appellants in the instant appeals. 133. Having said that words like normal residence may take their precise meanings from [their] context, Lord Slynn (who gave the only reasoned judgment) said this in para 18: [T]he prima facie meaning of normal residence is the place where at the relevant time the person in fact resides. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is shelter but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such. 134. As I read those observations, Lord Slynn was saying that a person provided with temporary accommodation under section 188 of the 1996 Act, as a matter of ordinary language normally resides in that accommodation, even though it is provided to her on a temporary basis by a housing authority, because she lives there and because she has no other home. To my mind, it follows that for the same sort of reasons, the person may, as a matter of normal language be said to be dwelling in such accommodation, which would naturally be described as a dwelling house. Conclusions on the first issue 135. The purpose of section 3 of PEA 1977 is to prevent a person who has been lawfully living in premises, which have been let as a dwelling or licensed to be occupied as a dwelling, being evicted without a court order, and the purpose of section 5 is to ensure that, where premises have been let as a dwelling, or licensed to be occupied as a dwelling, on terms which require notice to vacate, the occupier must be given at least 28 days notice. Plainly, it seems to me, these sections should not be accorded an unnaturally narrow effect; indeed, I think one should lean in favour of a wide, rather than a narrow, meaning when it comes to deciding the ambit of these sections. They do not represent a substantial incursion into the property rights of the owners of premises, and they reflect a policy that people who have been lawfully living in premises should not be summarily evicted or locked out. Because of the nature of the rights accorded by these provisions and their aim of protecting people against the inconvenience and humiliation of being deprived of their homes summarily, one would expect the two sections to have a wide, rather than a narrow, meaning, a conclusion supported by the passages which I have referred to in the opinions in Uratemp in para 118 above. 136. I do not consider that it would be appropriate to exclude from the ambit of those sections accommodation, whether a house or flat or room, which has been lawfully occupied by a person (or families) as her (or their) only home, simply because her (or their) occupation is short term, provisional or precarious. It is a perfectly natural use of the word to describe a person as dwelling, or indeed residing, in accommodation provided by a housing authority under section 188 of the 1996 Act, or occupying those premises as a dwelling house, even though she may be there for a short term on a precarious basis. Of course, it would be wrong to say that, simply because she has no other dwelling, the accommodation must be that persons dwelling: a person does not need to have a dwelling. But, equally, as a matter of language, the fact that the person would be otherwise homeless makes it all the more difficult to contend that it is an inappropriate use of language to describe the accommodation provided to her under section 188 as a dwelling, even if it was on a temporary basis, pursuant to a statutory duty. To describe a house flat or room as the occupiers temporary or short term dwelling is a perfectly natural use of language. 137. Accordingly, the fact that the arrangement under which a person is permitted to occupy premises as her only habitation is short term and precarious does not seem to me to prevent them being let as a dwelling house or occupied as a dwelling, as a matter of ordinary language. So long as the arrangement persists, the premises are that persons lodging and the place where [she] lives, to quote Lord Steyn, or the place where [she] lives and to which [she] returns and which forms the centre of [her] existence to quote Lord Millett, in Uratemp. The mere fact that the landlord or licensor has the right to substitute other premises on short notice does not seem to me to alter that conclusion: unless and until that right is exercised, the premises are the occupiers lodging, where she lives and to which she returns. If that were not so, it would have provided a very simple method for private sector landlords to avoid the incidence of the Rent Acts. I draw some support for this conclusion from the observations of Lord Thankerton in Railway Assessment and of Lord Slynn in Mohamed v Hammersmith, in addition to the observations in Uratemp. 138. Of course, the nature of the premises subject to the letting may be such that it might not be natural to refer to them as a dwelling or dwelling house (as illustrated by the cases considered in paras 113 115 above). However, apart from such cases where the nature of the premises precludes them being described as being let or occupied as a dwelling, I find it hard to see why the relatively temporary nature of the occupation, or the fact that the occupier can be required to shift to other premises on a days notice, prevents premises being let or licensed as a dwelling or occupied as a dwelling, or indeed occupied as a residence, particularly where the tenant or licensee has no other home. Indeed, many might think that those who are housed under section 188 of the 1996 Act are the sort of people who particularly need the protection of PEA 1977, given that, whatever the merits of their claims under Part 7 of the 1996 Act, they are likely to come from the more vulnerable sectors of society. 139. In my opinion, the view that people housed under section 188 of the 1996 Act are entitled to the benefit of sections 3 and 5 of PEA 1977 receives considerable support from section 3A of PEA 1977, which identifies the arrangements which are excluded from the ambit of section 3. The exclusions in subsections (6)(8) appear to me to be particularly significant for present purposes. They include a tenancy or licence (i) if it was granted as a temporary expedient to a person who entered the premises as a trespasser, (ii) if it is for a holiday only, (iii) if it is gratuitous (iv) if it is granted in order to provide accommodation for asylum seekers and their families under Part VI of the Immigration and Asylum Act 1999, or (v) if it confers rights of occupation in a hostel, within the meaning of the Housing Act 1985, which is provided by [certain defined authorities]. These are all types of licences which need not have been excluded from the ambit of PEA 1977 if it did not apply to short term, precarious and/or charitable arrangements, and so they strongly support my conclusion. I am unimpressed by the point that some of these licences or tenancies could last a long period. First, that point does not apply to categories (i) and (ii). Secondly, the fact that the arrangement in categories (iv) and (v), or indeed category (iii), may continue for some time in a few cases is not really the point, as one is normally concerned with the purpose of the arrangement in question when it started, and almost all such arrangements would be expected to be short term. Indeed, it may well be that interim accommodation provided under Part 7 of the 1996 Act will occasionally be occupied for a long time eg because the appeal process is protracted. 140. I was initially attracted by the argument developed in para 33 of Lord Hodges judgment, that, because a person who is temporarily housed by a housing authority under Part 7 of the 1996 Act, while inquiries are pending, should be treated as homeless for the purpose of that Act, he can and should be treated as not being provided with a dwelling, or indeed a residence under PEA 1977. However, on reflection, it appears to me that this does not involve a proper approach to statutory interpretation. As already mentioned, the fact that dwelling is given a certain meaning in the 1996 Act (whether in the statute or by the court) does not entitle that meaning to be simply applied to another Act, namely PEA 1977, and it appears to me to be a fortiori that the fact that someone is homeless for the purposes of one Act does not mean that she cannot have a dwelling or indeed a residence for the purpose of PEA 1977. 141. Further, as already mentioned, the House of Lords in Mohamed v Hammersmith accepted that, as a matter of ordinary language, the occupier of accommodation provided under section 188 of the 1996 Act would be normally resident in that accommodation, and therefore was normally resident for the purposes of section 199 of the 1996 Act. It seems to me that, if a person occupying accommodation provided under section 188 of the 1996 Act is normally resident in that accommodation for the purposes of another provision in the same Act, then, to put it at its lowest, it can scarcely be inconsistent with section 188 to say that she continues to reside in the accommodation for the purposes of another Act. And, if she resides for the purposes of section 3 of PEA 1977, as was envisaged when her tenancy or licence was granted, then, for the reasons already given, it would seem to follow that the premises must have been let as a dwelling or licensed for occupation as a dwelling. The effect of previous Court of Appeal decisions on the issue 142. The Court of Appeal in previous decisions on the interrelationship of Part 7 of the 1996 Act and PEA 1977 had come to a different conclusion see Mohammed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439 and Desnousse v Newham LBC [2006] QB 831. It is argued by the respondent Housing Authorities and the Secretary of State that we should not disturb the effect of those decisions, and therefore dismiss these appeals, even if we would not otherwise have done so, on the ground that Parliament has amended PEA 1977 and re enacted the earlier homelessness legislation in the 1996 Act, on terms which were consistent with those decisions. However, it is accepted that there is no specific statutory provision which demonstrates Parliamentary confirmation or assumption that those decisions were correct. 143. In my view, where, as here, Parliament has not specifically enacted any legislation which shows that it must have assumed or accepted that the law as stated by the Court of Appeal is correct, it is not safe in practice or appropriate in principle to draw the conclusion that the present legislation bindingly assumes sub silentio that the law is as the Court of Appeal had decided. Parliament must be taken to know not only that the Court of Appeal has decided as it has, but also that the House of Lords, or now the Supreme Court, could overrule the Court of Appeal. It would, in my view, be dangerous both in practice and principle, for the courts to start second guessing the legislature. Of course, where it is clear that, in subsequent legislation, Parliament has expressly, or even impliedly, accepted clearly the correctness of the Court of Appeal decision, or adopted the decision, different considerations are very likely to apply. 144. I note what Lord Carnwath says about the principle in Barras v Aberdeen Sea Trawling and Fishing Co Ltd [1933] AC 402 in paras 79 87. If Parliament has re enacted a statutory provision in identical words, after it has been interpreted as having a certain meaning by the courts of record, then there is, I accept, some attraction in the notion that the Parliamentary intention was that the provision should have that meaning particularly if (as here) the interpretation has been confirmed by the Court of Appeal more than once. The issue is similar to that discussed in paras 104 106 above, and I am far from convinced that the principle can be regarded as correct, at least in the absence of some additional factor in favour of maintaining the interpretation previously adopted, in light of observations in Farrell v Alexander [1977] AC 59. In that case, the unsuccessful respondent argued that a particular statutory provision (prohibiting the charging of premiums for the assignment of Rent Act tenancies) had been interpreted by the Court of Appeal in Remmington v Larkin [1921] 3 KB 404, and that, in the light of the Barras doctrine, the fact that the provision had been subsequently re enacted in much the same way more than once, the interpretation in Remmington had been effectively adopted by Parliament. 145. Lord Wilberforce thought that Remmington could be distinguished, but, after referring to Barras, he said at p 74, that he had never been attracted by the doctrine of Parliamentary endorsement of decided cases, which he described as based upon a theory of legislative formation which is possibly fictional. He added that if there are any cases in which this doctrine may be applied any case must be a clear one. Lord Dilhorne (who thought that Remmington could not be distinguished and should be overruled), while not referring expressly to Barras doctrine, said at p 81, that while it may be that the decision in Remington escaped the notice of the draftsman, our task is to give effect to the intention of Parliament which involved considering the words used by Parliament. Lord Simon of Glaisdale also thought that Remmington could not be distinguished and should be overruled, and at pp 90 91 he was critical of the Barras doctrine, saying at p 91: To pre empt a court of construction from performing independently its own constitutional duty of examining the validity of a previous interpretation, the intention of parliament to endorse the previous judicial decision would have to be expressed or clearly implied. Mere repetition of language which has been the subject of previous judicial interpretation is entirely neutral in this respector at most implies merely the truism that the language has been the subject of judicial interpretation for whatever (and it may be much or little) that is worth. Lord Edmund Davies thought that Remington had been rightly decided, but that the statutory language had since significantly altered, and he was accordingly concerned with a different doctrine, namely the assumption that in enacting consolidating legislation Parliament did not intend to change the law see at 94. Only Lord Russell (who dissented) appears at pp 101 103 to have assumed that the Barras doctrine was correct. 146. Since then, in A v Hoare [2008] UKHL 6, [2008] 1 AC 844, para 15, Lord Hoffmann followed an earlier decision of the House of Lords, Lowsley v Forbes [1999] 1 AC 329, which he explained in these terms: In that case, the Court of Appeal in 1948 (W T Lamb and Sons v Rider [1948] 2 KB 331) had given a provision of the Limitation Act 1939 an interpretation which the House thought was probably wrong. But Parliament had then enacted the Limitation Amendment Act 1980 in terms which made sense only on the basis that it was accepting the construction which had been given to the Act by the Court of Appeal. Lord Hoffmann also said that [t]he value of such previous interpretations as a guide to construction will vary with the circumstances. 147. In my opinion, in the light of the views expressed in Farrell and in A v Hoare, before this Court could invoke the Barras principle, it would almost always require something more than the mere re enactment of a previous statutory provision which has been interpreted by the Court of Appeal. Like Lord Simon, I am concerned about the constitutional propriety of this Court simply invoking what it regards as a judicial misreading of an earlier statute to justify a decision that a current statute means something other than this Court thinks it means. However, as it is not necessary to decide the point on these appeals, I would not wish to be taken to be saying that it could never be done. 148. I have even greater reservations about the so called customary meaning rule. As just mentioned, a court should not lightly decide that a statute has a meaning which is different from that which the court believes that it has. Indeed, so to decide could be said to be a breach of the fundamental duty of the court to give effect to the will of parliament as expressed in the statute. Legal certainty and settled practice, referred to by Lord Carnwath in paras 94 97 are, as I see it, an aspect of customary meaning. Although Lord Bridge expressed himself as he did in Otter v Norman [1989] AC 129, 145 6 (as quoted by Lord Carnwath in para 96), neither Barras nor Farrell was cited to him, and he relied on the fact that for many years, many landlords and tenants have regulated their relationships on [the] basis that observations in an earlier decision of the Court of Appeal were right. Even on that basis, I would wish to reserve my position as to the correctness of Lord Bridges obiter observations. 149. Turning to these appeals, there is no question of PEA 1977 having been re enacted since the decisions in Mohammed v Manek or Desnousse, and therefore the Barras principle cannot apply. Even if there is a customary meaning rule and twenty years is a long enough period to justify invoking it, I do not consider that it should apply here. One can see the force of the customary meaning rule where private individuals and companies have made dispositions or entered into agreements in the reasonable belief that the law was as laid down by the Court of Appeal as Lord Bridge said in Otter. However, it is much harder to justify invoking the rule in circumstances where a housing authority may have assumed that the law is as laid down by the Court of Appeal in connection with an arrangement which the authority was in any event required to enter into by statute. A housing authority can hardly claim to have complied with its duty to provide temporary accommodation under section 188 of the 1996 Act, only because it believed that the occupier of the accommodation could not invoke sections 3 or 5 of PEA 1977. I do not suggest that no housing authority could identify any action that it had (or had not) taken in the belief that PEA 1977 did not apply to licences such as those granted to the appellants in these cases, but I do not believe that any such action (or inaction) would be such as to justify invoking the customary meaning rule. Conclusion 150. For these reasons, despite the clear and impressive reasoning in his judgment, I have reached a different conclusion from Lord Hodge. 151. To many people this may appear an unattractive result, as it does not seem obviously sensible for homeless individuals, who are temporarily housed on an interim basis, while the housing authority makes enquiries as to what rights if any they may have, to be afforded protection under PEA 1977. Such a conclusion would inevitably increase the pressure on already hard pressed housing authorities, many of whom are faced with a demand for residential accommodation which substantially exceeds the supply, which places a great administrative burden on them. However, the consequences of my view as to the effect of PEA 1977 would, I suspect, be more of an exacerbating nuisance rather than a far reaching disaster. And, while I see the good sense of PEA 1977 not applying to licensees such as the appellants in these appeals, it does not seem to me obvious that they should not be able to benefit from PEA 1977. 152. Even if that is wrong, having interpreted PEA 1977, and noted Parliaments exercise of its power to identify which short term, precarious and charitable rights of occupation should be excluded from protection, I consider that the correct, if to some people a rather unpalatable, conclusion is that individuals such as the appellants in these appeals are entitled to the benefit of sections 3 and 5 of the Protection from Eviction Act 1977. 153. The contrary view is to some extent based upon policy considerations. I accept that, when considering the proper interpretation of a statute, a court can, and where appropriate should, take into account policy considerations, and I sympathise with the view that policy considerations favour dismissing these appeals, as I have indicated in para 151 above. However, judges have to be very careful before adopting an interpretation of a statute based on policy considerations, and should only to do so where those considerations point clearly in one direction. In this case, it seems to me to be particularly difficult to justify dismissing the appeal on policy grounds, given that (i) it involves departing from the natural meaning of the relevant statutory words, (ii) the policy argument is not overwhelming, (iii) there are policy considerations pointing the other way, and (iv) Parliament has apparently considered the policy in section 3A. 154. Furthermore, when it comes to relying on policy in a case of statutory interpretation, I would respectfully refer to the observations of Lord Simon and Lord Diplock in Maunsell v Olins [1975] AC 373, 393 which, although in a dissenting judgment (as might be appreciated from the way in which they are expressed), were cited with apparent approval (see at p 388) by Lord Bingham in Spath Holme at p 385: For a court of construction to constrain statutory language which has a primary natural meaning appropriate to its context so as to give it an artificial meaning which is appropriate only to remedy the mischief which is conceived to have occasioned the statutory provision is to proceed unsupported by principle, inconsonant with authority and oblivious of the actual practice of parliamentary draftsmen. 155. As to the second issue discussed by Lord Hodge in paras 61 71 of his judgment, it would not, on my view on the first issue, arise. However, on the basis of the view reached by the majority of the Court on the first issue, the second issue does arise. On that basis, I agree with Lord Hodges reasoning and conclusion on the second issue. 156. For my part, therefore, for the above reasons and for those much more economically expressed by Lady Hale, I would have allowed these appeals on the first issue, the appellants reliance on the Protection from Eviction Act 1977, but I would dismiss these appeals on the second issue, namely their reliance on article 8 of the European Convention on Human Rights. LADY HALE 157. The issue in this case is the meaning of the words licensed as a dwelling house in section 3(1) of the Protection from Eviction Act 1977, when read with section 3(2B) of that Act, which provided for the inclusion of licences in the protection given by that section (the relevant provisions are helpfully set out in the judgment of Lord Hodge at para 17). It is agreed that those words refer to the purpose for which the premises in question were licensed to the licensee and not to the purpose for which she actually occupied them (see the judgment of Lord Hodge at para 23). In these cases, however, it is difficult to see a distinction between the two: JN and FI and their children used these premises for the purpose for which they were licensed to occupy them. The question is what that purpose was. 158. There can be little doubt that the premises in each case constituted a dwelling house. As it happens, both were self contained premises, not shared with others when they were licensed. The courts have always taken a broad view of what constitutes a dwelling house. It has long been held that a room without bathroom facilities may be a dwelling house let as a separate dwelling for the purpose of section 1 of the Housing Act 1988 and its predecessors. In Uratemp Ventures v Collins [2001] UKHL 43, [2002] 1 AC 301, the House of Lords held that a room in an hotel where cooking was forbidden nevertheless constituted a dwelling house let as a separate dwelling for the same purpose. There is no requirement in section 3 of the 1977 Act that the premises be let or licensed as a separate dwelling. 159. When a dwelling house is let or licensed to an individual to occupy, albeit for what may turn out to be for a very short time, considerable work has to be done in order to conclude that the purpose of the letting or licence is not to use the premises as a dwelling. Counsel for the local authorities in question, and for the Secretary of State, have put in considerable work in order to persuade us that the words must be read in the light of the construction given to similar (but not identical) wording in other provisions in the Rent Acts. For the reasons given by Lord Neuberger, which I need not repeat, I do not find any of that work persuasive, let alone convincing. I share his view that dwelling is at least as wide as residing and thus must respectfully disagree with the view expressed by Lord Millett (but not by the other members of the appellate committee) in Uratemp that The words dwell and dwelling suggest a greater degree of settled occupation than reside and residing. That is, at it seems to me, to confuse two rather different meanings of the verb to dwell. I dwell on a subject when I fix my attention, write or speak on it length (as we sometimes have to do in our judgments). I dwell in a place when I live there. In my view, residing and dwelling and living somewhere generally mean the same thing, although all may be distinguished from staying. 160. Unlike holiday makers, it is hard to describe these families as simply staying in their accommodation. If, as the House of Lords held in Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57, [2002] AC 547, a person can be normally resident in accommodation provided under section 188 of the 1996 Act, because he lives there for the time being and has nowhere else to go, I find it hard to see how he is not also provided with that accommodation as a dwelling. As Lord Neuberger demonstrates, a person can dwell, reside or live in premises where his occupation is not only temporary but precarious in the extreme. The purpose of the 1977 Act was not to provide security of tenure: that was done in other ways. The purpose was to prevent landlords resorting to such self help as is lawful to rid themselves of tenants (and now licensees) who would not leave voluntarily. 161. Nor, with respect, do I find persuasive any of the three matters relied upon by Lord Hodge in reaching a contrary conclusion. He points, first, to the statutory context of the licence, as a purely temporary measure while the local authority pursue their statutory inquiries. We are, of course, construing section 3 of the 1977 Act and not Part 7 of the 1996 Act. That statutory context cannot, of course, have been in the contemplation of the legislature when the provisions with which we are concerned were first enacted. The Protection from Eviction Act 1977 and the Housing (Homeless Persons) Act 1977 received the Royal Assent on the same day. But the Protection from Eviction Act was a pure consolidation Act, bringing together provisions which had first been enacted, in the case of the requirement of four weeks notice to quit in section 5 of the 1977 Act, in section 16 of the Rent Act 1957, and in the case of section 3 of the 1977 Act with which we are principally concerned, in Part III of the Rent Act 1965. At that time, such duty as there was to provide temporary accommodation for people in urgent need of it was contained in section 21(1)(b) of the National Assistance Act 1948. There was nothing to prevent a local authority separating homeless families by receiving the children into care and leaving the adults to fend for themselves. The Housing (Homeless Persons) Act 1977 was intended to bring in a new regime in which specific and carefully modulated duties were owed to particular classes of homeless persons. 162. People in temporary accommodation are still treated as homeless for the purpose of what is now Part 7 of the 1996 Act while the local authorities enquiries are persisting. (This is despite the fact that they have an express licence to occupy the accommodation with which they are provided, and so would fall outside the definition of homeless in section 175 of the Act unless that definition is directed to the time when they present themselves to the local authority.) That does not mean that they do not live in the accommodation provided for the time being or that they are not provided with that accommodation for that purpose. 163. Many (indeed one suspects the great majority) of those provided with temporary accommodation under Part 7 of the 1996 Act are in receipt of housing benefit. The whole system of funding local authorities duties under the 1996 Act would fall apart if housing benefit were not available to those who cannot afford to pay for the (often expensive) temporary accommodation arranged for them. Section 130 of the Social Security Contributions and Benefits Act 1992 provides that a person is entitled to housing benefit if he is liable to make payments in respect of a dwelling which he occupies as his home. If the temporary and transient nature of his occupation is not sufficient to prevent the dwelling being his home for this purpose, I find it very difficult indeed to see how that same temporary and transient nature is sufficient to prevent the licence under which he is permitted to occupy the dwelling also being for the purpose of his occupying it as his home, that is, dwelling or residing or living rather than merely staying there. 164. Secondly, Lord Hodge relies upon the terms of the licences in question. But these cannot take something which would otherwise fall within the statutory protection outside it. Calling a tenancy a licence does not make it a licence if in fact it is a tenancy: Street v Mountford [1985] AC 809. Reserving the right to change the accommodation provided at little or no notice does not prevent the accommodation being provided as a home if that is what it is. Otherwise, as Lord Neuberger points out, it would have been extremely easy for unscrupulous landlords to avoid the effect of the 1977 Act and its predecessor. 165. In this context, I am puzzled by what appears to be the generally accepted view that the protection of section 3 of the 1977 Act will apply once the local authority have accepted that they owe the family the full housing duty in section 193(2) of the 1996 Act. But the existence of that full housing duty is a quite separate matter from the terms on which the family occupy their accommodation. They may well remain in exactly the same accommodation on exactly the same contractual terms thereafter. There may well be no new letting or no new licensing for some time. Their occupation of those particular premises is just as precarious as before. The full housing duty will come to an end if they refuse an offer of suitable accommodation elsewhere. So can it be said that the purpose for which the premises were let or licensed has changed just because the nature of the local authoritys duty has changed? Even if that could be said, the contractual terms of the tenancy or licence cannot be determinative of its purpose. 166. Thirdly, Lord Hodge relies upon the unfortunate practical consequences if section 3 is held to apply to temporary accommodation provided under Part 7 of the 1996 Act. Counsel before us disagreed about how real the problems would in fact be; but we can, I think, take it for granted that it would indeed make life more difficult for hard pressed housing authorities who are having to cope with increasing numbers of homeless persons and diminishing resources with which to do so. However, as Lord Hodge himself acknowledges, this would not by itself be determinative. The answer to the practical problems is a properly tailored legislative exception, as has already been provided for some other situations in section 3A of the 1977 Act. 167. I fear that I am also unimpressed by the argument that we should not disturb what has been understood to be the law since the decision of the Court of Appeal in Mohammed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439, followed in Desnousse v Newham LBC [2006] QB 831. There is no question of Parliament having passed legislation on the basis that the law as stated by the Court of Appeal is correct. The 1977 Act has not been repealed and re enacted so as to invoke the principle in Barras v Aberdeen Sea Trawling Co Ltd [1933] AC 402. The most that can be said is that Parliament might have amended the 1977 Act so as to reverse or modify the Court of Appeals decision, if it did not like it, but has not done so. That comes nowhere near an expression of Parliamentary approval of it. Parliament can always legislate to change a decision of the higher courts should it wish to do so, but no conclusions can be drawn from the fact that it has not. There must be many, many decisions which the Parliament of the day finds surprising, inconvenient or downright wrong, but has done nothing to correct. The reasons for inaction may range from ignorance, indifference, lack of Parliamentary time or Whitehall resources, to actual approval. Moreover, Parliaments failure to act tells us nothing about what Parliament intended when the legislation was passed, which is what this court must decide. Parliament must, like everyone else, be taken to understand that a Court of Appeal decision may always be overturned on appeal to this court. (Of course, there are occasions when Parliament has specifically legislated on the basis that a Court of Appeal decision is correct, but the higher court has still been prepared to hold that it was incorrect: see Bakewell Management Ltd v Brandwood [2004] UKHL 14, [2004] 2 AC 519.) 168. I also share Lord Neubergers reservations about the so called customary meaning rule. In In re Spectrum Plus [2005] UKHL 41, [2005] 2 AC 680, the House of Lords was not deterred from over ruling a decision of a highly respected High Court judge as to the effect of the wording of a particular debenture in common use, despite the fact that his decision had stood and been relied upon by the banks for many years. The banks, like anyone else, must be taken to know that the decisions of the lower courts are liable to be over turned on appeal, even years after the event, if they are wrong. They cannot be regarded as definitely settling the law or have, as Lord Nicholls put it, lulled the banks into a false sense of security (para 43). In this case, there can be no question of the local authorities relying upon the Court of Appeals decisions. Their duties towards the homeless remain the same, whether or not the 1977 Act applies to the accommodation arrangements they make. They still have to go on fulfilling those duties. Unlike the banks in In re Spectrum Plus, there is nothing they can do about it, and they have not been lulled into a false sense of security. 169. In agreement with Lord Neuberger therefore, to whose judgment this is merely a footnote, I would therefore allow these appeals on the first issue. That being the case the second issue does not, in my view, arise. Mr Arden did not argue that a dwelling encompassed any residential accommodation provided for occupation, regardless how short was the intended period of occupation. He accepted that an overnight stay in a hotel or hostel would not amount to dwelling in that accommodation. Beyond that he submitted that it was a question of fact in each case. The respondent local authorities submitted, by reference to cases that I consider in paras 37 44 below, that premises must be occupied as a settled home and that lettings for a limited and temporary purpose involving transient occupation did not enjoy the protection of the Rent Acts in the past or of PEA 1977. They also pointed out that breach of section 3(1) of PEA was a criminal offence and submitted that there was a need for certainty as to its scope. I do not find either view wholly persuasive. The former makes insufficient allowance for a degree of settled occupation, the establishment of a home, as a component of dwelling. It also fails to recognise the extent to which the courts in several of the cases which I consider below have included as a component of their interpretation of the word dwelling their understanding of the relevant statutory policy; see in particular the cases in para 37 below. The latter view draws on case law which points to a statutory intention in the Rent Acts, and by extension in PEA 1977, to protect a persons home but not accommodation provided or occupied as a temporary expedient. There is force in the respondents interpretation (see para 45 below) but it risks setting up a generalised proposition that goes beyond that which the case law supports. In my view, in construing words that may have refined distinctions of meaning it is important to have regard to the statutory policy of PEA 1977. In applying the statutory words to a specific contract, the legal and factual context of the contract is particularly important.

UK-Abs

Local housing authorities have statutory obligations under Part VII of the Housing Act 1996 (the 1996 Act) to provide assistance to people who are homeless in certain circumstances. When an application for such assistance is received, the authority will carry out investigations under s.184 of the 1996 Act to ascertain whether the applicant qualifies for local authority housing. Under s.188 of the 1996 Act, the authority must provide the applicant with interim accommodation (s.188 accommodation) during the time it takes to carry out these investigations [1]. The two appellants in this case were children of families provided with s.188 accommodation while their housing applications were considered. CNs mother JN was granted a licence to occupy a privately owned property by the London Borough of Lewisham (Lewisham) in November 2011 [2]. From November 2012, ZH and his mother FI occupied s.188 accommodation, in the form of a flat owned by a private company, under a licence granted by the London Borough of Newham (Newham) [6]. Both JN and FIs substantive housing applications were refused, at which point the obligation on Lewisham and Newham (the authorities) to provide s.188 accommodation ended and JN and FI were told to vacate the properties; JN in May 2012 [5] and FI in March 2013 [6]. CN and ZH commenced separate judicial review proceedings challenging these evictions [9]. They argued that even after the s.188 duty ceased, the authorities could not lawfully evict them from their s.188 accommodation without first giving notice and obtaining a court order. They relied on ss.3(1) and 3(2B) of the Protection from Eviction Act 1977 (PEA) which together provide that in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, where the licence has come to an end but the occupier continues to reside in the premises it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises. Section 5(1A) PEA further provides that no less than four weeks written notice must be given to end a periodic licence to occupy premises as a dwelling, other than an excluded licence [19]. The excluded licences not protected by ss.3 and 5 are listed at s.3A PEA; the list does not include s.188 accommodation [18]. The two judicial review claims were given permission in the High Court and transferred to the Court of Appeal, where they were heard together [8]. On 11 July 2013 the Court of Appeal dismissed the claims [9]. The Supreme Court dismisses the appeal by a majority of five to two. It holds that Newham and Lewisham are entitled to evict the appellants from s.188 accommodation without first obtaining a court order. Lord Hodge (with whom Lord Wilson, Lord Clarke and Lord Toulson agree) gives the main judgment. Lord Carnwath gives a concurring judgment. Lord Neuberger and Lady Hale give dissenting judgments. Is s.188 accommodation occupied as a dwelling under a licence for the purposes of ss.3 and 5 PEA? Lord Hodge holds that the word dwelling does not have a technical meaning but suggests a greater degree of settled occupation than residence and can be equated with ones home [45]. It bears the same meaning in PEA as in predecessor legislation (the Rent Acts) [26]. On an assessment of the legal and factual context, a licence to occupy s.188 accommodation is not granted for the purpose of using the premises as a dwelling. First, the statutory context is inconsistent with such a purpose; s.188 imposes a low threshold duty on a local housing authority to provide interim accommodation (not a home or fixed abode) for a short and determinate period only [33]. Secondly, such a licence is granted on a day to day basis allowing the authority to transfer the applicant to alternative accommodation at short notice [34]. Thirdly, (although this is not of itself determinative) to hold otherwise would hamper the operation of the 1996 Act by introducing delays for court proceedings to effect evictions from accommodation needed for other homeless applicants [35]. Further, the absence of an express exclusion in s.3A PEA for s.188 accommodation does not mean that such accommodation falls within s.3 PEA [49]. Parliament sought confirm excluded tenancies and licences for the avoidance of doubt but did not intend to thereby extend protection to accommodation that would not have classified as a dwelling under the Rent Acts [47]. Lord Carnwath adds that settled practice may, in appropriate circumstances, be an aid to statutory interpretation [95]; were the issues more finely balanced, the fact that the Court of Appeals statutory interpretation in Mohammed v Manek (1995) 27 HLR 439 has been adopted in departmental guidance would be an additional reason to dismiss the appeal [98]. In dissenting judgments, Lord Neuberger [128] and Lady Hale [158] hold that in the context of PEA 1977 dwelling has at least as broad a meaning as residence. Lord Neuberger considers that Sections 3 and 5 PEA should be accorded a wide rather than a narrow effect as they reflect a policy that people who have been lawfully living in premises should not be summarily evicted [135]. Premises may be occupied as a dwelling notwithstanding said occupation is short term, provisional or precarious [136]. This interpretation is supported by the absence of a specific exclusion in s.3A PEA [139]. Does Article 8 ECHR require the authorities to obtain court orders before carrying out evictions? The parties were in agreement that the appellants Article 8 rights were engaged [60]. Lord Hodge (with whom Lord Neuberger, Lord Wilson, Lord Clarke, Lord Carnwath and Lord Toulson agree) holds that the interference with the appellants Article 8 rights was objectively justified. The termination of an unsuccessful applicants licence to occupy s.188 accommodation is in accordance with the law and pursues the legitimate aim of inter alia accommodating other homeless applicants [67]. Recovery of possession is proportionate to that aim because in the context of limited resources there can generally be no justification for preferring those whose claims have been investigated and rejected [68]. The procedural safeguards contained in the 1996 Act, the Children Act 1989, and by way of judicial review, together afford fair procedure such as to comply with the requirements of Article 8 [64]; there is no need to impose the additional hurdle of obtaining a court order [68]. (As Lady Hale finds for the appellants as a matter of statutory interpretation, in her judgment the Article 8 issue does not arise [168].)

This appeal is about an elaborate scheme designed and marketed by KPMG relating to demonstrator cars used by retail distributors for test drives and other internal purposes. In the ordinary course, a car distributor will buy new cars for use as demonstrators, paying VAT on the full amount of the sale price. This will in due course be recoverable as input tax by being set off against the output tax for which the distributor was accountable on its taxable supplies. The object of the KPMG scheme was to ensure that companies in the distributors group were able to recover input tax paid on the price of new cars acquired as demonstrators from manufacturers, while avoiding the payment of output tax on the price at which the car was ultimately sold second hand to a consumer. The Pendragon Group, to which all the respondents belong, are the largest car sales group in Europe. They purchased the Scheme and used it on two occasions, once in November and December 2000 and again in February and March 2001. Further use of the scheme was then abandoned when its efficacy was challenged by the Commissioners. In this litigation, the Commissioners seek to recover the VAT which the Pendragon Group thereby avoided. The KPMG scheme The KPMG scheme was designed to exploit three exceptions to the normal incidence of VAT. The first was an exception for assignments by an owner of goods comprised in a hire purchase or conditional sale agreement of his rights and interests thereunder and the goods comprised therein to a bank or other financial institution. Such transactions were de supplied by article 5(4) of the Value Added Tax (Special Provisions) Order 1995, SI 1995/1268. In other words, they were to be treated as neither a supply of goods nor a supply of services, and were thereby taken out of the VAT legislation altogether. The second exception was an exception for the supply by a person of assets of his business as part of the transfer of that business (or some discrete part of it) as a going concern, to be used by the transferee in carrying on the same kind of business. Such transactions were de supplied by article 5(1) of the same Order. The third exception was the margin scheme under which dealers in second hand goods are allowed to charge VAT not on the whole consideration for the sale of the goods but on their profit margin only. Margin schemes apply to the sale of second hand goods, works of art, collectors items and antiques. They are authorised by article 26a of the Sixth Council Directive on the Harmonisation of the Laws of member states relating to Turnover Taxes 77/388/EEC (as amended). Article 26a was inserted by amendment by Council Directive 94/5/EC in 1994. In the United Kingdom, effect was given to the amendment so far as concerned used cars by article 8 of the Value Added Tax (Cars) Order 1992, SI 1992/3122, as amended by the Value Added Tax (Cars) (Amendment) Order 1997, SI 1997/1615. The KPMG scheme involved five prearranged steps. I gratefully adopt the summary by Lloyd LJ in the Court of Appeal of these steps, and their normal consequences for the incidence of VAT [2013] EWCA Civ 868; [2014] STC 844: 21. Step 1. Pendragon plc, having bought new cars from, say, Ford, sold new cars which were destined for use as demonstrator cars, before sale to a consumer, to Captive Cos 1, 2, 3 and 4 (the Captive Leasing Companies or CLCs). (In fact only three companies were used, but I use the language which has been used elsewhere to describe the Scheme, in order not to generate unnecessary confusion.) Pendragon plc's sale of the cars to a CLC was a taxable supply of goods for VAT purposes. Therefore, Pendragon plc accounted for output tax on the sale of the cars; and reclaimed input tax, including the tax incurred on the purchase from Ford. 22. Step 2. On the same day as Step 1, the Captive Leasing Companies leased the cars pursuant to hybrid HP/lease agreements to dealership companies in the Pendragon Group (the Dealerships). Each of the Captive Leasing Companies entered into a Vehicle Demonstrator Hire Agreement (referred to as a hybrid lease) in favour of the Dealerships. Paragraph 8(c) of Second Schedule to the hybrid leases (generally referred to as clause 8(c), as I will refer to it hereafter, so as to avoid confusion) conferred on the Dealership an option to purchase the hired vehicles. The option was exercisable seven days after the end of the hire agreement, and not earlier. 23. The services provided by the Captive Leasing Companies to the Dealerships under the Vehicle Demonstrator Hire Agreement were taxable supplies at the standard rate of VAT. Input tax incurred by the Captive Leasing Companies on the purchase of the vehicles from Pendragon plc at Step 1 was therefore fully recoverable, being attributable to the making of those taxable supplies of leasing to the Dealerships. The Dealerships incurred VAT on the rental payments but recovered that VAT in full, being attributable to their taxable sale activities. 24. Step 3. On the day following Steps 1 and 2, the Captive Leasing Companies began assigning the hybrid lease agreements and title in the cars to SG Hambros Bank and Trust (Jersey) Ltd, known in the case as Soc Gen Jersey (SGJ), which was resident in Jersey, not in the UK. Each of the Captive Leasing Companies entered into a Deed of Assignment with SGJ. SGJ paid the Captive Leasing Companies the sum of approximately 20m. On the same date, SGJ had entered into a facility agreement with its parent company in the UK, SG London, in relation to the facility of 20m to finance the assignments. SGJ granted SG London an assignment of the assets to be assigned to it, as a form of security. 25. This step was critical to the success of the Scheme. It depended on the assignment of a lease, granted by a Captive Leasing Company to a Pendragon dealership, to a bank; according to HMRC this had to be an offshore bank, as it in fact was. No VAT was due on this transaction. The assignment by the Captive Leasing Companies to SGJ was not a supply for VAT purposes, by virtue of article 5(4) of the Special Provisions Order, which de supplied it, ie treated it as neither a supply of goods nor a supply of services. 26. Step 4. On a date envisaged as being some 30 to 45 days later, SGJ transferred as a going concern the lease agreements and title in the cars to Captive Co 5. Captive Co 5 resolved to purchase the relevant hire business carried on by SGJ. On the same day, SGJ contracted with Captive Co 5 to sell to it the business of the hire of cars said to have been carried on by SGJ. The consideration was in excess of 18m and was apportioned as to 100,000 for the sale of goodwill and as to the balance (save for 2) for the sale of the motor vehicles. That agreement was completed on the same date, and Captive Co 5 paid the agreed price to SGJ. 27. The sale by SGJ to Captive Co 5 of its hire business was the transfer of a business as a going concern (TOGC). As such the transaction was neither a supply of goods nor a supply of services; therefore no VAT was due on this transaction. 28. Step 5. On various dates thereafter, the cars were sold to customers by the Dealerships, acting as undisclosed agents for Captive Co 5 in which title to the vehicles was vested. VAT was charged to the purchasers on the seller's profit margin on the sale, rather than on the total sale price, Captive Co 5 having opted to apply the margin scheme. 29. When Captive Co 5 sold the vehicles to the retail customer, the Cars Order applied. The tax relief provided for by article 8 of that Order applied only where the taxable person making the sale had come into possession of the car in the circumstances set out in article 8(2), which I will set out below. If those requirements were met, and if the option was exercised that the margin scheme should apply, then VAT was due only on the profit margin on the supply, rather than on the whole value received for the supply. This meant that Captive Co 5 accounted for VAT on the difference between the cost of the car on the purchase from SGJ, and the price at which it sold the car to the consumer. By means of the de supplied assignment of the leases to SGJ at Step 3, and the TOGC from SGJ at Step 4, the Scheme was designed to meet the taxation requirements of the Cars Order. Abuse of law It is common ground that at a purely technical level, the KPMG scheme worked. That is to say, the transactions envisaged at Steps 3 and 4 satisfied all the statutory conditions for exemption from VAT, and the transaction envisaged at Step 5 satisfied all the statutory conditions for the application of the margin scheme. But that is not the end of the matter. Value Added Tax is an EU tax imposed pursuant to successive Directives of the European Union, at the relevant time the Sixth Directive. The Directives are subject to the principle of abuse of law. By virtue of section 2(1) of the European Communities Act 1972 the same principle must apply to domestic legislation implementing the Directives. Abuse of law is a concept derived from civil law jurisprudence, which is unknown to English common law but has been adopted by the law of the European Union. In its simplest form, it confines the exercise of legal rights to the purpose for which they exist, and precludes their use for a collateral purpose. For present purposes, the expression dtournement de droit adopted by some French writers is probably a better description of its content. The application of the principle to tax avoidance schemes calls for a difficult balance to be drawn. It is traditional, at any rate in this jurisdiction, to distinguish between avoidance, which involves the lawful arrangement of a taxpayers affairs so as to minimise his tax bill, and evasion, which is an unlawful failure to account for tax due, generally by suppressing or falsifying information. Sophisticated avoidance schemes do not so much undermine this distinction as challenge its usefulness. By artificially reclassifying transactions so as to produce a more favourable tax outcome than commercially comparable normal transactions, they frustrate the objective of the taxing provision without necessarily falling foul of its language. The result is arbitrarily to depress tax receipts, producing inequity between taxpayers and potentially distorting competition between firms who are otherwise similarly placed. This gives rise to social costs which are significant and increasingly controversial. On the other hand, legal certainty is an important principle of both English and EU law, particularly when it comes to justifying the financial demands of the state. Artificiality, if it is to be deployed as a workable legal concept, has to be tested against some standard of transactional normality, and the search for such a standard is far from straightforward. Taxpayers faced with a choice between alternative ways of achieving some commercial objective are in principle entitled to select the one with the more tax efficient statutory outcome. In particular, they are entitled to choose between exempt and taxable transactions in their own financial interest. Like any other tax, VAT is due only in so far as its imposition is authorised by statute. It follows that although the courts may examine the commercial reality of transactions without being unduly hidebound by labels, they do not as a general rule enlarge the scope of a taxing provision by reference to considerations which affect neither the construction of its language nor the characterisation of transactions to which it is said to apply. These dilemmas are particularly acute in the United Kingdom, where the drafting of tax legislation has traditionally depended not on the formulation of general principles but on the definition of taxable occasions with a high degree of specificity. The main task of any court seeking to apply a principle of abuse of law is to reconcile these competing considerations. In the case law of the Court of Justice of the European Union, the concept of abuse of law was first applied to fiscal rights and obligations in Emsland Strke GmbH v Hauptzollamt Hamburg Jonas (Case C 110/99) [2000] ECR I 11569. An exporter was refused a rebate of duty to which he was entitled on the face of the relevant Commission Regulation upon the export of his goods, because he had abused the law by claiming it in respect of goods which had been exported to a third country only to be at once re imported into the country of origin. The court held at para 59 that: a finding that there has been an abuse presupposes an intention on the part of the Community exporter to benefit from an advantage as a result of the application of the Community rules by artificially creating the conditions for obtaining it. The essential reason why the trading scheme failed in that case was that the choice of a circular supply route did not involve a choice between different methods of achieving the traders commercial purpose. It had no commercial purpose other than the avoidance of tax. The ambit of the principle was more fully defined in what is now the leading case, the decision of the Grand Chamber in Halifax plc v Customs and Excise Commissioners (Case C 255/02) [2006] STC 919. This decision concerned a scheme for claiming input tax on the construction costs of four call centres, notwithstanding that as a bank Halifaxs business consisted mainly in making exempt supplies which generated no output tax against which to set it off. The scheme involved a series of prearranged transactions, whose combined effect was to substitute for Halifax two of its subsidiaries which generated larger volumes of output tax, as the parties to whom the construction services were supplied. In this case, there was clearly an underlying commercial purpose, namely the provision of the call centres. The issue arose out of the particular contractual method used to bring the project to fruition. It was found that there was no commercial rationale for interposing the two subsidiaries, who had been involved for the sole purpose of avoiding tax. The court accepted that the concept of abuse of law applied to VAT. Preventing possible tax evasion, avoidance and abuse is an objective recognised and encouraged by the Sixth Directive (para 71). It held that Community law cannot be relied on for abusive or fraudulent ends (para 68), and that application of Community legislation cannot be extended to cover abusive practices by economic operators, that is to say transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages provided for by Community law (para 69). These principles had, however, to be reconciled with the fundamental principle of legal certainty in the Community legal order, especially in the case of rules imposing financial liabilities. The court continued: 73. it is clear from the case law that a trader's choice between exempt transactions and taxable transactions may be based on a range of factors, including tax considerations relating to the VAT system (see, in particular, BLP Group [1995] STC 424, [1996] 1 WLR 174, para 26, and Customs and Excise Comrs v Cantor Fitzgerald International (Case C 108/99) [2001] STC 1453, [2002] QB 546, para 33). Where the taxable person chooses one of two transactions, the Sixth Directive does not require him to choose the one which involves paying the highest amount of VAT. On the contrary, as the Advocate General observed in para 85 of his opinion, taxpayers may choose to structure their business so as to limit their tax liability. 74. In view of the foregoing considerations, it would appear that, in the sphere of VAT, an abusive practice can be found to exist only if, first, the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions. 75. Second, it must also be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage. As the Advocate General observed in para 89 of his opinion, the prohibition of abuse is not relevant where the economic activity carried out may have some explanation other than the mere attainment of tax advantages. 76. It is for the national court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of Community law is not undermined, whether action constituting such an abusive practice has taken place in the case before it (see Eichsfelder Schalchtbetrieb (Case C 515/03) [2005] All ER (D) 306 (Jul), para 40). 81. As regards the second element, whereby the transactions concerned must essentially seek to obtain a tax advantage, it must be borne in mind that it is the responsibility of the national court to determine the real substance and significance of the transactions concerned. In so doing, it may take account of the purely artificial nature of those transactions and the links of a legal, economic and/or personal nature between the operators involved in the scheme for reduction of the tax burden (see, to that effect, Emsland Starke [2000] ECR I 11569, para 58). The court dealt with the consequences of a finding of abuse as follows: 93. It must also be borne in mind that a finding of abusive practice must not lead to a penalty, for which a clear and unambiguous legal basis would be necessary, but rather to an obligation to repay, simply as a consequence of that finding, which rendered undue all or part of the deductions of input VAT (see, to that effect, Emsland Starke [2000] ECR I 11569, para 56). 94. It follows that transactions involved in an abusive practice must be redefined so as to re establish the situation that would have prevailed in the absence of the transactions constituting that abusive practice. 9. It is clear that in arriving at these conclusions the court was strongly influenced by the penetrating analysis of the limits of a taxpayers legitimate choices by Advocate General Poiares Maduro. That Opinion provides a valuable discussion of the highly condensed statement of the test in paras 74 75 of the judgment. In particular, it addresses more fully the problem of concurrent purposes: Definition of the scope of this Community law principle, as applicable to the common VAT system, is ultimately a problem of determining the limits applicable to the interpretation of the provisions of the VAT directives that confer certain rights on taxable persons. In this regard, the objective analysis of the prohibition of abuse has to be balanced against the principles of legal certainty and protection of legitimate expectations that also form part of the Community legal order and in the light of which the provisions of the Sixth Directive must be interpreted. From those principles it follows that taxpayers must be entitled to know in advance what their tax position will be and, for that purpose, to rely on the plain meaning of the words of the VAT legislation. 85. Furthermore, the court has consistently held, in consonance with the position generally accepted by member states in the tax domain, that taxpayers may choose to structure their business so as to limit their tax liability. In BLP Group plc v Customs and Excise Comrs (Case C 4/94) [1995] STC 424, [1996] 1 WLR 174, the court ruled that a trader's choice between exempt transactions and taxable transactions may be based on a range of factors, including tax considerations relating to the VAT system. There is no legal obligation to run a business in such a way as to maximise tax revenue for the State. The basic principle is that of the freedom to opt for the least taxed route to conduct business in order to minimise costs. On the other hand, such freedom of choice exists only within the scope of the legal possibilities provided for by the VAT regime. The normative goal of the principle of prohibition of abuse within the VAT system is precisely that of defining the realm of choices that the common VAT rules have left open to taxable persons. Such a definition must take into account the principles of legal certainty and of the protection of taxpayers legitimate expectations. 86. By virtue of those principles, the scope of the Community law interpretative principle prohibiting abuse of the VAT rules must be defined in such a way as not to affect legitimate trade. Such potential negative impact is, however, prevented if the prohibition of abuse is construed as meaning that the right claimed by a taxable person is excluded only when the relevant economic activity carried out has no other objective explanation than to create that claim against the tax authorities and recognition of the right would conflict with the purposes and results envisaged by the relevant provisions of the common system of VAT. Economic activity of that kind, even if not unlawful, deserves no protection from the Community law principles of legal certainty and protection of legitimate expectations because its only likely purpose is that of subverting the aims of the legal system itself. 87. I am of the view therefore that the Community law notion of abuse, applicable to the VAT system, operates on the basis of a test comprising two elements. Both elements must be present in order to establish the existence of an abuse of Community law in this area. The first corresponds to the subjective element mentioned by the court in Emsland [2000] ECR I 11569, but it is subjective only in so far as it aims at ascertaining the purpose of the activities in question. That purpose which must not be confused with the subjective intention of the participants in those activities is to be objectively determined on the basis of the absence of any other economic justification for the activity than that of creating a tax advantage. Accordingly, this element can be regarded as an element of autonomy. In fact, when applying it, the national authorities must determine whether the activity at issue has some autonomous basis which, if tax considerations are left aside, is capable of endowing it with some economic justification in the circumstances of the case. 88. The second element of the proposed test corresponds to the so called objective element mentioned in Emsland [2000] ECR I 11569. It is in fact a teleological element whereby the purpose and objectives of the Community rules allegedly being abused are compared with the purpose and results achieved by the activity at issue. This second element is important, not only because it provides the standard upon which the purpose and results of the activity in question are to be assessed. It also provides a safeguard for those instances where the sole purpose of the activity might be to diminish tax liability but where that purpose is actually a result of a choice between different tax regimes that the Community legislature intended to leave open. Therefore, where there is no contradiction between recognition of the claim made by the taxable person and the aims and results pursued by the legal provision invoked, no abuse can be asserted. 89. The prohibition of abuse, as a principle of interpretation, is no longer relevant where the economic activity carried out may have some explanation other than the mere attainment of tax advantages against tax authorities. In such circumstances, to interpret a legal provision as not conferring such an advantage on the basis of an unwritten general principle would grant an excessively broad discretion to tax authorities in deciding which of the purposes of a given transaction ought to be considered predominant. It would introduce a high degree of uncertainty regarding legitimate choices made by economic operators and would affect economic activities which clearly deserve protection, provided that they are, at least to some extent, accounted for by ordinary business aims. 91. On the basis of the foregoing analysis I am therefore of the opinion that there is a Community law principle of interpretation prohibiting the abuse of Community provisions, which is also applicable to the Sixth Directive. According to that principle, the provisions of the Sixth Directive must be interpreted as not conferring the rights that might appear to be available by virtue of their literal meaning, when two objective elements are found to be present. First, that the aims and results pursued by the legal provisions formally giving rise to the tax advantage invoked would be frustrated if that right were conferred. Second, that the right invoked derives from economic activities for which there is objectively no other explanation than the creation of the right claimed. 10. Two main difficulties arise where the principle of abuse of law is applied to tax avoidance schemes. 11. The first arises from the assumption made by the Court of Justice in Halifax that the principle will not apply to what it called normal commercial operations (para 69). Subsequent case law has established that this means those that are normal in the context of the relevant line of business, not necessarily normal for the particular taxpayer: Revenue and Customs Commissioners v Weald Leasing Ltd (Case C 103/09) [2011] STC 596. I do not think that the court can have intended to set up a third distinct test, in addition to the two which are set out in paras 74 75 and repeated in its order. The normality of a transaction is relevant to the question posed in the courts first test, about the purpose of the relevant provision of the VAT Directives. Normal commercial operations will not as a general rule be regarded as contrary to the purpose of the Directives, since these must be assumed to have been designed to accommodate them. Thus in Weald Leasing the taxpayers decision to take equipment on lease from an intermediate company rather than buy it outright was an ordinary commercial transaction. It was not abusive even though it was unusual for the taxpayer in question and was designed to obtain a tax advantage by spreading the liability to tax over a longer period. The choice between leasing and outright purchase was a choice accommodated by the scheme of the VAT legislation. The tax treatment of lease payments being a facility available under the legislation itself, resort to it could not be regarded as contrary to its purpose. For the same reason, a transaction is not abusive merely because it falls within an exception or derogation from ordinary principles of EU law governing the incidence of VAT, such as the right enshrined in the Sixth Directive to deduct input tax generated by transactions in another member state. It follows that the sourcing of goods or services from a country in which the VAT regime is more favourable is not in itself abusive, even though the object and effect is to allow the deduction of input tax without the payment of output tax (Revenue and Customs Commissioners v RBS Deutschland Holding GmbH (Case C 277/09) [2011] STC 345). The reason, as the court explained in that case at paras 51 52, is that this is a choice inherent in a scheme of taxation that is designed to be fiscally neutral as between different member states while allowing for some differences between their implementing laws. Likewise, the conduct of a genuine business activity through a subsidiary incorporated in another member state is not abusive, although the sole reason for the choice is that it has a lower rate of corporation tax: Cadbury Schweppes Plc v Inland Revenue Commissioners (Case C 196/04) [2006] STC 1908. Precisely the same considerations must apply to a decision to source goods or services from outside the European Union, an option which is inherent in the territorial limits of the EU VAT regime and the assignment of economic relations with third countries to other policies of the Union. 12. The second difficulty which arises from the application of the principle of abuse of law to tax avoidance is that of concurrent purposes. Tax avoidance schemes are rarely directed exclusively to tax avoidance. It is difficult to conceive of a scheme, other than a fraudulent one, which achieved absolutely nothing but a tax advantage. They are usually directed to achieving a commercial purpose, such as the provision of the call centres in Halifax, in a way which avoids a tax liability that would otherwise be associated with it. The potential for abuse consists in the method chosen to achieve the commercial purpose. In Ministero dellEconomia e delle Finanze v Part Service Srl (Case C 425/06) [2008] STC 3132, the consideration payable by the lessee under a leasing transaction was artificially split between two contracts, one with the lessor and the other with an associated company of the lessor. The latter contract was structured so as to qualify as an exempt financial contract under Italian law, so as to reduce the amount chargeable to VAT. The transactions had a legitimate commercial purpose, namely the leasing of the cars, but the method of achieving that purpose was held to be open to challenge if the accrual of a tax advantage constitutes the principal aim of the transaction or transactions at issue (para 45). This conclusion seems to me to do no more than make explicit something which is implicit in the Halifax tests. Identifying the essential aim in a case of concurrent fiscal and commercial purposes depends on an objective analysis of the method used to achieve the commercial purpose. As Advocate General Maduro observed in a passage from (para 89) of his opinion which was in terms approved by the court (para 75), the taxpayers choices must be at least to some extent, accounted for by ordinary business aims. The question is therefore whether the commercial objective is enough to explain the particular features of the contractual arrangements which produce the tax advantage. 13. These considerations effectively answer a question which is likely to arise in most cases involving prearranged sequences of transactions. Is the relevant aim that of the scheme as a whole or of its component parts? The answer is that it may be either or both. Because the principle of abuse of law is, in this context, directed mainly to the method by which a commercial purpose is achieved, it is necessary to analyse each transaction by which it is achieved. Because the purpose of each step will generally be to contribute to the working of the whole scheme, the effect of the whole scheme has also to be considered. In WHA Ltd v Customs and Excise Commissioners [2007] STC 1695, para 22, Lord Neuberger, delivering the leading judgment in the Court of Appeal, rejected the submission that the court was confined to considering the artificiality or purpose of each individual step, since these will commonly be individually unassailable but designed to produce the tax advantage in combination. I agree with this observation. The first Halifax test: contrary to the purpose of the legislation 14. Value Added Tax is a tax on consumption. As far as the end user of goods or services is concerned it is a tax on the whole consideration provided for the goods or services in question. But as far as each taxable participant in the chain of production or distribution is concerned, it is a tax on the value which he has added to the product. Each taxable participant accounts for tax on the amount realised (output tax), less the cost of the materials and other taxable inputs (input tax). The broad principle is that tax on the ultimate value of the product is levied only once, albeit that it may be collected at different stages of the process of manufacture and distribution. In Elida Gibbs Ltd v Customs and Excise Commissioners (Case C 317/94) [1996] STC 1387, the Court of Justice summarised the position at paras 18 22 in this way: 18. Before replying to these questions it is appropriate to describe briefly the basic principle of the VAT system and how it operates. 19. The basic principle of the VAT system is that it is intended to tax only the final consumer. Consequently the taxable amount serving as a basis for the VAT to be collected by the tax authorities cannot exceed the consideration actually paid by the final consumer which is the basis for calculating the VAT ultimately borne by him. 20. Thus in Staatssecretaris van Financie v Hong Kong Trade Development Council (Case 89/81) [1982] ECR 1277 at 1285, para 6 the court held that it was apparent from EC Council Directive 67/227 of 11 April 1967 on the harmonisation of the legislation of the member states concerning turnover tax (the First Directive) (JO 71 14.4.67 p 1301 (S Edn 1967 p 14)) that one of the principles on which the VAT system was based was neutrality, in the sense that within each country similar goods should bear the same tax burden whatever the length of the production and distribution chain. 21. That basic principle clarifies the role and obligations of taxable persons within the machinery established for the collection of VAT. 22. It is not, in fact, the taxable persons who themselves bear the burden of VAT. The sole requirement imposed on them, when they take part in the production and distribution process prior to the stage of final taxation, regardless of the number of transactions involved, is that, at each stage of the process, they collect the tax on behalf of the tax authorities and account for it to them. It follows, as the court pointed out at para 24, that the tax authorities may not in any circumstances charge an amount exceeding the tax paid by the final consumer. 15. The Commissioners objection to the KPMG scheme under this head is that it is contrary to the purpose of the margin scheme. The margin scheme is an exception to the general principle that VAT is charged on the full consideration for a sale. It applies where a vehicle, having previously left the supply chain when sold new to a consumer, then re enters it upon being acquired and resold by a taxable person. The object is to allow partial relief from VAT to traders selling goods which have already been the subject of a net tax charge at some earlier stage in their history. The effect of the KPMG scheme, by comparison, is to enable the Pendragon Group to avail itself of the margin scheme in a quite different situation, where there has been no net charge to VAT because the input tax suffered by Pendragon plc on the purchase from the manufacturer has been recovered by being netted off against output tax chargeable on the sale by Pendragon plc to the Captive Leasing Companies. 16. The Sixth Directive made no specific provision for second hand goods. Article 32 provided for the Council to make provision for them by the end of 1977, but until they had done so member states were to be entitled to retain any special schemes of their own. That state of affairs subsisted until 1994, when Council Directive 94/5/EC of 14 February 1994 finally introduced a number of amendments to the Sixth Directive. These sought to harmonise the VAT regimes of member states relating to second hand goods, works of art, antiques and collectors items. The amendments included the new article 26a, which required member states to introduce a margin scheme for these goods in these categories, and to allow dealers the option of being taxed under it. It is clear from the recitals that the purpose of the amendments, apart from reducing distortions of competition arising from the different treatment of comparable transactions, was to avoid double taxation. The third and fifth recitals record: Whereas the Court of Justice has, in a number of judgments, noted the need to attain a degree of harmonization which allows double taxation in intra Community trade to be avoided. Whereas, within the internal market, the satisfactory operation of the value added tax mechanisms means that Community rules with the purpose of avoiding double taxation and distortion of competition between taxable persons must be adopted. In Forvaltnings AB Stenhoven v Riksskatteverket (Case C 320/02) [2004] STC 1041, paras 8 and 25 and Jyske Finans A/S v Skatteministeriet (Case C 280/04), paras 32 and 37, the Court of Justice treated these recitals as correctly stating the purpose of the amendment introducing the margin scheme. 17. Article 26aB was entitled Special arrangements for taxable dealers. Taxable dealers for this purpose are defined as taxable persons who in the course of business acquired second hand goods, works of art, antiques or collectors items: see article 26aA. Article 26aB provided that a taxable dealer was entitled to account for VAT on his profit margin if he had obtained the goods within the Community from one of four categories of person, namely: (i) a non taxable person; (ii) a taxable person if the supply by him was pursuant to an exempt activity under article 13B(c) of the Sixth Directive, ie it did not give rise to any right to deduct input tax; (iii) in the case of capital assets, a taxable person who was exempt under article 24 of the Sixth Directive as a small undertaking; or (iv) another taxable dealer who was himself operating under the margin scheme. 18. Leaving aside the question of distortion of competition, which is a marginal factor in this case, the terms of Part B of article 26a, read in conjunction with the recitals, disclose two related purposes of the margin scheme, one direct and the other indirect. The direct purpose is apparent from the fact that the common feature of all four categories of anterior supplier is that they will all have supplied the goods to the taxable dealer in circumstances where they will have had no right to deduct input tax. In case (iv) no such right will have arisen in respect of the acquisition by the anterior suppliers own supplier either. The indirect purpose is the one referred to in the recitals, namely the avoidance of double taxation, which would have occurred if the taxable dealer were accountable for VAT on the entire resale price of goods which had already suffered a net charge to VAT at some earlier stage. 19. As regards cars, article 26a was, as I have said, transposed into English law with effect from 1995 by article 8 of the Value Added Tax (Cars) Order 1992, SI 1992/3122 (as amended). Omitting references to transactions chargeable under Manx law, article 8(1) and (2) of the Order provide: (1) Subject to complying with such conditions (including the keeping of such records and accounts) as the Commissioners may direct in a notice published by them for the purposes of this Order or may otherwise direct, and subject to paragraph (3) below, where a person supplies a used motor car which he took possession of in any of the circumstances set out in paragraph (2) below, he may opt to account for the VAT chargeable on the supply on the profit margin on the supply instead of by reference to its value. (2) The circumstances referred to in para (1) above are that the taxable person took possession of the motor car pursuant to (a) a supply in respect of which no VAT was chargeable under the Act ; (b) a supply on which VAT was chargeable on the profit margin in accordance with para (1) above, or a corresponding provision of the law of another member state; (bb) a supply received before 1 March 2000 to which the provisions of article 7(4) of the Value Added Tax (Input Tax) Order 1992 applied; (c) a transaction except one relating to the transfer of the assets of a business or part of a business as a going concern which was treated by virtue of any Order made or having effect as if made under section 5(3) of the Act as being neither a supply of goods nor a supply of services; (d) a transaction relating to the transfer of the assets of a business or part of a business as a going concern which was treated as neither a supply of goods nor a supply of services if the transferor took possession of the goods in any of the circumstances described in this paragraph. Paragraphs (c) and (d) of article 8(2) refer to transactions treated as neither a supply of goods nor a supply of services. This is a reference to article 5 of the Value Added Tax (Special Provisions) Order 1995, SI 1995/1268, made under powers conferred on the Treasury by section 5(3) of the Value Added Tax Act 1994. It provides (omitting irrelevant subsections and references to Manx legislation): (1) Subject to para (2) below, there shall be treated as neither a supply of goods nor a supply of services the following supplies by a person of assets of his business (a) their supply to a person to whom he transfers his business as a going concern where (i) the assets are to be used by the transferee in carrying on the same kind of business, whether or not as part of any existing business, as that carried on by the transferor, and (ii) in a case where the transferor is a taxable person, the transferee is already, or immediately becomes as a result of the transfer, a taxable person ; (b) their supply to a person to whom he transfers part of his business as a going concern where (i) that part is capable of separate operation, (ii) the assets are to be used by the transferee in carrying on the same kind of business, whether or not as part of any existing business, as that carried on by the transferor in relation to that part, and (iii) in a case where the transferor is a taxable person, the transferee is already, or immediately becomes as a result of the transfer, a taxable person 20. It will be apparent that article 8(2) of the Cars Order is not an exact reproduction of article 26a of the Sixth Directive. It applies the margin scheme in five cases. The first (para 2(a)) is that the taxable reseller acquired the car under a transaction in respect of which no VAT was chargeable. The second (para 2(b)) is that he has acquired it from a taxable person who is himself operating under the margin scheme. The third (para 2(bb)) is that the car was acquired by the reseller before 1 March 2000 in circumstances where under the law as it then stood input tax in respect of cars was disallowed altogether: see article 7(1) and (4) of the Value Added Tax (Input Tax) Order 1992, SI 1992/3222. The fourth (para 2(c)) is that the car was acquired as part of the assets of a business transferred as a going concern which was de supplied by article 5(1) of the Special Provisions Order (quoted above). The fifth is that it was acquired under some transaction other than the transfer of the assets of a business, but which is also de supplied by an order made under section 5(3) of the Value Added Tax Act 1994. This includes the assignment by an owner of goods comprised in a hire purchase or conditional sale agreement of his rights and interests under that agreement: see article 5(4) of the Special Provisions Order. The first two of these cases substantially correspond to the cases specified in article 26aB(2) of the Sixth Directive. The third is of purely historic importance. It is essentially a transitional provision reflecting an earlier United Kingdom VAT regime for cars. The fourth and fifth are not foreshadowed in article 26aB(2) of the Directive unless (as the Commissioners submit) they are covered by the exemption for goods sourced from a non taxable person. All five cases, however, manifestly have the same underlying purpose as article 26a. This is because in all five cases, the reseller seeking to avail himself of the margin scheme will have acquired the goods from someone with no right to recover input tax in respect of their own acquisition of them, and in the second case the same will also be true of the anterior suppliers own supplier. In those cases falling within the five categories where the goods originate from a person who was charged VAT on the cost of acquisition, the object and effect is to avoid double taxation. As with article 26a of the Directive, there is an element of overkill, in that article 8(2) captures dealings in which goods may not have given rise to a full charge to tax at any stage. 21. Mr Cordara QC, who appeared for the taxpayer, puts forward two main arguments about this. 22. His first argument challenges the view that the margin scheme legislation is based upon a policy of avoiding double taxation or trapped VAT. He accepts that there is such a policy. But he submits that neither the EU nor the UK legislation can be regarded as being based on it, because double taxation was not their exclusive targets. This is because it is not a precondition to the application of the margin scheme that an earlier owner should have paid VAT on the car. Some goods covered by article 26a of the Sixth Directive will never have suffered a full charge to VAT. Thus, to take the simplest (and probably the commonest) case, where the taxable dealer has acquired the goods from a non taxable person, say a householder selling furniture otherwise than in the course of a business, and the householder himself acquired them new from a taxable person, then VAT will have been paid on the cost of acquisition, assuming that no exemptions apply. That VAT will not be recoverable by the householder on the subsequent sale to the taxable dealer. It will, in the jargon of VAT specialists, be trapped. Most second hand goods which are not works of art, antiques or collectors items will have suffered a charge to VAT on the full price when they were first sold new. On the other hand, antiques, which are defined as objects more than a hundred years old other than works of art or collectors items, will not have been subject to a charge to VAT on the full price unless (unusually) the householder acquired them from a dealer who elected not to be taxed under the margin scheme, or they were subject to VAT on the full price in another member state at a time when the VAT treatment of second hand goods (including antiques) was unharmonised. Works of art or collectors items may or may not have been subject to a charge to VAT on the full price at some stage, depending on their age, their whereabouts at earlier stages of their history and the taxable status of their creator or any other intermediary through whose hands they have passed. Mr Cordara submits that it would, he says, have been difficult to design a workable system which required one to ascertain whether VAT had in fact been paid in every case on some historic transfer of the goods. So it was decided as a matter of policy to expand the scope of the margin scheme to make it more generous and at the same time easier to administer. In the process, the connection with double taxation and trapped VAT was diluted. 23. I do not accept this argument. Both article 26a of the Directive and article 8(2) of the Cars Order apply the margin scheme to cases where if VAT was charged, it will not have been recoverable, even though that will include some cases where VAT was never charged. I have no doubt that Mr Cordara is right to say that this was done because of the difficulty of designing a workable legislative scheme for second hand goods which depended on whether at some stage the particular goods passed through the hands of someone who had actually charged VAT on the full price. But none of this affects the purpose of the margin scheme. Sometimes the only practicable way of capturing a particular category of transactions which is hard to define is to capture a larger category which is easier to define. This means that the result is an imperfect legislative scheme but not an aimless one. Its purpose is still to capture the smaller category. The element of overkill in this legislative scheme will be larger for some classes of goods than for others. But it is worth pointing out that we are concerned with cars, a class of goods in which the element of overkill is likely to be small. Apart from a small number of cars still in existence which were sold new before 1973, and certain special purpose vehicles which are zero rated (such as vehicles designed or adapted for the disabled), all used cars will originally have been sold as new cars under transactions attracting a full charge to VAT. 24. I turn to Mr Cordaras second argument, which focusses on the application of the margin scheme to cars acquired under de supplied transactions, namely (i) pursuant to the assignment of rights and interests under a hire purchase or conditional sale agreement, or (ii) as part of the assets of a business transferred as a going concern. These cases, which depend on article 8(2)(c) and (d) of the Cars Order, are the fourth and fifth cases which I have identified above. They are critical to steps 2, 3 and 4 of the KPMG scheme. Mr Cordara argues that even on the footing that the exemption of such transfers from VAT by article 5 of the Special Provisions Order is based on the Sixth Directive, their treatment as gateways to the margin scheme is not. This, he says, is because the only relevant gateway in article 26aB of the Sixth Directive is that the goods were acquired from a non taxable person, whereas article 8(2)(c) and (d) of the Cars Order apply it to taxable persons in respect of specific categories of transaction. He submits that these are additional statutory tax concessions, creatures of the domestic law of the United Kingdom, which have nothing to do with EU law. He says that the same is true of other special UK schemes (such as the Motability scheme for disabled vehicles) which have applied the margin scheme even more widely. Not being applications of EU law, he submits, the underlying purpose of article 26a cannot be said to apply to them. The point, if correct, has more radical implications, as Mr Cordara recognised. It would mean that the principle of abuse of law had no application to these particular exemptions at all. 25. I reject this argument also. I am prepared to assume, without deciding, that the application of the margin scheme to de supplied transactions by article 8(2)(c) and (d) of the Cars Order is not derived from article 26a of the Sixth Directive. On that assumption, these particular features of the United Kingdom margin scheme were creatures of United Kingdom law only. It does not follow that the underlying purpose of applying the margin scheme to de supplied transactions is any different from the underlying purpose of applying it to other cases covered by article 8(2) of the Cars Order which are unquestionably authorised by article 26a. They all have the same essential feature in common, namely that if VAT has been charged on the goods at some earlier stage, it will not have been recoverable. It is that feature which accounts for the application to them of the margin scheme. By de supplying certain transactions by article 5 of the Special Provisions Order, the United Kingdom has in effect added further occasions on which, if VAT has at some stage been charged, it will not be recoverable. In extending the margin scheme to cover these transaction by article 8(2) of the Cars Order, it has simply applied the policy underlying article 26a of the Directive to further categories of transactions which are in the relevant respects comparable. It is still the same policy. 26. If, therefore, this argument is to succeed, it must be on the more radical basis that because the application of the margin scheme to de supplied transactions is not derived from article 26a, the EU principle of abuse of law cannot apply to article 8(2)(c) and (d) of the Cars Order at all. A very similar suggestion was rejected by the Court of Appeal in WHA Ltd v Revenue and Customs Commissioners, paras 43 47 (Lord Neuberger). 27. In my view they were right to reject it. VAT is a largely but not entirely harmonised tax which depends for its application to taxpayers on its implementation in the domestic law of member states but is part of the legal order of the European Union. The domestic VAT regime of member states will include provisions directly transposing the relevant Directives into national law. Depending on the drafting tradition of the relevant member state, the general principles of its tax law and its rules of private (especially contract) law, this may involve adapting or supplementing the language of the Directive to accommodate its requirements to the domestic context. In addition, there may be national provisions dealing with matters which the Directives leave to member states, either expressly or because they relate to matters such as procedure and civil remedies which are left to member states under the general distribution of functions between EU and national institutions. These features of national implementing laws are nonetheless part of a scheme for implementing an EU tax. National VAT regimes fall to be applied not just according to the letter of the national law, but in accordance with a number of general principles of EU law whose origin is the jurisprudence of the Union rather than the constitutive treaties or legislation made under them. These include the principle of respect for fundamental rights, the principle of proportionality, the principle of legal certainty with its concomitant doctrines of legitimate expectation and good faith, and the principle of abuse of law. Their application is not excluded because some particular feature of the national legal regime applying an EU tax has its origin in a domestic legislative choice rather than in a member states obligation to implement a Directive. 28. Thus, although remedies for breach of an EU obligation are a matter for domestic law, in Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners (Case C 362/12) [2014] AC 1161, the principle of legal certainty and the doctrine of legitimate expectations were applied to the United Kingdoms legislative choices about remedies for recovering overpaid VAT: see paras 44 49. This court had previously reached the same conclusion, rejecting the submission (see pp 348 349) that these principles did not apply to a feature of English law which was not the result of a Union obligation: [2012] 2 AC 337. In Revenue and Customs Commissioners v Weald Leasing Ltd (Case C 103/09) [2011] STC 596, it was argued that the abuse of law principle only applies to tax advantages which are contrary to Community law provisions and not to attempts to circumvent domestic law (para 23). Rejecting this submission, Advocate General Mazak said, at para 24: I consider that Weald Leasing's submission cannot be accepted. It would appear from the file before the court, and subject to verification by the referring court, that paragraph 1, Schedule 6, of the VAT Act 1994 was enacted pursuant to a derogation under article 27 of the Sixth Directive. In my view, provisions of national legislation which were adopted in accordance with the derogations laid down in article 27 of the Sixth Directive form an integral part of the national VAT system, are binding on a taxable person under national law and may be relied upon by the tax authorities of a member state before the national courts against that person. For the purposes of the application by the national courts of the abuse principle as laid down in Halifax, any distinction between national provisions which implement the provisions of the Sixth Directive and those which were adopted in full compliance with a derogation permitted under that directive is, in my view, contrived and tends to undermine the integrity of the national VAT system and indirectly the EU VAT system. Agreeing with its Advocate General, the court held (para 42): In that context, Weald Leasing's argument that the principle of prohibiting abusive practices does not apply to breach of paragraph 1 in Schedule 6 to the VAT Act 1994 because that provision is purely a question of national law cannot be accepted, because that provision was adopted on the basis of article 27 of the Sixth Directive and forms part of the national legislation implementing that directive. Weald Leasing was, as both of these citations show, a case in which the relevant provision of United Kingdom law was authorised by an express derogation in the Directive. But logically that can make no difference. The point is that no rule of EU law was being circumvented. What was being circumvented was a rule of domestic law which had been incorporated domestically in an EU scheme. 29. I would reach the same conclusion as a matter of English domestic law. The Cars Order was made with the intention of applying article 26a of the Sixth Directive to the used car market. All domestic VAT implementing legislation is made against the background of EU law, including its general principles, and on the footing that these will apply to it. It would be irrational and unworkable for the principle of abuse of law to apply to some steps in a concerted scheme of transactions but not others, depending on the degree to which the legislators intention to transpose the Directive was successfully achieved. For these reasons, I think that Lord Neuberger was right in WHA Ltd v Revenue and Customs Commissioners, at para 44, to say that if the domestic legislation in question has been enacted with the intention of giving effect to the Directive, the fact that it imperfectly transposes it should not justify non application of the abuse principle. 30. The effect of the KPMG scheme was to enable the Pendragon Group to sell demonstrator cars second hand under the margin scheme in circumstances where VAT had not only been previously charged but fully recovered. The result was that no net charge to VAT was ever suffered, except on the small or non existent profits realised on the resale. A system designed to prevent double taxation on the consideration for goods has been exploited so as to prevent any taxation on the consideration at all. I conclude that in that respect the KPMG scheme was contrary to the EU policy underlying the margin scheme, and that the first Halifax test was satisfied. The second Halifax test: transactions with the essential aim of obtaining a tax advantage 31. The first question which arises under this head is the nature of the evidence which may be relevant or admissible to prove the transactions essential aim. Both parties sought to rely, in different ways, on extrinsic evidence. The Commissioners sought to rely on the advantages claimed for the scheme by KPMG when selling it, and Pendragon relied on the evidence of its group finance director Mr Forsyth about the companys reasons for entering into the scheme. Since the purpose of a contract is not necessarily the same as its meaning, the evidence which is admissible to prove it cannot be limited to what would be admissible as an aid to construction. It may in an appropriate case include evidence not just of the background knowledge available to the parties, but of the financial position and objective commercial requirements of the party obtaining the tax advantage, the relationship between the participants, the reasonableness of the consideration, the mechanics of the performance, the normal course of the relevant business and potentially other matters. But the Halifax test requires the essential aim of a transaction is to be determined by reference to objective factors. As Advocate General Maduro put it at para 87 of his opinion, this must not be confused with the subjective intention of the participants in those activities. Much of the evidence which the parties deployed before the First Tier Tribunal could go only to Pendragons subjective intention or motive, or KPMGs assumptions about the attractions of their scheme to their client. Much of the rest was of no assistance in a case where tax planning was admitted to be part of the rationale of the scheme and transactions comprising it spoke for themselves. 32. The First Tier Tribunals findings show that the overall result of the KPMG scheme was to achieve five rational commercial objectives other than obtaining a tax advantage: (i) cars were acquired from the manufacturer for use within the group as demonstrator cars; (ii) Pendragon diversified their sources of credit by adding the Socit Gnrale Group to their circle of funders; (iii) the carrying cost of the cars was financed by credit provided for a period of up to 45 days by SGJ; (iv) SGJ was secured during that period by holding the assigned leases and title to the cars; and (v) the cars were resold second hand to consumers at some stage thereafter when Pendragon had finished with them. 33. The selection as the funding bank of an offshore institution which was not a taxable person cannot in itself be regarded as objectionable. It is no part of the policy of the legislation that a party should be restricted in its freedom to select as its commercial partners firms whose place of residence gives dealings with them a tax advantage, even if that is the only reason for their selection. But it is not just the non resident status of SGJ which enabled the tax advantage to be obtained. The particular method by which SGJ was brought into the chain of contracts, involving successive transactions by which Pendragon navigated its way from one VAT exemption to another, was an unnecessary and artificial way of involving them. Taking the scheme as a whole, its economic substance was that it was a sale and lease back, which is a perfectly ordinary commercial financing arrangement. But it had two special features. One was that instead of Pendragon plc or a dealership company transferring the cars to the funding bank SGJ and taking them back on lease, a Captive Leasing Company was interposed at Step 2 as the lessor, which then leased the cars to the dealership companies and assigned the leases and title to the cars to SGJ at Step 3. The other special feature was that instead of the leases being brought to an end by the exercise of an option to purchase or by some other mode of termination, another captive company (Captive Co 5) was interposed at Step 4 to take a transfer of SGJs leasing business (or a discrete part of it) comprising the leases, title to the cars and the associated goodwill. Each of these two features was essential to the tax efficacy of the KPMG scheme. The second was essential in order to bring Captive Co 5s acquisition of possession within the gateway for assets acquired as part of a business transferred as a going concern. The first was essential because under article 8(2)(d) of the Cars Order the use of that gateway was available only if the transferor of the business had himself taken possession of the cars under one of the other gateways at paras (a), (b) or (c). The relevant one was (c), which included the assignment of rights under a hire purchase or conditional sale agreement. However, neither of these two special features of the scheme had any commercial rationale other than the achievement of a tax advantage. They were manifestly included not for the purpose of facilitating the obtaining of credit from SGJ but for the sole purpose of legally recharacterising a transfer of cars without incurring net liability on the price. 34. The decisions below 35. That is not, however, the end of the matter, because the First Tier Tribunal concluded that neither of the two requirements laid down in Halifax was satisfied and that the KPMG scheme was not abusive: [2009] UKFTT 192 (TC). Under sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, an appeal lies from the First Tier Tribunal to the Upper Tribunal and from the Upper Tribunal to the Court of Appeal on points of law only. In addition, such an appeal is circumscribed by the ordinary principles applicable to any exercise of appellate I conclude that the second Halifax test was also satisfied. jurisdiction. One of these is that unless vitiated by some error of principle a decision based on the evaluation of competing factors will generally be respected. The Upper Tribunal considered that the scheme was abusive and that the First Tier Tribunal had gone wrong in law. The Court of Appeal restored the decision of the First Tier Tribunal: [2014] STC 844. The leading judgment was given by Lloyd LJ, with whom Lewison and Gloster LJJ agreed. He carefully examined the KPMG scheme and its component transactions, without expressing any concluded view of his own on the difference between the two tribunals conclusions about it. He considered that the First Tier Tribunals conclusion depended on an essentially evaluative exercise and that it had been entitled to find as it did. 36. As far as the first requirement was concerned the First Tier Tribunal did not accept that the rationale of article 26A was the avoidance of double taxation. This was because they considered, adopting Pendragons submission, that that analysis was inconsistent with the articles definition of eligible transactions, which captured cases in which VAT would not previously have been charged on the goods as well as cases in which it had been. The First Tier Tribunal did not therefore accept that the use of the margin scheme in this case was inconsistent with its purpose. Turning to the second Halifax requirement, they found that the KPMG scheme satisfied a genuine need to obtain secured finance from SGJ and to diversify Pendragons sources of credit. On that basis, the Tribunal concluded (para 51) that the obtaining of finance in all the circumstances of the case was the predominant, principal or a central aim of the transactions, and we so find as a primary fact on the basis of objective factors. 37. The Upper Tribunal held that both Halifax tests were satisfied: [2012] UKUT In my opinion the KPMG scheme was an abuse of law. 42. The simplest redefinition which corrects the abusive features of the scheme is to strip out the four Captive Leasing Companies (which leased the cars to the dealership companies at Step 2 and assigned the leases to SGJ at Step 3), and Captive Co 5 (which took the transfer of SGJs leasing business at step 4 and sold the used cars to the consumer at Step 5). Instead, it will be assumed (i) that the cars were sold by Pendragon plc to the dealership companies; (ii) that the dealership companies sold them to SGJ and then took them back from SGJ on lease; (iii) that the lease term was 45 days (the maximum period for which finance was provided under the actual arrangements); (iv) that the final payment repaid the capital amount of the SGJs advance with interest; (v) that title in the cars passed back to the dealership companies seven days thereafter (the interval after the termination of the leases actually agreed for the exercise of the option to purchase); and (vi) that the dealership companies then sold them as used cars to consumers. On that footing, the Dealership Companies should have accounted for output tax on a sale to SGJ, and reclaimed input tax including the tax incurred on the purchase from Pendragon. Article 8(2) of the Cars Order will not apply, and the Dealership Companies will be accountable for VAT on the full second hand price. Conclusion 43. I would allow the appeal. Any other VAT consequences of the redefined transaction which cannot be agreed between the parties should be referred to the First Tier Tribunal for determination. I would invite the parties to agree an appropriate form of declaration, or in default of agreement to make submissions on the form of declaration in writing within two weeks. LORD CARNWATH: (with whom Lord Neuberger, Lord Sumption, Lord Reed and Lord Hodge agree) 44. I agree that the appeal should be allowed for the reasons given by Lord Sumption. I add a brief comment only in respect of Lloyd LJs comments on the role of the Upper Tribunal in an appeal of this kind: [2013] EWCA Civ 868. 45. He identified the principal question on the appeal as being whether, in reversing the decision of the First Tier Tribunal the Upper Tribunal went beyond what is properly open to an appellate court or tribunal where facts have been found and evaluated by the court or tribunal from which the appeal is brought (para 6) Later in his judgment, in a passage headed the proper approach of the appellate body (para 70ff), he referred to the often cited observations of Lord Radcliffe in Edwards v Bairstow [1956] AC 14, 33, on the role of the court when reviewing decisions on issues of fact by a lower tribunal. In the context of VAT he found guidance in the judgments in Procter & Gamble v HMRC [2009] EWCA Civ 407; [2009] STC 1990, in which, as he put it, there had been an evaluative task on the evidence which was entrusted to the VAT and Duties Tribunal, predecessor of the First Tier Tribunal in the present case, subject to an appeal on a point of law from there to the High Court as now to the Upper Tribunal . (para 75) He quoted the words of Jacob LJ, who in the leading judgment had recorded the agreement of counsel that the focus of the debate should be on the decision of the tribunal, rather than that of the High Court: For it is the tribunal which is the primary fact finder. It is also the primary maker of a value judgment based on those primary facts. Unless it has made a legal error in that in so doing (eg reached a perverse finding or failed to make a relevant finding or has misconstrued the statutory test) it is not for an appeal court to interfere. (para 7) 46. Applying the same approach to the present case, Lloyd LJ said: 77. Accordingly, the first issue for us is whether the First Tier Tribunal erred in law in reaching the conclusion that the essential aim of the transactions was not to achieve the tax advantage. Was that a conclusion to which it was entitled to come? The Upper Tribunal held that it had so erred. Of course we need to look at the basis for the Upper Tribunal's decision but in the end our decision is as to whether the First Tier Tribunal went wrong, not (directly) whether the Upper Tribunal went wrong 47. Mr Pleming QC did not question the courts reliance on the Proctor & Gamble principles, in its consideration of whether the decision of the First Tier Tribunal disclosed an error of law. But he submitted that at the next stage, in looking at the consequences of such an error if found, the court failed to take account of the extended jurisdiction conferred on the Upper Tribunal by the Tribunal, Courts and Enforcement Act 2007, as compared to that of the High Court on an appeal under the previous law. By section 12, where the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, it is not obliged to remit the matter for redetermination by the First Tier Tribunal. Instead it may itself remake the decision (section 12(2)(b)(ii)), and in doing so it may (a) may make any decision which the First Tier Tribunal could make if the First Tier Tribunal were re making the decision, and (b) may make such findings of fact as it considers appropriate. (section 12(4)). 48. This extended jurisdiction recognises that under the new tribunal system, established by the 2007 Act, the Upper Tribunal is itself a specialist tribunal, with the function of ensuring that First Tier Tribunals adopt a consistent approach to the determination of questions of principle which arise under the particular statutory scheme in question. 49. In R (Jones) v First Tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 (in a judgment agreed by the majority of the court), I spoke of the role of the Upper Tribunal in the new system: Where, as here, the interpretation and application of a specialised statutory scheme has been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First Tier level. (para 41) This was consistent with the approach of the preceding White Paper (paras 7.14 21), which had spoken of the intended role of the new appellate tier in achieving consistency in the application of the law, law for this purpose being widely interpreted to include issues of general principle affecting the jurisdiction in question. Such a flexible approach was supported also by recent statements in the House of Lords, in cases such as Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 and Lawson v Serco [2006] ICR 250. In the latter case (para 34), Lord Hoffmann had contrasted findings of primary facts with the an evaluation of those facts to decide a question posed by the interpretation of the legislation in question: Whether one characterises this as a question of fact depends upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. 50. The difficult concept of abuse of law as developed by the European court, though not strictly one of statutory construction, is a general principle of central importance to the operation of the VAT scheme. It matters little whether it is described as involving an issue of mixed law and fact, or of the evaluation of facts in accordance with legal principle. However it is described, it was clearly one which was particularly well suited to detailed consideration by the Upper Tribunal, with a view to giving guidance for future cases. Having found errors of approach in the consideration by the First Tier Tribunal, it was appropriate for them to exercise their power to remake the decision, making such factual and legal judgments as were necessary for the purpose, thereby giving full scope for detailed discussion of the principle and its practical application. Although no doubt paying respect to the factual findings of the First Tier Tribunal, they were not bound by them. They had all the documentation before the First Tier Tribunal, including witness statements, and transcripts of the evidence and submissions, and detailed written and oral submissions. It is clear that they undertook a thorough exercise involving a hearing lasting six days. 51. Against this background, it was unhelpful, in my view for the Court of Appeal to identify the main issue as to whether the Upper Tribunal went beyond its proper appellate role. The appeal to the Court of Appeal (under section 13) was from the decision of the Upper Tribunal, not from the First Tier, and their function was to determine whether the Upper Tribunal had erred in law. That was best approached by looking primarily at the merits of the Upper Tribunals reasoning in its own terms, rather than by reference to their evaluation of the First Tiers decision. True it is that the Upper Tribunals jurisdiction to intervene had to begin from a finding of an error of law. But that was not the main issue in the appeal, which was one of more general principle. Indeed, given the difficulties of drawing a clear division between fact and law, discussed by Lord Hoffmann, it may not be productive for the higher courts to spend time inquiring whether a difference between the two tribunals was one of law or fact, or a mixture of the two. There may in theory be a case, where it can be shown that the sole disagreement between the two tribunals related to an issue of pure fact, but such a case is likely to be exceptional. In the present case, as Lord Sumption has shown, there were no significant issues of primary fact. The differences between the two tribunals related to the understanding of the abuse of law principle, and their evaluation of the facts in the light of that understanding. The Upper Tribunal reached a carefully reasoned conclusion on law and fact. The task of the Court of Appeal was to determine whether that conclusion disclosed any error of law. 90 (TCC). On the first Halifax test, they considered that as a matter of construction and on the CJEU authorities, the purposes of the amendment which introduced article 26a into the Sixth Directive were the avoidance of double taxation and of distortion of competition, and that this was a proposition of law on which the First Tier Tribunal were wrong. It follows from what I have said that in my view the Upper Tribunal were right about this. 38. But that will not justify the Upper Tribunals conclusion unless they were also right about the second test. They overruled the First Tier Tribunal on that point for four reasons. First, they considered that the First Tier Tribunal had been too much influenced by inadmissible evidence of Pendragons subjective intentions and had thereby departed from the objective test laid down in Halifax. Second, applying an objective test, the Upper Tribunal concluded that, prima facie, tax avoidance was the real reason why Pendragon entered into the KPMG scheme, and the admissible evidence was insufficient to displace that conclusion. In particular, they regarded the use of an offshore bank as the source of finance as an artificial element of the scheme which served no commercial purpose. Third, they considered that they were entitled to substitute their own view for that of the First Tier Tribunal because the essential aim of the KPMG scheme was at least partly a question of law. Fourth, they considered that so far as it was a question of fact, the First Tier Tribunal was plainly wrong. In particular, they had not had regard to the scale of the tax advantage or the cost of the finance, or analysed in detail the component transactions. 39. In my opinion, the First Tier Tribunals conclusion on the second Halifax test was wrong in law. My reasons overlap with those of the Upper Tribunal but do not wholly correspond with them. I think that while the First Tier Tribunals discussion of the evidence does not sufficiently distinguish between purpose and motive, it is difficult to demonstrate that this had a decisive effect on their reasoning. I have the strongest doubts about whether the scale of the tax advantage had the significance which the Upper Tribunal apparently attached to it. And for reasons which I have given, I do not consider that the choice of an offshore bank was in itself abusive. To my mind, the objection to the reasoning of the First Tier Tribunal is more fundamental. They approached their task at too high a level of generality. They observed, quite correctly, that the secured financing of carrying costs through a bank was an ordinary commercial arrangement. They identified a number of commercial objectives which they regarded as explaining why Pendragon entered into the scheme. But they did not ask themselves whether Pendragons commercial objectives explained the particular features of the transactions which produced the tax advantage. In particular, they did not ask themselves whether they explained the particular method by which the bank was involved at Steps 2, 3 and 4. This meant that they did not answer the critical question on which, in point of law, the identification of the essential aim depended. If they had done, they would have been bound to conclude that the features which produced the tax advantage had no other rationale. 40. Redefinition 41. It follows that the transactions fall to be redefined so as to re establish the situation that would have prevailed in the absence of the transactions constituting that abusive practice: Halifax, para 98. The redefinition is purely notional. Its effect is not to alter retrospectively the terms of the transactions, but simply to entitle the Commissioners, as between themselves and the taxpayer, to treat them for the purpose of assessing VAT as if their abusive features had not been present: see Revenue and Customs Commissioners v Newey (Case C 653/11) [2013] STC 2432, paras 50 51. The object of any redefinition in this case must be to deprive the taxpayer of the illegitimate advantage of paying VAT only on their profit margin on the resale of the cars to the consumer.

UK-Abs

Normally, when a car distributor buys a demonstrator car from the manufacturer, it pays VAT on the full wholesale price (input tax). Then, when it eventually sells the car to a customer, it collects VAT on the full retail price (output tax). It accounts to HMRC for the output tax it has collected less the input tax it has paid. The Pendragon Group, the largest car sales group in Europe, used a scheme devised by KPMG to reduce its VAT liability on two occasions in late 2000 and early 2001. The KPMG scheme exploited three exceptions to the normal incidence of VAT so that Pendragon would only have to account for VAT in respect of the difference between the wholesale purchase price and the retail sale price of its demonstrator cars. The scheme worked as follows. Step 1: Pendragon bought cars from a wholesaler, then sold them to four captive leasing companies (CLCs). Pendragon paid input tax on the wholesale purchase price but recovered it by accounting for output tax received when the cars were sold to the CLCs. Step 2: The CLCs immediately leased the cars to Pendragon dealerships. The CLCs paid input tax on the purchase of the cars from Pendragon but recovered it by accounting for output tax paid by the Pendragon dealerships on their rental payments under the leases. Step 3: The CLCs then assigned the leases and their title in the cars to the offshore bank Soc Gen Jersey (SGJ). They received approximately 20m (financed by SG London, which received a further assignment of the assets as security). The assignment to an offshore bank was not a supply for VAT purposes and so no VAT was payable. Step 4: Some 30 to 45 days later, SGJ transferred as a going concern the lease agreements and title in the cars to Captive Co 5. It also sold as a business the hire of cars said to have been carried on by SGJ. The total consideration exceeded 18m, with 100,000 in respect of goodwill. The sale of the business as a going concern was not a supply for VAT purposes and so no VAT was payable. Step 5: The demonstrator cars were sold to customers by the dealerships, acting as agents for Captive Co 5. Customers paid VAT only on Captive Co 5s profit on the sale, rather than on the total sale price, under the profit margin scheme, which is available under domestic law where the goods were acquired as part of a business transferred as a going concern. It is common ground that the scheme technically worked, in that the transactions at steps 3 and 4 satisfied the conditions for exemption from VAT, and the transaction at step 5 satisfied the conditions for the application of the margin scheme. However, VAT is an EU tax (governed at the time by the Sixth Directive) and subject to the EU law principle of abuse of law. The First Tier Tribunal held that the scheme was not abusive. The Upper Tier Tribunal held that it was. The Court of Appeal restored the decision of the First Tier Tribunal. HMRC now appeals to the Supreme Court. It argues that the scheme was abusive and that Pendragon should have to pay to it the VAT avoided under the scheme. The Supreme Court unanimously allows the appeal and holds that the scheme was abusive. Lord Sumption, with whom all members of the Court agree, gives the leading judgment. Lord Carnwath adds further comments on the role of the Upper Tribunal. In Halifax plc v Customs and Excise Commissioners (Case C 255/02) [2006] STC 919, the Grand Chamber said that, in the sphere of VAT, an abusive practice can be found to exist only if two conditions are met. [7] The first condition is that it must be shown that the transactions concerned result in a tax advantage which would be contrary to the purpose of the conditions laid down in the relevant EU Directive and implementing national legislation. One must assume that it is the purpose of the VAT Directives to accommodate normal commercial transactions. [11] This condition is satisfied. The purpose of VAT is to tax consumption. The direct purpose of the margin scheme is to grant relief to traders who have acquired goods from a supplier who had no right to deduct input tax in respect of their own acquisition of them. The indirect purpose of the margin scheme is thereby to avoid double taxation, since second hand goods may already have been the subject of a net VAT charge at some earlier stage in their history. [14 20] In this case, a system designed to prevent double taxation has been exploited so as to prevent any taxation at all. [30] The fact that the margin scheme will sometimes apply in cases where there was no earlier net VAT charge is simply the consequence of designing a workable scheme. [22 23] Even if the margin scheme is made available by domestic rather than EU law, the underlying purpose of the margin scheme remains the same, and general principles of EU law, including the abuse of law principle, still apply; in any event, it must have been intended that the abuse of law principle should apply even as a matter of English domestic law. [24 29] The second condition is that it must be objectively apparent that the essential aim of the transactions is to obtain a tax advantage. Even if a transaction has a legitimate commercial purpose, it is open to challenge if the accrual of a tax advantage constitutes its principal aim. [12] The scheme should be assessed as a whole. [13] This condition is also satisfied. It is not in itself objectionable that Pendragon chose to enter into a transaction with an offshore bank. However, it was essential to the scheme that Captive Co 5 acquire the cars as part of a business as a going concern, and for that to be possible, it was essential that the transferor of the business have acquired the cars by assignment. These steps were manifestly included for the sole purpose of reducing VAT liability. [31 34] Abusive transactions must be redefined so as to re establish the situation which would have prevailed absent the abusive practice. [8] This transaction should be redefined by stripping out the five captive companies, so that the dealerships will be accountable for VAT on the full second hand price. [41 42] The Court of Appeal held that the Upper Tribunal exceeded its proper appellate role by substituting its own decision for a decision of the First Tier Tribunal based on an evaluation of competing factors. In Lord Sumptions opinion, the Upper Tribunal was entitled to intervene because the First Tier Tribunal erred in law. [35 40] Lord Carnwath adds that the Tribunals, Courts and Enforcement Act 2007 now provides that, where the Upper Tribunal finds that the First Tier Tribunal has erred in law, it may itself remake the decision, including by making further findings of fact. It was appropriate for the Upper Tribunal to do so in this case in order to give guidance on the abuse principle. It was their decision rather than that of the First Tier Tribunal which should have been the main focus of the Court of Appeals consideration. [44 51]

A crucial issue in many asylum appeals is whether the claimants account of his or her provenance is truthful. So in the present cases it was central to each of the respondents claims that they came from a particular region of Somalia, where they were at risk of persecution. In each case, in dismissing those claims, the Secretary of State relied on linguistic analysis to the effect that their mode of speaking was linked to Kenya not Somalia. That evidence came in the form of linguistic analysis reports provided by a Swedish commercial organisation called Sprakab (more fully, Skandinavisk Sprkanalys AB). Those decisions were upheld on appeal to the Upper Tribunal, but reversed by the Inner House which made a number of criticisms of the form of the reports and the reliance placed on them by the tribunal. In February 2010, following the original tribunal hearings in the present cases but before the appeals, a special three judge panel of the Upper Tribunal (presided over by Judge Ockelton, Vice President) heard another case raising similar issues, and gave guidance on the use of such reports in the future. Their judgment, dated 15 September 2010 ([2010] UKUT 329 (IAC)), reviewed detailed evidence on Sprakabs operations and methodology, including oral evidence from their manager, Ms Fernquist. In the light of that consideration, they endorsed the use of the Sprakab reports, subject to certain safeguards. Their approach was generally supported by the Court of Appeal (RB (Somalia) v Secretary of State for Home Department [2012] EWCA Civ 277 (RB)). Those decisions, at both levels, were in turn considered by the Inner House in the present case. Accordingly, although we are directly concerned only with the two appeals before us, it is appropriate for us to look at them also in the context of the wider discussion of the issues in RB. Sprakabs operation For a general indication of Sprakabs operation and methods of work it is convenient to quote the description given by Moses LJ (who gave the only substantive judgment) in RB, which takes account of the more detailed evidence given before the Upper Tribunal in that case and their findings on it: 5. Sprakab's work is linguistic analysis. It works for the immigration services of a number of governments including Canada, Sweden, Australia, the Netherlands and the United Kingdom. Since 2000 it has conducted over 40,000 linguistic analyses. The Upper Tribunal was given only one example of an individual seeking analysis from Sprakab. The company employs linguists with university qualifications and members of the relevant international association. They are subject to regular evaluation. It also employs a pool of analysts who, generally, speak the language they are asked to analyse and are taught to think critically and analytically. 6. Linguistic analysis at Sprakab is a two stage process. First, the analyst listens to a recorded specimen of speech, typically an interview. The analyst notes features of the speech which appear to be of interest. Second, the analyst discusses those features with a linguist. The analyst and linguist decide whether the features are diagnostic of the speaker's origin and produce a report with four grades of likelihood: certainty (one way or the other), most likely, likely and possibly. The rationale for identification of the degree of certainty or otherwise is usually explained in the report. The analysts are given extensive training by the linguists so as to look for certain distinctive features of any particular language or dialect. The manager, Ms Fernqvist, agreed that linguistic analysis could not determine a nationality, although it is of assistance. Interviews would usually last some 20 to 30 minutes and the recording would be discussed by analyst and linguist before a draft report was produced. 7. Sprakab carry out around 4,000 analyses per year and Ms Fernqvist was of the opinion that it supported applicants in about 60% of the cases in which they were involved. Certainly, it supported applicants more often than it rejected their claims. Sprakab has developed a database of recordings which, though not available for peer review, was, she believed, accurate. 8. Sprakab's policy is not to make the names or personal details of its analysts or linguists public. It fears that their safety may be endangered if it is known that they are producing analyses for governmental authorities. But each member of staff is given a unique identifier and the language background training and other relevant experience associated with that identifier. Thus the qualifications and background of a particular analyst [or] linguist are disclosed and it is also possible to see whether the same or different analysts were involved. Those who reported in the instant case were identified only by letter and number. The tribunal was provided with the names of the witnesses but they were not disclosed to the appellant or her legal team. The number of those involved in the analysis in the instant case was disclosed and Ms Fernqvist was able to give evidence as to their qualifications. 9. The Upper Tribunal made the following findings and conclusion. It accepted that Sprakab was a bona fide organisation which has devised and refined a system for analysing language requiring interaction between several employees. That process minimises the opportunities for the incompetence of one to lead to a false result. The tribunal accepted that anonymity could theoretically have an adverse impact on reliability. But the fact that no one person's opinion is decisive and that those opinions are reasoned, explained, and can be checked and criticised, reduces the risk of an incompetent or corrupt employee. The tribunal rejected the suggestion that Sprakab was not independent. The Upper Tribunal noted that Sprakab did not claim to be infallible. The present appeals Procedural changes To understand the course of the present appeals, it is necessary to be aware of the changes which took place in February 2010 in the arrangements for hearing asylum appeals. At the time of the original appeals in both cases, the relevant appellate body was the Asylum and Immigration Tribunal (the AIT). This was a single tier appellate body, albeit with provision for reconsideration to be ordered where a possible error of law was identified by a senior tribunal judge or the relevant court. Procedure was governed by the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) (the AIT rules). Although a new tribunal system (including a First tier and Upper Tribunal) had been brought into operation in November 2008 under the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), the AIT continued for the time being unchanged as a separate body. As from 15 February 2010, the first instance jurisdiction of the AIT was transferred to the new Immigration and Asylum Chamber of the First tier Tribunal (the FTTIAC). At the same time there was established a right of appeal, with permission, to the Immigration Appeal Chamber of the Upper Tribunal (the UTIAC). There were transitional provisions to deal with pending cases. In the FTTIAC, the AIT rules continued to have effect subject to appropriate amendments to take account of the new two tier system. In the UTIAC, procedure was governed by the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) (the Upper Tribunal rules), which applied generally across the various chambers at that level, but subject again to appropriate amendments to take account of the new jurisdiction. At the same time a new set of Practice Directions, applying to the new immigration and asylum chambers at both levels, was issued in the name of the Senior President. They followed without material alteration (for present purposes, at least) the form of Practice Directions issued by the President of the former AIT. It is worth adding that, although the present appeals were heard in Glasgow, and found their way on appeal in due course to the Court of Session, the jurisdictions of the former AIT and the new IAC Chambers were and are UK wide. It is accepted that there is and should be no material difference between the principles applicable on either side of the border. MNs appeal The first appellant, MN, entered the United Kingdom on 16 August 2009 and claimed asylum. His claim was rejected by the Secretary of State and, on 5 February 2010, by the AIT (IJ McGavin). The appellant said that he was a national of Somalia and that he was born in Mogadishu and belonged ethnically to a minority clan in Somalia, namely "clan Benadiri, sub clan Reer Hamar, and sub sub clan Shanshi" (AIT decision para 13). In rejecting the claim to asylum, the immigration judge, like the Secretary of State, relied on a Sprakab report, which identified his speech as being from Kenya rather than Somalia. He appealed to the UTIAC, on grounds which included criticisms of the Sprakab reports. The appeal was heard in December 2010 (SIJ Macleman), following the promulgation of the decision and guidance in RB. Permission to appeal to the Court of Session was given by the court itself, which on 12 July 2013 by a majority of the Extra Division (Lords Eassie and Menzies, Lord Marnoch dissenting) allowed the appeal and remitted the case to the Upper Tribunal for reconsideration. KYs appeal The second appellant, KY, arrived in the United Kingdom on 30 November 2008 and claimed asylum. She claimed to be a citizen of Somalia, born in February 1988 in Mogadishu, and ethnically of the Benadiri clan (also known as the Reer Hamaar) sub clan Sharif Omar. It was and is common ground that if she made good that contention she would be entitled to asylum. Her claim was refused by the Secretary of State, and on 20 February 2009 by the AIT (IJ MacDonald), both relying on a Sprakab report, which identified her speech as being from Kenya rather than Somalia. She applied successfully to the Court of Session under the procedure then applicable (section 103A(1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), as inserted by section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the 2004 Act)) for an order for reconsideration of the decision. In a note attached to his order (dated 22 July 2009) the Lord Ordinary, Lord Macphail, made a number of criticisms of the Sprakab report (relying in particular on a 2004 report by an international group of linguists), and directed that reconsideration be undertaken without reference to the Sprakab report. The reconsideration not having taken place before 15 February 2010, the order fell to be treated under transitional provisions (paragraph 3 of Schedule 4 to the 2002 Act) as a grant of permission to appeal to the Upper Tribunal under the 2007 Act. The decision of the Upper Tribunal (in this case also, SIJ Macleman) was given on 22 October 2010, dismissing the appeal. Permission to appeal having been given by the Court of Session, the appeal was allowed by the same constitution as in MN. In this case, since there was agreed to be no other material supporting the refusal of her claim, the appeal was allowed without further remission. The Sprakab reports in more detail To understand the criticisms made by the Court of Session, and by the respondents before us, it is necessary to give a little more information about the form and content of the Sprakab reports. Since they are examined in detail in the judgment of Lord Eassie (paras [5] ff), to which reference can be made, I will focus on the principal points. I follow him also by concentrating on the first case in time (that is KYs case), the other being in similar form. The report, which is entitled linguistic analysis report, is not in narrative form, but consists of a series of boxes with a number of headings to be completed by the language analyst. An attachment indicates that the analysis in this case was conducted by analyst EA20; the results of analysis confirmed by analyst EA17; and the analysis reviewed and approved by Linguist 04. None of the three is named, but their experience and qualifications are summarised. For example, in respect of analyst EA20 the following appears: ANALYST EA20 The analyst was born 12 October 1968 in Mogadishu, Somalia and came to Sweden 1990 The analyst last visited Somalia in 1990 The analyst analyses the Somali language and the Somali dialects May May and Bravanese The analyst has performed 476 language analyses The analyst interprets for the Swedish authorities EMPLOYMENT HISTORY 2006 to present Analyst at Sprakab 1990 to present Interpreter in Somali EDUCATIONAL QUALIFICATIONS Bachelors Degree in Law, Somalia Sociological studies in Law, Stockholm University, Sweden Returning to the report itself, the first box gives the conclusion: The person speaks a variety of Somali found [x] with certainty not in: Somalia. [x] with certainty in: Kenya. The following boxes indicate that the basis is a tape recording of a telephone conversation lasting 18 minutes, that the language used was Somali, and that the type of analysis included both linguistic analysis and knowledge assessment, the latter involving examination of the persons knowledge and experiences of culture and geography of his/her stated country/region of origin. The next section, headed Analysis begins with the following General comments: The person, who is a woman, speaks Somali on the recording. She speaks the language to the level of a mother tongue speaker. First she says she was born and raised in Mahaddaay in the Shabeellada Dhexe province and that she also has lived in Jowhar in the same province. Later she states that she was born in Mogadishu in southern Somalia. The person does not speak a variety of Somali found in Somalia. She speaks a variety of Somali found with certainty in Kenya. The person is asked about what dialect she speaks on the recording. She says that she speaks the Reer Hamar dialect. However, it can be ascertained that she does not speak the Reer Hamar dialect. The person has deficient knowledge and deficient local knowledge of the area she says she is from. Her knowledge sounds rehearsed for the occasion since she does not give any detailed descriptions of the area she says she is from. There then follow under the heading Specific findings more detailed observations relating to phonological characteristics, morphology, syntax and lexicon and colloquialisms". A separate box headed Knowledge of 'country and culture' of the person includes the following: The person first says that she was born and raised in Mahaddaay in the Shabeellada Dhexe province, in southern Somalia. After a while she changes her mind and says that she was born in Mogadishu. She also says that she moved to Jowhar in the Shabeellada Dhexe province. The person has deficient knowledge and deficient local knowledge of the area she says she is from. Her knowledge sounds rehearsed for the occasion since she does not give any detailed descriptions of the area she says she is from. She often hesitates and gives short answers on the questions she is asked. This section ends with a summary of findings supporting the conclusion In summary, it can be ascertained that the person speaks Somali to the level of a mother tongue speaker. The person does not speak a variety of Somali found in Somalia. She speaks a variety of Somali with certainty found in Kenya. She does not speak the Reer Hamar dialect. The person has deficient knowledge and deficient local knowledge of the area she says she is from. Her knowledge sounds rehearsed for the occasion since she does not give any detailed descriptions of the area she says she is from. She often hesitates and give short answers on the questions she is asked. Although there is space for a signature, it appears that this was not completed, the identity of the author instead being indicated by codes given in the attachment to which I have already referred. The Upper Tribunals decision and guidance in RB I have already referred to the findings made by the Upper Tribunal and the Court of Appeal in RB about the nature of the Sprakab operations. Although this is not an appeal from that decision, it is right to set their guidance in the context of the facts of the case and the material before the tribunal. The factual issue was in one respect similar to the present, in that the appellant claimed to be from Somalia, and was ultimately disbelieved on the basis partly of Sprakab reports which linked her to Kenya. However, of more particular importance was her claim to be from the Bajuni clan, and to be proficient in Kibajuni the mother tongue of that clan (paras 49 53). The tribunal accepted that if that link were established her appeal should succeed (para 143). It was in that context that a critical issue was how well she understands Kibajuni, and the way she speaks it herself (para 151). It was on that issue that the tribunal ultimately rejected her evidence, and in doing so placed considerable weight on the deficiencies in her knowledge of that language, disclosed not only by the Sprakab reports but also by her own answers in cross examination (para 152). It is not entirely clear from the judgment of the Upper Tribunal how the case came to be selected as a guidance case on the use of Sprakab reports, or what steps were taken to ensure that the tribunal had before it all the material and assistance necessary to reach an authoritative view. It seems surprising that (as far as appears from the judgment) the tribunal does not appear to have been referred to the criticisms of the Sprakab reports made by the Lord Ordinary in earlier cases, but they had before them the 2004 report on which he relied (see below). The evidence ultimately before the tribunal was substantial and was carefully considered and analysed by them. They were assisted by experienced counsel on both sides. Apart from the evidence of the appellant herself, it included: i) Four Sprakab reports, the last being particularly detailed. They were supported by written and oral evidence by their manager, Ms Fernqvist, who was subject to cross examination (paras 10 20). In accordance with Sprakabs practice, the authors of the reports were not identified by name. The tribunal noted that that no reasoned objection was taken by counsel for the appellant to this course (para 25). The tribunal heard oral evidence from three of the individuals directly responsible for the reports, analyst E19 and linguists 01 and 04, who also were subject to cross examination. ii) Two reports by an independent expert, Ms Margaret Kumbuka, instructed for the appellant (described as a lector in Swahili in the African Department of SOAS para 100); and a response by Sprakab to those reports (para 11 19). Ms Kumbuka had been expected to give oral evidence, but unfortunately she died shortly before the hearing (para 99). iii) Documentary evidence (para 120ff), including a) A 2004 report by an international group of linguists (the Language and National Origin Group) on the use of language analysis in refugee cases; b) Information on the Bajuni people from the UNHCR website (complied in 2005 by the Immigration and Refugee Board of Canada); c) A report on the Bajuni people published in 2010 by the Country of Origin Information Centre in Norway (Landinfo). iv) The tribunal referred also to three reports dated February 2010 by a Professor D Nurse (an emeritus professor of linguistics at St Johnss University Canada and said to be a specialist in Swahili dialectology). These included a critique of some 50 Sprakab reports between 2004 and 2010, a review of some 20 recordings of interviews, and a report of a fact finding mission to Nairobi in September 2000. These had come to the attention of the tribunal after the hearing through a monthly mailing of the Immigration Law Practitioners Association. The tribunal summarised Professor Nurses comments on the fluidity of [the] Bajuni language and society amid the upheavals of recent years and his criticisms of the Sprakab interview methods, leading to his view that it would be unwise to use a Sprakab report as a basis for any legal decision on whether an applicant is or is not a Somali Bajuni (para 137). Although the tribunal received submissions on these reports and made some comments on them (paras 165 166), they indicated that they could not treat Professor Nurse as an expert witness in this appeal, because of numerous points of factual dispute which would need to be addressed by way of live evidence and cross examination (para 141). Having given their reasons for dismissing RBs appeal on its own facts, the tribunal concluded by setting out the following, by way of General guidance on linguistic analysis evidence: 170. We close this determination with three matters of general guidance in relation to appeals based on linguistic analysis in general and Sprakab reports in particular. 171. First, we note that it is said that the decision as to a person's background or origin should not be based solely on linguistic analysis. We have heard and seen nothing enabling us either to endorse or doubt that advice. But where there is clear, detailed and reasoned linguistic analysis leading to an opinion expressed in terms of certainty or near certainty it seems to us that little more will be required to justify a conclusion on whether an applicant or appellant has the history claimed. 172. Secondly, the conclusions we have reached about Sprakab's reports do not, of course, mean that Sprakab or any other linguistic analyst is infallible. A decision maker or judge must be alive to the possibility of error, whether or not the particular level of certainty expressed by the report leads one to expect it. Where there is linguistic evidence in a particular case it is important that all parties have a proper opportunity to submit it for expert assessment and it is equally important that all the evidence be taken into account in deciding the questions in issue according to the appropriate standard of proof. 173. The parties must have an opportunity to challenge any linguistic assessment opposing them. That means a sound recording of any interview of or discussion with an appellant that forms the basis of such analysis must be made available to the other party in good time before any substantive appeal hearingWe would expect for the future that where linguistic analysis is in issue, no party should seek to rely on an analysis based on examples of the appellant's speech that all parties have not had the opportunity to analyse. 174. Thirdly, we have given our reasons above for acceding to Sprakab's request for anonymity for its linguists and analysts, subject to details being given of their background and qualifications. These reasons are of general applicabilityunless there was some very good reason for departing from this practice. The issues The issues agreed between the parties for consideration by this court are (in summary): In what circumstances should witnesses providing evidence in such i) Whether the immigration judges were entitled to attribute any weight to the Sprakab reports; ii) appeals be granted anonymity; iii) Whether there are any particular rules governing expert evidence tendered in the name of an organisation rather than an individual; iv) To what extent can such evidence be accepted in a form not prescribed by the Practice Directions; v) To what extent, and with what effect, can the Upper Tribunal give guidance as to the weight to be given to such reports, or the conclusions to be drawn from them. General approach Before looking at these issues in more detail, it may be helpful to make some general comments about the context in which they are to be considered. We are concerned with specialist tribunals, now forming part of the new system established by Parliament under the 2007 Act following the report of Sir Andrew Leggatt, Tribunals for Users, One System, One Service (2001). As Senior President of Tribunals, I discussed the background to those reforms and some of their practical implications in an article: Tribunal Justice a New Start [2009] PL 48 (cited by me also in Jones v First tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48, para 46). I referred for example to Lady Hales description of the essential features of tribunals, as compared to courts, in Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, paras 36ff, including accessibility, freedom from technicality, and expertise. These special qualities, including emphasis on the development of innovative methods of resolving disputes that are of a type that may be brought before tribunals, are given statutory force in the duties of the Senior President under section 2 of the 2007 Act. They are also embodied in the overriding objective in the rules now applying across the new tribunal system, under which the objective of dealing with cases fairly and justly is defined as including avoiding unnecessary formality and seeking flexibility in the proceedings and using any special expertise of the [tribunal] effectively (see eg rule 2 of the Upper Tribunal Rules). Although, as already noted, the FTTIAC rules still follow the old AIT format, with amendments, the overriding objective there stated (rule 4) does not differ in substance. In particular, it imposes on the members of the tribunal the responsibility for ensuring that proceedings are handled as fairly, quickly and efficiently as possible. In the same spirit, rule 51(1) provides that the tribunal may receive oral, documentary or other evidence of any relevant fact, notwithstanding that it would be inadmissible in a court of law (see, to like effect, rule 15(2) of the Upper Tribunal rules). Generally, therefore, the area of legitimate debate is about relevance and weight, not admissibility. Secondly, there is no presumption that the procedure will necessarily follow the adversarial model which (for the time being at least) is the hallmark of civil court procedures. In a specialist tribunal, particularly where parties are not represented, there is more scope, and often more need, for the judges to adopt an inquisitorial approach. This has long been accepted in respect of social security benefits (see Kerr v Department for Social Development [2004] 1WLR 1372, paras 61 63, where Lady Hale spoke of the process of benefits adjudication as inquisitorial rather than adversarial a co operative process of investigation in which both the claimant and the department play their part). However, there is no single approach suitable for all tribunals. For example, in a major case in the tax or lands tribunals, the sums may be as great, and the issues as complex, as in any case in the High Court, and the procedure will be modelled accordingly. Thirdly, an important objective of the reforms, including the establishment of the Upper Tribunal, was to promote consistency across the tribunal system. An accepted means of so doing, established in previous case law, is the provision of guidance through judgments in suitable cases. (See the discussion in R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535, paras 21ff per Brooke LJ; and by myself in Jones v First tier Tribunal [2013] 2 AC 48, paras 42 43). Such guidance need not be confined to points of law, to which rules of precedent may apply in the tribunals as in the courts, but may extend to issues of principle relating to factual, procedural or other matters of common application in a particular specialist field. An example from a very different area of specialisation was the guidance given by the Lands Tribunal on discount rates in the context of leasehold enfranchisement (see my comments in Earl Cadogan v Sportelli [2008] 1 WLR 2142, paras 91ff; on this aspect not questioned by the House of Lords at [2010] 1 AC 226). Except so far as statute otherwise provides, statements on such issues by the Upper Tribunal are not binding on the FTTIAC judges, who retain their duty to decide their cases on the evidence before them. As Brooke LJ explained at para 26 of R (Iran), (adopting comments of Ouseley J as President of the IAT in NM (Lone women Ashraf) Somalia CG [2005] UKIAT 00076), such statements are to be taken into account as part of the material considerations to which the judges are required to have regard, but are not to treated as factual precedents. Similarly, in Januzi v Secretary of State for Home Department [2006] 2 AC 426 [50], Lord Hope observed that, while it was desirable in the interests of fairness and consistency that country guidance should be followed: in the end of the day each case, whether or not such guidance is available, must depend on an objective and fair assessment of its own facts. It is to be noted that, in the context of immigration appeals under the 2002 Act, the position has since 2005 been formalised to some extent by statutory provision. Under section 107(3) as added by section 48(3) of, and paragraph 22(1)(c) of Schedule 2 to, the 2004 Act, practice directions may require tribunals to treat a specified decision of the [Upper Tribunal] as authoritative in respect of a particular matter. Paragraph 12 of the 2010 Practice Directions contains such provision for what are known as starred and country guidance determinations; subject to certain qualifications, decisions so designated are to be treated as authoritative in subsequent appeals. (The development and effect of those provisions are discussed in detail Macdonalds Immigration Law and Practice 8th ed (2010), para 19.105.) A recent guidance note issued by Blake J as Chamber President (Guidance Note 2011 No 2: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber) explains the current practice. Having referred to the specific provisions in relation to Country Guidance cases, the note refers to the criteria for reporting other cases where the factual findings may be of some general interest, noting that such decisions are of persuasive value only on the facts (para 13). It is not suggested that the guidance in the present case falls within any special category within the practice direction, or that it is thereby entitled to be treated as other than merely persuasive. There is another important aspect to cases such as the present. The higher courts have emphasised the special responsibility carried by the tribunals in the context of asylum appeals. It is customary in this context to speak of the need for anxious scrutiny (following R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 531 per Lord Bridge of Harwich). As a concept this is not without its difficulties, but I repeat what I said in R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448, para 24: the expression [anxious scrutiny] in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an axiomatic part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope [in R (BA Nigeria) v Secretary of State for the Home Department [2010] 1 AC 444, para 32], that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies. Similar considerations in my view impose a special responsibility on the Secretary of State and those representing her to ensure that the evidence presented to the tribunal is adequately supported. So in this case Lord Eassie rejected the suggestion that it was enough for the Secretary of State to provide the interview tapes to the appellants, leaving them to obtain their own expert advice. He said, at para 66: as a matter of principle, it is the Secretary of State who invokes the purported expert evidence for her purposes in order to impugn the honesty of the appellant. In accordance with all normal rules of procedure it must therefore be for her to establish, by active demonstration of the appropriate expert qualification, the worth of the evidence upon which she relies to counter the testimony of the appellant. For the Secretary of State Mr Lindsay QC, as I understood him, did not challenge this statement of principle. In my view, he was right not to do so. The agreed issues The issues (para 21 above) fall into two categories: first, relating to the admissibility in principle of the Sprakab reports (issues (i) (iv)); secondly, as to the nature and extent of the guidance which it is appropriate for the Upper Tribunal to give (issue (v)). It is convenient first to consider these issues in general terms by reference to the decision and guidance given in RB, before turning to the implications of those points for the cases before us. In principle, as I think counsel for the respondents accept, there was nothing wrong in the Upper Tribunal seeking to give guidance on a matter of general concern to the First tier, such as the use of Sprakab reports. The practice directions contain valuable guidance on the general principles applying to expert evidence. To a large extent they follow the principles applicable in civil courts, designed (inter alia) to ensure that the expert provides truly independent assistance to the tribunal, does not assume the role of advocate, and sets out the facts and other material on which an opinion is based. However, the absence of any specific provision in the practice directions for evidence in the form of the Sprakab reports was not in itself a bar to their admission. On the contrary, where the tribunals were faced with a new form of evidence, of potential value in resolving issues of common occurrence, it was entirely appropriate for the Upper Tribunal to select a suitable case with a view to giving general guidance. As Lord Eassie acknowledged, the practice directions did not have to be rigidly applied. In the civil courts, flexibility on such matters is routinely accepted under modern practice. For example, in Rogers v Hoyle (Secretary of State for Transport and International Air Transport Association intervening) [2014] EWCA Civ 257, the Court of Appeal confirmed the admission of a report by a body known as Air Accident Investigation Branch, one objection having been that it failed to comply with mandatory rules (CPR Pt 35) relating to expert evidence. In support of a flexible approach to the rules, Christopher Clarke LJ cited (inter alia) Sunley v White (Surveyors & Estate Agents) Ltd [2003] EWCA Civ 240, in which: this court regarded as admissible a draft soil report issued by a company although the report was unsigned, provisional and did not carry the name or qualifications of the author. These were matters which Clarke LJ, with whom Longmore LJ agreed, treated as essentially going to weight (para 44). Such considerations apply with equal or greater force before tribunals. Thus the Court of Appeal has warned tribunals against rejecting expert evidence merely because a witness is not available for cross examination. In Singh (Tarlochan) v Secretary of State for the Home Department [2000] Imm AR 36 Buxton LJ said, at para 43: In the way in which this sort of inquiry is necessarily conducted in front of a Tribunal, it is only rarely going to be the case that evidence is given by persons actually appearing in front of a Tribunal rather than by reference to the reports of persons of greater or lesser weight Amnesty International, the United Nations Commission on Refugees and the Canadian body used in this case So here, it is inappropriate for general questions relating to Sprakab, its methodology and the presentation of its reports to be re litigated constantly in separate FTT hearings, with inevitable inconsistency of outcome. The Upper Tribunal were right in RB to address those issues. Subject to appropriate safeguards, they were entitled in my view to find no objection of principle to the admission of the Sprakab reports, whether because they were in the name of an organisation rather than an individual, or in general for failure in other respects to comply with the practice directions. This discussion makes it unnecessary to consider in more detail issues (i), (iii), (iv); the short answer is that none of them points to any overriding objection to evidence in this form. As Lord Eassie said, in a passage to which Mr Lindsay took no objection: in the end one naturally has to consider whether, in substance, the tribunal in question has been provided in the case before it with expert evidence which the tribunal can be satisfied is based upon an appropriate and adequate expert knowledge, given with the neutrality required of the expert, unencumbered by views falling outwith his field of expertise. (para [57]) It is necessary to deal in a little more detail with issue (ii) (anonymity of witnesses), which proved more contentious. Anonymity In RB the Secretary of State asked for anonymity for the individual analysts and linguists (other than by reference to an identifier code) on the grounds that their independence might otherwise be compromised and their personal safety might be at risk. It was said that it was not Sprakabs policy to disclose the identity of its analysts because of threats which have been directed at analysts in the past by disgruntled claimants. One analyst was said to have stopped working for Sprakab because of such threats (Upper Tribunal decision, para 22). The tribunal accepted this submission. They accepted that it was exceptional for witnesses to give evidence anonymously, but thought that course appropriate and proportionate in view of the potential of threats to Sprakab personnel, and in the absence of any reasoned objection from counsel for the appellant. They said: . Given the information that is associated with the identifier, it seems to us to be virtually inconceivable that anybody is disadvantaged by not knowing the name or address of the individual concerned. It might perhaps be that in some particular case there will be a proper reason for inquiring whether a named individual had been involved in the analysis of a sample. If it was necessary to ask that question, it could be directed to Sprakab, and a Tribunal might in due course have to decide how to deal with whatever answer was given. But in the general case the reports are available on the authority of Sprakab itself, with full information about the qualifications of those who have contributed to them. That is sufficient. (paras 24 27) That approach was endorsed by the Court of Appeal. Moses LJ said: There will be expert evidence which requires identification of who among a number of experts discussing the conclusion reached a particular view. But Ms Fernqvist's evidence was such that it was perfectly fair, provided the process was patent, to give a collective conclusion (para 14) In view of his other reasons for allowing the appeal, Lord Eassie found it unnecessary to reach a final view on this issue, but expressed serious reservations as to the approach of the Upper Tribunal, which departed from the principle that a person is entitled to know the identity of the witness against him in judicial proceedings unless anonymity is justified by special and exceptional reasons (para 77). That approach has been supported by the respondents in their submissions in this court. They rely on statements of high authority referring to the fundamental principle of judicial process that, other than in exceptional circumstances, witnesses are identified whether in criminal or civil proceedings (see R v Davis [2008] AC 1128, para 40 per Lord Rodger; Al Rawi v Security Service (Justice intervening) [2012] 1 AC 531). There is no doubt about the power of the tribunal to make such a direction. Rule 45 of the AIT rules, which gives the tribunal power to give directions relating to the conduct of appeals, includes an unqualified power in such directions to make provision to secure the anonymity of a party or a witness (r 45(4)(i)). That was not the power in terms relied on by the Upper Tribunal. They referred instead (para 25) to rule 14 (Use of documents and information), which gives the Upper Tribunal power to make orders prohibiting disclosure of information (1) likely to lead to identification of any person whom the Upper Tribunal considers should not be identified, or (2) likely to cause serious harm to the person to whom it is disclosed or some other person. Since the Upper Tribunal were retaking the decision of the First tier Tribunal on both fact and law (see section 12(4) of the 2007 Act), it would have seemed more appropriate for them to rely on the power in the AIT rules, directed specifically to anonymity of witnesses, rather than rule 14 which is concerned with disclosure of information more generally. On the other hand, rule 14 is helpful as emphasising that, in the tribunals as in the courts, openness is the norm, and that there needs to be special reason for departing from it, risk of serious personal harm being an obvious example. Although the AITs power is expressed in unqualified terms, I agree that in respect of an individual expert witness its exercise requires special justification. Sprakabs policy of anonymity clearly would not absolve the tribunal of its duty to examine of itself the evidence said to justify a departure from the normal rule. However, in my view there were valid reasons for taking a less strict view in the present context. This was not anonymous evidence in the ordinary sense. The evidence was advanced, and the expertise claimed, on behalf of an organisation, based on the collaborative work of individuals with different skills within it. There was no doubt about the identity of the organisation, its working methods or the qualifications and experience of those involved in preparing its report. The names of the individuals were available to the tribunal, and could have been made known to the parties if it became necessary to do so, for example to pursue a particular line of cross examination. Subject to appropriate safeguards, and to satisfying themselves that in the circumstances of the particular case no prejudice was caused, the Upper Tribunal were entitled to determine that there was no objection in principle to the course adopted. The guidance As has been seen, the Upper Tribunal ended its judgment by giving general guidance on the use of evidence of this kind. For the most part this was helpful and appropriate. In particular it was right to emphasise that Sprakab were not infallible, that tribunal judges must be alive to the possibility of error, and that parties must be provided with the opportunity and materials necessary to enable them to challenge their evidence (paras 172 173). However, with respect to this experienced tribunal, I have concerns that on two aspects the guidance appears unduly prescriptive and potentially misleading. The first is as to the weight to be given to such evidence in future cases. Tribunals are advised that, where there is a clear, detailed and reasoned linguistic analysis leading to an opinion expressed in terms of certainty or near certainty, then little more is required to support a conclusion. This seems to me to underplay the importance in any case of the tribunal itself examining such a report critically in the light of all the evidence, and of the reasoning supporting its conclusion (not necessarily limited by the scope of any criticisms or evidence that may be presented by the appellant). The language of the guidance gives rise to a real risk of being interpreted as prejudging issues which are for the individual tribunal to determine. As will be seen, the present appeals are illustrative of that risk. Also problematic to my mind is the special weight given to reports expressed in terms of certainty or near certainty. As has been seen, it is a feature of the Sprakab reports in the present case that the conclusions are so expressed, both positively and negatively. In RB itself, two of the Sprakab reports were expressed in similar terms but not it seems the final most detailed report (paras 13 15). The reasons for the discrepancy were not further discussed. It is unfortunate that, through circumstances beyond their control, the Upper Tribunal did not have the benefit of oral evidence from experts critical of Sprakabs methods. That was another reason for caution. In any event, as one would expect, the Upper Tribunals subsequent discussion and conclusion did not turn on the degree of certainty or near certainty expressed by Sprakab, but on an evaluation of all the evidence of which theirs was one part. That would be the duty of any future tribunal, regardless of the certainty of Sprakabs own views. What matters is not the confidence with which they are expressed, but the strength of the reasoning and expertise used to support them. The other concern is similar, relating to the guidance on anonymity (para 174). The Upper Tribunal were entitled on the evidence they had heard to indicate, as they did, that were no objections in principle to the form of the Sprakab reports, to the methodology used to produce them, or in general to the contributors not being identified by name in the reports. However, they went further, describing their reasons on this aspect as of general applicability and requiring some very good reason for a departure (para 174). Again that seems with respect unduly prescriptive on an issue which must depend on the circumstances of each case. As already noted, in RB itself, counsel for the appellant had made no reasoned objection in the circumstances of [that] case (para 25). This no doubt was because he was satisfied that the procedure adopted (including cross examination) and the information available to him enabled him properly to present his clients case. That concession could not be regarded as transferable to other cases. It was important in any guidance to emphasise that it would remain the duty of the tribunal in any future case to determine what justice requires, in the light of the evidence and submissions made to them. That could not be predetermined by general guidance given by the Upper Tribunal. More generally, there is a case for updating the guidance, which is now more than four years old. As I have explained, the Upper Tribunal in 2010 had limited direct evidence from those critical of the methodology. The conclusion of the present appeals provides an opportunity to review the guidance, in the light of this judgment and of experience in the cases, and any other relevant evidence both for and against Sprakabs methodology. It will be for the President of UTIAC to determine what form that review should take. While it is not for this court to take over that role, some pointers may be helpful: i) On the basis of the material we have seen, I see no reason in principle why Sprakab should not be able to report on both (a) language as evidence of place of origin and (b) familiarity with claimed place of origin provided, in both cases, their expertise is properly demonstrated and their reasoning adequately explained. (As will be seen below, the problem in relation to (b) was not the nature of the evidence, but the lack of demonstrated expertise.) ii) As to (a), language: a) The findings (on evidence) in RB are to my mind sufficient to demonstrate acceptable expertise and method, which can properly be accepted unless the evidence in a particular case shows otherwise; b) The Upper Tribunal ought to give further consideration to how the basis for the geographical attribution of particular dialects or usages can be better explained and not (as it often currently seems to be) left implicit. The tribunal needs to be able to satisfy itself as to the data by reference to which analysts make judgements on the geographical range of a particular dialect or usage. c) The RB safeguard requiring the Secretary of State to make the recording available to any expert instructed for the claimant is not only sensible, but essential. iii) As to (b), familiarity: a) The report needs to explain the source and nature of the knowledge of the analyst on which the comments are based, and identify the error or lack of expected knowledge found in the interview material; b) Sprakab reporters should limit themselves to identifying such lack of knowledge, rather than offering opinions on the general question of whether the claimant speaks convincingly. (It is not the function of an expert in language use to offer an opinion on general credibility.) iv) On the issue of anonymity, since the approach in RB was a departure from the norm, it would be appropriate for the tribunal to satisfy itself both that the departure remains justified in the interests of security of Sprakab personnel or otherwise, and, if it does, as to the safeguards necessary to ensure that the evidence is reliable and that no prejudice arises in individual cases. Consideration for example could be given to requiring assurances that the identifying numbers remain with an individual throughout his work with Sprakab, and requiring disclosure of other work done in any related field by the individual (eg advice to Governments, interpretation, translation), and of any occasion on which his conclusions have been rejected by courts or tribunals. The present appeals I turn to the application of these principles to the present cases. Regardless of the general discussion, there are in my view clear reasons for dismissing the present appeals on their own facts. They relate, first, to the use made by the AIT in each case of the Sprakab evidence relating to knowledge of country and culture; secondly the use by the Upper Tribunal of the guidance in RB in response to criticisms of the Sprakab reports. Knowledge of country and culture As noted by Lord Eassie, this is an issue on which there is a degree of common ground. It was not in dispute before them that the comments in the reports on the claimants knowledge of country and culture were inadequately supported by any demonstrated expertise of the authors. Of this Lord Eassie said, at para 53): This criticism may, I think, be treated relatively briefly since counsel for the Advocate General accepted that in what purported to be expert evidence of a linguistic analysis the author was stepping outside his proper field of expertise in expressing such views and comments. I consider that counsel was right to make that concession. What is being done appears to be nothing more than an expression of a view on credibility, which is outwith any expert witness' function. He added that in neither case was there anything to indicate the extent (if any) of the particular areas from which the interviewees were said to come, and that in any event it was doubtful to what extent such issues could be properly explored in a telephone conversation lasting only 18 minutes and dealing also with other matters. Before us, Mr Lindsay QCdid not seek to withdraw the concession that this aspect of the Sprakab evidence was unsupported by demonstrated expertise in the relevant field. However, he submitted that Lord Eassie erred in treating this as a defect which deprived the linguistic analyses of any validity, or undermined the conclusions of the respective immigration judges. In this submission he gained support from the dissenting judgment of Lord Marnoch (para 97). I am unable to accept those submissions. Not only do I agree that the concession was rightly made, but I also agree with Lord Eassies criticism that in some respects the evidence went beyond the proper role of a witness. Indeed, the observation that KYs knowledge sounds rehearsed for the occasion reads as that of an advocate rather than an independent expert witness, and was wholly inappropriate even if the relevant expertise had been established. Expert witnesses should never act or appear to act as advocates. Furthermore, on a fair reading of the careful judgments of the immigration judges in each case, I find it impossible to treat this aspect of their reasoning as severable from the remainder. In the first place this aspect formed an intrinsic part of Sprakabs overall assessment in each case, on which the judges relied. In KY the judge refers in terms to the two experts comment on her knowledge of country and culture, and in the absence of any contradictor in terms of the expert views given adopts them as part of the conclusions, without distinguishing the different aspects (paras 39 49). The position in MN is perhaps less clear, in that the judge undertook her own commendably detailed examination of the evidence relating to the claimants knowledge of his area, but I am unable to say that the supposedly expert views on this aspect expressed in the Sprakab report played no significant part in the overall reasoning. In my view, this point on its own is sufficient to undermine the decisions of the AIT in each case, and to this extent at least to require us to uphold the decision of the Court of Session. [I should add that, as Lord Eassie noted, it was not an issue which had arisen in in RB. We were told that this aspect of the Sprakab forms had been altered or deleted in later versions. The current form states (in capitals) that knowledge assessment is separate and forms no part of the language analysis.] Use of Guidance in RB In each appeal an important part of the appellants case, both before the first tribunal and in their grounds of appeal to the Upper Tribunal, was an attack on the use by the Secretary of State of the Sprakab reports. In each case the tribunal judge made a detailed analysis of the reports and the criticisms made of them, before accepting them. In KY as already noted Lord Macphail, when directing reconsideration under the old procedure, had made strong criticism of the Sprakab report in that case, partly by reference to the guidelines in the 2004 Language and National Origin Report, and had gone as far as to direct that reconsideration should take place without reference to it. (Whether he had power to do that is not now material.) Similarly, in MN SIJ Storey, when granting permission to appeal under the new procedure, noted the challenge to the reliance placed on the Sprakab report again by reference to the 2004 guidelines. By the time of the hearings in each case, in October and December 2010 respectively (as it happened, before the same Senior Immigration Judge), the decision and guidance in RB had become available. It is clear from the language used in each judgment, that the judge regarded that as effectively precluding further argument on the Sprakab reports. In KY he fairly criticised other advocates for treating Lord Macphails note as equivalent to a decision of the Court of Session; but made no other reference to his specific criticisms, other than to record the lack of suggestion of any possible error indicated in the Lord Ordinarys note that RB leaves unresolved. He treated RB as establishing that a linguistic analysis in terms of certainty or near certainty was such that little more would be required to justify a conclusion on whether the appellant had the history claimed, observing that this appellant is caught by that judgment. Similarly in MN he concluded that the appellants criticisms of the Sprakab report did not raise any point which has not been dealt with in principle in RB which is binding for present purposes (emphasis added in each case). In my view he was clearly wrong to take that approach. I have some sympathy for his position in dealing with these cases so soon after the judgment in RB. As I have explained, he was entitled to regard the guidance in RB as persuasive on the procedural matters covered by it (subject to the reservations expressed above). However, it was no substitute for a critical analysis of the particular reports relied on in the instant cases, and of the reasoning of the First tier tribunal on them. It may be said that such an error by the Upper Tribunal is not in itself a reason for refusing the appeal if the first tribunals decision is otherwise supportable. However, this would be to give no weight to the special appellate role of the Upper Tribunal in the new system, which is not fully replicated by onward appeal on law to the higher courts. Also, there were significant differences between the facts of the present cases, and those considered in RB. For example, the particular dialect in issue in each case (that of the Reer Hamar clan) was not the same as in RB. Further, as Lord Eassie points out (paras 59 60), there were serious questions about the basis on which the Sprakab analysts felt able to establish with such certainty the geographical allocation of the appellants modes of speech. These were issues which, having been properly raised in their grounds of appeal, the appellants were entitled to have considered and answered at the appeal level. Conclusions For the reasons given above, I would dismiss the present appeals. In the result, the case of MN will be remitted to the Upper Tribunal as ordered by the Inner House. In the case of KY, before the Inner House, (para 81) it was accepted for the Secretary of State that if the appeal succeeded it should be allowed simpliciter and no remission would be necessary. I did not understand Mr Lindsay to depart from that position in this court. Accordingly I would uphold that order.

UK-Abs

It is central to each of the appellants claims for asylum that they came from a particular region of Somalia where they were at risk of persecution. In each case, in dismissing those claims, the Secretary of State relied on linguistic analysis to the effect that their mode of speaking was linked to Kenya not Somalia. That evidence came in the form of linguistic analysis reports provided by a Swedish commercial organisation called Sprakab. Those decisions were upheld on appeal to the Upper Tribunal (UT) but reversed by the Inner House which made a number of criticisms of the form of the reports and the reliance placed on them by the Asylum and Immigration Tribunal (AIT). In another case raising similar issues, a special three judge panel of the Upper Tribunal gave guidance on the use of such reports in the future. They endorsed the use of the Sprakab reports, subject to certain safeguards. Their approach was in general supported by the Court of Appeal in RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277 (RB). The issues for consideration by the Supreme Court are: Whether the immigration judges were entitled to attribute any weight to the Sprakab reports; In what circumstances should witnesses providing evidence in such appeals be granted anonymity; Whether there are any particular rules governing expert evidence tendered in the name of an organisation rather than an individual; To what extent can such evidence be accepted in a form not prescribed by the Practice Directions; and To what extent, and with what effect, can the Upper Tribunal give guidance as to the weight to be given to such reports, or the conclusions to be drawn from them. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment, with which Lord Neuberger, Lord Clarke, Lord Hughes and Lord Hodge agree. The Practice Directions contain valuable guidance on the general principles applying to expert evidence. The absence of any specific provision in the Practice Directions for evidence in the form of the Sprakab reports was not in itself a bar to their admission. Where the tribunals were faced with a new form of evidence, of potential value in resolving issues of common occurrence, it was entirely appropriate for the UT to select a suitable case with a view to giving general guidance. The Practice Directions did not have to be rigidly applied. The UT were right in RB to address questions relating to Sprakab, its methodology and the presentation of its reports. Subject to appropriate safeguards, they were entitled to find no objection of principle to the admission of Sprakab reports [34 37]. The AIT has the power to make a direction for anonymity but in respect of an individual expert witness its exercise requires special justification. Sprakabs policy of anonymity would not absolve the tribunal of its duty to examine of itself the evidence said to justify a departure from the normal rule. However, there were valid reasons for taking a less strict view in the present context. This was not anonymous evidence in the ordinary sense. The evidence was advanced, and the expertise claimed, on behalf of an organisation, based on the collaborative work of individuals with different skills within it. There was no doubt about the identity of the organisation, its working methods or the qualifications and experience of those involved in preparing its report. The names of the individuals were available to the tribunal, and could have been made known to the parties if it became necessary to do so, for example to pursue a particular line of cross examination. Subject to appropriate safeguards, and to satisfy themselves that in the circumstances of the particular case no prejudice was caused, the Upper Tribunal were entitled to determine that there was no objection in principle to anonymity [42 43]. For the most part, the general guidance given by the UT was helpful and appropriate but on two aspects the guidance appears unduly prescriptive and potentially misleading. The first is as to the weight to be given to such evidence in future cases. It seems to underplay the importance in any case of the tribunal itself examining such a report critically in the light of all the evidence, and of the reasoning supporting its conclusion. The other concern is similar, relating to the guidance on anonymity. It is important to emphasise that it would remain the duty of the tribunal in any future case to determine what justice requires, in the light of the evidence and submissions made to them [44 50]. In the present cases, there are clear reasons for dismissing the appeals on their own facts. The comments in the reports (upon which the Secretary of State originally relied) on knowledge of country and culture were inadequately supported by any demonstrated expertise of the authors. In some respects the evidence went beyond the proper role of a witness. Expert witnesses should never act or appear to act as advocates. The judge in the UT was entitled to regard the guidance in RB as persuasive on the procedural matters covered by it, but it was no substitute for a critical analysis of the particular reports relied on and of the reasoning of the first tribunal [52 60].

This appeal is concerned with the interpretation and application of the standard form freezing order. It arises in the course of long running litigation between JSC BTA Bank (the Bank) and Mr Mukhtar Ablyazov (the respondent) in which the Bank has to date obtained a number of judgments against the respondent amounting in all to US$4.4 billion, none of which he has satisfied. Throughout much of this litigation the respondent was represented by solicitors and counsel. Indeed they filed a detailed notice of objection to the grant of permission to appeal to the Supreme Court and signed an agreed statement of facts and issues. However, they thereafter withdrew from the record and did not appear at the hearing of the appeal. The court is however grateful to Mr Jonathan Crow QC and Mr Adam Holliman who appeared as advocates to the court and made detailed submissions on the issues in this appeal. The statement of facts and issues identifies three issues, which all depend upon the terms of a freezing order which was made by Teare J on 12 November 2009 and was subsequently amended (together the Freezing Order). The issues were: (1) whether the respondents right to draw down under certain loan agreements is an asset within the meaning of the Freezing Order; (2) if so, whether the exercise of that right by directing the lender to pay the sum to a third party constitutes disposing of or dealing with or diminishing the value of an asset; and (3) whether the proceeds of the loan agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order on the basis that the respondent had power directly or indirectly to dispose of, or deal with [the proceeds] as if they were his own. It can be seen that these are essentially questions of construction of the Freezing Order. The background The background can be taken shortly from the agreed statement of facts and issues. The Bank was one of Kazakhstans four systemic banks. Between 2005 and early 2009, the respondent was its chairman and majority shareholder. When the Bank was nationalised in February 2009, the respondent fled to England and did not return to Kazakhstan. The Banks case is that, while chairman, he presided over the misappropriation of over US$10 billion of the Banks monies for his own personal benefit. The Bank commenced 11 sets of proceedings in this jurisdiction seeking compensation of about US$6 billion. In a judgment handed down on 19 March 2013, Teare J found that two of the Banks former senior officers and one offshore company formerly controlled by the respondent had knowingly assisted in three frauds perpetrated by the respondent which led to the misappropriation of sums exceeding US$1.5 billion. Further, on 26 November 2013, Henderson J granted the Bank summary judgment in an amount of US$295m plus interest, in respect of the respondents fraudulent misappropriation of assets shortly before nationalisation. He was debarred from defending the three cases which went to trial, because he had failed to comply with several orders of the court. He was not however debarred from defending the summary judgment application, which he continued to do until just before the hearing, when he chose not to defend. The Bank has to date entered judgment against the respondent in four cases in an aggregate sum (as stated above) of over US$4.4 billion. No part of these judgments has been paid by the respondent, although small sums (relative to the value of the judgment) have been realised by the receivers appointed by the court, who are also in the process of selling certain assets found to belong to him. The Freezing Order The Freezing Order includes the following provisions in so far as it relates to the Bank and the respondent: 4. Until judgment or further order the respondent must not, except with the prior written consent of the Banks solicitors a. Remove from England and Wales any of his assets which are in England and Wales up to the value of 451,130,000 b. In any way dispose of, deal with or diminish the value of any of his assets in England and Wales up to the value of . 451,130,000 c. In any way dispose of, deal with or diminish the value of any of his assets outside England and Wales unless the total unencumbered value of all his assets in England and Wales . exceeds 451,130,000 Paragraph 4 applies to all the respondents assets whether or not they are in their own name and whether they are solely or jointly owned and whether or not the respondent asserts a beneficial interest in them. For the purpose of this Order the respondents assets include any asset which they have power, directly or indirectly, to dispose of, or deal with as if it were their own. The respondents are to be regarded as having such power if a third party holds or controls the assets in accordance with their direct or indirect instructions. EXCEPTIONS TO THIS ORDER a. Paragraph 4 of this Order does not prohibit the 9. respondent from spending up to 10,000 a week towards his individual ordinary living expenses nor does it prohibit the respondent from spending a reasonable amount on legal advice and representation. But before spending any money on legal advice and representation the respondent must notify the Banks legal representatives in writing where the money to be spent is to be taken from. b. This Order does not prohibit the respondent from dealing with or disposing of any of his assets in the ordinary and proper course of any business conducted by him personally. 19. The respondent may apply to vary or discharge this Order 5. In due course, the Court of Appeal confirmed that, (at least) in respect of certain transactions, the respondent had no business which would enable him to take advantage of the ordinary business proviso. So his permitted spending was limited, for relevant purposes, to (1) 10,000 per week plus (2) a reasonable amount on his own legal expenses. The Bank maintains that this exception does not allow a defendant to fund a co defendants legal expenses. The Loan Agreements The issues in this appeal have proceeded on the basis that the respondent entered into two binding and effective loan facility agreements, dated 1 September 2009 and 1 April 2010, with a BVI company called Wintop Services Limited (Wintop) and a further two agreements, dated 17 August 2010 and 1 December 2010, with another BVI company called Fitcherly Holdings Limited (Fitcherly), (collectively the Loan Agreements). In each case the respondent was described as the borrower and Wintop and Fitcherly were respectively described as the lenders. I note in passing that the Bank does not accept that Wintop and Fitcherly were third party lenders as the respondent maintains. Rather, the Bank contends (and Christopher Clarke J (the judge) held (at [2011] EWHC 2664 (Comm), para 71) that there was strong ground for believing that they were the respondents creatures or conduits. However this appeal and the decisions of the lower courts have proceeded on the basis that the Loan Agreements are binding and effective. Clause 1 of each agreement provided for a loan facility of 10m and contained the following material terms under the heading AMOUNT AND TERMS OF THE LOAN: 1.1 Facility. The Lender hereby agrees, subject to the terms and conditions set forth herein, to extend a loan facility to the Borrower in the principal amount of 10,000,000 GBP (ten million Great Britain pounds) (the Loan Facility). The loan facility shall be made available to the Borrower for two years as of the Date of the Agreement (Availability Period). 1.2 Disbursement. The Loan Facility shall be disbursed in a form agreed by the Parties in one or several disbursements upon the Borrowers written request 1.3 Interest. The Loan Facility shall bear interest at the rate of 5% (five per cent) per annum. Interest for each Tranche shall accrue daily from the Date of Disbursement of such Tranche until repayment in full of the principal of the Tranche and all accrued interest thereon 1.4 Repayment. All Tranches, together with all accrued and unpaid interest thereon, shall be payable by the Borrower upon the Lenders request, but not earlier than four years after the Date of the Agreement 1.6 Cancelation of the Loan Facility. Notwithstanding section 1.1 hereof, any undrawn portion of the Loan Facility may be cancelled upon delivery to the Borrower of a written cancellation notice by the Lender. 1.8 Binding Effect for the Borrower. this Agreement constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms 1.11 Binding Effect for the Lender. this Agreement constitutes the legal, valid and binding obligations of the Lender, enforceable against the Lender in accordance with its terms 1.12 Use of Proceeds. The proceeds of the Loan Facility shall be used at the Borrowers sole discretion. The Borrower may direct the Lender to transfer the proceeds of the Loan Facility to any third party. 1.16 Assignment. The Borrower may not assign or transfer any of its rights under this Agreement without the prior written consent of the Lender. The Loan Agreements have been fully drawn down and pursuant to them the respondent has directed payments including (i) over US$16m to his former solicitors, Stephenson Harwood, (ii) about US$500,000 in relation to a property on Bishops Avenue in London, (iii) about US$119,000 to corporate services providers associated with him and (iv) about US$390,000 to lawyers acting for other defendants to the Banks claims. The Bank submits that, if the respondent had been using his own money: payment (i) would only have been permitted to the extent that the legal fees were reasonable; payment (ii) would only have been permitted to the extent that his weekly spending on individual ordinary living expenses did not exceed 10,000; and payments (iii) and (iv) would not have been permitted without the consent of the Bank or the permission of the court (such payments not constituting either individual ordinary living expenses or reasonable legal expenses). The Banks application By an application notice dated 14 October 2011, the Bank applied, amongst other things, for declarations that if the Loan Agreements were valid agreements: (a) the respondents rights thereunder were assets for the purposes of the Freezing Order and (b) any drawings under the Loan Agreements could only lawfully be made pursuant to the exceptions provided for in paragraph 9 of the Freezing Order. The proceedings at first instance At first instance the judge dismissed the Banks application for the reasons given in a judgment handed down on 4 July 2012 [2012] EWHC 1819 (Comm); [2012] 2 All ER (Comm) 1243. Expressed shortly, the judge held (1) that the respondents right to borrow was not to be regarded as an asset within the meaning of the Freezing Order: paras 75 and 82; (2) that his exercise of the right to borrow did not constitute disposing of or dealing with his assets within the meaning of the Freezing Order: paras 77 and 82; and (3) that even if the Bank were right in submitting that the Freezing Order was also capable of bearing the meaning for which it contended, the Freezing Order did not do so unambiguously. He held that if there were two possible constructions, the court should, in a matter of this kind, which may give rise to a penal sanction, adopt the construction most favourable to the putative contemnor. It followed that, since this was such a case, the Freezing Order should be construed in favour of the respondent: para 81. In so holding, the judge accepted (para 76) that it was not possible to ignore the fact that choses in action are, in law, assets but said that his conclusions were supported by what he considered to be the odd effects which would follow if the Bank were correct (para 78), and would otherwise give rise to intractable questions of valuation (para 79). The judge refused permission to appeal. The proceedings in the Court of Appeal Permission to appeal to the Court of Appeal was granted on paper by Mummery LJ but the Court of Appeal (Rimer, Beatson and Floyd LJJ) dismissed the Banks appeal for the reasons given in a judgment handed down on 25 July 2013: [2013] EWCA Civ 928, [2014] 1 WLR 1414. The leading judgment was given by Beatson LJ, who (at para 1) identified the issues before the Court of Appeal as follows: (a) whether a contractual right to draw down under an unsecured loan facility qualifies, either generally or in particular circumstances, as an asset for the purposes of the standard form freezing order and (b) whether, if the right to draw down is an asset, the defendants exercise of the right by directing the lender to pay the sum drawn down to a third party constitutes disposing of or dealing with an asset. Beatson LJ identified three principles as of particular relevance. They were (i) the enforcement principle, namely that the purpose of a freezing order is to stop the injuncted defendant dissipating or disposing of property which could be the subject of enforcement if the claimant goes on to win the case it has brought, and not to give the claimant security for his claim (para 34); (ii) the flexibility principle, namely that the jurisdiction to make a freezing order should be exercised in a flexible and adaptable manner so as to be able to deal with new situations and new ways used by sophisticated and wily operators to make themselves immune to the courts orders or deliberately to thwart the effective enforcement of those orders (para 36); and (iii) the strict construction principle, namely that, because the consequences of breach are serious, injunctions must be clear and unequivocal and strictly construed in favour of the addressee (para 37). Mr Smith QC told us that these three principles had not been described in this way in the course of argument in the Court of Appeal, which I of course accept. It is however convenient to use Beatson LJs nomenclature in this judgment. At paras 38 39 Beatson LJ held that there were tensions between his three principles. Between paras 40 and 63 he discussed the question whether there was a principled objection to the recognition of the rights under the loan facility agreements as assets for the purposes of a freezing injunction and concluded that the answer was no. Between paras 64 and 91 he considered (a) whether the terms of the current standard Commercial Court form of freezing order make choses in action such as those under the Loan Agreements assets within the order and (b) if so, whether drawing down a loan amounts to disposing of, dealing with or diminishing the value of the assets. Beatson LJ concluded that the answer to both questions was no and that the appeal should be dismissed. Rimer LJ agreed with Beatson LJ that the appeal should be dismissed and expressed his own short reasons. Floyd LJ agreed with Beatson and Rimer LJJ and set out further short reasons. The Court of Appeal refused permission to appeal to the Supreme Court but permission was granted by Lord Mance, Lord Sumption and Lord Hughes on 21 February 2014. The Banks case in this appeal The Bank contends, on the assumption that the Loan Agreements create genuine obligations with third party lenders, that there were created relevant assets which could only be dealt with in accordance with the Freezing Order. As to the meaning of asset the Bank has alternative cases. Its primary case is that all choses in action, including the respondents rights to borrow, fall within the definition of assets in the Freezing Order. Its alternative case is that the proceeds of the Loan Agreements were assets within the meaning of the extended definition at paragraph 5 of the Freezing Order because the respondent had power directly or indirectly, to dispose of, or deal with [the proceeds] as if they were his own. Both those propositions were challenged by the respondent and are now challenged by the advocates to the court. The issues in the appeal are essentially those set out in the statement of facts and issues as originally agreed and set out in para 2 above. Discussion The argument in this appeal and in the courts below has included discussion of many of the now numerous decisions on the correct approach to freezing injunctions. However, it is important to note that the Freezing Order is not challenged in this appeal. It is not said that it ought not to have been made. Nor is it said, either that the court had no jurisdiction to make an order in the wide terms contended for on behalf of the Bank, or that, if it made such an order, it was wrong to do so as a matter of discretion. The sole question is what the Freezing Order in fact made means. It is also important to note that the answer to the question of construction does not depend upon any analysis of the respondents conduct. The history is set out in a number of judgments including paras 2 5 of Beatson LJs judgment in the Court of Appeal, where he described what he called the context. This included a decision by Teare J in February 2012 in which he held that the respondent was in contempt of court. Contrary to a clear promise to be present at the sentencing hearing, the respondent instead left the United Kingdom. It appears that he subsequently went to France, where he has been detained awaiting extradition to Russia or Ukraine. It is in these circumstances that he has not been represented before us. In para 5 of his judgment in the Court of Appeal Beatson LJ said that the context in which the scope of the Freezing Order falls for decision is one in which a court might be tempted to stretch legal analysis to capture what are seen as the merits or lack of merits of the case before it, but it is important not to succumb to that temptation. I agree. The question is simply what the Freezing Order means. If it is desirable that a broader meaning should be given to it than is appropriate applying ordinary principles, the solution is not to give it a meaning which it does not have but to vary the order (and the relevant standard form of order) appropriately for the future. As Beatson LJ observes in his para 1, the form of order used in this case is the standard Commercial Court form of freezing order set out in Appendix 5 of the Admiralty and Commercial Courts Guide. In this appeal both Mr Smith for the Bank and Mr Crow, as advocate to the court, agree that the Court of Appeal was wrong to have regard to what Beatson LJ described as the flexibility principle. It is agreed that, whatever the position might be if the court were construing a contract, the flexibility principle has no role in the construction of the Freezing Order as an order of the court. As Mr Crow colourfully put it, the flexibility principle is that the court must be agile in this game of cat and mouse between claimants and defendants to make sure that it is making new orders to meet new avoidance measures, but that is not a justification for the expansive interpretation of an order which has already been made. I agree. I further agree that orders of this kind are to be restrictively construed in accordance with Beatson LJs strict construction principle, which he described in this way in para 37: The third principle follows from the fundamental requirement of an injunction directed to an individual that it shall be certain: Z Ltd v A Z and AA LL [1982] QB 558, 582 per Eveleigh LJ. It is that, because of the penal consequences of breaching a freezing order and the need of the defendant to know where he, she or it stands, such orders should be clear and unequivocal, and should be strictly construed: Haddonstone Ltd v Sharp [1996] FSR 767, 773 and 775 (per Rose and Stuart Smith LJJ); Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695, 1705C and 1713C D (per Mummery and Nourse LJJ). In Anglo Eastern Trust Ltd v Kermanshahchi [2002] EWHC 1702 (Ch) Neuberger J stated: A freezing order, which has been referred to as a nuclear weapon, should be construed strictly because the court is concerned with an order which has a potentially draconian effect on the commercial and economic freedom of an individual against whom no substantive judgment has yet been granted. He added at para 66 that strict construction is also an aspect of the great circumspection with which Lord Mustill, in Mercedes Benz AG v Leiduck [1996] AC 284, 297, stated that the jurisdiction should be exercised. I agree. One of the reasons for this principle, as I see it, is the risk of oppression. What then of Beatson LJs enforcement principle? As quoted in para 13 above, it is that the purpose of a freezing order is to stop the injuncted defendant from dissipating or disposing of property which could be the subject of enforcement if the claimant goes on to win the case it has brought, and not to give the claimant security for his claim. The principle has been put in much that way, not only by the courts below in this case but in many of the decided cases: see eg JSC BTA Bank v Solodchenko [2010] EWCA Civ 1436, [2011] 1 WLR 888 per Patten LJ, para 49(1) and Longmore LJ, para 52. Aikens LJ agreed with both. Thus Longmore LJ said that the purpose of a freezing injunction is to preserve a defendants assets, subject to dealings in the ordinary course of business so that, if and when a judgment is pronounced, the defendant still has assets to meet that judgment. See also the cases referred to in para 23 below. The expression assets is capable of having a wide meaning. For example it can include a chose in action. However, like any document, a freezing order must be construed in its context. That includes its historical context. It is for that reason that, in giving the leading judgment in Solodchenko, beginning at para 17 Patten LJ explained the development of the relevant clauses in the standard forms of freezing injunction. He referred first to Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695 in which the Court of Appeal had to decide whether an order in the standard form of freezing order at that time was effective to cover assets which were held in the defendants name but which belonged beneficially to third parties. The Court of Appeal held that it was not. In Solodchenko Patten LJ cited extensively from the judgments of Mummery and Nourse LJJ in Hadkinson. He explained at para 20 that the issue in Solodchenko was whether the subsequent changes to what had by then become the standard form of injunction made any difference. As Mummery LJ noted at p 1708, Hadkinson was decided in the 25th year after the original decision in Mareva Cia Naviera SA v International Bulkcarriers SA [1975] 2 Lloyds Rep 509 and, as he put it, many thousands of orders must have been made in that form which had been in operation for many years. In no case over those years had it been suggested that the expression assets or funds used in the then standard form of injunction extended to sums not beneficially owned by the defendant. Mummery LJ said at p 1709F that he started from the position that in everyday usage the expression his assets refers to assets belonging to that person, not to assets belonging to another person. He then focused on the context in which the expression was used in the order. In doing so he identified the purpose of a freezing injunction in essentially the same terms as described by Beatson LJ in this case and by others in subsequent cases. Mr Crow referred to a large number of dicta to like effect, including the following: Siskina (Owners of Cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210, 253D per Lord Diplock; A v C (Note) [1981] QB 956, 960 per Robert Goff J; A J Bekhor & Co Ltd v Bilton [1981] QB 923, 941 942 per Ackner LJ; the Mercedes Benz case [1996] AC 284, 300F and 302C, per Lord Mustill; Camdex International Ltd v Bank of Zambia (No 2) [1997] 1 WLR 632, 636H, per Sir Thomas Bingham MR; C Inc Plc v L [2001] 2 Lloyds Rep 459, para 31, per Aikens J; Fourie v Le Roux [2007] 1 WLR 320, para 21, per Lord Scott; Solodchenko [2011] 1 WLR 888, paras 32 and 49(1), per Patten LJ; Lakatamia Shipping Co Ltd v Su [2015] 1 WLR 291, para 46, per Rimer LJ and, most recently, JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2015] EWCA Civ 139, para 14, per Lewison LJ. In Hadkinson Mummery LJ concluded thus at p 1709H: In my judgment, the language of the freezing order, read in context and with regard to the object of the order, naturally refers to assets and funds belonging to the defendant and which are and should remain available to satisfy the claim against him. Assets and funds which belong, or, as in this case, are assumed to belong, beneficially to someone else would not be available for that purpose. Mummery LJ then referred (at p 1710E) in particular to the well known judgment of Robert Goff J in Searose Ltd v Seatrain UK Ltd [1981] 1 WLR 894, 897. He noted Robert Goff Js reference to the value of and the need for the Mareva jurisdiction and to the care to be taken to ensure that such orders are only to be made for the purposes for which they are intended, namely to prevent the possible abuse of a defendant removing assets in order to prevent the satisfaction of a judgment in pending proceedings, and that they do not bear harshly upon innocent third parties. Mummery LJ concluded at p 1711B that the hallowed or standard form of freezing order referring to his assets or funds is not apt, without the addition of words clearly extending its effect, to cover an unidentified bank account held in the name of and under the control of Mr Hadkinson but which is assumed not to be his beneficially. Thus, as it seems to me, the decision in Hadkinson supports the conclusion that the context of a freezing order has been of particular importance in determining its true construction in a particular case. In my opinion, that is a sensible approach which we should not reverse. It is supported in a number of types of case, as is demonstrated by the judgments in Solodchenko. Paragraph 6 of the form of order considered in Solodchenko was very similar to that in paragraph 5 of the order in the instant case, which is quoted in para 4 above. Paragraph 6 was in these terms: Paragraph 5 applies to all the freezing respondents assets whether or not they are in its own name and whether they are solely or jointly owned and whether the respondent is interested in them legally, beneficially or otherwise. For the purpose of this Order the freezing respondents assets include any asset which it has the power, directly or indirectly, to dispose of or deal with as if it were its own. The freezing respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with its direct or indirect instructions. I see no relevant distinction for present purposes between paragraph 6 of the order in that case and paragraph 5 of the order in the instant case. However, as Patten LJ observed in para 17, they were both different from the standard forms of order in the CPR up to 2002 in respect of assets both within the jurisdiction and outside the jurisdiction. In both orders the injunction restrained the defendant from disposing of or dealing with his assets whether in his own name or not and whether solely or jointly owned. However, the pre 2002 form of order did not include the extended description of assets contained in the last two sentences of paragraph 6 of the order in that case or of paragraph 5 of the order in this case or the additional words (ie whether the respondent is (or respondents are) interested in them legally, beneficially or otherwise) which now appear in the form of freezing order contained in the Commercial Court Guide. In paras 24 32 Patten LJ gave his reasons for concluding that the last two sentences of paragraph 6 (or here paragraph 5) did not have the effect of including trust assets. However, in para 33 he recognised that the basis of the decision in Hadkinson was that the then standard form of freezing order did not extend to trust assets but that the Court of Appeal in Hadkinson recognised that it would be possible to frame an order in a way which did have the effect of freezing trust assets and that in exceptional circumstances it might be appropriate to make an order in that form. In Solodchenko itself all three members of the Court of Appeal ultimately concluded that, although the last two sentences of paragraph 6 (here paragraph 5) did not have the effect of extending the order to trust assets, the effect of the amendments to the first part of paragraph 6 (here paragraph 5) did have that effect. The approach of the courts has thus been to approach the language of the forms of order cautiously but to recognise that the forms have gradually been extended. That seems to me to have been a sensible approach. So, for example, in Cantor Index Ltd v Lister [2002] CP Rep 25 the court held that a defendant who borrows money increases his indebtedness but does not dispose of, deal with or diminish the value of his assets within the meaning of the then standard form of freezing order. By borrowing money and spending the borrowed money the defendant may reduce his net asset position but that is not what he is restrained from doing by the standard form of wording. The text books are to much the same effect. So, for example, in Hoyle on Freezing and Search Orders, 4th ed (2006), para 4.28 it is said: The test must be whether the assets will be available on execution of a judgment and if they are they can be the subject of the order, as its purpose is to aid the courts process. It would otherwise be illogical to include them in the order. See also Gee on Commercial Injunctions, 5th ed (2004), para 3.015 and to similar effect Biscoe on Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed (2008), para 1.12: A freezing order provides a fund from which the applicants claim may ultimately be paid in competition with other unsecured creditors of the respondent. However it adds at para 1.12(e) that the usual terms do not prevent the respondent borrowing money thereby increasing the total indebtedness. Both the 2013 and the current edition of the White Book say that a freezing order restrains the respondent from dealing with his assets but does not prevent him from borrowing money, thereby increasing his overall indebtedness. They both cite two decisions of Neuberger J at first instance, namely Cantor Index Ltd v Lister [2002] CP Rep 25 and Anglo Eastern Trust Ltd v Kermanshahgi [2002] EWHC 1702 (Ch). I was at one time attracted by the arguments on behalf of the Bank on issues 1 and 2 as set out in the agreed statement of facts and issues. After all Beatson LJ said at para 60 that there was no difficulty in principle in finding that the choses in action representing the rights under the four Loan Agreements initially qualified as assets under the Freezing Order. In ordinary legal parlance they would I think be regarded as assets. The Bank relies upon a number of cases in which the courts have treated choses in action as assets for the purpose of a freezing order. For example, in CBS United Kingdom Ltd v Lambert [1983] Ch 37, 42, although the case was not itself concerned with choses in action, Lawton LJ observed in connection with what is now section 37(3) of the Senior Courts Act 1981: there are no limitations put upon the word assets, from which it follows that this word includes chattels such as motor vehicles, jewellery, objets dart and other valuables as well as choses in action. Recently, in Templeton Insurance Ltd v Thomas [2013] EWCA Civ 35, which considered whether goodwill was to be regarded as an asset, the Court of Appeal held that it was, following Darashah v UFAC (UK) Ltd [1982] WL 222281; The Times, 30 March 1982. In the course of his judgment Rix LJ said at para 18: It seems obvious that goodwill is among the most important intangible assets of a business. The fact that goodwill is an intangible makes it no less an asset than other intangibles, such as choses in action. There is force in the Banks case that what used to be called the Mareva injunction has been extended in many ways since its inception, as for example to permit worldwide orders and to permit orders in respect of trust assets. There is also force in the point that choses in action have come to be regarded as within the ordinary meaning of assets. However, as stated above, context is of particular importance in construing orders such as the Freezing Order in this case. The origin of the Mareva jurisdiction was consistent with the enforcement principle. In its historical context the word asset was prima facie part of a fund which would be available to the judgment creditor. The cases and legal writings referred to above show that there has over the years been a settled understanding that borrowings were not covered by the standard form of freezing order. In reaching his conclusions Beatson LJ considered in some detail the effect of the decisions of the Court of Appeal in Hadkinson and Solodchenko, especially the latter, where the words added to the standard form enabled the court to make an order covering assets apparently held as trustee or nominee for an innocent third party: see para 50, where Beatson LJ said that the recognition that it is legitimate in some circumstances to include within a freezing order property which appears to be held by a defendant as a nominee or trustee shows that the enforcement principle is not absolute. He added in para 52 that, since it was indisputably the case that the choses in action that were the borrowers rights to draw down under the Loan Agreements belonged to the respondent, the case was stronger than in Solodchenko and there was a stronger case for regarding all choses in action which undoubtedly belonged to an injuncted defendant as qualifying as assets within the freezing order even though, by the time of judgment, it might be the case that the claimant creditor would not be able to enforce against a particular chose in action. Those considerations arose out of wording which had been added to the standard forms of order. Under the standard form of order before the addition of the words at the beginning and in the last two sentences of paragraph 6 (or paragraph 5), those considerations would not as I see it have been accepted. The decided cases and the principles set out in the text books seem to me to demonstrate a cautious approach to the standard terms, when construed in their context. Reliance was placed upon the decision of the Court of Appeal, Criminal Division, in R v Kohn (1979) 69 Cr App Rep 395, where it was held that an overdraft facility was property which could be the subject of a charge of theft. Reference was also made to some aspects of insolvency law. However, to my mind examples from different areas of the law are of very little assistance because there is no real doubt that a right to draw down moneys under a loan agreement could be construed as an asset. The question is whether it is appropriate so to construe it in the context of a freezing order. None of the cases relied upon by the Bank seems to me to support its case in so far as it relies upon the standard form of freezing order. The authorities do not support the proposition that the respondents right to draw down the loans was an asset within the meaning of the Freezing Orders as originally drafted. While it would be open to this court to reverse those decisions, I do not think that it would be appropriate to do so. They have stood for many years and have been accepted both by the courts and the legal writers. Clarity is important and so is certainty in the context of penal orders. I would therefore answer the question posed by issue 1 in the statement of facts and issues in the negative. I would hold that the respondents right to draw down under the Loan Agreements does not qualify as an asset within the meaning of the Freezing Order if it is construed without reference to the extended definition in the second sentence of paragraph 5. If that is correct, I do not think that anything the respondent had done amounts to disposing of, dealing with or diminishing the value of assets as that word has been construed in the original forms of freezing injunction; that is without reference to the extended definition in the second sentence of paragraph 5. I would therefore also answer the question posed by issue 2 in the negative. It follows that I would dismiss the Banks appeal on those issues. I have however reached a different conclusion on issue 3. The position seems to me to be different in the more recent forms, which were used in this case and in Solodchenko. I would hold that the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order in this case and would allow the appeal on this ground. For convenience I repeat paragraph 5, which I have already set out in para 4 above. It reads: 5. Paragraph 4 applies to all the respondents assets whether or not they are in their own name and whether they are solely or jointly owned and whether or not the respondent asserts a beneficial interest in them. For the purpose of this Order the respondents assets include any asset which they have power, directly or indirectly, to dispose of, or deal with as if it were their own. The respondents are to be regarded as having such power if a third party holds or controls the assets in accordance with their direct or indirect instructions. The Bank submits that the respondents right to draw down the loans was an asset within the second sentence of paragraph 5 because it was an asset which the respondent had the power, directly or indirectly, to dispose of, or deal with as if it were [his] own. As I see it, an instruction to the lender to pay the lenders money, which is what it was, to a third party is dealing with the lenders assets as if they were his own. I would accept the Banks submission that the question which the extended definition poses is whether the respondent had power to direct the lender what to do with the funds that it was contractually obliged to make available to him. I would further accept its submission that the answer to that question is yes. Beatson LJ said at para 87 that he did not find this an easy question to answer but he dismissed the argument for a number of reasons as follows. First, he said (at para 87) that the power to deal with the chose in action was subject to the lenders consent and to the lender not cancelling the facility. I agree with the submission made on behalf of the Bank that that is not the relevant question. As to consent, the only provision in the Loan Agreements of possible relevance is clause 1.2, which provides that the Loan Facility shall be disbursed in a form agreed by the Parties. That clause provides only for an agreement as to the form of disbursement and is irrelevant for present purposes. While it is true that clause 1.6 gives the lender a right to deliver to the borrower a written cancellation notice, unless and until such a notice is given, the respondent has his rights as borrower under the agreement, which by clause 1.11 expressly constitute legal obligations binding on the lender. Those obligations include clause 1.12, which provides that the proceeds of the loan facility shall be used at the respondents sole discretion and includes a power to direct the lender to transfer the proceeds to any third party. Secondly, Beatson LJ said (also at para 87) that the argument has a bootstraps element. However I would not accept that view for the reasons given on behalf of the Bank. Paragraph 5 of the order extends its scope to things which are not actually in the respondents ownership, so that there is no element of bootstraps because the basic premise is that the respondents right would not otherwise be viewed as an asset. Thirdly, Beatson LJ observed (at para 88) that the extended definition of asset was primarily designed to catch assets which the defendant claimed he held on trust. However, I would accept that that is not correct because it is only the additional words at the beginning of the clause which catch assets which the defendant holds on trust. I respectfully disagree with the conclusion that the words of paragraph 5 were drafted for a different purpose. Finally, I am unable to accept the view that the relevant words are not clear. In my opinion they are. Floyd LJ dismissed this part of the Banks argument by saying (at para 98) that the money in the lenders hands, before being transferred to a third party, was not the respondents to deal with as if it were his own. For my part, I would not accept that because it seems to me to overlook the terms of the Loan Agreements. Under clause 1.12 of each agreement the respondent had an unfettered discretion (or power) to use the proceeds as he wished, which expressly included the power to transfer the proceeds to any third party. Rimer LJ also dismissed the argument, but for a different reason. He said (at para 103) that paragraph 5 is about, and only about, dealings with assets of the respondent. I respectfully disagree. It is true that that was the case under the previous form of order (as construed in the cases referred to above) but the whole point of paragraph 5 is to extend the meaning previously given to assets. In Solodchenko Patten LJ acknowledged that the new wording catches assets which are contained within a Liechtenstein Anstalt. Assets which the respondent owned beneficially were caught by the original word assets. Assets which the respondent owned legally but not beneficially were caught by the Commercial Court extended definition (but not otherwise, according to the Court of Appeal). The last two sentences of paragraph 5 are designed to catch assets which are not owned legally or beneficially, but over which the defendant (here the respondent) has control. In this context Mr Crow invited the court to adopt the judges reasoning in para 83 of his judgment as follows: 83. I do not regard the extended description or the Commercial Court words as altering the position. These provisions were drafted for a different purpose. There was, in my view, no asset of which Mr Ablyazov had legal or beneficial ownership or control of which he made a disposal or with which he dealt. Mr Ablyazov had a right to require the Lender to procure that third parties were paid (in a form which was to be agreed: clause 1.2). But he had no right of ownership or control in respect of any particular asset[s] nor any right to dispose of or deal with any asset as if it was his own. He exercised his right to borrow and, upon his so doing, the Lenders disposed of monies, which, until they reached the payees, the Lenders owned and controlled and alone had the power to deal with as their own. It was up to the Lenders to decide what monies to use for the payment and, until payment was made, they could change their mind. In consequence of the payment to the payees, Mr Ablyazov incurred an obligation to repay the Lender. As in Anglo Eastern Trust it is not necessary to treat the money paid by the Lenders as being at some notional scintilla temporis the property of Mr Ablyazov or as disposed of or dealt with as if it was his own or held or controlled in accordance with his instructions. In my opinion, that is too narrow an approach to the new sentences at the end of paragraph 5 of the form of order used in this case. As stated in para 46 above, the whole point of the extended definition of assets is to catch rights which would not otherwise have been caught and, in particular, the respondents assets include any asset which they have power, directly or indirectly, to dispose of, or deal with as if it were their own. On the facts of this case, as I see it, the respondent did not own the relevant assets but under the Loan Agreements had power directly or indirectly to dispose of, or deal with them, as if they were his own. The whole focus of the second and third sentences of the paragraph is the respondents power to deal with the lenders assets as if they were his own. It follows that the focus of the second sentence of paragraph 5 is not on assets which the respondent owns (whether legally or beneficially) but on assets which he does not own but which he has power to dispose of or deal with as if he did. Further, as I see it, the fact that he incurs a liability at some stage to reimburse the lender is immaterial. Finally, I do not read the last sentence of paragraph 5 as a restriction on the scope of the second sentence but (as Lord Hodge suggested in the course of the argument) as expansionary. For these reasons I would answer the question posed in issue 3 in the statement of facts and issues, namely whether the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order because the respondent had the power directly or indirectly to dispose of, or deal with [the proceeds] as if they were his own, in the affirmative. It follows that I would allow the appeal on this ground. Conclusion I would dismiss the Banks appeal on issues 1 and 2 but allow it on issue 3. I would invite the parties to make submissions in writing on the form of order and on costs within 21 days of this judgment being handed down.

UK-Abs

The Appellant was one of Kazakhstans four systemic banks. The Respondent, Mr Ablyazov, was its chairman and majority shareholder between 2005 and early 2009. In February, Mr Ablyazov fled to England following the Banks nationalisation. The Bank claimed that he had presided over the misappropriation of US$10 billion of the Banks monies for his own personal benefit, and commenced 11 sets of proceedings. It successfully obtained judgments against Mr Ablyazov in four cases, in an aggregate sum of $4.4 billion, and a Freezing Order on 12 November 2009. Mr Ablyazov had entered into four Loan Agreements in 2009 2010. He exercised his right to draw down fully under those Agreements, and directed various payments for legal and corporate services and in relation to a property. The Bank applied for declarations that (on the assumption that the Loan Agreements were valid) Mr Ablyazovs rights to draw down under them were assets for the purposes of the Freezing Order and drawings under them could only be made pursuant to the exceptions at paragraph 9 of the Order. The first instance judge dismissed the application, and the Court of Appeal dismissed the Banks appeal. The issues before the Supreme Court were (1) whether Mr Ablyazovs right to draw down under the Loan Agreements is an asset within the meaning of the Freezing Order, (2) whether the exercise of that right by directing the lender to pay the sum to a third party constitutes disposing of, dealing with or diminishing the value of the assets, and (3) whether the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order, because the Respondent had the power directly or indirectly to dispose of, or deal with [the proceeds] as if they were his own. The Supreme Court unanimously allows the Banks appeal on issue 3, on the basis that the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order. Lord Clarke gives the judgment. The only real question is what the Freezing Order in fact made means [16 17]. The Court of Appeal was wrong to have regard to the flexibility principle, which has no role in the exercise of the construction of the Freezing Order as an order of the court. The correct approach to construction is restrictive, not expansive [18 19], and involves consideration of the particular context of the order, including the development of the relevant clauses in freezing injunctions [21 26]. Paragraph 5 of the Order in this case is very similar to paragraph 6 of the Order in JSC BTA Bank v Solodchenko [2010] EWCA Civ 1436. Both differ from the pre 2002 form of Freezing Order, in that they include an extended description of assets in the last two sentences and the words whether the respondent is (or respondents are) interested in them legally, beneficially or otherwise [27]. The courts have approached the language of the forms of Order cautiously, but the scope of Freezing Orders has been gradually extended. In Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695, the Court of Appeal recognised that it might in exceptional circumstances be possible to frame an Order so that it froze trust assets, and in Solodchenko the Court of Appeal concluded that this was the effect of the amendments to the first part of paragraph 6 of that Order. The standard form of wording does not prevent the Respondent from borrowing money and spending it [28 30]. In ordinary legal parlance, the choses in action representing the rights under the Loan Agreements would be regarded as assets [31 33]. Context is of particular importance. The Court of Appeal considered Hadkinson and Solodchenko, concluding that the enforcement principle is not absolute and that the right to draw down under the Loan Agreements undoubtedly belonged to the Respondent [35]. These are considerations arising from the wording added to the standard form of Freezing Order. So far as the standard form is concerned, the authorities do not support the proposition that the Respondents right to draw down under the Loan Agreements is an asset within the meaning of Freezing Orders as originally drafted. It is inappropriate to reverse those decisions. The right is not an asset within the meaning of the Freezing Order and the Respondent did not dispose of, deal with or diminish the value of the assets, if the Freezing Order is construed without reference to the extended definition in the second sentence of paragraph 5 [38]. The Banks appeal on issues 1 and 2 is dismissed. But the wording of the Order is different in the more recent forms, used in this case and in Solodchenko. The proceeds of the Loan Agreements are assets within the meaning of the extended definition in paragraph 5 of the Freezing Order in this case [39]. Mr Ablyazovs instruction to the lender to pay the lenders money to a third party was dealing with the lenders assets as if they were his own. It was wrong to dismiss the argument that the Respondent had a power to direct the lender what to do with the funds it was contractually obliged to make available to him. The Loan Agreements contain a binding legal obligation that the proceeds of the facility would be used at the Respondents sole discretion, and a power to direct the lender to transfer the proceeds to any third party [40 42]. The extended definition is not primarily designed to catch assets which the defendant claimed he held on trust. That was the effect of the additional words at the beginning of the clause [43 44]. The last two sentences of paragraph 5 are designed to catch assets over which the Respondent has control, not assets which he owns legally or beneficially. The Respondent had the power to, and did, deal with the assets as if they were his own under clause 1.12 of each agreement [45 50]. The Banks appeal on issue 3 is allowed.

The facts giving rise to this appeal can be shortly summarised, although they are more fully set out in the judgments of Lord Sumption at paras 56 59 and of Lords Toulson and Hodge at paras 113 116 below. Bilta (UK) Ltd is an English company which was compulsorily wound up in November 2009 pursuant to a petition presented by HMRC. Biltas liquidators then brought proceedings against, inter alia, its two former directors, Mr Chopra, who was also its sole shareholder, and Mr Nazir; and Jetivia SA, a Swiss company and its chief executive, Mr Brunschweiler, who is resident in France (the four defendants). The pleaded claim alleges that the four defendants were parties to an unlawful means conspiracy to injure Bilta by a fraudulent scheme, which involved Messrs Chopra and Nazir breaching their fiduciary duties as directors, and Jetivia and Mr Brunschweiler (the appellants) dishonestly assisting them in doing so. The liquidators claim (i) through Bilta, (a) damages in tort from each of the four defendants, (b) compensation based on constructive trust from the appellants, and (ii) directly from each of the four defendants, a contribution under section 213 of the Insolvency Act 1986. The case against the four defendants is based on the contention that between April and July 2009, Messrs Chopra and Nazir caused Bilta to enter into a series of transactions relating to European Emissions Trading Scheme Allowances with various parties, including Jetivia, and that those transactions constituted what are known as carousel frauds. The effect of the transactions was that they generated (i) an obligation on Bilta to account to HMRC for output VAT and (ii) an obligation on HMRC to pay a slightly lower sum by way of input VAT to another company. While the input VAT was paid by HMRC, it was inherent in the fraud that Bilta would always be insolvent and unable to pay the output VAT to HMRC. The amount of output VAT for which Bilta consequently remains liable is said to be in excess of 38m. The application to strike out The appellants applied to strike out Biltas claim against them on the ground that (i) Bilta could not maintain the proceedings in view of the principle ex turpi causa non oritur actio, or, to put it another way, the appellants were bound to defeat the claims against them on the basis of an illegality defence, and (ii) in so far as the claims were based on section 213, it could not be invoked against the appellants as it does not have extra territorial effect. The application was dismissed by Sir Andrew Morritt C, whose decision was upheld by the Court of Appeal. The appellants now appeal to the Supreme Court. In common with all members of the court, I consider that this appeal should be dismissed because the Court of Appeal were right to hold that (i) illegality cannot be raised by Jetivia or Mr Brunschweiler as a defence against Biltas claim because the wrongful activity of Biltas directors and shareholder cannot be attributed to Bilta in these proceedings, and (ii) section 213 of the Insolvency Act 1986 has extra territorial effect. Attribution So far as attribution is concerned, it appears to me that what Lord Sumption says in his paras 65 78 and 82 97 is effectively the same in its effect to what Lords Toulson and Hodge say in their paras 182 209. Both judgments reach the conclusion which may, I think be stated in the following proposition. Where a company has been the victim of wrong doing by its directors, or of which its directors had notice, then the wrong doing, or knowledge, of the directors cannot be attributed to the company as a defence to a claim brought against the directors by the companys liquidator, in the name of the company and/or on behalf of its creditors, for the loss suffered by the company as a result of the wrong doing, even where the directors were the only directors and shareholders of the company, and even though the wrong doing or knowledge of the directors may be attributed to the company in many other types of proceedings. It appears to me that this is the conclusion reached by Lord Sumption and Lords Toulson and Hodge as a result of the illuminating discussions in their respective judgments in paras 65 78 and 82 95 and paras 182 209. Particularly given the full discussion in those passages, I do not think that it would be sensible for me to say much more on the topic. However, I would suggest that the expression the fraud exception be abandoned, as it is certainly not limited to cases of fraud see per Lord Sumption at para 71 and Lords Toulson and Hodge at para 181. Indeed, it seems to me that it is not so much an exception to a general rule as part of a general rule. There are judicial observations which tend to support the notion that it is, as Lord Sumption says in his para 86, an exception to the agency based rules of attribution, which is based on public policy or common sense, rationality and justice, according to the judicial observations quoted in paras 72, 73, 74, 78 and 85 of Lord Sumptions judgment. However, I agree with Lord Mances analysis at paras 37 44 of his judgment, that the question is simply an open one: whether or not it is appropriate to attribute an action by, or a state of mind of, a company director or agent to the company or the agents principal in relation to a particular claim against the company or the principal must depend on the nature and factual context of the claim in question. Section 213 of the 1986 Act I agree with Lord Sumption and Lords Toulson and Hodge for the reasons they give in paras 107 110 and 210 218 that section 213 of the 1986 Act has extra territorial effect, at least to the extent of applying to individuals and corporations resident outside the United Kingdom. The matters in dispute There are some issues on which Lord Sumption and Lords Toulson and Hodge differ. In that connection, I think that there are three areas of disagreement to which it is right to refer, and, taking them in the order in which it is most convenient to discuss them, they are as follows. First, there is disagreement as to the basis upon which a defence based on illegality, or ex turpi causa, is to be approached compare Lord Sumption at paras 60 63 and 98 100 with Lords Toulson and Hodge at paras 170 174. Secondly, Lords Toulson and Hodge would also dismiss this appeal on the attribution issue on the ground of statutory policy (see their paras 122 130), whereas Lord Sumption would not (see his paras 98 102). Thirdly, there are differences between Lord Sumption and Lords Toulson and Hodge as to the proper interpretation of two cases, namely Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] 1 AC 1391 (see Lord Sumption at paras 79 81 and Lords Toulson and Hodge at paras 134 155), and Safeway Foodstores Ltd v Twigger [2010] EWCA Civ 1472, [2011] 2 All ER 841 (see Lord Sumption at para 83 and Lords Toulson and Hodge at paras 156 162). 14. The proper approach to the illegality defence First, then, there is the proper approach which should be adopted to a defence of illegality. This is a difficult and important topic on which, as the two main judgments in this case show, there can be strongly held differing views, and it is probably accurate to describe the debate on the topic as involving something of a spectrum of views. The debate can be seen as epitomising the familiar tension between the need for principle, clarity and certainty in the law with the equally important desire to achieve a fair and appropriate result in each case. In these proceedings, Lord Sumption considers that the law is stated in the judgments in the House of Lords in Tinsley v Milligan [1994] 1 AC 340, which he followed and developed (with the agreement of three of the four other members of the court, including myself and Lord Clarke) in Les Laboratoires Servier v Apotex Inc [2014] UKSC 55, [2014] 3 WLR 1257. He distinguishes the judgment of Lord Wilson in Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889 as involving no departure from Tinsley v Milligan, but as turning on its own context in which a competing public policy required that damages should be available even to a person who was privy to her own trafficking (para 47). By contrast Lord Toulson (who dissented from that approach in Les Laboratoires) and Lord Hodge favour the approach adopted by the majority of the Court of Appeal in Tinsley and treat that of Lord Wilson in para 42ff of Hounga as supporting that approach. In my view, while the proper approach to the defence of illegality needs to be addressed by this court (certainly with a panel of seven and conceivably with a panel of nine Justices) as soon as appropriately possible, this is not the case in which it should be decided. We have had no real argument on the topic: this case is concerned with attribution, and that is the issue on which the arguments have correctly focussed. Further, in this case, as in the two recent Supreme Court decisions of Les Laboratoires and Hounga, the outcome is the same irrespective of the correct approach to the illegality defence. It would, in my view, be unwise to seek to decide such a difficult and controversial question in a case where it is not determinative of the outcome and where there has been little if any argument on the topic. In Les Laboratoires, the majority did opine on the proper approach not because it was necessary to decide the appeal, but because they considered that the Court of Appeal (who had reached the same actual decision) had adopted an approach which was inconsistent with Tinsley. Similarly in Hounga, as Lord Sumption has shown in para 99, it may well not have been necessary to 16. 15. consider the proper approach to the illegality defence, but it nonetheless remains the fact that it was the subject of argument, and that Lord Wilson did express a view on the point, and two of the four other members of the court agreed with his judgment. 17. Les Laboratoires provides a basis for saying that the approach in Tinsley has recently been reaffirmed by this court and that it would be inappropriate for this court to visit the point again. However, it was not argued in Les Laboratoires that Tinsley was wrongly decided, and, as Lord Toulson pointed out in his judgment, the majority decision was reached without addressing the reasoning in Hounga. Lord Sumption is right to say that, unless and until this court refuses to follow Tinsley, it is at the very least difficult to say that the law is as flexible as Lords Toulson and Hodge suggest in their judgment, but (i) in the light of what the majority said in Hounga at paras 42 43, there is room for argument that this Court has refused to follow Tinsley, and (ii) in the light of the Law Commission report, the subsequent decisions of the Court of Appeal, and decisions of other common law courts, it appears to me to be appropriate for this court to address this difficult and controversial issue but only after having heard and read full argument on the topic. The role of statutory policy in this case 18. As well as dismissing this appeal on the attribution issue on the same grounds as Lord Sumption, Lords Toulson and Hodge would also dismiss the appeal on the grounds of statutory policy. They suggest that it would make a nonsense of the statutory duty contained in section 172(3) of the Companies Act 2006 (and explained by them in their paras 125 127), if directors against whom a claim was brought under that provision could rely on the ex turpi causa or illegality defence. That defence would be based on the proposition, relied on by the appellants in this case, that, as the directors in question (here the first and second defendants, Mr Nazir and Mr Chopra) were, between them, the sole directors and shareholders of Bilta, their illegal actions must be attributed to the company, and so the defence can run. I agree with Lords Toulson and Hodge that this argument cannot be correct. Apart from any other reason, it seems to me that Lord Mance must be right in saying in his para 47 that, at least in this connection, the 2006 Act restates duties which were part of the common law. It also appears to me to follow that, if Lords Toulson and Hodge are right about the proper approach to the illegality principle, then their reasoning in paras 128 130 would be correct. However, I would not go further than that, because, as I have already indicated, this is not an appropriate case in which this court should decide conclusively (in so far as the issue can ever be decided conclusively) on the 19. right approach to the illegality principle. It is unnecessary to decide the right approach even in order to determine whether the illegality defence can be run in relation to the section 172(3) claim in the present case. 20. That is, of course, because it is clear, for the very reasons given by Lord Toulson and Lord Hodge in paras 126 130 that a claim against directors under section 172(3) cannot be defeated by the directors invoking the defence of ex turpi causa. It is clear from the language of the rule ([as] it is in a statute) and its content and policy that the act (or knowledge or state of mind) was for this purpose [not] intended to count as the act etc of the company, to quote and apply the test laid down by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, 507, set out by Lord Sumption at the end of his para 67. The proper analysis of Stone & Rolls and of Safeway Foodstores 21. In para 3.32 of the Report referred to above, the Law Commission observed that [i]t is difficult to anticipate what precedent, if any, Stone & Rolls will set regarding the illegality defence, explaining that, in their view at any rate, there was no majority reasoning with the members of the committee reaching different conclusions on how the defence should be applied. The confusing nature of the decision has been commented on in a number of articles (see eg Halpern Stone & Rolls Ltd v Moore Stephens: An Unnecessary Tangle (2010) 73 MLR 487, Watts, Audit Contracts and Turpitude (2010) 126 LQR 14 and Illegality and agency law: authorising illegal action [2011] JBL 213, Ferran, Corporate Attribution and Directing Mind and Will (2011) 127 LQR 239, Watson, Conceptual Confusion: Organs, Agents and Identity in the English Courts (2011) 23 Sing Ac Law Jo 762). 22. These critics have been joined by Lord Walker himself, who was of course a member of the majority in Stone & Rolls. In the course of his illuminating judgment in Moulin Global Eyecare Trading Ltd (in liquidation) v Commissioner of Inland Revenue [2014] HKCFA 22, (2014) 17 HKCFAR 218, he described the decision in Stone & Rolls as a controversial exception to a general rule and referred to its facts as extreme and exceptional see para 133. In para 106, he rightly added that the judgment of Patten LJ in the Court of Appeal in the present case had achieved a welcome clarification of the law in this area. Casting further doubt on the decision in Stone & Rolls, in para 101 of Moulin Global Lord Walker recanted part of his reasoning in the House of Lords. 23. It seems to me that the view that it is very hard to seek to derive much in the way of reliable principle from the decision of the House of Lords in Stone & Rolls is vindicated by the fact that, in their judgments in this case, Lord Sumption and Lords Toulson and Hodge have reached rather different conclusions as to the effect of the majority judgments. 24. Particularly given the difference between them as to the ratio decidendi of Lord Phillipss opinion, and subject to what I say in the next four paragraphs, I am of the view that, so far as it is to be regarded as strictly binding authority, Stone & Rolls is best treated as a case which solely decided that the Court of Appeal was right to conclude that, on the facts of the particular case, the illegality defence succeeded and that the claim should be struck out. I believe that this largely reflects the views of both Lord Sumption (see his para 81) and Lords Toulson and Hodge (see their para 152 154). 25. But it would be unsatisfactory for us to leave the case without attempting to provide some further guidance as to its effect, in so far as we fairly can. For that purpose I welcome Lord Sumptions enumeration of the three propositions which he suggests in his para 80 can be derived from Stone & Rolls. With the exception of the first, I agree with what he says about them, although even the second and third propositions are supported by only three of the judgments at least one of which is by no means in harmony with the other two. 26. Subject to that, I agree that the second and third of the propositions which Lord Sumption identifies in his para 80 can be extracted from three of the judgments in Stone & Rolls. Those propositions concern the circumstances in which an illegality defence can be run against a company when its directing mind and will have fraudulently caused loss to a third party and it is relying on the fraud in a claim against a third party. The second proposition, with which I agree, is that the defence is not available where there are innocent shareholders (or, it appears, directors). The third proposition, with which I also agree, is that the defence is available, albeit only on some occasions (not in this case, but in Stone & Rolls itself) where there are no innocent shareholders or directors. I need say no more about the second proposition, which appears to me to be clearly well founded. As to the third proposition, I agree with Lords Toulson and Hodge that it appears to be supported (at least in relation to a company in sound financial health at the relevant time) by the reasoning in the clear judgment of Hobhouse J in Berg, Sons & Co Ltd v Mervyn Hampton Adams [2002] Lloyds Rep PN 41, which was referred to with approval and quoted from in Stone & Rolls by Lord Phillips (at paras 77 79) and Lord Walker (at 27. paras 150, 158 161), and indeed by Lord Mance, dissenting (at paras 258 260). 28. However, I note that Lord Mance suggests that it should be an open question whether the third proposition would apply to preclude a claim against auditors where, at the relevant audit date, the company concerned was in or near insolvency. While it appears that the third proposition, as extracted from three judgments in Stone & Rolls, would so apply, I have come to the conclusion that, on this appeal at least, we should not purport definitively to confirm that it has that effect. I am of the view that we ought not shut the point out, in the light of (a) our conclusion that attribution is highly context specific (see para 9 above), (b) Lord Walkers change of mind (see para 22 above), (c) the fact that the three judgments in Stone & Rolls which support the third proposition) are not in harmony (in the passages cited at the end of para 27 above), and (d) the fact that the third proposition is in any event not an absolute rule (see the end of para 26 above). I cannot agree that the first proposition identified by Lord Sumption, namely that the illegality defence is only available where the company is directly, as opposed to vicariously, responsible for the illegality, can be derived from Stone & Rolls (whether or not the proposition is correct in law, which I would leave entirely open, although I see its attraction). I agree that, in paras 27 28, Lord Phillips accepted that the illegality defence is available against a company only where it was directly, as opposed to vicariously, responsible for it, albeit that that was ultimately an obiter conclusion. More importantly, I do not think that Lord Walker accepted that proposition at paras 132 133: he merely identified an issue as to whether the company was primarily liable for the fraud practised on KB, or was merely vicariously liable for the fraud of Mr Stojevic, but as he then went on to accept that the Court of Appeal was clearly right in holding that the company was primarily liable, he did not have to address the point in question. 29. 30. Subject to these points, the time has come in my view for us to hold that the decision in Stone & Rolls should, as Lord Denning MR graphically put it in relation to another case in In re King [1963] Ch 459, 483, be put on one side and marked not to be looked at again. Without disrespect to the thinking and research that went into the reasoning of the five Law Lords in that case, and although persuasive points and observations may be found from each of the individual opinions, it is not in the interests of the future clarity of the law for it to be treated as authoritative or of assistance save as already indicated. I turn, finally, to Safeway Foodstores. Lord Sumption has accurately summarised the effect of the decision in his para 83. Lords Toulson and 31. Hodge deal with it a little more fully and much more critically in their paras 157 162. I would take a great deal of persuading that the Court of Appeal did not arrive at the correct conclusion in that case. However, I do not believe that it would be right on this appeal to express a concluded opinion as to whether the case was rightly decided, and, if so, whether the reasoning of the majority or of Pill LJ was correct. It is unnecessary to reach any such conclusion and the points were not argued in detail before us: indeed, they were hardly addressed at all. LORD MANCE: 32. The respondent, Bilta (UK) Ltd (Bilta), claims damages from the appellants for losses suffered through its involvement in a carousel fraud on the Revenue. The defendants in the proceedings include Biltas two directors, Mr Chopra who was also its sole shareholder and Mr Nazir, as well as a Swiss company, Jetivia SA (Jetivia), and Jetivias chief executive, Mr Brunschweiler. Jetivia and Mr Brunschweiler are the appellants in this appeal. The scheme involved the purchase of carbon credits by Bilta from sources outside the United Kingdom (so not subject to VAT), followed by their resale (mostly at a loss, if one takes the basic resale price excluding VAT) to UK companies registered for VAT, and the remission of the proceeds to Jetivia and other offshore companies. Inevitably, the scheme rendered Bilta at all material times insolvent, it cannot meet its liabilities to the Revenue and the present claim is brought by liquidators, for the ultimate benefit no doubt of the Revenue as Biltas creditors. 33. The appellants defence is that Bilta was through its directors and shareholder party to illegality which precludes it pursuing its claim. I have read with great benefit the judgments prepared by Lords Toulson and Hodge, by Lord Sumption and by Lord Neuberger. Neither they, nor I understand any other member of the Court, consider that the defence can succeed, and I agree that it cannot. But there are some differences in reasoning, particularly regarding the general approach to be adopted to illegality. Save perhaps for a slight difference of view (in para 52 below) regarding Safeway Stores Ltd v Twigger [2010] EWCA Civ 1472, [2011] 2 AER 814, I agree on all points in substance with Lord Neuberger. 34. This is not, in my view, the occasion on which to embark on any re examination either of the House of Lords decision in Tinsley v Milligan [1994] 1 AC 340 or of the Supreme Courts recent decisions in Hounga v Allen [2014] UKSC 47; [2014] 1 WLR 2889 and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] 3 WLR 1257. There was no challenge to or detailed examination of any of these decisions. I agree however that these cases and their inter relationship merit further examination by this court whenever the opportunity arises. 35. The present appeal raises the question whether a company can pursue its directors and sole shareholder for breaches of duty towards the company depriving it of its assets. Lord Toulson and Lord Hodge consider that the straightforward answer to the question is that that it would deprive the duties which the shareholder directors owed Bilta of all content, if the defence of illegality were open to the appellants. But they consider that, if analysed in terms of attribution, the case is not one where the shareholder directors acts and state of mind can or should be attributed to Bilta. More generally, they favour a policy based approach to illegality, but I will not examine that possibility, in view of what I have said in para 34. 36. Lord Sumption in contrast sees the case as turning on rules of attribution, which he views as applying regardless of the nature of the claim or the parties involved (para 86) and amongst which he identifies a rule that the acts and state of mind of a directing mind and will be attributed to a company. But he qualifies the effect of his analysis by reference to a policy based breach of duty exception which covers the present case in order to avoid, injustice and absurdity, as Lord Walker put it in a passage in Moulin Global Eyecare Trading Ltd v The Commissioner of Inland (Hong Kong Final Court of Appeal) FACV (No 5 of 2013), which Lord Sumption quotes in para 85. Later in his judgment however in para 92, he modifies this approach by describing it as no more than a valuable tool of analysis. In common, as I see it, with Lords Neuberger, Toulson and Hodge, and for reasons which I set out in paras 39 44 below, I do not think it appropriate to analyse the present case as one of prima facie attribution, which is then negatived under a breach of duty exception. As Lord Sumptions judgment demonstrates, it would, however, make no difference to the outcome in this case, if the matter were to be so analysed, though the plethora of difficult authority to which such an analysis has given rise, far from proving its value, argues for what is to my mind a simpler and more principled analysis. 37. 38. One way or another, it is certainly unjust and absurd to suggest that the answer to a claim for breach of a directors (or any employees) duty could lie in attributing to the company the very misconduct by which the director or employee has damaged it. A company has its own separate legal personality and interests. Duties are owed to it by those officers who constitute its directing mind and will, similarly to the way in which they are owed by other more ordinary employees or agents. All the shareholders of a solvent company acting unanimously may in certain circumstances (which need not here be considered, since it is not suggested that they may apply) be able to authorise what might otherwise be misconduct towards the company. But even the shareholders of a company which is insolvent or facing insolvency cannot do this to the prejudice of its creditors, and the companys officers owe a particular duty to safeguard the interest of such creditors. There is no basis for regarding the various statutory remedies available to a liquidator against defaulting officers as making this duty or its enforcement redundant. 39. Rules of attribution are as relevant to individuals as to companies. An individual may him or herself do the relevant act or possess the relevant state of mind. Equally there are many contexts in which an individual will be attributed with the actions or state of mind of another, whether an agent or, in some circumstances, an independent contractor. But in relation to companies there is the particular problem that a company is an artificial construct, and can only act through natural persons. It has no actual mind, despite the laws persistent anthropomorphism as to which see the references by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, 507A and 509G H to the absence of any ding an sich, and by Professor Eilis Ferran in Corporate Attribution and the Directing Mind and Will (2011) 127 LQR 239, 239 240 to the distracting effect of references to a companys brain and nerve centre or hands. 40. As Lord Hoffmann pointed out in Meridian Global at pp 506 507, the courts task in all such situations is to identify the appropriate rules of attribution, using for example general rules like those governing estoppel and ostensible authority in contract and vicarious liability in tort. It is well recognised that a company may as a result of such rules have imputed to it the conduct of an ordinary employee, and this is so also in the context of illegality. By acquiescing in the overloading of the hauliers lorries in Ashmore, Benson, Pease & Co Ltd v A V Dawson Ltd [1973] 1 WLR 828 the consignors assistant transport manager and his assistant made the haulage contract unenforceable at the instance of the consignors, who were unable to recover when a lorry toppled over damaging the goods being carried. But it is not always appropriate to apply general rules of agency to answer questions of attribution, and this is particularly true in a statutory context. Particular statutory provisions may indicate that a particular act or state of mind should only be attributed when undertaken or held by a companys directing mind and will: see eg Lennards Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 and Tesco Supermarkets Ltd v Nattrass [1972] AC 153, cited in Meridian Global at pp 507 509. In contrast in Meridian Global itself the company was for criminal purposes attributed with the conduct and knowledge of the senior portfolio manager who, without knowledge of the board or managing director, had entered into the relevant transaction of which the company had failed to give notice as required by the legislation. 41. As Lord Hoffmann made clear in Meridian Global, the key to any question of attribution is ultimately always to be found in considerations of context and purpose. The question is: whose act or knowledge or state of mind is for the purpose of the relevant rule to count as the act, knowledge or state of mind of the company? Lord Walker said recently in Moulin Global, para 41 that: One of the fundamental points to be taken from Meridian is the importance of context in any problem of attribution. Even when no statute is involved, some courts have suggested that a distinction between the acts and state of mind of, on the one hand, a companys directing mind and will or alter ego and, on the other, an ordinary employee or agent may be relevant in the context of third party relationships. This is academically controversial: see Professor Peter Watts, The companys alter ego an impostor in private law (2000) LQR 525; Campbell and Armour, Demystifiying the civil liability of corporate agents (2003) CLJ 290. Any such distinction cannot in any event override the need for attention to the context and purpose in and for which attribution is invoked or disclaimed. 42. Where the relevant rule consists in the duties owed by an officer to the company which he or she serves, then, whether such duties are statutory or common law, the acts, knowledge and states of mind of the company must necessarily be separated from those of its officer. The purpose of the rule itself means that the company cannot be identified with its officers. It is self evidently impossible that the officer should be able to argue that the company either committed or knew about the breach of duty, simply because the officer committed or knew about it. This is so even though the officer is the directing mind and will of the company. The same clearly also applies even if the officer is also the sole shareholder of a company in or facing insolvency. Any other conclusion would ignore the separate legal identity of the company, empty the concept of duty of content and enable the companys affairs to be conducted in fraud of creditors. 43. At the same time, however, if the officers breach of duty has led to the company incurring loss in the form of payments to or liability towards third parties, the company must be able as part of its cause of action against its officer to rely on the fact that, in that respect, its officers acts and state of mind were and are attributable to the company, causing it to make such payments or incur such liability. In other words, it can rely on attribution for one purpose, but disclaim attribution for another. The rules of attribution for the purpose of establishing or negating vicarious liability to third parties 44. differ, necessarily, from the rules governing the direct relationship inter se of the principal and agent. It follows that I would, like Lords Toulson and Hodge (para 191), endorse the observations of Professors Peter Watts and Francis Reynolds QC as editors of Bowstead & Reynolds on Agency 19th ed, (2010) para 8 213, in relation to the argument that a principal should be attributed with the state of mind of his agent who has defrauded him, so as to relieve either the agent or a third party who had knowingly assisted in the fraud: Such arguments by defendants, though hazarded from time to time, are plainly without merit. However, in such situations imputation has no reason to operate. The rules of imputation do not exist in a state of nature, such that some reason has to be found to disapply them. Whether knowledge is imputed in law turns on the question to be addressed. The same point is made in rephrased terms in their 20th ed (2014), para 8 213: The simple point is that, were the principal deemed to possess the agents knowledge of his own breaches of duty, and thereby to have condoned them, the principal could never successfully vindicate his rights. [T]here is no need for an exception as such. The putative defence that the exception is used to rebut is premised on the fallacy that the principal is prima facie deemed to know at all times and for all purposes that which his agents know. As observed already, imputation never operated in such a way. Before imputation occurs, there needs to be some purpose for deeming the principal to know what the agent knows. There is none in this type of case. 45. The breach of duty exception has been more plausibly deployed in situations where the issue is the legal effect of relations between the company and a third party. For example, in J C Houghton & Co v Nothard, Lowe and Wills [1928] AC 1, the issue was whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular arrangement with a third party company. However, the arrangement was one that was against the companys interests and for the benefit of the third party company which the directors also controlled and which was in financial difficulties. In the words of Viscount Dunedin, both common sense and authority in the form of In re Hampshire Land Co [1896] 2 Ch 743 led to the conclusion that, although It may be assumed that the knowledge of directors is in ordinary circumstances the knowledge of the company, that cannot be so if the knowledge of an infringement of the companys rights is only brought home to the man who himself was the artificer of such infringement (pp 14 15). Even in this context it may be questioned whether an analysis involving prima facie imputation subject to exception is necessary or fruitful: see Professor Peter Watts critique in Imputed knowledge in agency law excising the fraud exception (2001) LQR 300, 316 et seq. Since it leads to a right result and involves a different context to the present, I need however say no more about that here. 46. With regard to Stone & Rolls Ltd v Moore Stephens [2009] 1 AC 1391 I do not propose to say very much. The potential qualification on the application of the maxim ex turpi causa, which the majority accepted in the case of a company with innocent shareholders indicates that they too must ultimately have regarded context as having at least some relevance to attribution, and Lord Walker has in Moulin now explicitly withdrawn from the position that attribution operates independently of context: see paras 41 and 101. More fundamentally, the context in which issues of attribution arose in Stone & Rolls was different from the present. The companys claim was against its auditors rather than against an officer. Lord Phillips at least in the majority clearly saw that as important, in particular in the light of what he viewed as the scope of an auditors duty. I remain of the view, which I expressed in para 265 in Stone & Rolls, that this ought to have been the central issue in that case, not a preliminary issue about ex turpi causa into which the majority view, that the claim even though pursued for the benefit of the companys creditors should fail, was in the event fitted. I note that Professor Eilis Ferran takes a similar view in her article, cited at para 39 above, at p 251; see also the statement by Professor Peter Watts, Audit contracts and turpitude (2010) LQR 126, that Ultimately, what divided the judges in Stone & Rolls was determining the classes of innocent parties whose interests the contract of audit is designed to protect (p 14). I say nothing of course about the correct answer to a question addressed in terms of what an auditors duty would or should have been. However, so far as concerns the nature and enforceability of a companys claim for misconduct by its directing mind and sole shareholder, I remain of the views expressed in paras 224 225 in Stone & Rolls: 47. 224. [B]efore the House Mr Sumptions submission was that S & R could only claim against Mr Stojevic on a narrow basis for abstraction of its moneys (a proprietary claim like that mentioned by O'Connor LJ in Caparo : see para 214 above); and that any claim against him for damages for breach of duty as an officer would be barred by the maxim ex turpi causa because it would involve pleading S & R's fraud on the banks. I do not accept this submission. It would mean that, if one element of Mr Stojevic's fraud on the banks had involved persuading the banks to pay the funds direct into an account represented as being S & R's but in fact Mr Stojevic's, S & R could not sue Mr Stojevic. Mr Stojevic's common law duty as a director to S & R was to conduct its affairs honestly and properly. Section 172(1) of the Companies Act 2006 now states the duty, in terms expressly based on common law rules and equitable principles (see section 170(3)), as being to act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole a duty made expressly subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors of the company: see section 172(3). Section 212 of the Insolvency Act 1986 provides a summary remedy available in the course of winding up against anyone who is or has been an officer of the company in respect of, inter alia, any misfeasance or breach of any fiduciary or other duty in relation to the company. (This is in addition to the specific remedies that apply in circumstances of fraudulent or wrongful trading under sections 213 and 214.) 225. As between S & R and Mr Stojevic, Mr Stojevic's fraud on the banks was and is just as objectionable as the later abstraction of moneys to which it was designed to lead. In holding a director responsible in such a case, a company is as a separate legal entity enforcing duties owed to it by the director. It is not acting inconsistently, or asking the court to act inconsistently, with the law. It is a remarkable proposition, that the directing mind of a company can commit the company to a scheme of fraud and then avoid liability in damages if the company would have to plead and rely on this scheme to establish such liability. 48. Like Lord Neuberger, I would not endorse Lord Sumptions suggestion (paras 79 and 80) that Stone & Rolls establishes an apparently general and context unspecific distinction between personal and vicarious liability as central to the application of the illegality defence. Outside the statutory sphere, where such a distinction originated and has been found useful, there is very little authority for any such distinction, and there is certainly none for its application as a key to a resolution of issues of attribution in the context of illegality. Its origin in that context lies in a concession by counsel (Mr Jonathan Sumption QC), no doubt tactically well judged, in Stone & Rolls (p 1443B C). The only member of the House who referred to this concession as a requirement, along with turpitude, of an ex turpi causa defence was Lord Phillips, but he did so expressly on the basis that (para 24): Those are valid qualifications to the defence of ex turpi causa in the context in which it is raised on this appeal. They are not, however, of general application to the defence of ex turpi causa. 49. As I have already noted in para 40 above, with reference to Ashmore, Benson, it is not the law that the ordinary principles of attribution are replaced in the case of a company, any more than they are in the case of an individual, by some general principle that the only relevant conduct or state of mind is that of someone who is or can be treated as an alter ego or directing mind and will of the relevant company or individual. In his article Audit contracts and turpitude, to which I have referred in para 46 above, at p 17, Professor Watts says this about the way in which the concept of directing mind and will entered the debate in Stone & Rolls: Their Lordships were drawn into recognising the mind and will concept by Mr Sumption QCs concession on the auditors behalf that a claimant cannot be caught by the ex turpi causa rule except as a result of his own conduct, not conduct for which he is vicariously liable or which is otherwise attributed to him under principles of the law of agency. This is simply wrong. Generally speaking, the ex turpi causa rule will preclude a principal from taking advantage of an agents illegal acts (see eg Apthorp v Nevill (1907) 23 TLR 575 for a human principal, and Ashmore, Benson Pease & Co Ltd v AV Dawson Ltd [1973] 1 WLR 828 CA for a company). Nonetheless, as we have noted, context is important with the ex turpi rule, and in the case of contracts designed to deal with the risks of agents dishonesty (such as audit and insurance contracts) the law looks to where guilt really lies. 50. With regard to the three points for which Lord Sumption suggests in para 80 that Stone & Rolls is authority, it follows from what I have said in paras 48 49 that I do not agree that the case is authority for the first point, viz that the illegality defence is only available to a company where it is directly as opposed to vicariously responsible for the illegality. As Professor Watts says, 51. 52. there are no doubt some limited contexts in which this may be the appropriate analysis, but there is no such general rule. I agree with Lord Sumptions second point, viz that the House rejected the auditors argument that merely because Mr Stojevic was the companys mind and will and sole owner, his conduct and state of mind should be attributed to Stone & Rolls in relation to its claim against its auditors. I have already pointed out in para 46 above that the majority was thereby at least accepting that context must have some relevance. The third point appears a factually correct representation of the outcome of Stone & Rolls, though the present appeal does not raise the correctness in law of that outcome, which may one day fall for reconsideration. I turn to a defence of circuity of action which the appellants suggest arises on this appeal. The claim against Jetivia and Mr Brunschweiler is that they dishonestly assisted Mr Chopras and Mr Nazirs breaches of duty towards Bilta, or were co conspirators with Mr Chopra and Mr Nazir. On the face of it, Jetivia and Mr Brunschweiler cannot raise a defence of illegality if Mr Chopra and Mr Nazir cannot. The suggestion is that Jetivia could have a defence of circuity of action. This is, I understand, on the basis that any liability on its part arose from a conspiracy between Bilta, through Mr Chopra and Mr Nazir, and Mr Brunschweiler. Apart from this being unpleaded, I cannot, at present at least, see how a company (here Jetivia) which is through its director or other agent held liable to another company (here Bilta) for dishonestly assisting or conspiring with the latter companys directors or agents to cause loss to the latter company can then turn round and say that it has been damaged by the former company by the very liability which it has incurred to the former company. That would turn the law governing dishonest assistance and conspiracy on its head. I sympathise with the views expressed by Lords Toulson and Hodge in paras 156 162 regarding the Court of Appeal decision in Safeway Stores Ltd v Twigger [2010] EWCA Civ 1472, [2011] 2 All ER 814, but any decision about its correctness must be for another day, after full argument. 53. For the reasons given by Lords Sumption, Toulson and Hodge and again in agreement with Lord Neuberger, I consider that section 213 of the Insolvency Act 1986 has extra territorial effect, and do not regard any reference to the Court of Justice as necessary. It follows that I also would dismiss the appeal. 54. LORD SUMPTION: 55. The main issue on this appeal is the scope of the rule of public policy ex turpi causa non oritur actio. No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act: Holman v Johnson (1775) 1 Cowp 34l, 343 (Lord Mansfield CJ). It is convenient to call this the illegality defence, although the label is not entirely accurate for it also applies to a very limited category of acts which are immoral without being illegal. The proceedings 56. Bilta (UK) Ltd is an English company which was ordered to be wound up by the High Court on 29 November 2009 on the application of Her Majestys Revenue and Customs. Before that order was made, its sole directors were Mr Chopra and Mr Nazir. Mr Chopra was also Biltas sole shareholder. 57. The present proceedings were brought by Bilta (through its liquidators) against the two former directors and a Swiss company, Jetivia SA, together with Jetivias chief executive Mr Brunschweiler. There are other defendants also, but for present purposes they can be ignored. The appeal arises out of a preliminary issue on the pleadings as between Bilta on the one hand and Jetivia and Mr Brunschweiler on the other. In summary, Biltas pleaded allegation is that between April and July 2009 the two directors caused Bilta to engage in fraudulent trading in carbon credits (European Emissions Trading Scheme Allowances) recorded on the Danish Emission Trading Registry. The fraud was very simple. At the relevant time carbon credits traded between parties both of whom were in the United Kingdom were treated as taxable supplies subject to VAT at the standard rate of 15%, but if either the buyer or the seller of the credit was outside the United Kingdom, the sale was not subject to VAT. Bilta bought carbon credits free of VAT from Jetivia. It resold them back to back to UK companies registered for VAT. In most cases, the onsale price of the credits net of VAT was artificially fixed at a level marginally below Biltas purchase price, thus enabling Biltas UK buyer to sell them on at a small profit. The proceeds of Biltas sales, together with the VAT thereon, were paid either to Bilta and then on to Jetivia, or directly by the UK buyers to Jetivia or an offshore company called THG. Since Bilta had no other business and no assets other than the cash generated by its sales, the result was to make the company insolvent and to generate a liability on Biltas part to account to HMRC which it was unable to satisfy. 58. As against the directors, Biltas claim is that in breach of their fiduciary duties they organised and participated in a conspiracy to defraud and injure [Bilta] by trading in carbon credits and dealing with the proceeds therefrom in such a way as to deprive [Bilta] of its ability to meet its VAT obligations on such trades, namely to pass the money (which would otherwise have been available to [Bilta] to meet such liability) to accounts offshore, including accounts of Jetivia (Amended Particulars of Claim, para. 14(a)) As against Jetivia and Mr Brunschweiler, the allegation is that they were (i) liable as parties to the same conspiracy (ii) accountable as constructive trustees on the footing of knowing assistance in the dishonest diversion of book debts due to Bilta. Jetivia, but not Mr Brunschweiler, is also said to be liable to account on the footing of knowing receipt of the proceeds of those book debts. As against all parties, there is in addition a claim for fraudulent trading under section 213 of the Insolvency Act 1986. 59. The victim identified in the pleading is Bilta. It is not in terms pleaded that it was any part of the object of the scheme to defraud HMRC. Patten LJ in the Court of Appeal considered that the case had to be decided without regard to the possibility that HMRC were a victim. But that, with respect, seems unrealistic. In Everet v Williams (1725), the famous case in which two highwaymen sought an account of their partnership profits, they did not plead the nature of their business. But that did not prevent the court from looking through the gaps and circumlocutions to the substance of the transaction: see (1893) 9 LQR 197. The substance of the transactions in issue on this appeal, if the pleaded facts are true, is a fraud on HMRC, who will be the real losers. The pleadings describe a classic missing trader fraud. Whether it was technically a carousel fraud (in which the trader sells to a connected entity, arranges for the latter to obtain a VAT refund, then pays away the VAT collected and disappears) or the simpler so called acquisition fraud where he simply disappears without accounting for VAT, does not matter. The common feature of both is the intention of the fraudster to collect VAT and disappear before it can be accounted for, and this is the aspect of the scheme which founds the pleaded case of conspiracy. The dishonesty alleged against the directors consists wholly in their having removed assets of Bilta which would otherwise have been available to pay creditors, in particular HMRC. The illegality defence 60. Although it begs many questions, the most succinct and authoritative statement of the law remains that of Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 34l, 343: No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. If, from the plaintiffs own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis. Thus stated, the law of illegality is a vindication of the public interest as against the legal rights of the parties. The policy is one of judicial abstention, by which the judicial power of the state is withheld where its exercise in accordance with ordinary rules of private law would give effect to advantages derived from an illegal act. In the two centuries which followed Lord Mansfields apparently simple proposition, it was among the most heavily litigated rules of common law, and by the end of the twentieth century it had become encrusted with an incoherent mass of inconsistent authority. The main reason for this was the unfortunate tendency of the common law to fragmentation, as judges examined each case in its own factual and legal context without regard to broader legal principle. By the time that the illegality defence came before the Court of Appeal in Euro Diam Ltd v Bathurst [1990] 1 QB 1, the law of illegality had generated a mass of sub rules, each appropriate to its own context, a state of affairs which necessarily gave rise to difficulty when the law had to be applied to situations which were either new or not classifiable according to existing categories. The Court of Appeal resolved this problem by treating the whole body of authority as illustrative of a process which was essentially discretionary in nature. Kerr LJ, delivering the only reasoned judgment, expressed that principle at p 35 by saying that the test was whether in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks 61. because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts. That question, he suggested, needed to be approached pragmatically and with caution, depending on the circumstances. This view of the law was unanimously rejected by the House of Lords four years later in Tinsley v Milligan [1994] 1 AC 340. Lord Goff of Chievely, delivering the leading judgment on this point, said that it would constitute a revolution in this branch of the law, under which what is in effect a discretion would become vested in the court to deal with the matter by the process of a balancing operation, in place of a system of rules ultimately derived from the principle of public policy enunciated by Lord Mansfield CJ in Holman v Johnson. (p 363B). 62. The Law Commission struggled valiantly with the issue in the early years of this century, and at one point proposed a structured statutory discretion of the kind which has been adopted in New Zealand. It abandoned this proposal in the expectation that the courts would reintroduce a measure of the flexibility which Tinsley v Milligan had rejected. But Tinsley v Milligan is binding authority, subject to review in this court, and in the twenty years since it was decided, the highest court has never been invited to overrule it. In those circumstances, the law has moved in a different direction, accepting that the illegality defence depends on a rule of law which applies regardless of the equities of any particular case but seeking to rationalise an area that has generated a perplexing mass of inconsistent case law. In its recent decision in Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] 3 WLR 1257 at paras 19 20, this court reaffirmed the principle that the illegality defence is based on a rule of law on which the court is required to act, if necessary of its own motion, in every case to which it applies. It is not a discretionary power on which the court is merely entitled to act, nor is it dependent upon a judicial value judgment about the balance of the equities in each case: In the light of the rejection of the public conscience test, it is incumbent on the courts to devise principled answers which are no wider than is necessary to give effect to the policy stated by Lord Mansfield and are certain enough to be predictable in their application. In Les Labratoires Servier, it was pointed out that the illegality defence commonly raised three questions: (i) what are the illegal or immoral acts which give rise to the defence? (ii) what relationship must those acts have to the claim? (iii) on what principles should the illegal or immoral acts of an 63. agent be attributed to his principal, especially when the principal is a company? Les Laboratoires Servier was about the first of the three questions. It is authority for the proposition that the illegality defence is potentially engaged by any act of the claimant which is criminal or dishonest or falls into a limited number of closely analogous categories. It is not disputed that the acts alleged in this case were of that kind. Various tests have been proposed for the connection which the law requires between the illegal act and the claim, but it has not been disputed that any of them would be satisfied on the facts alleged in this case. It is obvious, and apparent from the pleadings, that the claim against both the directors and Jetivia is directly founded on the VAT frauds. 64. The sole question on this part of the appeal is therefore the third. As applied to the present case, it is whether the dishonesty which engages the illegality defence is to be attributed to Bilta for the specific purpose of defeating its claim against the directors and their alleged co conspirators. The question is whether the defence is available to defeat an action by a company against the human agent who caused it to act dishonestly for damages representing the losses flowing from that dishonesty. The Chancellor of the High Court and Court of Appeal both held that it was not. While there are dicta in the judgments below, especially in the Court of Appeal, which range wider than is really necessary, their essential reason was the same, namely that the agent was not entitled to attribute his own dishonesty to the company for the purpose of giving himself immunity from the ordinary legal consequences of his breach of duty. For reasons which I shall explain below, I think that the courts below were right about that, and I understand that view to be shared by every other member of the court. Attribution 65. English law might have taken the position that a company, being an artificial legal construct, was mindless. If it had done that, then legal wrongs which depended on proof of some mental element such as dishonesty or intention could never be attributed to a company and the present question could not arise. In the early years of English company law, there were powerful voices which denied that a tort dependent on proof of a mental element could be committed by a company. For many years this view was principally associated with Lord Bramwell, who in a well known dictum in Abrath v North Eastern Railway Co [1886] 11 App Cas 247, 250 251, declared that a fictitious person was incapable of malice or of motive even if the whole body of its directors or shareholders in general meeting approved its acts for improper reasons. This question was, however, settled as far as English civil law was concerned by the end of the nineteenth century. As Lord Lindley put it in Citizens Life Assurance Co Ltd v Brown [1904] AC 423, 426, once 66. companies were recognised by the law as legal persons, they were liable to have the mental states of agents and employees such as dishonesty or malice attributed to them for the purpose of establishing civil liability. In the criminal law, the notion that a corporation was incapable of committing an offence requiring mens rea persisted rather longer. It was asserted in both the first edition (1909) and the second edition (1933) of Halsburys Laws of England. But it was rejected in a series of decisions in 1944: see Director of Public Prosecutions v Kent and Sussex Contractors Ltd [1944] KB 146; R v ICR Haulage Ltd [1944] KB 551; Moore v I Bresler Ltd [1944] 2 All ER 515. It is now well established that a company can be indicted for conspiracy to defraud (R v ICR Haulage Ltd [1944] KB 551) or manslaughter before statute intervened in 2007 (Attorney Generals Reference (No 2 of 1999) [2000] QB 796), provided that an agent with the relevant state of mind can be sufficiently identified with it. It cannot be emphasised too strongly that neither in the civil nor in the criminal context does this involve piercing the corporate veil. It is simply a recognition of the fact that the law treats a company as thinking through agents, just as it acts through them. It follows that in principle, the illegality defence applies to companies as it applies to natural persons. This is the combined effect of the companys legal personality and of the attribution to companies of the state of mind of those agents who for the relevant purpose can be said to think for it. But the principles can only apply to companies in modified form, for they are complex associations of natural persons with different interests, different legal relationships with the company and different degrees of involvement in its affairs. A natural person and his agent are autonomous in fact as well as in law. A company is autonomous in law but not in fact. Its decisions are determined by its human agents, who may use that power for unlawful purposes. This gives rise to problems which do not arise in the case of principals who are natural persons. 67. The question what persons are to be so far identified with a company that their state of mind will be attributed to it does not admit of a single answer. The leading modern case is Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. The primary rule of attribution is that a company must necessarily have attributed to it the state of mind of its directing organ under its constitution, ie the board of directors acting as such or for some purposes the general body of shareholders. Lord Hoffmann, delivering the advice of the Privy Council, observed that the primary rule of attribution together with the principles of agency and vicarious liability would ordinarily suffice to determine the companys rights and obligations. However, they would not suffice where the relevant rule of law required that some state of mind should be that of the company itself. He explained, at p 507: This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person himself as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. The directing organ of the company may expressly or implicitly have delegated the entire conduct of its business to the relevant agent, who is actually although not constitutionally its directing mind and will for all purposes. This was the situation in the case where the expression directing mind and will was first coined, Lennards Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705. Such a person in practice stands in the same position as the board. The special insight of Lord Hoffmann, echoing the language of Lord Reid in Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 170, was to perceive that the attribution of the state of mind of an agent to a corporate principal may also be appropriate where the agent is the directing mind and will of the company for the purpose of performing the particular function in question, without necessarily being its directing mind and will for other purposes. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy. (p 507, and see pp 509 511) 68. A modern illustration of the attribution of knowledge to a company on the basis that its agent was its directing mind and will for all purposes is Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, where the Privy Council was concerned with the knowledge required to make a company liable as a constructive trustee on the footing of knowing assistance in a dishonest breach of trust. The defendants were a one man company, BLT, and the one man, Mr Tan. At pp 392 393, Lord Nicholls, delivering the advice of the Board, observed that Mr Tan had known the relevant facts and was therefore liable. By the same token, and for good measure, BLT also acted dishonestly. Mr Tan was the company and his state of mind is to be imputed to the company. On the other hand, El Ajou v Dollar Land Holdings Ltd [1994] 2 All ER 685 did not concern a one man company. The issue was whether knowledge of the origin of funds received for investment by Dollar Land Holdings, a public company, could be imputed to it so as to found a liability to account as a constructive trustee on the footing of knowing receipt. Lord Hoffmann, delivering the leading judgment of the Court of Appeal and applying the principles which he would later explain in Meridian Global, held that the company was fixed with the knowledge of one Mr Ferdman, its part time chairman and a non executive director, because he had acted as its directing mind and will for the particular purpose of arranging its receipt of the tainted funds. 69. These refinements can give rise to nice questions of fact. But their application in a case like the present one is perfectly straightforward. On the pleaded facts, Mr Chopra and Mr Nazir were the directing organ of Bilta under its constitution. They constituted the board. Mr Chopra was also the sole shareholder. As between Bilta and Jetivia it is common ground on the pleadings that they were the directing mind and will of Bilta for all purposes, and certainly in relation to those of its functions which are relevant in these proceedings. 70. The search for a test of a companys direct or personal liability has sometimes been criticised as a distraction or an artificial anthropomorphism, and it is certainly true that English law might have developed along other lines. As it is, the distinction between a liability which is direct or personal and one which is merely vicarious is firmly embedded in our law and has had a considerable influence on the way it has developed in relation to both kinds of liability. Vicarious liability does not involve any attribution of wrongdoing to the principal. It is merely a rule of law under which a principal may be held strictly liable for the wrongdoing of someone else. This is one reason why the law has been able to impose it as broadly as it has. It extends far more widely than responsibility under the law of agency: to all acts done within the course of the agents employment, however humble and remote he may be from the decision making process, and even if his acts are unknown to the principal, unauthorised by him and adverse to his interest or contrary to his express instructions (Lloyd v Grace Smith & Co [1912] AC 716), indeed even if they are criminal (Lister v Hesley Hall Ltd [2002] 1 AC 215). Personal or direct liability, on the other hand, has always been fundamental to the application of rules of law which are founded on culpability as opposed to mere liability. One example, as Lord Hoffmann pointed out in Meridian Global, is provided by the rules governing criminal responsibility, which do not usually recognise vicarious responsibility. Another is the class of statutory provisions dependent on a companys personal misconduct, such as a shipowners right to limit his liability for a loss which is not attributable to his personal act or omission: see article 4 of the Convention on Limitation of Liability for Maritime Claims (1976) (Merchant Shipping Act 1995, Schedule 7, Part I), a principle derived from the nineteenth century Merchant Shipping Acts of the United Kingdom. A third example is provided by the illegality defence, which the House of Lords held in Stone & Rolls v Moore Stephens [2009] 1 AC 1391 to apply only to direct and not to vicarious responsibility. It is, for example, the reason why public policy precludes recovery under a liability policy in respect of a criminal act where the insureds liability is personal or direct, but not where it is purely vicarious: Lancashire County Council v Municipal Mutual Insurance Ltd [1997] QB 897, 907. As cases like this illustrate, if the illegality defence were to be engaged merely by proof of a purely vicarious liability, it would apply irrespective of any question of attribution, to any case in which the human wrongdoer was acting within the scope of his employment. This would extend the scope of the defence far more widely than anything warranted by the demands of justice or the principle stated by Lord Mansfield. On the footing that the attribution of culpability is essential to the defence, the concept of a directing mind and will remains valuable. It describes a person who can be identified with the company either generally or for the relevant purpose, as distinct from one for whose acts the company is merely vicariously liable. The exception: breach of the agents duty to the company 71. Biltas answer to this, which was accepted by both the judge and the Court of Appeal, is that the dishonesty of Mr Chopra and Mr Nazir is not to be attributed to Bilta, because in an action for breach of duty against the directors there cannot be attributed to the company a fraud which is being practised against it by its agent, even if it is being practised by a person whose acts and state of mind would be attributable to it in other contexts. It is common ground that there is such a principle. It is commonly referred to as the fraud exception, but it is not limited to fraud. It applies in certain circumstances to prevent the attribution to a principal of his agents knowledge of his own breach of duty even when the breach falls short of dishonesty. In the context of the illegality defence, which is mainly concerned with dishonest or criminal acts, this exception from normal rules of attribution will normally arise when it is sought to attribute to a principal knowledge of his agents fraud or crime but that is not inherent in the underlying principle. I shall call it the breach of duty exception. 72. The breach of duty exception is commonly referred to as the Hampshire Land principle, after the judgment of Vaughan Williams J in In re Hampshire Land [1896] 2 Ch 743. This case did not involve any allegation of fraud. The facts were that the Hampshire Land Company had borrowed money from a building society. The borrowing required the authority of the shareholders in general meeting, but their authority, although it was given, was vitiated by defects in the notice by which it was summoned. The issue was whether a building society was affected by notice of the irregularity so as to be prevented from relying on the internal management rule. The contention was that the building society was on notice because its secretary happened also to be the secretary of the borrower, and in the latter capacity he knew the facts. In the course of discussing that question, the judge observed at p 749: If Wills had been guilty of a fraud, the personal knowledge of Wills of the fraud that he had committed on the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty either of giving or receiving notice will be fulfilled where the common agent is himself guilty of fraud. 73. Vaughan Williams Js dictum was subsequently adopted by two members of the House of Lords in Houghton & Co v Nothard, Lowe & Wills [1928] AC 1, where the issue was whether a company was bound by an arrangement adverse to the companys interest which had been made by two of its directors for their own benefit and was never approved by the board. It was contended that the knowledge of the two directors could be attributed to the company so as to found a case of acquiescence. Viscount Dunedin (at p 14) summarily rejected the suggestion that the company could be treated as knowing about a directors breach of duty by virtue only of the knowledge of the defaulting director himself: My Lords, there can obviously be no acquiescence without knowledge of the fact as to which acquiescence is said to have taken place. The person who is sought to be estopped is here a company, an abstract conception, not a being who has eyes and ears. The knowledge of the company can only be the knowledge of persons who are entitled to represent the company. It may be assumed that the knowledge of directors is in ordinary circumstances the knowledge of the company. The knowledge of a mere official like the secretary would only be the knowledge of the company if the thing of which knowledge is predicated was a thing within the ordinary domain of the secretary's duties. But what if the knowledge of the director is the knowledge of a director who is himself particeps criminis, that is, if the knowledge of an infringement of the right of the company is only brought home to the man who himself was the artificer of such infringement? Common sense suggests the answer, but authority is not wanting. He then cited the dictum of Vaughan Williams J. Lord Sumner agreed, observing (p 19) that it would be contrary to justice and common sense to treat the knowledge of such persons as that of their company, as if one were to assume that they would make a clean breast of their delinquency. 74. These dicta are concerned only with the attribution of knowledge. The argument which they reject is that there is no breach of duty because the company must be deemed to know the facts and therefore cannot be misled or must be supposed to have consented. They are not concerned with the ambit of the illegality defence or the breach of duty exception to it. For the first full consideration of the exception, one must move forward seven decades to the decision of the Court of Appeal in Belmont Finance Ltd v Williams Furniture Ltd [1979] Ch 250, which is the starting point for the modern law. That case arose out of an elaborate scheme, to which Belmonts directors were party, to extract value from Belmont by causing it to buy the shares of a company called Maximum at a considerable overvalue. This was a breach of the fiduciary duties of the directors. Their object was to recycle the profit on the sale of Maximum so that it could be used to fund the purchase by three companies associated with the directors of Belmonts own shares. This was not only a breach of the directors fiduciary duty but a criminal contravention of what was then section 54 of the Companies Act 1948. Belmont subsequently went into liquidation, and an action was brought in its name by receivers for damages for breach of duty against the directors who had authorised the transaction, and for an account on the footing of knowing receipt against the three companies. The plaintiff was met by the illegality defence. The judge dismissed the action at the close of the plaintiffs case on that ground, holding that the company was a party to the conspiracy. This was because it must be taken to have known, through its directors, that the asset was over valued and that the purpose of the transaction was to fund the purchase of Belmonts shares. Reversing the judge, Buckley LJ said (pages 261 262): But in my view such knowledge should not be imputed to the company, for the essence of the arrangement was to deprive the company improperly of a large part of its assets. As I have said, the company was a victim of the conspiracy. I think it would be irrational to treat the directors, who were allegedly parties to the conspiracy, notionally as having transmitted this knowledge to the company; and indeed it is a well recognised exception from the general rule that a principal is affected by notice received by his agent that, if the agent is acting in fraud of his principal and the matter of which he has notice is relevant to the fraud, that knowledge is not to be imputed to the principal. So in my opinion the plaintiff company should not 75. 76. be regarded as a party to the conspiracy, on the ground of lack of the necessary guilty knowledge. In Attorney Generals Reference (No 2 of 1982) [1984] 1 QB 624 two men were charged with theft from a company which they wholly owned and controlled. The issue was whether, for the purpose of section 2(1)(b) of the Theft Act 1968, they had appropriated the property of another in the belief that [they] would have the other's consent if the other knew of the appropriation and the circumstances of it. The argument was that they must have had that belief because the company had no other will than theirs, so that it must be taken to consent to whatever they consented to. This argument had been accepted by the trial judge but it failed in the Court of Appeal for two reasons. One turned on the construction of the Theft Act and is of no present relevance. The other was that the decision in Belmont Finance directly contradicts the basis of the defendants argument in the present case. There can be no reason, in our view, why the position in the criminal law should be any different. In Brinks Mat v Noye [1991] 1 Bank LR 68, gold had been stolen from Brinks Mats warehouse and delivered to a company called Scadlynn to be melted down, recast and sold. The directors and sole shareholders of Scadlynn, who were well aware that the gold was stolen, caused the proceeds to be paid into the companys bank account and then paid away, thus leaving it without assets to meet its liabilities to Brinks Mat. The appeal arose out of an application by Brinks Mat to amend the pleadings so as to add a number of claims against the bank. The proposed amendments proceeded on the basis that since the payments into Scadlynns bank account represented property to which Brinks Mat was beneficially entitled, it was entitled to enforce Scadlynns rights against the bank. It was alleged that the bank was liable to Scadlynn as a constructive trustee on the footing of knowing receipt and that Brinks Mat was entitled to enforce that liability for its own benefit. One of the issues which arose was whether Scadlynn would have been precluded from advancing a claim against the bank because it had known (through its directors) about the origin of the gold. Mustill LJ, rejecting this argument, considered that the corporate entity named Scadlynn was, however, odd the notion may seem at first sight, the victim of wrongful arrangements to deprive it improperly of a large part of its assets: p 72. Nicholls LJ, agreeing, observed (p 73): On the facts alleged in the proposed amendments, Scadlynn was at all material times being used by Chappell and Palmer and others for a fraudulent purpose, viz, to realize the proceeds of sale of the robbery. But the plaintiff was not implicated in any such fraudulent purpose. On the contrary, along with the owners of the gold, the plaintiff was the intended victim of the scheme. Likewise, Scadlynn itself was an intended victim, in that Scadlynn was being used as a vehicle for committing a fraud on its creditors and a fraud on those beneficially interested in property held by Scadlynn. In those circumstances the fraudulent purposes of those controlling Scadlynn are not to be imputed to the company itself: see Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250, per Buckley LJ at pp 261 262. 77. Arab Bank v Zurich Insurance [1999] 1 Lloyds Rep 262 was a decision of Rix J arising out of a claim under the Third Parties (Rights against Insurers) Act 1930 against the liability insurer of a valuer. The valuer was alleged to have issued fraudulent valuations to induce banks to lend money to third parties. The valuations had been issued by a Mr Browne, who was the managing director and also a personal assured. The insurer defended the claim on the ground that the company was not entitled to indemnity under the policy because Brownes dishonesty was attributable to it by virtue of his knowledge. Rix J thought that Browne would on ordinary principles of attribution have been treated as the directing mind and will of the valuer for the relevant purpose (pp 278 279). But he rejected the illegality defence because it was inconsistent with the terms of the contract of insurance under which Mr Browne and the company were separately insured each for his own interest (pp 272 273). It followed that only Mr Browne would be precluded from recovering. The attribution of his knowledge to the company would be contrary to the agreement to insure their interests separately. The companys liability was therefore purely vicarious. Having made these points, Rix J dealt briefly (and obiter) at p 282 with the question of attribution. He said that although Brownes valuations were frauds on the lending banks, the valuer itself should be treated as a secondary victim, first because Brownes frauds exposed it to liability to the banks, and secondly because Brownes conduct involved such a breach of duty to [the valuer] as in justice and common sense must entail that it is impossible to infer that the knowledge of his own dishonesty was transferred to [the valuer]. He thought that the position might well be different in the case of a one man company. 78. McNicholas Construction Co Ltd v Customs & Excise Commissioners [2000] STC 553 arose out of a classic VAT fraud against the Customs and Excise. The fraudsters submitted invoices to McNicholas for VAT in respect of non existent goods and services. The companys site managers, who were in league with them, procured the VAT to be paid to them. The VAT was then reclaimed as input tax from the Customs and Excise. The scheme inflicted a loss on the Customs & Excise but the net financial effect on the company was neutral. The Customs & Excise claimed statutory penalties on the basis that that the companys conduct was dishonest. This case was simply about attribution. The illegality defence did not arise, for McNicholas was claiming nothing. Dyson J held that as a matter of construction the statute implicitly fixed the company with the knowledge of those of its employees who handled its VAT payments, including the site managers. The company argued that knowledge of the fraud should nevertheless not be imputed to it because it was a victim of the fraud, which exposed it to statutory penalties. Rejecting this argument (at paras 55 56), the judge said: In my judgment, the tribunal correctly concluded that there should be attribution in the present case, since the company could not sensibly be regarded as a victim of the fraud. They were right to hold that the fraud was neutral from the companys point of view. The circumstances in which the exception to the general rule of attribution will apply are where the person whose acts it is sought to impute to the company knows or believes that his acts are detrimental to the interests of the company in a material respect It follows that, in judging whether a company is to be regarded as the victim of the acts of a person, one should consider the effect of the acts themselves, and not what the position would be if those acts eventually prove to be ineffective. As the tribunal pointed out, in Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 the company suffered a large fine for contempt of court on account of the wrongful acts of its managers. The fact that their wrongful acts caused the company to suffer a financial penalty in this way did not prevent the acts and knowledge of the managers from being attributed to it. The [breach of duty exception] is founded in common sense and justice. It is obvious good sense and justice that the act of an employee should not be attributed to the employer company if, in truth, the act is directed at, and harmful to, the interests of the company. In the present case the fraud was not aimed at the company. It was not intended by the participants in the fraud that the interests of the company should be harmed by their conduct. The Court of Appeal approved this reasoning in rejecting a somewhat similar argument in Bank of India v Morris [2005] BCC 739. The facts of this case, baldly summarised, were that BCCI had placed deposits with Bank of India on unusual terms as part of a scheme to window dress its accounts at the year end. The liquidators of BCCI brought proceedings against Bank of India under section 213 of the Insolvency Act on the ground that it had been knowingly party to the carrying on of business by BCCI with intent to defraud. The judge found that the general manager of the Bank of India had deliberately turned a blind eye to what was going on, and that his knowledge was attributable to the bank. The bank advanced an argument somewhat similar to that which had been advanced by McNicholas before Dyson J. The Court of Appeal rejected it for the same reason, namely that the general managers acts were not targeted at Bank of India: see paras 114 118. 79. This was the state of the authorities when Stone & Rolls v Moore Stephens [2009] 1 AC 1391 came before the courts. Stone & Rolls was a company created solely for the purpose of defrauding banks. It never did anything else. The author of the frauds was a Mr Stojevic, its sole director, manager and shareholder. The action was brought by the company at the instance of its liquidators against the auditors on the basis that if they had exercised due skill and care, they would have discovered that the company had no legitimate business. The course of frauds against the bank would then have ceased earlier than it actually did. They claimed the losses said to have been incurred as the direct result of the companys course of fraudulent behaviour continuing for longer than it would otherwise have done. The House of Lords held that the illegality defence applied and upheld the order of the Court of Appeal striking out the proceedings. It is a difficult case to analyse, because it was decided by a majority comprising Lord Phillips, Lord Walker and Lord Brown and there are significant differences between the reasoning of Lord Walker (with whom Lord Brown agreed) and Lord Phillips. But the fact that they differed on critical points does not undermine the authority of their speeches on those points on which they were agreed. 80. Lord Phillips and Lord Walker were agreed on three points for which the case is accordingly authority. The first was that the illegality defence is available against a company only where it was directly, as opposed to vicariously, responsible for it: see Lord Phillips at paras 27 28. Lord Walker refers to this at paras 132 133 and must have taken the same view, for if vicarious liability was enough to engage the illegality defence the attribution of Mr Stojevics knowledge to the company (with which the whole of the rest of his speech is concerned) would have been irrelevant. This is because the company was vicariously liable for Mr Stojevics defaults whether or not it was treated as privy to them. Secondly, the majority was agreed in rejecting the primary argument of the auditors that once it was shown that the directing mind and will of a company (whether generally or for the relevant purpose) had caused it to defraud a third party and that the company was relying on that fraud to found its cause of action, the illegality defence necessarily barred the claim. Both Lord Phillips (para 63) and Lord Walker (para 173) rejected this submission as too broad, because it would involve the attribution of the agents dishonesty to the company even if there were innocent directors or shareholders. Accordingly, both of them regarded it as critical that Stone & Rolls was a one man company, ie a company in which, whether there was one or more than one controller, there were no innocent directors or shareholders. Third, Lord Phillips and Lord Walker were agreed that, as between a one man company and a third party, the latter could raise the illegality defence on account of the agents dishonesty, at any rate where it was not itself involved in the dishonesty. 81. There are difficulties about treating Stone & Rolls as authority for any wider principles than these. There are two main reasons for this. The first is that Lord Phillips and Lord Walker differed in their reasons for holding that the illegality defence could be taken against a one man company. Lord Walker adopted the sole actor principle, a label which he derived from the case law of the United States, but which he supported by reference to ordinary principles of English company law. Lord Phillips on the other hand was guided by the principle that a loss is recoverable only if the relevant duty was to protect against loss of that kind: South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191. He regarded this as expressing a rule of policy, which led him to conclude that Mr Stojevic constituted the entire constituency whose interests the auditors were bound to protect. It followed in his opinion that there was no reason not to attribute his state of mind to the company for the purposes of the illegality defence. The second reason is that Lord Phillipss view that it was no part of the purpose of an audit report to protect the interests of current or prospective creditors was peculiarly his own. Although Lord Walker agreed with it (see para 168), the proposition was not part of his reasoning on the impact of illegality. This has proved more controversial than any other feature of the reasoning in the case: see, for example, E Ferran, Corporate attribution and the directing mind and will (2011) 127 LQR 239, paras 251 257. The scope of an auditors duty and its relationship to the illegality defence may one day need to be revisited by this court, but it is not an issue in this appeal. Application to claims by the company against the defaulting agent 82. The real issue in the present case is a different one. Does the illegality defence bar a claim by the company against the dishonest agent who procured the fraud, in the same way as it bars a claim by the company against an honest outsider who is said to be liable to indemnify them? In Stone & Rolls the question whether the illegality defence would have been available to Mr Stojevic to defeat an action by the company did not arise directly, but it was considered by every member of the committee. Lord Phillips did not express a concluded view. Lord Walker presumably thought that the company could not have sued Mr Stojevic, since he regarded them as co conspirators and likened their case to an action for an account between highwaymen (paras 187 188). Lord Scott and Lord Mance thought that Mr Stojevic could not have raised the defence against the company. Since then the position as between the company and its dishonest agent has reached the Court of Appeal twice, in Safeway Stores Ltd v Twigger [2011] All ER 841, where the illegality defence succeeded, and in the present case where it failed. The same question was considered, although it did not arise directly, by the Court of Final Appeal of Hong Kong in Moulin Global Eyecare Trading Ltd v Commissioner of Inland Revenue FACV (No 5 of 2013) (decided on 13 March 2014), in which Lord Walker gave the leading judgment. 83. Safeway Stores was an action against a number of directors and senior employees of a supermarket group who by exchanging pricing information with competitors had caused the company to contravene section 2 of the Competition Act 1998. Under section 36 of the Act, the company became liable to a penalty, provided that the OFT was satisfied that it had committed the infringement intentionally or negligently. Safeway was not a one man company, but the statutory scheme had the peculiarity, which was critical to the reasoning of the Court of Appeal, that the offence was not capable of being committed by the individuals directly responsible. The Act imposed the prohibition and the resulting penalty only on the company. It was held that this required the attribution of the infringement to the company and its non attribution to the defendants. On that ground, it was held that to apply the breach of duty exception so as to allow recovery of the penalty from the defendants would be inconsistent with the statutory scheme. The decision is not authority for any proposition applying more generally. In the present case, the Court of Appeal dealt with the question as a matter of general principle and reached a different conclusion. Patten LJ, delivering the leading judgment, considered that the answer depended on the duty which was sought to be enforced and the parties between whom the issue was raised. In an action against the company by a third party who had been defrauded, the company was responsible. But it did not follow that the company was to be treated as responsible for a fraud for the purposes of an action against the dishonest director. In such an action, the illegality defence cannot be available, whether the damages claimed arose from the liability which the company was caused to incur to a third party or from the direct abstraction of the companys assets. Patten LJs reasoning on these points is encapsulated in paras 34 and 35 of his judgment: 84. 34. attribution of the conduct of an agent so as to create a personal liability on the part of the company depends very much on the context in which the issue arises. In what I propose to refer to as the liability cases like El Ajou, Tan, McNicholas and Morris, reliance on the consequences to the company of attributing to it the conduct of its managers or directors is not enough to prevent attribution because, as Mummery LJ pointed out, it would prevent liability ever being imposed. As between the company and the defrauded third party, the former is not to be treated as a victim of the wrongdoing on which the third party sues but one of the perpetrators. The consequences of liability are therefore insufficient to prevent the actions of the agent being treated as those of the company. The interests of the third party who is the intended victim of the unlawful conduct take priority over the loss which the company will suffer through the actions of its own directors. 35. But, in a different context, the position of the company as victim ought to be paramount. Although the loss caused to the company by its director's conduct will be no answer to the claim against the company by the injured third party, it will and ought to have very different consequences when the company seeks to recover from the director the loss which it has suffered through his actions. In such cases the company will itself be seeking compensation by an award of damages or equitable compensation for a breach of the fiduciary duty which the director or agent owes to the company. As between it and the director, it is the victim of a legal wrong. To allow the defendant to defeat that claim by seeking to attribute to the company the unlawful conduct for which he is responsible so as to make it the companys own conduct as well would be to allow the defaulting director to rely upon his own breach of duty to defeat the operation of the provisions of sections 172 and 239 of the Companies Act whose very purpose is to protect the company against unlawful breaches of duty of this kind. For this purpose and (it should be stressed) in this context, it ought therefore not to matter whether the loss which the company seeks to recover arises out of the fraudulent conduct of its directors towards a third party (as in McNicholas and Morris) or out of fraudulent conduct directed at the company itself which the Chancellor accepted was what is alleged in the present case. There is a breach of fiduciary duty towards the company in both cases. Patten LJ declined to apply the sole actor principle for two reasons. First, he considered that it had no place in the context of a claim by the company against the fraudulent director, because it would be inconsistent with the duty of the directors to have regard to the interests of creditors and to the statutory restrictions on the ratification of breaches of the duty of directors. Secondly, he regarded it as having the support of only Lord Walker and Lord Brown in Stone & Rolls and did not accept that it was now an established feature of English law for all purposes. 85. Moulin Global Eyecare Trading Ltd FACV (No 5 of 2013) was an application for judicial review of the decision of the Hong Kong Commissioner of Inland Revenue to reject a claim by Moulin for the repayment of tax overpaid in a previous years of assessment. Repayment had been claimed on the ground that the companys profits for the reference year had been fraudulently inflated by certain of its then directors. The Commissioner contended that no repayment could be claimed because the dishonesty of the directors was attributable to the company. In the Court of Final Appeal the claim failed because neither of the two provisions of the Inland Revenue Ordinance relied upon applied as a matter of construction. For present purposes, the relevant provision was section 70A which provided for the reopening of an assessment on the ground of error. Lord Walker, with whom the majority of the court agreed, held that there was no error because for the purpose of preparing the companys tax returns, its directing mind and will consisted of the two directors who knew the facts and had deliberately falsified them. Their dishonesty was therefore to be attributed to the company. A deliberate lie is not an error for the purposes of that section. Lord Walker considered that the ordinary rules of attribution should apply unless the breach of duty exception was engaged. He resiled from the view that he had expressed in Stone & Rolls (at para 145) that the fraud exception applied generally to any issue as to a companys notice, knowledge or complicity. Reviewing the authorities in the light of the Court of Appeals decision in the present case, he concluded that the breach of duty exception was in fact of limited application. Its rationale was to prevent the illegality defence from barring a claim by a company against its own agents. He summarised the proper scope of the exception as follows, in para 80: The situation to which it most squarely applies (and some would say, the only situation to which it should properly be applied) is where a director or senior employee of a company seeks to rely on his own knowledge of his own fraud against the company as a defence to a claim by the company against him (or accomplices of his) for compensation for the loss inflicted by his fraud. The injustice and absurdity of such a defence is obvious, and for more than a century judges have had no hesitation in rejecting it. It is clear that Lord Walker numbered himself among the some who would say that this was the only situation in which the fraud exception should properly be applied. At para 106(4) of his summary, he said: The underlying rationale of the fraud exception is to avoid the injustice and absurdity of directors or employees relying on their own awareness of their own wrongdoing as a defence to a claim against them by their own corporate employer. And at para. 106(6): But the exception does not apply to protect a company where the issue is whether the company is liable to a third party for the dishonest conduct of a director or employee. 86. The problem posed by the authorities is that until the Court of Appeals decision in this case, they have generally treated the imputation of dishonesty to a company as being governed by tests dependent primarily on the nature of the companys relationship with the dishonest agent, the result of which is then applied universally. This was the point made by Lord Walker in Stone & Rolls at para 145, from which he resiled in Moulin. The fundamental point made by the Court of Appeal in this case and the Court of Final Appeal in Moulin is that, while the basic rules of attribution may apply regardless of the nature of the claim or the parties involved, the breach of duty exception does not. I agree with this. It reflects the fact that the rules of attribution are derived from the law of agency, whereas the fraud exception, like the illegality defence which it qualifies, is a rule of public policy. Viewed as a question of public policy, there is a fundamental difference between the case of an agent relying on his own dishonest performance of his agency to defeat a claim by his principal for his breach of duty; and that of a third party who is not privy to the fraud but is sued for negligently failing to prevent the principal from committing it. 87. There are three situations in which the question of attribution may arise. First, a third party may sue the company for a wrong such as fraud which involves a mental element. Secondly, the company may sue either its directors for the breach of duty involved in causing it to commit that fraud, or third parties acting in concert with them, or (as in the present case) both. Third, the company may sue a third party who was not involved in the directors breach of duty for an indemnity against its consequences. In the first situation, the illegality defence does not arise. The company has no claim which could be barred, but is responding to a claim by the third party. It will be vicariously liable for any act within the course of the relevant agents employment, and in the great majority of cases no question will arise of attributing the wrong, as opposed to the liability, to the company. Where 88. the law requires as a condition of liability that that the company should be personally culpable, as Lord Nicholls appears to have assumed it did in Royal Brunei Airlines, the sole function of attribution is to fix the company with the state of mind of certain classes of its agents for the purpose of making it liable. The same is true in cases like McNicholas, involving statutory civil penalties for quasi criminal acts. It is also true of cases like El Ajou where the relevant act (receipt of the money) was unquestionably done by the company but the law required as a condition of liability that it should have been done with knowledge of some matter. This will commonly be the case with proprietary claims, where vicarious liability is irrelevant. 89. A claim by a company against its directors, on the other hand, is the paradigm case for the application of the breach of duty exception. An agent owes fiduciary duties to his principal, which in the case of a director are statutory. It would be a remarkable paradox if the mere breach of those duties by doing an illegal act adverse to the companys interest was enough to make the duty unenforceable at the suit of the company to whom it is owed. The reason why it is wrong is that that the theory which identifies the state of mind of the company with that of its controlling directors cannot apply when the issue is whether those directors are liable to the company. The duty of which they are in breach exists for the protection of the company against the directors. The nature of the issue is therefore itself such as to prevent identification. In that situation it is in reality the dishonest directors who are relying on their own dishonesty to found a defence. The companys culpability is wholly derived from them, which is the very matter of which complaint is made. 90. This would be obvious if the company were suing the agent for a criminal or dishonest act committed against it where there was no third party involved: for example where the agent had embezzled the companys funds and made off with them. This was the situation before the Court of Appeal in Attorney Generals Reference (No 2 of 1982) [1984] 1 QB 624, when the notion of attribution and the inference of consent were alike rejected. The position would have been no different if consent had been more than an inference, for example because the fraudsters had procured the companys express consent in their capacity as its sole directors or shareholders: see Prest v Prestodel Resources Ltd [2013] 2 AC 415, 491. As Lord Browne Wilkinson put it in Director of Public Prosecutions v Gomez [1993] AC 442, 496 497, it would offend both common sense and justice to hold that the very control which enables such people to extract the companys assets constitutes a defence to a charge of theft from the company. The question in each case must be whether the extraction of the property from the company was dishonest, not whether the alleged thief has consented to his own wrongdoing. Where the directors simply embezzle the companys funds the question of attribution arises but the illegality defence does not. There is no wrongdoing by the company. But the analysis would be precisely the same if there were. This was the position in Belmont Finance Ltd v Williams Furniture Ltd [1979] Ch 250, where the directors scheme for abstracting the companys assets necessarily involved a criminal contravention by the company of the Companies Act. The Court of Appeal declined to attribute knowledge of the conspiracy to the company so as to make it party to the scheme. This was because the companys claim was against the directors who had authorised the transaction. They could not raise the illegality defence by fixing the company with knowledge of their own plans, for the same reason that the defendants in Attorney Generals Reference (No 2 of 1982) could not raise the defence of consent on that basis. This is so whether the company is a one man company or not, because the objection to the attribution of the culpable directors state of mind to the company is that they are being sued for abusing their powers. It is the same objection whether they were one, some or all of the directors and whether or not they were also shareholders. In Belmont Finance, it was held on appeal from the judgment after trial that the directors knowledge was not to be attributed to Belmont although the transaction was formally approved by the Board and completed under the companys seal: see [1980] 1 All ER 393, 398. If the fraudulent agent cannot raise the defence of illegality in these circumstances, the same must be true of third parties who are under an ancillary liability for participating in the fraudulent agents wrong: co conspirators, aiders and abetters, knowing assisters and receivers, and so on. That was the basis on which in Belmont Finance it was held that the companies who sold the Maximum shares at an overvalue and acquired Belmonts shares were potentially liable along with the culpable directors of Belmont. 91. The position is different where the company is suing a third party who was not involved in the directors breach of duty for an indemnity against its consequences. In the first place, the defendant in that case, although presumably in breach of his own distinct duty, is not seeking to attribute his own wrong or state of mind to the company or to rely on his breach of duty to avoid liability. Secondly, as between the company and the outside world, there is no principled reason not to identify it with its directing mind in the ordinary way. For a person, whether natural or corporate, who is culpable of fraud to say to an innocent but negligent outsider that he should have stopped him in his dishonest enterprise is as clear a case for the application of the illegality defence as one could have. Stone & Rolls was a case of just this kind. Leaving aside the admittedly important question of the scope of an auditors duty, if the illegality defence had not applied in that case, it could only have been because (i) the company was treated in point of law as a mindless automaton, or (ii) the defence could never apply to companies even in circumstances where it would have applied to natural persons. Neither proposition is consistent with established principle. 92. The technique of applying the general rules of agency and then an exception for cases directly founded upon a breach of duty to the company is a valuable tool of analysis, but it is no more than that. Another way of putting the same point is to treat it as illustrating the broader point made by Lord Hoffmann in Meridian Global that the attribution of legal responsibility for the act of an agent depends on the purpose for which attribution is relevant. Where the purpose of attribution is to apportion responsibility between a company and its agents so as to determine their rights and liabilities to each other, the result will not necessarily be the same as it is in a case where the purpose is to apportion responsibility between the company and a third party. 93. This makes it unnecessary to address the elusive distinction between primary and secondary victimhood. That distinction could arise only if the application of the breach of duty exception depended on where the loss ultimately fell, or possibly on where the culpable directors intended it to fall. If, however, the application of the exception depends on the nature of the duty and the parties as between whom the question arises, the only question is whether the company has suffered any loss at all. Application to Bilta 94. As between Bilta and its former directors, the present action is brought to recover compensation for breach of the duties which they owed to the company. They are alleged to have broken those duties by causing it to conduct its business in a manner calculated to prevent it from meeting its obligation to account to HMRC for VAT. In particular, they are alleged to have caused the proceeds of the sales to UK purchasers, together with the VAT charged on them, to be paid out to Jetivia. Those proceeds were either the property of Bilta (in those cases where they reached Biltas accounts), or were owed to Bilta (in those cases where they were paid by the UK purchasers directly to Jetivia). In either case, they represented assets of Bilta. Since the issue thus stated arises directly between the company and its directors, the fraud exception applies and the illegality defence cannot lie. Whether the payment out to Jetivia of funds which may represent the fruits of the fraud is truly a loss may well be a difficult question, but it is a different question which will have to be examined in the light of all the facts at a trial. It does not affect the application of the fraud exception. 95. Jetivia and Mr Brunschweiler are in no different position from the directors, since the claim against them is that they were party to the directors misfeasance. They are said to have participated in the conspiracy to defraud Bilta, and to have knowingly assisted the directors breach of their fiduciary duties. The claim against Jetivia for an account on the footing of knowing receipt is likewise based on an allegation of participation in the directors misfeasance, since it is based on that companys knowledge (through Mr Brunschweiler) that the receipts represented assets of Bilta which the directors had caused to be paid to Jetivia in breach of their fiduciary duties. 96. Before leaving these questions I should briefly refer to two further arguments of the appellants. The first is that if Jetivia is liable to Bilta for conspiring with Biltas directors, then Bilta is liable on the same basis to Jetivia for conspiring with Mr Brunschweiler against Jetivia. The claim therefore fails for circuity. The Court of Appeal ignored this ingenious and problematical argument, and I would do so too. The facts which would be necessary to found it are not agreed or even pleaded. The second argument is that Bilta has suffered no loss because they had not been deprived of any assets that they had legitimately acquired. In the words of Lord Phillips in Stone & Rolls, at para 5, if a person starts with nothing and never legitimately acquires anything, he cannot realistically be said to have suffered any loss. Lord Walker (para 171) agreed. These observations were, however, made with reference to the facts of that case, which had been found in great detail by Toulson J in parallel proceedings between the defrauded banks and Stone & Rolls. It is not in my opinion appropriate to examine how far they are analogous to the facts of the present case at a stage of the proceedings when those facts are far from clear. 97. For these reasons, which substantially correspond to those of the Court of Appeal and those expressed by Lord Toulson and Lord Hodge in the second part of their judgment (on attribution), I would dismiss the appeal on the illegality defence. So far as that point is concerned, this is enough to decide the present appeal. Policy 98. I add to my judgment on this point only because Lord Toulson and Lord Hodge would also decide the appeal on the ground that the application of the illegality defence is inconsistent with a statutory policy requiring directors to have regard to the interests of the creditors of an insolvent or prospectively insolvent company. Since I am unwilling to follow them down that route, I should briefly explain why. 99. Given that the illegality defence is based on public policy, it is understandable that policy should have been invoked in a number of academic and judicial analyses of these problems. It is, however, important to bear in mind the proper role of policy in the law of illegality, for arguments based upon it can easily degenerate into the kind of discretionary weighing of the equities which was rejected in Tinsley v Milligan and Les Laboratoires Servier v Apotex Inc. The fact that the illegality defence is based on policy does not entitle a court to reassess the value or relevance of that policy on a case by case basis. In a broad sense, any rule of law which imposes civil liability in respect of a wrong may be described as a reflection of legal policy. It does not follow that the courts may apply the illegality defence or not according to the relative importance which they attach to the policy underlying it by comparison with desirability of allowing an otherwise sound claim to succeed. This was the essential problem about the reasoning of the Court of Appeal in Les Laboratoires Servier, which explains why this court felt unable to adopt that reasoning while arriving at the same result. 100. The illegality defence is based on the subordination of private rights and liabilities to certain interests belonging to the public sphere. The underlying rationale, as I sought to explain in Les Laboratoires Servier, at paras 23 and 25, is that the rights of private parties to remedies in private law may be overridden if the claims based on them are founded on acts which are contrary to the public law of the state and engage the public interest. These are acts which engage what in French and other civil law systems would be categorised as interests belonging to the ordre public or, as a writer has put it, that part of law that is not at the free disposition of private individuals (R de Lange, The European Public Order, Erasmus Law Review 3 (2007), 11). This is why a judge, as a public officer, may be required to take a point on illegality of his own motion, contrary to the ordinary adversarial practice of the English courts. And it is why ordinary private wrongs, sounding in tort or contract, do not give rise to the illegality defence. 101. Courts normally examine the policy rationale of a rule of law in order to discover what the rule is, not in order to decide whether they approve of its application in a particular case. The scope for conflict between competing public policies is therefore limited. It is, however, implicit in the reasoning in Les Laboratoires Servier that there is one situation in which an examination of competing policies may be required, and that is where a competing public policy (as opposed to a competing legal interest) requires the imposition of civil liability notwithstanding that the claim is founded on illegal acts. A good example is a claim for damages for breach of EU or national competition law, which may in certain circumstances succeed notwithstanding that it is founded on a contract or other act which is unlawful: Case C 453/99 ECR I 6314 Crehan v Courage Ltd at paras 34, 36; Crehan v Inntrepreneur Pub Co CPC [2004] 2 CLC 803 at paras 149 153. This was because the correction by an award of damages of the economic effects of the breach of public competition law is required in order to give effect to its purpose. 102. More recently, a somewhat similar question came before this court in a very different context in Hounga v Allen [2014] UKSC 47. This was a claim for unlawful discrimination in relation to the claimants dismissal. Eighteen months before her dismissal, Ms Houngas employer had conspired with her to bring her into the United Kingdom under a false identity and had arranged for her to receive a visitors visa for six months. The factual basis on which the appeal was argued was that by dismissing her Mrs Allen discriminated against Miss Hounga in that on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others: see para 3. It was contended that in these circumstances the claim was barred because it was founded on the illegal conspiracy. There was no doubt that the relevant illegality constituted turpitude and no issue about attribution. The question was whether the employees unlawful entry into the United Kingdom was sufficiently connected to her dismissal. Because Ms Hounga had no right to work in the United Kingdom, her contract of employment was illegal and unenforceable. But she had a distinct cause of action for the statutory tort of discrimination: see paras 24 25. To make good that cause of action Ms Hounga did not rely, and did not need to rely on the circumstances in which she had entered into the United Kingdom, either by way of pleading or by way of evidence. They were in reality no more than background facts. The reliance test, which had been adopted in Tinsley v Milligan, is the narrowest test of connection which is consistent with the existence of an illegality test at all, and by that test, Ms Hounga would certainly have been entitled to succeed. But in Cross v Kirkby [2000] EWCA Civ 426, the Court of Appeal had suggested a wider test of connection, dependent on whether the illegal act was inextricably bound up with the facts on which the cause of action depended even if it was unnecessary to rely on it. This would have substantially extended the range of cases in which the illegality defence could apply. Lord Wilson (with whom Baroness Hale and Lord Kerr agreed), regarded the question whether the inextricable connection test applied to the facts of that case as the bigger question: see para 41. He answered it by holding that international conventions against human trafficking required that compensation should be available, so that the inextricably bound up test could not be applied in those circumstances. The court was not purporting to depart from Tinsley v Milligan without saying so. It simply recognised the case before it as one in which a competing public policy required that damages should be available even to a person who was privy to her own trafficking. Lord Hughes (with whom Lord Carnwath agreed) did not agree with the majoritys construction of the relevant conventions, but agreed in the result on the ground that the illegal entry was not sufficiently closely connected with the dismissal. The result was that although the panel disagreed on the effect of the conventions, so far as the law of illegality was concerned, there was no inconsistency between their approaches. On the footing that the conventions required a right of damages to be available, the illegality defence failed on both grounds. The result of Hounga v Allen would have been exactly the same even if Ms Hounga had entered the United Kingdom legally or had done so illegally by her own unaided efforts (so that no question of trafficking arose) and the Allens had merely known of and taken advantage of that fact. In its recent decision in R (on the application of Best) v Chief Land Registrar [2015] EWCA Civ 17, the Court of Appeal was divided on the significance of Hounga although it was able to decide the case without reference to it. Arden LJ expressed some scepticism about its significance as a statement of principle of general application. It will be apparent from what I have said that I have considerable sympathy for her approach. 103. In the present case, Lord Toulson and Lord Hodge have suggested that such a relevant countervailing public policy may be found in the rule requiring the directors of an actually or potentially insolvent company to have regard to the interests of creditors. I would prefer to leave this question open for two reasons. 104. The first is that it is not by any means clear that the duty of directors to have regard to the interests of creditors does require the imposition of civil liability notwithstanding the illegality defence. It is true that many of the central principles and detailed rules of company law are matters of public policy. They do not simply sound in private law. This is in particular true of those rules which impose duties for the benefit of third parties, such as creditors, who are not party to the contract of incorporation. These rules include rules for the conservation of capital, and for ensuring that companies do not trade while insolvent. More generally, section 172 of the Companies Act 1972, which includes among the general duties of directors a duty to promote the success of the companies for the benefit of its members as a whole, treats the interests of members as corresponding to those of employees, suppliers, customers and, in certain respects the public at large. The common law goes further than this, treating the interests of an actually or prospectively insolvent company as synonymous with those of its creditors: West Mercia Safetyware v Dodd [1988] BCLC 250. The duty to have regard to the interests of creditors is not one of the general duties of directors identified in the statute, but the common law duty is preserved by section 172(3) of the Act, notwithstanding the directors obligation to serve the interests of members. However, it does not follow that the public policy reflected in these principles requires the imposition of civil liability on directors notwithstanding the illegality defence. One reason is that although the general duties of directors have effect notwithstanding any enactment or rule of law, by way of exception to this the company may in principle validly authorise something which would otherwise be a breach of those duties: Companies Act 2006, section 180(4) and (5). Another is that the Companies Acts confer on the liquidator of a company in the course of winding up a wide range of statutory powers which enable effect to be given to these principles whether or not an ordinary civil action is available. These include not only provisions for misfeasance proceedings against directors and other officers, but provisions for recovering the dissipated assets of insolvent companies from third parties. These points were not fully developed in argument, and I do not think that it is desirable to resolve them on the present appeal. As presently advised, I cannot accept that sections 172 and 180 are a sufficient answer to Jetivias reliance on the illegality defence. 105. There is, however, a more fundamental reason why I would prefer not to go down this path in the present case, which is that it is unnecessary and undesirable. This is a case about attribution. It was approached in that way in both courts below, and that seems to me to be realistic. The problem about the policy argument is that it focuses too narrowly on the status of Mr Chopra and Mr Nazir as directors and on the insolvency of this particular company given the way in which they caused it to carry on business. In my opinion, it is perfectly clear that the illegality defence would fail even if these particular features of the facts were not present, just as in Hounga v Allen, the illegality defence would have failed even if Ms Hounga had not been trafficked. The company would be entitled to claim against Mr Chopra and Mr Nazir (and any collaborator of theirs) for their breach of duty to the company even if those gentlemen had not been directors but mere agents who happened to be the companys directing mind and will for the relevant particular purpose. It is equally clear that the company would be entitled to claim against them if it were solvent. I am unwilling to decide this case on a basis which invites distinctions between different situations which are irrelevant to the principle that we are applying. I would be extremely reluctant to see the law of illegality revert to the multiplicity of micro topics and sub rules which once characterised it. I agree with Lord Toulson and Lord Hodge that Occams Razor is a valuable analytical tool, but only if it is correctly understood. Entia non sunt multiplicanda praeter necessitatem. Do not gratuitously multiply your postulates. Insolvency Act 1986, section 213 106. This is a short point and a straightforward one. 107. Section 213 of the Insolvency Act provides: (1) If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, the following has effect. (2) The court, on the application of the liquidator may declare that any persons who were knowingly parties to the carrying on of the business in the manner above mentioned are to be liable to make such contributions (if any) to the companys assets as the court thinks proper. The appellants case is that the provision has no extraterritorial effect and therefore no application to Jetivia which is domiciled in Switzerland or Mr Brunschweiler, who is domiciled in France. In effect the submission is that in subsection (2) any persons means only persons in the United Kingdom. In my opinion this argument is misconceived. 108. Most codes of insolvency law contain provisions empowering the court to make orders setting aside certain classes of transactions which preceded the commencement of the liquidation and may have contributed to the companys insolvency or depleted the insolvent estate. They will usually be accompanied by powers to require those responsible to make good the loss to the estate for the benefit of creditors. Such powers have been part of the corporate insolvency law of the United Kingdom for many years. In the case of a company trading internationally, it is difficult to see how such provisions can achieve their object if their effect is confined to the United Kingdom. 109. The English court, when winding up an English company, claims world wide jurisdiction over its assets and their proper distribution. That jurisdiction is not universally recognised, but it is recognised within the European Union by articles 3 and 16 of Council Regulation (EC) No 1346/2000. In Schmid v Hertel [2014] 1 WLR 633, the Court of Justice of the European Union considered these articles in the context of the jurisdiction of the German courts to make orders setting aside transactions with a bankrupt. It held not only that articles 3 and 16 applied to such orders, but that member states must be treated as having power to make them notwithstanding any limitations under its domestic law on the territorial application of its courts orders. 110. Section 213 is one of a number of discretionary powers conferred by statute on the English court to require persons to contribute to the deficiency who have dealt with a company now in liquidation in a manner which has depleted its assets. None of them have any express limits on their territorial application. Another such provision, section 238, which deals in similar terms with preferences and transactions at an undervalue, was held by the Court of Appeal to apply without territorial limitations in In re Paramount Airways Ltd [1993] Ch 223. Delivering the leading judgment in that case, Sir Donald Nicholls V C observed (i) that current patterns of cross border business weaken the presumption against extra territorial effect as applied to the exercise of the courts powers in conducting the liquidation of a United Kingdom company; (ii) that the absence in the statute of any test for what would constitute presence in the United Kingdom makes it unlikely that presence there was intended to be a condition of the exercise of the power; and (iii) that the absence of a connection with the United Kingdom would be a factor in the exercise of the discretion to permit service out of the proceedings as well in the discretion whether to grant the relief, which was enough to prevent injustice. These considerations appear to me, as they did to the Chancellor and the Court of Appeal, to be unanswerable and equally applicable to section 213. 111. I would accordingly dismiss the appeal on this point also. LORD TOULSON AND LORD HODGE: 112. When the directors of a company involve it in a fraudulent transaction, is the company barred by the doctrine of illegality from suing them and their accessories for losses caused by their breach of fiduciary duty? Secondly, does section 213 of the Insolvency Act 1986 (IA 1986), which empowers a liquidator of a company registered in the United Kingdom to seek financial contributions from persons involved in the companys fraudulent trading, have extra territorial effect? These questions arise on an appeal by Jetivia SA (Jetivia) and Mr Brunschweiler against the dismissal of their applications for the summary dismissal or striking out of the claims against them. 113. Bilta (UK) Ltd (Bilta), a company incorporated in England, seeks through its joint liquidators, Mr Hellard and Mr Ingram, to recover damages or equitable compensation in respect of its alleged loss. As against the directors, Bilta claims damages for conspiracy or equitable compensation for breach of fiduciary duty. The conspiracy is alleged to have been an unlawful means conspiracy, and the unlawful means are the directors alleged breach of their fiduciary duties. As against Jetivia and Mr Brunschweiler, Bilta claims damages for conspiracy or compensation for dishonest assistance in the directors breach of their fiduciary duties. Since the matter comes before the court on Jetivias and Mr Brunschweilers application for the claims against them to be summarily struck out or dismissed, it is to be assumed for present purposes that the factual allegations made in Biltas amended particulars of claim are capable of proof, and there is no need to repeat the word alleged whenever referring to the defendants conduct. The liquidators also pursue a separate claim for fraudulent trading under section 213 of IA 1986. Jetivia is a Swiss company and Mr Brunschweiler, who is resident in France, is its sole director. 114. Bilta had two directors, Mr Nazir and Mr Chopra (the directors), who are the first and second defendants. Mr Chopra owned all the issued shares. Bilta was registered for the purposes of VAT. Its only trading activity, which took place between 22 April and 21 July 2009, was trading in European Emissions Trading Scheme Allowances (EUAs), which are commonly known as carbon credits. EUAs were treated as taxable supplies under the VAT Act 1994 until 31 July 2009. Since then they have been zero rated. The VAT status of supplies of the EUAs at the relevant time explains Biltas activities. 115. In short, Bilta bought large numbers of EUAs from overseas suppliers, including Jetivia, free of VAT, and sold them in the UK with VAT to companies described as first line buffers, which immediately sold them on. The price for which Bilta sold the EUAs was lower before VAT than the price at which it bought, and Bilta was therefore never going to be in a position to meet its liabilities to HM Revenue and Customs (HMRC). Bilta had minimal capital and was insolvent virtually from the outset. The money payable to Bilta, including the VAT due to HMRC, was either paid to Bilta and paid on by it to its overseas supplier, or was paid by the first line buffer (or a later company in the chain) directly to Biltas supplier, or was otherwise paid to offshore accounts. At the end of the chain the EUAs would be resold to a company outside the UK, generating a right to a VAT refund. It is a familiar kind of carousel or missing trader fraud. 116. Bilta was insolvent throughout the period of its trading in EUAs. In that three month period, Bilta sold more than 5.7m EUAs for about 294m. Its liability for VAT on those transactions amounts to 38,733,444. It did not submit any VAT returns to HMRC. On the application of HMRC Mr Hellard and Mr Ingram were appointed provisional liquidators of Bilta on 29 September 2009. They commenced the companys claim against the defendants who were its directors and other parties, including the appellants. The company was compulsorily wound up on 25 November 2009. The proceedings were amended on 13 October 2011 to include the liquidators claims under section 213 of IA 1986. 117. Patten LJ has set out the principal allegations in Biltas particulars of claim in paras 9 14 of his impressive judgment. We can therefore summarise them very briefly. Biltas pleaded case focuses on the injury done to it rather than to HMRC. It alleges that the appellants among others were parties to a conspiracy to defraud and injure it by depriving it of the money needed to pay its VAT liabilities and thereby rendering it insolvent. The conspirators knew that their fraudulent scheme involved the breach by Mr Nazir and Mr Chopra of their fiduciary duties as directors of Bilta. Against its directors Bilta claims compensation for breach of fiduciary duty, damages for unlawful means conspiracy and a contribution under section 213 of IA 1986. Against the appellants Bilta alleges that they were parties to the conspiracy to defraud it, that they are liable for dishonestly assisting Mr Nazir and Mr Chopra in the breaches of their fiduciary duties to it and (under section 213) for carrying on its business with intent to defraud creditors. 118. On 30 July 2012 Sir Andrew Morritt, the Chancellor of the High Court, dismissed the appellants application for summary dismissal of the claims. He held that the maxim ex turpi causa non oritur actio (no action may be founded on illegal or immoral conduct) was not available as a defence to Biltas directors or the appellants and that section 213 of IA 1986 had extra territorial effect. The Court of Appeal (the Master of the Rolls, Rimer and Patten LJJ) in a judgment dated 31 July 2013 dismissed the appellants appeal. 119. The principal issues raised by this appeal in relation to the defence based on the maxim ex turpi causa are (i) the purpose of that maxim and its application in relation to Biltas claims and (ii) the circumstances in which and mechanisms by which the knowledge of directors and other persons is attributed to a legal person such as a registered company. The other issue is whether section 213 of IA 1986 has extra territorial effect. We deal with each in turn. Illlegality: ex turpi causa non oritur actio 120. At the heart of Biltas claims is the allegation that the directors acted in breach of their fiduciary duties to the company, in concert with others including Jetivia and its director, Mr Brunschweiler. Although the directors have played no part in the current proceedings, it is rightly accepted by the parties to the appeal that in relation to the defence of illegality there is no distinction to be drawn between the position of Jetivia and Mr Brunschweiler and that of the directors. The primary question for the court is whether Biltas claim against the directors for breach of fiduciary duty is barred by the doctrine of illegality. If so, the claim for damages for conspiracy must equally fail, since the breach of fiduciary duty constitutes the unlawful means on which Bilta relies. And the converse also applies. 121. The appellants argue that Biltas claims against its directors are barred by reason of the criminal nature of its conduct under their control. Its function was to serve as a vehicle for defrauding HMRC, and it is submitted that the doctrine of illegality bars it from suing the directors who caused its participation in the scheme, and their co conspirators, as a means of recovering the companys loss for the benefit of the companys creditors. 122. In any case where the defence of illegality is raised, it is necessary to begin by considering the nature of the particular claim brought by the particular claimant and the relationship between the parties. So we start with the nature of the directors duty to Bilta. 123. It is well established that the fiduciary duties of a director of a company which is insolvent or bordering on insolvency differ from the duties of a company which is able to meet its liabilities, because in the case of the former the directors duty towards the company requires him to have proper regard for the interest of its creditors and prospective creditors. The principle and the reasons for it were set out with great clarity by Street CJ in Kinsella v Russell Kinsela Pty Ltd (in liquidation) (1986) 4 NSWR 722, 730: In a solvent company the proprietary interests of the shareholders entitle them as the general body to be regarded as the company when questions of the duty of directors arise. If, as a general body, they authorise or ratify a particular action of the directors, there can be no challenge to the validity of what the directors have done. But where a company is insolvent the interests of the creditors intrude. They become prospectively entitled, through the mechanism of liquidation, to displace the power of the shareholders and directors to deal with the companys assets. It is in a practical sense their assets and not the shareholders assets that, through the medium of the company, are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration. 124. This passage was cited with approval by Dillon LJ in West Mercia Safetywear v Dodd [1988] BCLC 250, 252 253. The principle now has statutory recognition in the Companies Act 2006. In Part 10, Chapter 2 of the Act, concerning the general duties of directors, section 172 provides: (1) A director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole (3) The duty imposed by this section has effect subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors of the company. 125. Section 180 (5) provides that the general duties under the Act have effect (except as otherwise provided or the context otherwise requires) notwithstanding any enactment or rule of law. A director of an insolvent company is not directly a fiduciary agent of the creditors and cannot be sued by an individual creditor for breach of the fiduciary duty owed by the director to the company (Yukong Line Ltd v Rendsburg Investments Corporation (No 2) [1998] 1 WLR 294). 126. Instead, the protection which the law gives to the creditors of an insolvent company while it remains under the directors management is through the medium of the directors fiduciary duty to the company, whose interests are not to be treated as synonymous with those of the shareholders but rather as embracing those of the creditors. 127. Such protection would be empty if it could not be enforced. To give effect to it, this action is brought by the liquidators in the name of the company to recover, for the benefit of the creditors, the loss caused to the company by the directors breach of their fiduciary duty. 128. It is argued on behalf of the appellants that it would offend against the doctrine of illegality for the claim to succeed. It is said that the fact that the errant directors were in sole control of the company makes it unlawful for the company to enforce their fiduciary duty towards it. If this were the law, it would truly deserve Mr Bumbles epithet a ass, a idiot. For it would make a nonsense of the principle which the law has developed for the protection of the creditors of an insolvent company by requiring the directors to act in good faith with proper regard for their interests. 129. It has been stated many times that the doctrine of illegality has been developed by the courts on the ground of public policy. The context is always important. In the present case the public interest which underlies the duty that the directors of an insolvent company owe for the protection of the interests of the companys creditors, through the instrumentality of the directors fiduciary duty to the company, requires axiomatically that the law should not place obstacles in the way of its enforcement. To allow the directors to escape liability for breach of their fiduciary duty on the ground that they were in control of the company would undermine the duty in the very circumstances in which it is required. It would not promote the integrity and effectiveness of the law, but would have the reverse effect. The fact that they were in sole control of the company and in a position to act solely for their own benefit at the expense of the creditors, makes it more, not less, important that their legal duty for the protection of the interests of the creditors should be capable of enforcement by the liquidators on behalf of the company. 130. For that reason in our judgment this appeal falls to be dismissed. The courts would defeat the very object of the rule of law which we have identified, and would be acting contrary to the purpose and terms of sections 172(3) and 180(5) of the Companies Act, if they permitted the directors of an insolvent company to escape responsibility for breach of their fiduciary duty in relation to the interests of the creditors, by raising a defence of illegality to an action brought by the liquidators to recover, for the benefit of those creditors, the loss caused to the company by their breach of fiduciary duty. In everyday language, the purpose of the inclusion of the creditors interests within the scope of the fiduciary duty of the directors of an insolvent company towards the company is so that the directors should not be off the hook if they act in disregard of the creditors interests. It would be contradictory, and contrary to the public interest, if in such circumstances their control of the company should provide a means for them to be let off the hook on the ground that their illegality tainted the liquidators claim. 131. There would be much to say for ending this judgment at this point, except that it would be wrong not to identify the principal counter arguments and show that we have considered them. There is an attendant risk, in going on at further length, of losing sight of the simple and central point that the defence of illegality would undermine the rule of law, reinforced by Act of Parliament, which exists for the protection of those for whose benefit the action is brought, namely the creditors who have a right to such assets as the liquidators may recover in the name of the company. We see no need, for example, to get into the subject of attribution and the Hampshire Land principle in order to decide the appeal, but in discussing it (as we do below) we hope by the end to achieve some simplicity and clarity. approach and whether they require reconsideration. 132. We turn to the question whether any authorities present an impediment to this 133. Mr Alan Maclean QCs primary submission was that it follows from the decision of the House of Lords in Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] 1 AC 1391 that Biltas claims are barred by the doctrine of illegality by reason of its being a one man company which engaged in deliberate fraud. 134. Stone & Rolls has been a much debated and much criticised case. A lot of the criticism stems from the fact that there were five judgments running to nearly 100 pages, the judges were divided three to two, and differing reasons were given by the majority. The claim was by a company in liquidation against the firm of chartered accountants, who had acted as its auditors, for negligence and breach of contract in failing to detect and report that the companys business consisted mainly of defrauding banks (by obtaining credit through presenting false documents purportedly relating to commodity trading which was fictitious). The company was under the complete control of a Mr Stojevic. When the bank which was the principal victim discovered the fraud it sued the company and Mr Stojevic and obtained judgment for over $90m. The judgment was unpaid, the company was put into liquidation and it brought proceedings through the liquidators against the accountants for the benefit of the creditors. Negligence was admitted, but the accountants applied successfully to strike out the action on the ground of illegality. The shares in the company were held by an Isle of Man company, whose shareholders were nominee companies acting under a trust. In the proceedings brought by the bank Mr Stojevic was evasive about the beneficial interest behind the trust, although he acknowledged that he had a beneficial interest in the company, and there was no evidence to suggest that any innocent person had a share in it. All but one of the House of Lords (Lord Scott) proceeded on the basis that the company was Mr Stojevics company in the fullest sense. 135. The opinions of the majority (Lords Phillips, Walker and Brown), although differently expressed in various ways, have in common that they identified two features which were critical to their analysis. One concerned the scope of the accountants duty. The other was the fact that no one who had any part in the ownership or management of the company was unaware of the fraud which the accountants failed to detect and report. Put shortly, the majority (in disagreement with Lord Mance) held that the accountants owed no contractual or tortious duty of care in respect of the interests of the creditors, notwithstanding that the companys solvency depended on the fraud being undetected. Their sole duty was to report to the company the matters which the directors and shareholders ought to know for the purpose of making informed decisions. If those people were already aware of and complicit in the fraud, that fact provided a complete barrier to the claim. Lord Phillips was explicit that the case turned critically on whether the auditors duty extended to protecting those for whose benefit the claim was brought. He also observed that one fundamental proposition appeared to him to underlie the reasoning of Lord Walker and Lord Brown that the duty owed by an auditor to the company was for the benefit of the interests of the shareholders, but not those of the creditors and that here lay the critical point of difference of opinion between them and Lord Mance (para 68). 136. While it would shorten this judgment considerably if we were to say simply that the present case is plainly distinguishable from Stone & Rolls on its facts, since this case concerns directors who unquestionably owed duties for the protection of the interests of the creditors (unlike the auditor, according to the opinions of the majority in Stone & Rolls), the case has caused so much difficulty that it would be wrong for us to leave it there. It is therefore necessary to analyse the judgments in closer detail before expressing our final view about its status. 137. Lord Phillips summarised his conclusions (para 18) before developing his analysis. He said that those for whose benefit the claim was brought (the creditors) fell outside the scope of any duty owed by the accountants; and that the sole person for whose benefit the accountants duty was owed (Mr Stojevic, who owned and ran the company) was himself the person responsible for the fraud. In those circumstances he said that ex turpi causa afforded a defence. 138. Lord Phillips made some comments about the law of illegality and the decision of the House of Lords in Tinsley v Milligan [1994] 1 AC 340. He rejected the idea that Tinsley v Milligan laid down a universal test of ex turpi causa. It was concerned with the effect of illegality on title to property. It established that once title had passed, it could not be attacked on the basis that it passed pursuant to an illegal transaction. If title could be asserted without reliance on the illegality, the defendant could not rely on illegality to defeat the title (para 21). But he did not believe that it was right to proceed generally on the basis that the reliance test could automatically be applied as a rule of thumb, because it was necessary to consider the policy underlying the ex turpi causa maxim in order to decide whether the defence was bound to defeat the claim (para 25). 139. Lord Phillips said that the underlying policy in relation to contractual obligations could be divided into two principles: the court will not enforce a contract which is expressly or impliedly forbidden by statute or is entered into with the intention of committing an illegal act; and the court will not assist a claimant to recover a benefit from his own wrongdoing. In the instant case the claim is not brought for the benefit of the shareholder/directors, but for the benefit of the defrauded creditors for whose benefit the relevant duty was owed. Whereas in Stone & Rolls no such duty was owed for the benefit of the creditors, in this case it was. On Lord Phillips analysis of Tinsley v Milligan there is no inconsistency between that decision and the reasons which we have given for dismissing this appeal. 140. Lord Phillips considered the consequences of the primary argument advanced by the accountants in a case where the company carried on a legitimate business and had honest shareholders, but the person who was in charge of running it (its directing mind and will) involved it in fraudulent trading, which its auditors negligently failed to discover and report. In such circumstances any claim by the company for the benefit of the shareholders, whose interests the auditors should have protected, would according to the accountants argument be barred by the very wrongdoing which the auditors negligence had allowed to occur (paras 29 30). Lord Phillips did not accept that if Stone & Rolls had been a company with independent shareholders, which had been high jacked by Mr Stojevic, its claim would necessarily have been defeated by reason of the reliance test or the underlying principle of public policy (para 63). 141. Lord Phillips considered that where a companys complaint was that its directing mind and will had infected it with turpitude, if ex turpi causa was not to apply, the reason should simply be that the public policy underlying it does not require its application (para 60). That would be a very easy conclusion where all the shareholders were innocent (para 61). He considered that the situation would be more problematic if some shareholders were innocent and some were not, but it was not necessary for the court to solve that problem in the case of Stone & Rolls, because it had no innocent shareholders. In short, whether ex turpi causa applied was dependent on identifying the underlying public policy and on identifying for whose benefit the action was being brought. 142. In Stone & Rolls (as in the present case) there was a good deal of argument about attribution and the application of the so called Hampshire Land principle (In re Hampshire Land Co [1896] 2 Ch 743), but in a passage which is important to Lord Phillips analysis he said that the real issue was not whether the fraud should be attributed to the company but whether ex turpi causa should defeat the companys claim for breach of the auditors duty, and that this depended critically on whether the scope of the auditors duty extended to protecting those for whose benefit the claim was brought (para 67). 143. Lord Phillips proceeded to examine that issue and he concluded that the accountants owed no duty for the protection of the companys creditors. (That, of course, places them in stark contrast with the directors of an insolvent company.) In examining that question Lord Phillips cited with approval the decision of Hobhouse J in Berg, Sons & Co Ltd v Mervyn Hampton Adams (1992) [2002] Lloyds Rep PN 41. That was also a claim by a company in liquidation, brought for the benefit of its creditors (banks and discount houses), against a firm of chartered accountants which had acted as the companys auditors. The company operated under the sole control of a Mr Golechha, who was the beneficial owner of its entire share capital. The accountants were found to have acted with lack of proper skill in accepting too readily assurances given to them by Mr Golechha about the recoverability of certain debts owed to the company. The judge found that the auditors ought to have qualified the companys accounts. At the relevant time the company was not insolvent, but it was accepted (as indeed the accountants had said in a letter to Mr Golechha) that it was foreseeable that the companys bankers and discount houses with whom it did business might place some reliance on its audited accounts. The company asserted, but did not prove, that Mr Golechhas conduct had been fraudulent. The claim failed on various grounds, including reasons directly comparable to the position in Stone & Rolls. 144. Lord Phillips quoted (paras 78 and 79) the following passages from Hobhouse Js judgment: It follows [from the decision of the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605] that the purpose of the statutory audit is to provide a mechanism to enable those having a proprietary interest in the company or being concerned with its management or control to have access to accurate financial information about the company. Provided that those persons have that information, the statutory purpose is exhausted. What those persons do with the information is a matter for them and falls outside the scope of the statutory purpose. In the present case the first plaintiffs have based their case not upon any lack of information on the part of Mr Golechha but rather upon the opportunity that the possession of the auditors certificate is said to have given for the company to continue to carry on business and to borrow money from third parties. Such matters do not fall within the scope of the duty of the statutory auditor. However one identifies the company, whether it is the head management, or the company in general meeting, it was not misled and no fraud was practised on it. This is a simple and unsurprising consequence of the fact that every physical manifestation of the company Berg was Mr Golechha himself. Any company must in the last resort, if it is to allege that it was fraudulently misled, be able to point to some natural person who was misled by the fraud. This the plaintiffs cannot do. 145. Lord Phillips observed that this comment demonstrated that Hampshire Land had no application to the facts of that case, but that it also had wider implications (para 80). It supported the proposition that the law could not rationally hold the auditor liable when the entire shareholder body and the entire management was embodied in a single individual who knew everything because he had done everything. The passages set out above correspond with and support the twin factors to which we have referred (para 26) as central to the reasoning of the majority the limited nature of the auditors duty, and the knowledge of everyone involved in the ownership and management of the company about the matters which the auditors failed to discover and report to them. Lord Phillips returned to those points at the end of his judgment (para 86). 146. Lord Walker concluded that he would apply what he referred to as the sole actor principle to a claim made against its former auditors by a company in liquidation, where the company was a one man company engaged in fraud, and the auditors were accused of negligence in failing to call a halt to the fraud (para 168). He defined what he meant by a one man company, by reference to what Hobhouse J had said in Berg v Adams, as a company which has no individual concerned in its management and ownership other than those who are, or must (because of their reckless indifference) be taken to be, aware of the fraud or breach of duty with which the court is concerned (para 161). He cited Berg v Adams as a clear case of a one man company, which did not involve fraud, but in which every physical manifestation of the company was Mr Golechha himself who knew all about the irrecoverable loans; and there is a clear echo of Hobhouse Js judgment in Lord Walkers explanation for rejecting Stone & Rolls claim (para 168). He said that any duty of care owed by the auditors was to the company as a whole, not to current or prospective creditors, and that there was no protection which the auditors could give to the company if the only human embodiment of the company knew all about its fraudulent activities. 147. Lord Walkers judgment was a great deal more detailed than that summary, because he considered the various arguments advanced by the company, but his critical reasoning was that the auditors were in a very different position from the companys directors (para 190), their duty of care was limited in the way that he identified, and the companys sole actor knew all that was to be known. 148. Lord Brown agreed with Lord Walker. He said that the claim against the accountants ran diametrically counter to the principles established in Caparo and was difficult to reconcile with Hobhouse Js decision in Berg v Adams (para 202). In that case (see para 144 above) Hobhouse J had said that the claim against the accountants was based on the opportunity which possession of the auditors certificate was said to have given for the company to continue to carry on business and borrow money, but such matters did not fall within the scope of the auditors duty. Similarly, said Lord Brown, the assumed negligence of the accountants had enabled the company to continue to carry on business, in this case stealing rather than borrowing from third parties. 150. Lord Scott emphasised the public policy foundation of the doctrine of illegality. For this reason he differentiated between an action for damages for breach of the auditors duty of care brought by a solvent company and a similar action brought by an insolvent company. If the company had remained solvent, an action against the auditors which would have enabled Mr Stojevic to benefit from any damages would have offended the ex turpi causa rule. But the company was insolvent and there was no possibility of Mr Stojevic benefitting from any damages recoverable from the accountants. There was therefore no public policy reason to bar an action against the auditors based on their breach of duty. The wielding of a rule of public policy he said, in circumstances where public policy is not engaged constitutes, in my respectful opinion, bad jurisprudence (paras 119 122). 151. Critics of Stone & Rolls for being over long and diffuse have a fair point, and commentators and practitioners have found the case difficult. Lord Walker himself commented in Moulin Global Eyecare Trading Ltd (in liquidation) v The Commissioner of Inland Revenue, HKFCA, final Appeal (No 5 of 2013) (Civil), 13 March 2014, that it is difficult to extract a clear ratio from the speeches of the majority, and he praised the Court of Appeal in the present case for achieving a welcome clarification of the law (paras 100 and 106). We have endeavoured to apply Occams razor in concentrating on the critical features of the case: the scope of the auditors duty and the inability of the company to show that anyone who had any part in the ownership or management of the company was misled by the auditors negligence, which was a prerequisite for the companys claim to succeed. 152. Much of the difficulty of Stone & Rolls is that the treatment of the issues was more roundabout, for example with much discussion of principles of attribution. We have already referred to the fact that Lord Phillips considered that the real issue was not about attribution, but about the scope of the auditors duty, and to Lord Mances comment that the centrality of this issue had been obscured by the spread of argument over other issues. The centrality of the point was further emphasised by the parallel with Berg v Adams which each of the majority drew in their judgments. That parallel had nothing to do with the fraudulent nature of Stone & Rolls business. The restricted nature of the auditors duty and the knowledge of those in charge of the company had the same significance whether the nature of the business was fraudulent (Stone & Rolls) or not (Berg v Adams). Likewise, Lord Mances ground for distinguishing Berg v Adams had nothing to do with whether the business was lawful or fraudulent. Lord Mance distinguished Hobhouse Js decision because the insolvency of Stone & Rolls at the time of the statutory audits made all the difference in his view to the scope of the auditors duty. We are not of course concerned in this case to revisit the point of disagreement between Lord Mance and the majority on that question. The finding that all whose interests were the subject of the auditors duty of care knew the facts which the auditors failed to detect was dispositive. The conclusion of the majority that the claim was therefore barred by illegality may be seen as a reflection upon the illegal nature of the conduct as a matter of fact and perhaps a perceived need to bring their conclusion within the scope of the issues as argued, but it was not the illegality which on a proper analysis of their reasoning drove the conclusion. As Lord Phillips observed, the fundamental proposition which underlay the reasoning of Lord Walker, Lord Brown and himself was that the auditors owed no duty for the benefit of those for whose benefit the claim was brought. It necessarily followed that the claim should be struck out. 153. Lord Sumption analyses the case differently. There is no disguising the fact that serious difficulties arise from the different ways in which the majority expressed themselves. The Law Commission in its report on The Illegality Defence (2010) Law Com 320, commented at para 3(32): It is difficult to anticipate what precedent, if any, Stone & Rolls will set regarding the illegality defence. Though there was a majority verdict, there was no majority reasoning, with all their Lordships reaching different conclusions on how the defence should be applied. 154. We conclude that Stone & Rolls should be regarded as a case which has no majority ratio decidendi. It stands as authority for the point which it decided, namely that on the facts of that case no claim lay against the auditors, but nothing more. 155. Stone & Rolls in any event does not support Mr Macleans primary submission that in the present case Biltas claims are barred because it was a one man company. The duty of the directors was significantly different from the duty of the statutory auditors, and Stone & Rolls attempt to compare the two was rejected by the majority (see, for example, Lord Walker at para 190), although it found favour with Lord Mance. The fact that Stone & Rolls was a one man company was relevant because it meant that the company was unable to point to anyone involved in the ownership or management of the company who was adversely affected by the accountants failure to discover what that one man had concealed from it. But it does not follow that the person in charge of a one man company can never be liable for any form of wrongdoing towards the company. As Lord Mance pointed out in Stone & Rolls (para 230), the controller of a one man company who dishonestly strips its assets is guilty of theft from the company (Attorney Generals Reference (No 2 of 1982) [1984] QB 624). If the majority had agreed with Lord Mances view as to the scope of the auditors duty, it is plain from their reasoning that they would not have struck out the action, albeit that it was a one man company and its activities were fraudulent. They saw the claim as an attempt to get around Caparo, whereas Lord Mance saw no conflict with Caparo. 156. Mr Maclean also relied on the decision of the Court of Appeal in Safeway Stores Ltd v Twigger [2010] EWCA Civ 1472, [2011] 2 All ER 841. The issue was whether a company could recover the amount of financial penalties imposed on it by the Office of Fair Trading, for anti competitive activity in contravention of the Competition Act 1998, from the directors or employees who were responsible for the illegal activity in breach of their contractual and fiduciary duties to the company. The court held that the claim was barred by the illegality principle. 157. The leading judgment was given by Longmore LJ. His reasoning was as follows: i) The companys liability to the OFT was not a vicarious liability for the wrongful conduct of its directors or employees, because the Competition Act did not impose any liability on the directors or employees for which the company could be held vicariously responsible. The liability under the Act was imposed on the company itself, which acted (as any company must) through agents. iii) iv) ii) The liability was therefore the personal liability of the company, so that its claim against the directors and employees was based on its own wrongdoing. Its claim was therefore barred by illegality. It was not open to the company to argue that it was a victim of the directors and employees misconduct, and to rely on the Hampshire Land principle, because the statutory scheme imposed responsibility on the company. It was unnecessary to consider the position if the companys liability had been strict, because the OFT could only impose a penalty under the Competition Act if the infringement had been committed intentionally or negligently by the company. v) 158. If that reasoning is sound, it would support Mr Macleans argument that the doctrine of illegality should apply in the present case, although this would have nothing to do with Bilta being a one man company. 159. We disagree with the reasoning. We have been greatly helped by the analysis provided by Professor Watts in a characteristically lucid article, Illegality and agency law: authorising illegal action [2011] JBL 213. 160. Safeways direct liability (or personal liability in the words of the Court of Appeal) under the Competition Act arose through the acts of its directors and employees as its agents, but should the company therefore be denied the right to hold its errant directors and employees to account? We agree with Professor Watts proposition that it simply does not follow that because under the law of agency a principal becomes directly a party to an illegal agreement as a result of its agents acts, it is thereby to be deprived of its rights under separate contracts, not otherwise illegal, with its employees and other agents to act in its interests and to exercise due care and skill. Indeed, it would not follow even if the 1998 Act were found to have invoked some sui juris concept of direct liability other than the law of agency. In the absence of some countervailing policy reason, it is not just for someone who falls foul of a statute by reason of the acts of its employees or other agents to add to its burdens and disabilities by depriving it of any recourse against those employees or other agents. 161. Unless there are special circumstances, the innocent shareholders should not be made to suffer twice. The reasoning in Safeway, if taken to its logical conclusion, would also mean that the company could not lawfully dismiss the errant employees or directors; for to rely on their misconduct would be to rely on its own misconduct, as Professor Watts has observed. It might be argued that unfair dismissal is different, but that could only be on public policy grounds. 162. Reference to public policy takes us to the only basis on which we consider that the decision of the Court of Appeal in Safeway may have been justified. Pill LJ considered that the policy of the Competition Act would be undermined if undertakings were able to pass on their liability to their employees. That may have been a sound reason for striking out Safeways claims, and we express no view as to the merits of the decision. We accept that there may be circumstances where the nature of a statutory code, and the need to ensure its effectiveness, may provide a policy reason for not permitting a company to pursue a claim of the kind brought in Safeway. 163. In Bowman v Secular Society Ltd [1917] AC 406 the House of Lords established the principle that the illegality of a companys objects does not make its existence invalid in law. Put broadly, a company has the same power to act illegally as an individual. Lord Parker of Waddington also stated at 439: [I]f the directors of the society applied its funds for an illegal object, they would be guilty of misfeasance and liable to replace the money, even if the object for which the money had been applied were expressly authorised by the memorandum. 164. That is a generalisation. It would be harsh on directors if the law were to impose strict liability, and to do so would exceed the general duties of directors set out in the Companies Act. But the reasoning of Longmore LJ would negate the companys right of recourse against the director who acted in breach of his fiduciary duty if his conduct as its agent was such as to give rise to a direct liability of the company to a third party. That would be inconsistent with the dictum of Lord Parker and contrary to ordinary principles of agency. As we have said, where the liability arises under a statute, there may in some circumstances be cause to conclude that the statutory scheme would be undermined by allowing the principal to enforce its ordinary right of recourse against its agent, but that would be a departure from ordinary rules of agency based on the specific nature of the statutory scheme and the requirements of public policy arising from it. 165. Brinks Mat Ltd v Noye [1991] 1 Bank LR 68 provides an illustration of the application of Lord Parkers dictum. The proceeds of the theft of gold bullion from a warehouse owned by the plaintiffs were laundered through the bank account of a company called Scadlynn Ltd with Barclays Bank. The directors and sole shareholders of Scadlynn were signatories of the account and drew cheques on it for cash totalling nearly 8m over four months. The plaintiffs sought to enforce rights which Scadlynn was said to possess against the bank in consequence of the payments out of its account. The issue before the Court of Appeal (Mustill and Nicholls LJJ and Sir Roualeyn Cumming Bruce) was whether the pleading should be permitted. This raised the question, among others, whether it was open to Scadlynn to sue the bank in respect of withdrawals made or authorised by the companys sole directors and shareholders. The court held that there was no reason why Scadlynn, which was being put into compulsory liquidation, should be prevented from enforcing such a claim for the benefit of the creditors who would look to the assets for the satisfaction of their debts. Nicholls LJ described the existence of the directors fiduciary duties to the company as a means by which the law sought to protect the companys creditors. In that context, Mustill LJ rightly described Scadlyn as being an intended victim of arrangements intended dishonestly to deprive it of a large part of its assets and Nicholls LJ agreed with him. 166. Mr Maclean submitted that there was no scope for applying the Hampshire Land principle (so as not to attribute the directors conduct to Bilta because they were acting in fraud of the company) in the circumstances that Bilta is a one man company and in any event that Biltas role in the fraud was that of villain and not victim. The argument proceeds on the false premise that Biltas role must be characterised in the same way both as between Bilta and HMRC and as between the company and its directors; and that the attribution of the fraud to the company for the first purpose applies equally when considering the second. We do not consider the question of attribution to be the real issue in this case. The real issue is simpler: whether it is contrary to public policy that the company, through the liquidators, should enforce for the benefit of its creditors the duty which the directors owed for the protection of the creditors interests as part of their fiduciary duty to the company. In this respect we echo Lord Phillips observation in Stone & Rolls (para 67) that the real issue was not whether the fraud should be attributed to the company, but whether ex turpi causa should defeat the companys claim for breach of the auditors duty. This, as he said, depends critically on whether the scope of that duty extends to protecting those for whose benefit the claim was brought. The answer to that question in the present case is clear. The directors fiduciary duty to the company did extend to protecting the interests of those for whose benefit the claim is brought. However, because the issue of attribution loomed large in the course of argument (as it did in Stone & Rolls), and because the topic has caused a fair amount of confusion, we address it below in the hope of providing some clarification. 167. Mr Maclean further submitted that Biltas claims fall within the illegality principle because the claims are inextricably linked with, and it is relying on, its own dishonest actions. The flaw in this argument is that when a company is insolvent or on the border of insolvency its interests are not equated solely with the proprietary interests of its owners. Company law requires that the interests of creditors receive proper consideration by the shareholders and directors. Although the creditors are not shareholders, as creditors they are recognised at that point as having a form of stakeholding in, or being a constituency of, the company which is under the management of the directors, and their interests are to be protected at law through the directors fiduciary duty to the company, which encompasses proper regard for the creditors interests. It is therefore misleading to say that when the company, through the liquidators, brings an action against the directors for breach of that duty, the company (whose interests ex hypothesi include the interests of those for whose benefit the duty is owed and the action is brought) is claiming in respect of its dishonest actions. 168. The argument about reliance harks back to Tinsley v Milligan. We have referred (at para 138) to Lord Phillips treatment of that case in Stone & Rolls and to his statement that whether ex turpi causa should apply should depend on whether the public policy underlying it required its application. Tinsley v Milligan sparked a debate which has continued ever since then. This is not surprising because the judges in that case themselves considered the law to be very unsatisfactory, but they were of the opinion that it was beyond judicial reform, although it was based on public interest and was a common law doctrine. Lord Goff referred to the New Zealand Illegal Contracts Act 1970, which provides that the court may deal with an illegal contract howsoever as the court in its discretion thinks just. He suggested that there should be a full inquiry, and said that he would be more than happy if a new system could be evolved which was satisfactory in its effect and capable of avoiding indiscriminate results. 169. The Law Commission studied the subject over many years with wide consultation. It did not recommend that the court should have an open ended discretion. However, it agreed with the great majority of consultees and commentators that the law was in an unsatisfactory state if, in the words of Lord Browne Wilkinson in Tinsley v Milligan, The effect of illegality is not substantive but procedural. The objections were well expressed by McHugh J in the High Court of Australia in Nelson v Nelson (1995) 184 CLR 538, 609 (and many others have written or spoken in similar vein): The [reliance] rule has no regard to the legal and equitable rights of the parties, the merits of the case, the effect of the transaction in undermining the policy of the relevant legislation or the question whether the sanctions imposed by the legislation sufficiently protect the purpose of the legislation. Regard is had only to the procedural issue; and it is that issue and not the policy of the legislation or the merits of the parties which determines the outcome. Basing the grant of legal remedies on an essentially procedural criterion which has nothing to do with the equitable positions of the parties or the policy of the legislation is unsatisfactory, particularly when implementing a doctrine which is founded on public policy. The Law Commission did not recommend that the solution should be statutory. Its reason or primary reason was not the difficulty of obtaining Parliamentary time for law reform, although that has been a serious problem. Its study of various possible legislative models did not result in it finding an altogether satisfactory version, but there also appeared to the Commission to be signs of fresh judicial thinking since Tinsley v Milligan. It considered that judicial reform was the best way forward and it made recommendations to that end. The Commission suggested that it was within the power of the courts to develop the law in a way which was neither simply discretionary nor arbitrary and indiscriminate, but which had regard to the underlying public policies, and its recommendations were intended to assist the courts in that direction. 170. In Gray v Thames Trains Ltd [2009] AC 1339, para 30, Lord Hoffmann said that the doctrine is founded not on a single rationale but number of policy objectives. His observation was echoed by Lord Phillips in Stone & Rolls (at para 25). We have given our reasons for saying that application of the doctrine in the present context would undermine the purpose and relevant provisions of the Companies Act for the protection of the creditors of insolvent companies through the duty imposed on the directors towards the company. 171. There may be cases which are less clear cut where there are public policy arguments which pull in opposite directions. Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889 was such a case. The claimant was a victim of unlawful discrimination occurring within the context of a contract of employment, which was contrary to the terms on which the claimant had been permitted to enter the United Kingdom. Lord Wilson, giving the judgment of the majority, adopted Lord Phillips statement in Stone & Rolls that the reliance test was not to be applied automatically but that it was necessary to consider the policy underlying ex turpi causa in order to decide whether it should defeat the claim. He referred next to the test of inextricable link and said that he would conclude that the link was missing. But he did not consider that to be the determining question for reasons which he set out in the critical part of his judgment under the heading Public policy. He said (para 42): The defence of illegality rests upon the foundation of public policy Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification: Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask What is the aspect of public policy which founds the defence? and, second, to ask But is there another aspect of public policy to which application of the defence would run counter? 172. Lord Wilson examined what, if any, considerations of public policy underlying the doctrine of illegality, in particular the importance of preserving the integrity of the legal system (highlighted by McLachlin J in Hall v Hebert [1993] 2 SCR 159), militated in favour of applying the defence to defeat Miss Houngas claim, and he judged them scarcely to exist. He considered next the second question which he had posed in para 42. He concluded that there was an important aspect of public policy to which application of the defence would run counter, namely the protection of victims of trafficking, about which the United Kingdom was party to a European Convention. Lord Wilson described as fanciful the idea that an award of compensation to the claimant would give the appearance of encouraging others to enter into illegal contracts of employment, whereas its refusal might engender a belief among employers that they could discriminate against such employees with impunity (para 44), and he said that to uphold the defence of illegality would run strikingly counter to the prominent strain of current public policy against trafficking and in favour of protection of its victims (para 52). He concluded his judgment by saying: The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront. 173. Lord Sumption says that the illegality defence is not dependent on a judicial value judgment about the balance of the equities in each case, and he cites Tinsley v Milligan and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55 [2014] 3 WLR 1257. In Tinsley v Milligan the House of Lords disapproved the public conscience test which had been developed by the Court of Appeal. But that decision did not preclude this court from adopting the approach in Hounga v Allen set out above at para 129 above. Lord Wilsons statement was one of principle. It was made after a review of the authorities in which Lord Wilson referred to the rejection of the public conscience test in Tinsley v Milligan (para 28). Lord Wilsons statement was part of the ratio decidendi in Hounga v Allen because it formed the foundation for the conclusion in the final paragraph of the judgment, to which we have referred at para 174. It is not the courts practice consciously to depart from an earlier decision of the House of Lords or Supreme Court without saying so. No member of the court in Les Laboratoires Servier suggested that the courts approach in Hounga v Allen had been wrong. The issue in Les Laboratoires Servier was whether the doctrine of illegality should be expanded beyond the reach of previous authorities to include a tort of strict liability. The decision is not inconsistent with ratio of Hounga v Allen. Some of the dicta are in a different direction from Hounga v Allen but that is not a sufficient reason to conclude that the majority consciously meant to disapprove the approach in Hounga v Allen. Since the hearing of the appeal, the Court of Appeal has considered Hounga v Allen and Les Laboratoires Servier in R (on the application of Best) v Chief Land Registrar [2015] EWCA Civ 17. Sales LJ, with whom McCombe LJ agreed, analysed them at paras 51 to 61 and adopted the analytical framework of Lord Wilson in weighing the considerations of public policy in favour of and against applying the ex turpi causa defence in the particular circumstances. He did not consider Les Laboratoires Servier to be incompatible with that approach and he applied Lord Wilsons guidance at para 70 and following. Arden LJ dissociated herself from the reliance on Hounga v Allen by the majority (paras 111 to 112). The analysis of Sales LJ accords with our views. 174. The Law Commissions report has been considered in some detail by the Court of Appeal on two occasions, Les Laboratoires Servier and Parkingeye Ltd v Somerfield Stores Ltd [2013] 1 QB 840. In a chapter in English and European Perspectives on Contract and Commercial Law: Essays in honour of Hugh Beale, Professor Andrew Burrows, writing before the decision of this court in Les Laboratoires Servier commended these decisions as an example of the work of the Commission helping to influence judicial law reform. The report has not so far been considered in any detail by this court, nor has this court been invited to review the decision in Tinsley v Milligan. The differences between Lord Sumption and us suggest to us that there is a pressing need for both. In any future review the court would undoubtedly wish to examine the law in other countries and particularly the judgments of the High Court of Australia in Nelson v Nelson, all of which merit reading. Conspiracy 175. For the reasons explained we have concentrated on the claim against the directors for breach of fiduciary duty, which the appellants are said dishonestly to have assisted. It is difficult to see that the claim for conspiracy adds anything. Mr Maclean argued that the real conspiracy was to injure HMRC and that it is artificial to regard there as having been a conspiracy against Bilta, when it was in truth nothing more than a vehicle for defrauding HMRC. It may be that Bilta will fail to establish the conspiracy alleged, but the merits of that argument are not fit for determination on a summary application. Bilta has a triable case, and the only issue before the court is whether it must fail for illegality. In that respect the appellants are on no stronger ground in relation to conspiracy than in relation to the breach of fiduciary duty relied on as the unlawful means. It is perhaps worth observing that in Berg Sons & Co Ltd v Adams Hobhouse J noted that there was no allegation of conspiracy by the accountants and Mr Golechha to defraud the company (p 1066), implying that this would have made a potential difference. In this case there is an allegation of conspiracy between the directors and others to defraud the company. It does not alter the analysis to say that the aim of the dishonest director shareholders was to make a dishonest profit for themselves and their accomplices at the expense of HMRC, for this itself involved a breach of fiduciary duty towards Bilta (representing the interests of its creditors) and the intentional causation of loss to Bilta. Loss 176. Mr Maclean submitted that Bilta suffered no loss since it began life with negligible assets and never acquired any lawful assets, so it had none to lose. He relied on an obiter dictum of Lord Phillips to similar effect in Stone & Rolls (para 5), but Lord Mance observed (para 231) that to cause a deficit to a company making it insolvent is to cause it loss. Lord Phillips described his own remark as an initial impression and it was no part of his reasoning. 177. In Brinks Mat Ltd v Noye one of the arguments advanced by the bank was that Scalynn suffered no loss because it never had any property of its own and held the proceeds of the bullion on trust. The argument was dismissed. Nicholls LJ observed that a director was as much in breach of fiduciary duties which he owed to the company if he misappropriated property of which the company was a trustee as if he misappropriated property belonging beneficially to the company. 178. A companys profit and loss account and its balance sheet may be positive or negative. When the directors caused Bilta to incur VAT liabilities, and simultaneously caused it to misapply money which should have been paid to HMRC, leaving the company with large liabilities and no means of paying them, the directors caused it to suffer a recognisable form of loss. Circuity 179. The appellants also submit that if Bilta is entitled to a remedy against Jetivia because it conspired with Biltas directors, so also is Jetivia entitled to claim against Bilta for conspiring with Mr Brunschweiler against it. There is, it is submitted, circuity of action. In our view Jetivia will be liable only if it is established that it knowingly assisted in the fraud against Bilta, which would result from Mr Brunschweilers knowledge and actions being attributed to it. We discuss attribution below. If the fraud against HMRC was designed to benefit Jetivia and the other overseas suppliers, we see no reason why there should not be such attribution and doubt if Jetivia would have a claim against Bilta. But, as Lord Sumption states, the facts relevant to this issue have not been pleaded. Attribution 180. The issue of attribution arises in the context that Mr Nazir and Mr Chopra were the only directors of the company and Mr Chopra was its sole shareholder. Bilta in its amended particulars of claim (at para 42) referred to them as its directing mind and will. While there is a role in our law for the concept of the directing mind and will of a company, it is important to analyse that role and in particular to avoid the dangers of ascribing human attributes to a non natural person such as a company. 181. In most circumstances the acts and state of mind of its directors and agents can be attributed to a company by applying the rules of the law of agency. It has become common to speak of the Hampshire Land principle or the fraud exception as the exception to an otherwise general rule that attribution occurs. It is our view that the fraud exception is not confined to fraud but is simply an instance of a wider principle that whether an act or a state of mind is to be attributed to a company depends upon the context in which the question arises. The fraud exception, applied to prevent an agent from pleading his own breach of duty in order to bar his principals claim against him, is the classic example of non attribution. But it is not the only one. 182. We set out our conclusions on the importance of context to the process of attribution in paragraphs 202209 below. Before then, we examine the case law which has led us to those conclusions. 183. The starting point in an analysis of attribution is the recognition of the separate personality of the company, which the House of Lords recognised long ago in Salomon v Salomon & Co Ltd [1897] AC 22 and which this court recently confirmed in Prest v Petrodel Resources Ltd [2013] 2 AC 415. A company, the creation of law, is, in Lord Halsburys words (Salomon at p 33), a real thing and has a legal existence even if it is controlled by one person. Because the company is not a natural person it can operate only by the acts of its officers, employees and agents. In Aberdeen Railway Co v Blaikie Brothers (1854) 1 Macq 461, 471, Lord Cranworth LC stated: The directors are a body to whom is delegated the duty of managing the general affairs of the company. A corporate body can act only by agents. Similar statements about the necessity of agency can be found in Ferguson v Wilson (1866) LR 2 Ch App 77 (Cairns LJ at p 89) and Citizens Life Assurance Co Ltd v Brown [1904] AC 423, (Lord Lindley at p 426). 184. While a company cannot act but through the agency of others, it can incur obligations and have rights; and directors, including a sole director who is also the sole shareholder of a company, owe it the general duties set out in sections 171 to 177 of the Companies Act 2006. The company can also incur liability to a third party because the law holds it responsible for the tortious acts and omissions of an employee. 185. Lord Diplock stated the principles in a contractual context in Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848: My Lords, it is characteristic of commercial contracts, nearly all of which today are entered into not by natural legal persons, but by fictitious ones, ie companies, that the parties promise to one another that something will be done. Such a contract is the source of primary legal obligations upon each party to it to procure that whatever he has promised will be done is done . Where what is promised will be done involves the doing of a physical act, performance of the promise necessitates procuring a natural person to do it; but the legal relationship between the promisor and the natural person by whom the act is done, whether it is that of master and servant, or principal and agent, or of parties to an independent sub contract, is generally irrelevant. If that person fails to do it in the manner in which the promisor has promised to procure it to be done, as, for instance, with reasonable skill and care, the promisor has failed to fulfil his own primary obligation. This is to be distinguished from vicarious liability a legal concept which does depend upon the existence of a particular legal relationship between the natural person by whom a tortious act was done and the person sought to be made vicariously liable for it. In the interests of clarity the expression should, in my view, be confined to liability for tort. 186. Such vicarious liability is indirect liability; it does not involve the attribution of the employees act to the company. It entails holding that the employee has committed a breach of a tortious duty owed by himself, and that the company as his employer is additionally answerable for the employees tortious act or omission. 187. A company can incur direct liability in at least three circumstances. First, the provisions of company legislation, a companys constitution (its articles of association, including provisions of a companys memorandum of association now deemed to be provisions of its articles by section 28 of the Companies Act 2006 (the 2006 Act)) and the non statutory rules of company law provide that certain acts of its board of directors are treated as the acts of the company. For example, in the Companies (Model Articles) Regulations 2008 (SI 2008/3229) Schedule 3, article 3 provides that [s]ubject to the articles, the directors are responsible for the management of the companys business, for which purpose they may exercise all the powers of the company. Similarly, certain resolutions of the shareholders in general meeting are treated as the acts of the company. Further, the non statutory consent principle, that shareholders who have a right to vote may by unanimous agreement bind the company in a matter in which they had power to do so by passing a resolution at a general meeting (In re Duomatic Ltd [1969] 2 Ch 365), is preserved by section 281(6) of the 2006 Act. 188. Secondly, a company can also incur direct liability through the transactions of agents within the scope of their agency (actual or apparent). Thus, when an agent commits his or her company to a contract, the company incurs direct liabilities (and acquires rights) as a party to the contract under ordinary principles of the law of agency. 189. Thirdly, a statute or subordinate legislation or a regulatory bodys code or rules of the common law or equity may impose liabilities or confer rights on a company. For example, a company as a legal entity is owed by its directors the general duties set out in sections 171 to 176 of the Companies Act even when the controlling director is also the sole shareholder. 190. In Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, Lord Hoffmann (at p 506) pointed out that it is a necessary part of corporate personality that there should be rules by which acts are attributed to the company. First, he identified the primary rules of attribution from company law, which is the first of the direct forms of liability which we describe above. He then referred to the general principles of agency and vicarious liability which in most circumstances determine a companys rights and obligations (p 507B). He recognised that there was a third category where, exceptionally, a rule of law expressly or impliedly excludes attribution on the basis of those general principles. For this third category, which is relevant to the third form of direct liability (above), he stated: the court must fashion a special rule of attribution for the particular substantive rule. He described the fashioning of that special rule of attribution in these terms (p 507E F): This is always a matter of interpretation: given that it is intended to apply to a company, how is it intended to apply? Whose act (or knowledge or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy. 191. The relevance of the context in which the question is asked Is Xs conduct or state of mind to be treated as the conduct or state of mind of the company for the purpose in hand? is not limited to Lord Hoffmanns third category. The legal context, ie the nature and subject matter of the relevant rule and duty, is always relevant to that question. In Bowstead & Reynolds on Agency (20th ed 2014) Professor Peter Watts and Professor Francis Reynolds stated (at para 8 213): Before imputation occurs there needs to be some purpose for deeming the principal to know what the agent knows. In the 19th ed the learned editors made the same point in the same paragraph thus: The rules of imputation do not exist in a state of nature, such that some reason must be found to disapply them. Whether knowledge is imputed in law turns on the question to be addressed. We agree; an analysis of the relevant case law supports that view in relation to each category of rules of attribution. We turn first to the special rules of attribution which Lord Hoffmann saw as providing the answer in exceptional cases when the other rules did not determine the companys rights and obligations. 192. Thus, in Lennards Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705, the Merchant Shipping Act 1894 excluded the liability of a ship owner for loss or damage if it occurred without his actual fault or privity. That phrase prevented the ship owner incurring such liability vicariously. The House of Lords treated the fault of Mr J M Lennard, who was a director of another company which managed the ship, was registered in the ships register as the manager, and was also a director of the ship owning company, as the fault of the latter company. Both Viscount Haldane LC and Lord Dunedin, who gave the only substantive speeches in the case saw the question as one of statutory construction which depended on the particular facts of the case. In Tesco Supermarkets Ltd v Nattrass [1972] AC 153, the supermarket company was charged with an offence under the Trade Descriptions Act 1968. It pleaded a defence under section 24 of the Act namely (a) that the commission of the offence was due to the act or default of another person, in this case the manager of the store at which the misleading representations as to price had occurred, and (b) that it had taken all reasonable precautions to avoid the commission of such an offence. The House of Lords upheld that defence. Like the Divisional Court, the House of Lords treated the store manager as another person for the purpose of section 24 of the Act and focused on the question whether the task of taking reasonable precautions was that of the board of the company or was delegated to its store managers. It construed the statutory defence as allowing an employer who was personally blameless to escape liability and held that in this case the board of directors had not delegated their management functions to the shop managers. As a result Tesco established the statutory defence. 193. As in each case the court is engaged in the interpretation of a particular statute and in its application to particular facts, other statutory provisions have given rise to different approaches. Thus in Tesco Stores Ltd v Brent London Borough Council [1993] 1 WLR 1037 the Divisional Court was concerned with the offence in section 11 of the Video Recordings Act 1984 of supplying a video recording to a person under the age specified in the classification certificate. The court rejected Tescos statutory defence that it had neither known nor had reasonable grounds to believe that the purchaser was under 18. It distinguished Tesco Supermarkets Ltd v Nattrass, holding that the knowledge or information that the section 11(2) defence addressed was that of the employee who supplied the video film to the purchaser and not that of the companys senior management. 194. In Attorney Generals Reference (No 2 of 1982) [1984] 1 QB 624, to which we referred in para 155 above, the Court of Appeal had to consider whether a person or persons who through shareholding and directorship had total control of a company were capable of stealing the property of the company. This involved, among other things, considering section 2(1)(b) of the Theft Act 1968 which provides that a persons appropriation of property is not regarded as dishonest if he appropriates the property in the belief that he would have the others consent if the other knew of the appropriation and the circumstances of it. The Court of Appeal held that the company could not be regarded as the other for the purpose of this provision because the mind and will of the defendants fell to be treated as the mind and will of the company. The defendants could be charged with theft of the companys property and their appropriate defence (if made out) would be that they appropriated the property in the honest belief that they had the right to deprive the company of it (section 2(1)(a)). Again, the court approached the question of attribution as one of statutory construction. 195. In McNicholas Construction Co Ltd v Customs and Excise Commissioners [2000] STC 553 Dyson J attributed to a main contractor the knowledge of its site managers that fraudulent invoices for sub contract labour were being created, in circumstances in which the main contractor suffered no loss because it could claim input VAT but evaded income tax. Section 60 of the Value Added Tax Act 1994 imposes civil penalties on a person who dishonestly acts or omits to act for the purpose of evading VAT. Dyson J recorded that it was common ground in that case that the knowledge and dishonest acts of the site managers could be attributed to the main contractors only if a special rule of attribution, of which Lord Hoffmann had written in Meridian, could be applied. He stated (para 44): The question in each case is whether attribution is required to promote the policy of the substantive rule, or (to put it negatively) whether, if attribution is denied, that policy will be frustrated. He held (paras 48 49) that the statutory policy of discouraging the dishonest evasion of VAT would be frustrated if the knowledge of the employees of a company who had to play a part in the making and receiving of supplies, as well as those involved in its VAT arrangements, were not attributed to the employing company. Further, as the participants in the fraud had not intended to harm the interests of their employing company, there was no basis for excluding such attribution. 196. The Court of Appeal took a similar approach in Morris v Bank of India, [2005] 2 BCLC 328 which concerned a claim for fraudulent trading under section 213 of the Insolvency Act 1986. The court upheld Patten Js finding that the knowledge, which the general manager of Bank of Indias London branch had of BCCIs fraud, was to be attributed to his employers for the purpose of section 213. In paras 156 162 above we discussed Safeway Stores Ltd v Twigger. What is relevant for present purposes is that the court in that case looked to the wording and policy of the relevant statute in order to determine whether the acts and the intention or negligence underlying those acts were to be attributed to the company. 197. It is not only in the field of statute that the court, when deciding whether to attribute anothers act or state of mind to a company, has regard to the purpose of the rule of law which is in play. In the different context of a claim based on knowing receipt of the proceeds of a fraud, the Court of Appeal in El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685 had to consider whether the knowledge of an agent who was also the director of a company should be attributed to that company. Mr Ferdman, who was a non executive director of Dollar Land, had made the arrangements by which Dollar Land acquired an interest in assets in which others had invested funds that they had earlier obtained by fraud. He had acted without the authority of a resolution by Dollar Lands board. Because Mr Ferdman managed and controlled the transactions, the court attributed his knowledge to the company, treating him as the directing mind and will of the company in relation to those transactions. The court recognised that different persons could be treated as the directing mind and will of a company for different purposes (Rose LJ at p 699h and Hoffmann LJ at p 706e). While a Mr Stern generally managed Dollar Land, Mr Ferdman was for the purpose of the receipt of the funds the companys mind and will, and on that basis his knowledge of the fraud was attributed to the company. The plaintiffs alternative basis of attribution on the ground of agency failed. We see force in the suggestion by the editors of Bowstead & Reynolds on Agency (at para 8.214) that the rules of agency could have resulted in imputation of knowledge in that case. But in the event the court decided otherwise. Thus the only basis on which Mr El Ajou succeeded was the attribution of Mr Ferdmans knowledge to the company based on the concept of a person being a companys directing mind and will in relation to a particular transaction. Similarly, although in that case it was not necessary to do so in order to establish Mr Tans accessory liability for dishonest assistance of a breach of trust, the Judicial Committee of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (p 393B C) attributed Mr Tans objective dishonesty to the travel agency company which he controlled. 198. The courts have also had to consider questions of attribution of knowledge or actions in a contractual context such as that of an insurance policy. In that context the terms of the insurance policies are relevant and can be decisive as the court seeks to give effect to the intentions of the parties as expressed in their contract. In Arab Bank plc v Zurich Insurance Co [1999] 1 Lloyds Rep 262 Rix J addressed a professional indemnity policy which covered the legal liability of both a company which provided estate agency and valuation services and its directors. The assumed facts included the assertion that one of the directors, who was the managing director, had made a number of fraudulent valuations in the companys name. The plaintiffs obtained judgments against the company, which went into liquidation, and sought to enforce them against the insurance company under the Third Parties (Rights against Insurers) Act 1930. Zurich purported to avoid the policy on the basis of the directors fraud. But the insurance policy included fidelity insurance which indemnified the company against liabilities resulting from the fraudulent acts of a director. Because he construed the policy as insuring the company and its directors as separate insureds, the logic of the policy was that the guilty knowledge and conduct of a director could not be attributed to the company for the purpose of giving effect to the insurance contract even if he were the directing mind and will of the company in relation to the particular transactions. He referred to Lord Hoffmanns analysis of a special rule of attribution which we have quoted in para 190 above, and held that in the context of the particular contract he was not prepared to find that the fraudulent director was the directing mind and will of the company (pp 278 279). In Morris v Bank of India [2005] 2 BCLC 328 the Court of Appeal (at paras 122 124) explained the Arab Bank case as a case which rested on the construction of the terms of the insurance contract. 199. In Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250 (Belmont No 1), the Court of Appeal considered a claim by the receiver of an insolvent company (A) that its shareholders and directors had dishonestly conspired to use As funds to purchase shares in another company (B) at an excessive price and thereby give unlawful financial assistance to the shareholders of B to purchase As shares. The Court of Appeal held that the directors knowledge that they were effecting an illegal transaction should not be imputed to A because the object of the conspiracy was improperly to deprive A of a large part of its assets. Buckley LJ (pp 261 262) explained the non attribution on the basis that when an agent, who is acting in fraud of his principal, has knowledge which is relevant to the fraud, that knowledge is not imputed to the principal to defeat the companys claim against the conspirators (as to which rule see Bowstead & Reynolds on Agency 20th ed 2014 paras 8 207 (article 95 rule 4) and 8 213). When the case returned to the Court of Appeal after a retrial, (Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393 (Belmont No 2)) the courts findings made clear that the transaction had been approved by resolution at a formal board meeting of A and completed at two further board meetings, including by the sealing by A of the share transfers of Bs issued share capital (Buckley LJ at p 398G H). Although the transaction was clearly subject to what Lord Hoffmann in the Meridian Global Funds case [1995] 2 AC 500 described as the primary rules of attribution, the knowledge which some of As directors (Mr James and Mr Foley) had of the illegal transaction and their misfeasance was not attributed to A so as to bar its claim but was attributed to the defendant parent companies of which they were officers. 200. We think that the court would have reached the same conclusion in the Belmont case if it had approached the question of attribution on the basis that the board of directors of A was its directing mind and will because the company was pursuing a claim against, among others, its directors for conspiracy. Were it otherwise a company could not vindicate its rights against its directors and those who assisted them or benefited from the conspiracy. This approach is consistent with the older case of Gluckstein v Barnes [1900] AC 240, in which the promoters of a company, who also comprised its entire board of directors, were aware of a secret profit which they made on the asset which they had sold to the company. The House of Lords looked at the question of disclosure in the context of the particular claim. The Earl of Halsbury LC thought that it was absurd to suggest that the knowledge of those who were hoodwinking the shareholders should be treated as disclosed to the company (p 247) and Lord Robertson (p 258) agreed, stating colourfully that the boardroom was occupied by the enemy. 201. Finally, in Moulin Global Eyecare Trading Ltd v Commissioner of Inland Revenue, to which we have referred, the Court of Final Appeal of Hong Kong was concerned with a claim by way of judicial review by an insolvent companys liquidator to be entitled to object out of time to tax assessments and obtain repayment of the tax paid on the basis that its former management had fraudulently inflated its profits over several years. The companys entitlement to object out of time and also to claim repayment based on error in its tax returns depended on whether the company was attributed with its managers knowledge of the fraud. The majority of the court held that the company was to be attributed with the knowledge of its management. In the leading judgment, which contained an admirable analysis of the law, Lord Walker of Gestingthorpe NPJ supported an approach to the attribution to a company of a directors knowledge in civil cases which had regard to the factual situation in which they arose and the purpose of the legal rules that were in play. See his summary (at para 129). He distinguished between: (i) claims by the company against its directors or employees and their accomplices for loss which the company suffered as a result of their wrongdoing, where it was absurd to allow the directors or employees to rely on their own awareness of their wrongdoing and attribute it to the company as a defence against its claim, and (ii) third party claims against a company for loss caused to the third party by the misconduct of a director or employee, where the dishonesty of the director or employee would not prevent his act and knowledge being attributed to the company. 202. It is clear from those cases that a finding that a person is for a specific purpose the directing mind and will of a company, when it is not merely descriptive, is the product of a process of attribution in which the court seeks to identify the purpose of the statutory or common law rule or contractual provision which might require such attribution in order to give effect to that purpose. Similarly, when the question of attribution arises in the context of an agency relationship, the nature of the principals or other partys claim is highly material as the learned editors of Bowstead and Reynolds discuss at para 8 213. Even when the primary rules of attribution apply, where the transaction is approved by the board of directors and completed under company seal as in Belmont (No 2), the court will not attribute to a company its directors or employees knowledge of their own wrongdoing to defeat the companys claim against them and their associates. We agree with Lord Walker in Moulins case when (at para 113) having discussed the Court of Appeals judgment in this case he stated: the crucial matter of context includes not only the factual and statutory background, but also the nature of the proceedings in which the question [of attribution] arises. 203. In our view, that applies to the knowledge of directors whether one applies the primary rules of attribution of the companys constitution (the cases of Gluckstein v Barnes and Belmont (No 2)), the rules of attribution of agency (Belmont (No 1)), or the special rules of attribution which Lord Hoffmann discussed in the Meridian Global Funds case. Where a companys liability is only vicarious, it is attributed with responsibility for the act of the other, usually the employee; but neither the others act nor his or her state of mind is attributed to the company. 204. It is helpful in the civil sphere, to consider the attribution of knowledge to a company in three different contexts, namely (i) when a third party is pursuing a claim against the company arising from the misconduct of a director, employee or agent, (ii) when the company is pursuing a claim against a director or an employee for breach of duty or breach of contract, and (iii) when the company is pursuing a claim against a third party. 205. In the first case, where a third party makes a claim against the company, the rules of agency will normally suffice to attribute to the company not only the act of the director or employee but also his or her state of mind, where relevant. In this context, the company is like the absent human owner of a business who leaves it to his managers to run the business, while he spends his days on the grouse moors (to borrow Staughton LJs colourful metaphor in PCW Syndicates v PCW Reinsurers [1996] 1 WLR 1136, 1142). Where the rules of agency do not achieve that result, but the terms of a statute or contract are construed as imposing a direct liability which requires such attribution, the court can invoke the concept of the directing mind and will as a special rule of attribution. Thus where the company incurs direct liability as a result of a wrongful act or omission of another (as in Lennards Carrying Co Ltd v Asiatic Petroleum Co Ltd and McNicholas Construction Co Ltd v Customs and Excise Comrs) it is deemed a wrongdoer because of those acts or omissions. If it is only vicariously liable for its employees tort, it is responsible for the act of the other without itself being deemed a wrongdoer and without the employees state of mind being attributed to it. 206. In the second case, where the company pursues a claim against a director or employee for breach of duty, it would defeat the companys claim and negate the directors or employees duty to the company if the act or the state of mind of the latter were to be attributed to the company and the company were thereby to be estopped from founding on the wrong. It would also run counter to sections 171 to 177 of the 2006 Act, which sets out the directors duties, for the act and state of mind of the defendant to be attributed to the company. This is so whether or not the company is insolvent. A company can be attributed with knowledge of a breach of duty when, acting within its powers and in accordance with section 239 of the 2006 Act, its members pass a resolution to ratify the conduct of the director. But, as this court discussed in Prest v Petrodel Resources Ltd [2013] 2 AC 415, para 41, shareholders of a solvent company do not have a free hand to treat a companys assets as their own. Further, as we have discussed, actual or impending insolvency will require the directors to consider the interests of the companys creditors when exercising their powers. This might prevent them from seeking such ratification. Similarly, where a company ratifies a breach of duty by an agent or employee, it must be attributed with the relevant knowledge. But otherwise, as the courts have recognised since at least Gluckstein v Barnes [1900] AC 240, it is absurd to attribute knowledge to the company and so defeat its claim. 207. In the third case, where the company claims against a third party, whether or not there is attribution of the directors or employees act or state of mind depends on the nature of the claim. For example, if the company were claiming under an insurance policy, the knowledge of the board or a director or employee or agent could readily be attributed to the company in accordance with the normal rules of agency if there had been a failure to disclose a material fact. But if the claim by the company, for example for conspiracy, dishonest assistance or knowing receipt, arose from the involvement of a third party as an accessory to a breach of fiduciary duty by a director, there is no good policy reason to attribute to the company the act or the state of mind of the director who was in breach of his fiduciary duty. If the company chose not to sue the director who was in breach of his duty, the third party defendant could seek a contribution from him or her under the Civil Liability (Contribution) Act 1978. We have set out above why we consider that the defence of illegality is not available to a companys directors or their associates who are involved in a conspiracy against the company or otherwise act as accessories to the directors breach of duty. Equally, there is no basis for attributing knowledge of such behaviour to the company to found an estoppel. 208. In the present case Patten LJ rightly stated that attribution of the conduct of an agent so as to create liability on the part of the company depends very much on the context in which the issue arises. He said that as between the company and the defrauded third party, the company should be treated as a perpetrator of the fraud; but that in the different context of a claim between the company and the directors, the defaulting directors should not be able to rely on their own breach of duty to defeat the operation of the provisions of the Companies Act in cases where those provisions were intended to protect the company (paras 34 and 35). 209. We agree. Accordingly, if, contrary to our view, the doctrine of illegality were insensitive to context and to competing aspects of public policy, the rules of attribution would achieve the same result and preserve Biltas claim. Insolvency Act 1986 section 213 210. The appellants second challenge is that the courts powers under section 213 of IA 1986 do not extend to people and corporations resident outside any of the jurisdictions of the United Kingdom. 211. Section 213 of IA 1986 provides: (1) If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, the following has effect. (2) The court, on the application of the liquidator may declare that any persons who were knowingly parties to the carrying on of the business in the manner above mentioned are to be liable to make such contributions (if any) to the companys assets as the court thinks proper. 212. The appellants accept that the English courts have jurisdiction in personam. Their challenge is to the courts subject matter jurisdiction as discussed by Hoffmann J in MacKinnon v Donaldson, Lufkin and Jenrette Securities Corpn [1986] 1 Ch 482, 493 and Lawrence Collins LJ in Masri v Consolidated Contractors International (UK) Ltd and Others (No 2) [2008] 2 All ER (Comm) 1099, paras 30 and 31. It relates to whether the court can regulate the appellants conduct abroad. Whether a court has such subject matter jurisdiction is a question of the construction of the relevant statute. In the past it was held as a universal principle that a United Kingdom statute applied only to United Kingdom subjects or foreigners present in and thus subjecting themselves to a United Kingdom jurisdiction unless the Act expressly or by necessary implication provided to the contrary (Ex p Blain (1879) 12 Ch D 522, James LJ at p 526). That principle has evolved into a question of interpreting the particular statute (Clark v Oceanic Containers Inc [1983] 2 AC 130, Lord Scarman at p 145, Lord Wilberforce at p 152; Masri v Consolidated Contractors (UK) Ltd and others (No 4) [2010] 1 AC 90, Lord Mance at para 10; and Cox v Ergo Versicherung [2014] AC 1379, Lord Sumption at paras 27 29). In Cox Lord Sumption suggested that an intention to give a statute extra territorial effect could be implied if the purpose of the legislation could not effectually be achieved without such effect (para 29). 213. In our view section 213 has extra territorial effect. Its context is the winding up of a company registered in Great Britain. In theory at least the effect of such a winding up order is worldwide (Stichting Shell Pensioenfonds v Krys [2015] 2 WLR 289 at paras 34 and 38). The section provides a remedy against any person who has knowingly become a party to the carrying on of that companys business with a fraudulent purpose. The persons against whom the provision is directed are thus (a) parties to a fraud and (b) involved in the carrying on of the now insolvent companys business. Many British companies, including Bilta, trade internationally. Modern communications enable people outside the United Kingdom to exercise control over or involve themselves in the business of companies operating in this country. Money and intangible assets can be transferred into and out of a country with ease, as the occurrence of VAT carousel frauds demonstrates. We accept what HMRC stated in their written intervention: there is frequently an international dimension to contemporary fraud. The ease of modern travel means that people who have committed fraud in this country through the medium of a company (or otherwise) can readily abscond abroad. It would seriously handicap the efficient winding up of a British company in an increasingly globalised economy if the jurisdiction of the court responsible for the winding up of an insolvent company did not extend to people and corporate bodies resident overseas who had been involved in the carrying on of the companys business. 214. In our view the Court of Appeal reached the correct decision in In re Paramount Airways Ltd [1993] Ch 223, in which it held that the court had jurisdiction under section 238 of IA 1986 (which empowers the court to make orders against any person to reverse transactions at an undervalue) to make an order against a foreigner resident abroad. Sir Donald Nicholls V C expressed the view (p 239D E) that Parliament did not intend to impose any limitation on the expression any person in sections 238 and 239 of IA 1986 and that it must be left to bear its literal, natural meaning. We reach the same conclusion in relation to the use of that expression in section 213 for essentially the same reasons. The section, like sections 238 and 239 and also section 133 (which concerns the public examination of persons responsible for the formation and running of a British company) share the statutory context of the winding up of a British company. The Court of Appeal considered section 133 in In re Seagull Manufacturing Co Ltd [1993] Ch 345. Peter Gibson J, who produced the leading judgment, expressed the views (a) that Parliament could not have intended that a person who had been responsible for the state of affairs of an insolvent British company should escape liability to be investigated simply because he was not within the jurisdiction (p 354G H) and (b) that reasons of international comity would not prevent the summoning for public examination of a person who had participated in the running of a British company (p 356E). Hirst LJ said (p 360G H) that the process of investigating why a company had failed would be frustrated if a non resident director were immune from public examination. Again, that reasoning is in our view both correct and equally applicable to section 213. 215. The appellants argued that it was wrong that they should be required to defend themselves against a claim when it would only be after the substantive hearing that the court could decide whether to exercise its jurisdiction on the basis that the defendants were sufficiently connected with England. We do not agree. While the court which hears the claim will have to decide whether in all the circumstances the appellants are sufficiently connected with England, we think that the respondents have a good arguable case that they are. The substance of the section 213 allegation is that the appellants were party to a conspiracy to defraud Bilta in the context of a wider VAT fraud, that they were parties to the conduct of Biltas business to that end, and that Jetivia obtained the proceeds of that fraud. If Biltas liquidators establish those allegations after trial, we think it is likely that the court would decide to exercise its jurisdiction under section 213 of IA 1986 against the appellants, their foreign residence notwithstanding. 216. Biltas liquidators also asserted that the English courts had jurisdiction by virtue of article 3(1) Council Regulation 1346/2000 on insolvency proceedings (the European Insolvency Regulation). It provides: The courts of the member state within the territory of which the centre of a debtors main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. 217. In Schmid v Hertel (Case C 328/12) [2014] 1 WLR 633, the Court of Justice of the European Union (CJEU) held (a) that article 3(1) conferred international jurisdiction to hear and determine actions which derive directly from those proceedings and which are closely connected with them (para 30) and (b) that the court of the relevant Member State had jurisdiction to hear and determine an action to set aside a transaction by virtue of insolvency that is brought against a person who is not resident in the territory of a Member State (para 39). Thus, Biltas liquidators submitted, the European Insolvency Regulation, so interpreted, conferred jurisdiction against both appellants. On the other hand, the appellants submitted that the question whether the territorial reach of section 213 of IA 1986 was worldwide was now governed by the European Insolvency Regulation, whose natural meaning was that it related to relationships between Member States and not with third party states. Mr Maclean said that the decision in Schmid was controversial and suggested that there should be a reference to the CJEU to determine whether the section 213 proceedings were covered by the European Insolvency Regulation. 218. We do not think that it is necessary to rely on the European Insolvency Regulation as the Court of Justice has interpreted it in Schmid in order to determine whether there is subject matter jurisdiction against Jetivia. If the proceedings against Jetivia were not covered by the Regulation, there is a basis for the exercise of subject matter jurisdiction in our domestic law, as we have discussed above. There is therefore no need for a reference to the CJEU. Conclusion 219. We therefore would dismiss the appeal. 149. What divided the minority (Lords Scott and Mance) from the majority is that they took a different view about the classes of parties in respect of whose interests the auditors owed a duty of care. They both regarded the insolvency of the company as critical, but Lord Mance set out his reasoning more fully. He held that just as a directors fiduciary duty to a company which is insolvent or bordering on insolvency embraces a duty to the companys creditors, a parallel principle applied to the auditor, so that the duty of care owed by an auditor to such a company embraced a duty to have regard to the interests of the creditors. He distinguished Berg v Adams because in that case the company was solvent at each audit date (paras 260 and 265). He said that the fact that Stone & Rolls was insolvent at each audit date was critical. He defined the issue as being whether the auditors duty to the company extended, like the directors, beyond the protection of the interests of shareholders in a situation where the auditors ought to have detected the companys insolvency. He observed that the centrality of this issue may have been obscured by the spread of argument over other issues (para 265). He considered that it was not inconsistent with Caparo to hold that the company was entitled to pursue a claim against the auditors for loss resulting from its breach of its duty in failing to detect that the company was subject to a continuing fraudulent scheme in circumstances in which it was insolvent (paras 269 271).

UK-Abs

Bilta (UK) Ltd was compulsorily wound up in November 2009 pursuant to a petition presented by HMRC. Biltas liquidators then brought proceedings against its two former directors (the directors) and against Jetivia SA, (a Swiss company) together with Jetivias chief executive (the appellants). The claim alleges that the appellants and the directors were parties to an unlawful means conspiracy to injure Bilta by a fraudulent scheme, which involved the directors breaching their fiduciary duties as directors, and the appellants dishonestly assisting them in doing so. The conspiracy alleged is that between April and July 2009, the directors caused Bilta to enter into a series of transactions relating to European Emissions Trading Scheme Allowances (commonly known as carbon credits) with various parties, including Jetivia, and that those transactions constituted what is known as a carousel fraud, a species of VAT fraud. The liquidators now claim (i) through Bilta, (a) damages in tort from each of the four defendants, (b) compensation based on constructive trust from the appellants, and (ii) directly from each of the four defendants, a contribution under section 213 of the Insolvency Act 1986. The appellants applied to strike out Biltas claim on the basis (i) that the appellants were bound to defeat the claims against them on the basis of a defence of illegality and, (ii) in relation to the section 213 claim, that it could not be invoked against the appellants as section 213 does not have extra territorial effect. In essence, the appellants argument on illegality was that Biltas claims against its directors are barred by reason of the criminal nature of Biltas conduct while under their control. Allegedly, Biltas function was to serve as a vehicle for defrauding HMRC, and the appellants argued that the doctrine of illegality bars Bilta from suing the directors as a means of recovering the companys loss for the benefit of the companys creditors. This raises the issues of (i) the purpose of the illegality defence and its application in relation to Biltas claims and (ii) the circumstances in which the knowledge of directors and other persons is attributed to a legal person such as a registered company. The Supreme Court unanimously dismisses the appeal both in relation to the illegality defence and in relation to section 213. On the first ground, the Court unanimously holds that the illegality defence cannot bar Biltas claims against the appellants on the basis that the conduct of the directors cannot be attributed to the company in the context of a claim against the directors for a breach of their duties. On the second ground, the Supreme Court holds that section 213 of the Insolvency Act 1986 has extra territorial effect, and therefore can be invoked against the appellants. Attribution A company has separate legal personality, but it can act only through its directors and agents. In most circumstances the acts and state of mind of a companys directors and agents can be attributed to the company by applying the rules of the law of agency; however, whether an act or state of mind is attributed to a company depends upon the context in which the question arises [41, 92, 181]. When the question of attribution arises in the context of an agency relationship, the nature of the principals or other partys claim is highly material [87 91, 202]. In an action like the present for breach of duty against directors for using the company to commit a fraud on a third party in a way alleged to have caused the company loss, it is inappropriate to attribute to the company the fraud to which the alleged breach of duty relates, even if it is being practised by a person whose acts and state of mind would be attributable to it in other contexts [7 9, 71, 181]. As between the company and a defrauded third party, the company should be treated as a perpetrator of the fraud but in the different context of a claim between the company and the directors, the defaulting directors should not be able to rely on their own breach of duty to defeat the operation of the provisions of the Companies Act in cases where those provisions were intended to protect the company [42 43, 208]. A claim by a company against its directors could be said to be the paradigm case where attribution is inappropriate [89]. For these reasons all of the members of the Supreme Court would dismiss the appeal on the illegality defence. The purpose and scope of the illegality defence Lord Neuberger (Lord Clarke and Lord Carnwath agreeing) and Lord Mance all consider that this is an inappropriate case in which to decide, on a general basis, the proper approach to the defence of illegality, though they (together with Lord Toulson and Lord Hodge) emphasise the need for a review of the law of illegality by the Supreme Court in an appropriate case [15 17, 34, 174]. Lord Toulson and Lord Hodge express the view that the defence of illegality is a rule of public policy which depends on the nature of the particular claim brought by the claimant and the relationship between the parties [122]. In this case, the fiduciary duties of a director of a company which is insolvent requires the director to have proper regard for the interests of its creditors [123 126]. Such protection would be empty if it could not be enforced [127]. The doctrine of illegality has been developed on the ground of public policy and in the circumstances of this case, to allow the directors to escape liability for breach of their fiduciary duty on the ground that they were in control of the company would undermine the duty in the very circumstances in which it is required [129 130]. Lord Sumption, by contrast, regards the defence of illegality as a rule of law, independent of any judicial value judgment about the balance of the equities in each case [62]. Lord Sumption expressly disagrees with the statutory policy argument put forward by Lord Toulson and Lord Hodge. Does Section 213 of the Insolvency Act 1986 have extra territorial effect? The Supreme Court unanimously holds that section 213 does have extra territorial effect. Section 213 provides a remedy against any person who has knowingly become a party to the carrying on of that companys business with a fraudulent purpose. The provision is directed against (a) parties to a fraud and (b) persons involved in the carrying on of the now insolvent companys business. The context of section 213 is the winding up of a company registered in Great Britain; however, the effect of such a winding up order is worldwide. It would seriously handicap the efficient winding up of a British company in an increasingly globalised economy if the jurisdiction of the court responsible for the winding up of an insolvent company did not extend to people and corporate bodies resident overseas who had been involved in the carrying on of the companys business [108, 213]. Moreover Section 238, a provision in similar terms to section 213, has previously been held by the Court of Appeal to apply without territorial limitations [110, 214].

How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) which is later over turned on appeal? It might be thought that this is a somewhat rare and esoteric problem, but it could arise whenever the enforcement of the foreign order is not stayed pending an appeal. We have no means of knowing how common this combination of events is among the States party to the Convention, but it would appear from the facts of this case that it is not at all uncommon in the United States of America, the country which handles the greatest number of cases under the Convention (England and Wales being next on the list). The facts We are concerned with a little boy called K. He was born on 7 August 2006, so is now aged seven. He was born in Texas and is a citizen of the United States of America. His parents are both of Ghanaian heritage. His father is a US citizen and holds the rank of Lieutenant Colonel in the United States Air Force. His mother came to this country from Ghana with her parents when she was aged four and has indefinite leave to remain here. The parents married in Texas on 28 December 2005. The father was stationed at the Lackland Airforce Base at San Antonio at the time. He has an older son, KWE, from an earlier relationship and the family all lived together in Texas. From May to September 2007, the father was posted to Iraq and so the mother looked after K in the matrimonial home. From October to December 2007, the mother took up a short term post in England and so the father looked after K in the matrimonial home. The marriage broke up in 2008. The father issued divorce proceedings in the Texas state court in March 2008. He then learned that he was to be posted to Afghanistan from June 2008 until August 2009, so the parents agreed to temporary orders made in the Texan court. Although these gave the mother authority to determine Ks residence without regard to geographic location, they clearly envisaged that the mother and K would continue to occupy the matrimonial home in Texas. Despite this, in July 2008, the mother removed K and herself to London, where they remained until February 2010, when she was ordered to return the child to Texas for the purpose of completing the divorce proceedings. In the autumn of 2008, she applied to the immigration authorities here for K to have indefinite leave to remain, stating that she was unable to give the father notice of the application because of his deployment in Afghanistan, when in fact the agreed order provided for him to have contact with K during Ks spring break in March 2009. When the time came for that contact, the mother resisted it. The father had to obtain a further order from the Texas court clarifying the position and then an order in the English court to enforce it. According to the United States Court of Appeals, the mother also gave conflicting accounts of her intentions, stating to the English authorities that she intended to remain here and to the Texan court that she hoped to maintain permanent residence in the US. A Texan divorce decree was granted in July 2009, as appears from the judgment of the Court of Appeals because the mother had said that unless she was divorced and given custody, K was due to be deported from the UK imminently (there was nothing in the record to support this statement, which is implausible in the extreme). This was always without prejudice to the fathers right to claim custody on his return from Afghanistan, and in fact the decree was vacated in August. A welfare based custody hearing took place on 1 and 2 March 2010. Both parties were represented and the proceedings were governed by the best interests of the child. The mother raised no objection to the courts jurisdiction. The judge decided that it was in Ks best interests that his father should have the exclusive right to designate his primary residence. Clearly, she cannot have been too concerned that by then K had been living with his mother in London since July 2008. She concluded that the father was the parent who would best promote the childs relationship with the other parent. In her words, my great concern is that the testimony I have heard here today, to a certain extent, does not speak as loud as the actions do. She found that there was a risk of international child abduction by the mother. The mother had taken or kept K away in violation of the fathers right of possession or access; she had engaged in plans and activities to facilitate Ks removal from the US while the father was in Afghanistan; she had strong ties to Ghana, a country which was not party to the Convention; she had no strong ties to the US and had undergone a change in status with the US immigration authorities which would adversely affect her ability to remain there; she had testified that she was not obliged to abide by the Texas court order; she had resisted the clear terms of the Texan access order; she would interfere with the fathers rights as custodian. The order provided for K to have contact with his mother, for the mother to pay the costs of his international travel in lieu of child support, and for her to post a $25,000 bond as security for Ks return. After the hearing, K remained living with his father in Texas from March 2010 until August 2011, but spending his summer vacation in England and Christmas and New Year with the mother. The mother lodged an appeal against the Texan courts order but that appeal was never heard. Instead, the mother applied to the United States Federal District Court for an order under the Convention. She alleged that K had been habitually resident in England in March 2010 and that by acting upon the Texan court order the father was wrongfully retaining him in Texas. In a decision described by Thorpe LJ in the Court of Appeal as bizarre in the extreme, the District Court accepted this argument and ordered the father to deliver K and his passport to the mother immediately so that she could return with him to England. That order was communicated to the parties on Wednesday 10 August 2011. K was in fact having contact with his mother then. The father delivered Ks passport to her on Friday 12 August and she and K flew to England on Sunday 14 August. They have lived here ever since. The father did not apply for a stay of the District Courts order but he did lodge an appeal with the US Court of Appeals for the Fifth Circuit. That appeal was eventually determined on 31 July 2012. The mother did not contest the substance of the fathers appeal. She merely argued that it was moot, given that the return order had been put into effect. The Court of Appeals rejected that argument. They held that the mother had consented to Ks retention in the United States because she had consented to the Texan courts deciding the case. They also held that K had still been habitually resident in the United States in March 2010; their approach to this question is not without interest: We join the majority of circuits that have adopted an approach that begins with the parents shared intent or settled purpose regarding their childs residence. Nicolson, 605 F 3d at 104 & n 2 (collecting cases). This approach does not ignore the childs experience, but rather gives greater weight to the parents subjective intentions relative to the childs age. For example, parents intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. Whiting, 391 F 3d at 548 49 (citing English case that looked to parents intentions because the child was two and one half years old at the time of her abduction). In such cases, the threshold test is whether both parents intended for the child to abandon the [habitual residence] left behind. Mozes, 239 F 3d at 1075, see also Whiting, 391 F 3d at 549 50. The record clearly established that Ks presence in the UK was to last for a limited duration, that the father never agreed to any other arrangement, and that there were no circumstances to justify departing from the courts general practice of finding no change in habitual residence in such cases. Hence by acting upon the Texan courts order the father was not wrongfully retaining K in breach of the mothers rights of custody. The District Courts order was vacated. On 29 August 2012, the District Court made an order requiring the mother to return K to his father in the United States and thereafter to comply with the terms of the Texan courts order. The order of 29 August 2012 remains in force and the mother is in breach of it. The mother filed an appeal to the United States Supreme Court against the decision of the Court of Appeals, asking that her case be consolidated with that of Chafin v Chafin, which raised the same issue of whether such appeals were moot. Her case was not consolidated with Chafin, but held in abeyance pending the outcome. Chafin was in fact decided by the Supreme Court in February 2013: Chafin v Chafin 568 US ___ (2013). The Court held that such appeals were not moot. Giving the unanimous opinion of the court, Roberts CJ pointed out that if they were held to be moot, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. This would conflict with the Conventions mandate of prompt return to a childs country of habitual residence. Routine stays might also increase the number of appeals: If losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned. Instead, courts should apply the traditional stay factors, thus ensuring that each case will receive the individualised treatment necessary for appropriate consideration of the childs best interests. Importantly, courts at both district and appellate level both could and should take steps to decide these cases as expeditiously as possible. Many courts already did so, but cases in American courts often take over two years from filing to resolution. Ginsburg J, with whom Scalia and Breyer JJ joined, filed a concurring opinion. She agreed that stays, even of short duration should not be granted as a matter of course, for they inevitably entail loss of precious months when [the child] could have been readjusting to life in her country of residence. She drew attention to the system in this country, where permission to appeal is required and will only be granted where there is a real prospect of success. Although stays are not automatic, they are usually granted if permission is granted, and appeals are then fast tracked. She commented that By rendering a return order effectively final absent leave to appeal, the rules governing Convention proceedings in England and Wales aim for speedy implementation without turning away appellants whose pleas may have merit. And by providing for stays when an appeal is well founded, the system reduces the risk of rival custody proceedings. She made a plea for rule makers and legislators to consider introducing such a scheme in the US. Meanwhile, while the US District Courts original order still stood, there were Children Act proceedings here. On 23 November 2011, the mother obtained a residence order on a summary basis, the father not accepting that the English courts had jurisdiction pending his appeal in the US. However, he did later take part for the purpose of gaining orders for contact with K during 2012. He made it clear throughout that he was pursuing an appeal in the US with a view to securing the return of his son. Once he had succeeded in the US Court of Appeals, the father issued two applications here under the Convention. In the first, issued in August 2012, he asserted that the mothers removal of K following the order in August 2011 had itself been wrongful. His argument was that the Court of Appeals decision setting aside the District Courts order had retrospectively rendered the mothers removal wrongful. That argument was rejected by Sir Peter Singer in the High Court and by the Court of Appeal and this court has refused him permission to pursue it here. In his second application, issued in September 2012, he asserted that the mothers retention of K in this country after the District Courts order of 29 August 2012 was wrongful. That contention depends upon whether K was still habitually resident in Texas on that date. The father alternatively asserted that the court should exercise its inherent jurisdiction to return the child even if not required to do so under the terms of the Convention. Although he considers it in Ks best interests to return to live with him, he recognised that the mother might wish to apply to the Texan court to modify its order of March 2010. He therefore offered undertakings that would enable the mother to live in Texas independently of the father whilst K could divide his time between them in a shared care arrangement pending the decision of the Texan court. The case was listed for hearing before Sir Peter Singer for five days beginning on 10 December 2012. Before the hearing, K was twice interviewed by a Cafcass officer in order to discover his wishes and feelings (his mother did not defend the proceedings on the basis that K objected to returning to the USA). In the first interview, K expressed warm feelings towards his father and his time in America and stated that wherever people say I have to live I dont mind. Ill just do it. The Cafcass officer felt that his feelings were confused and lacked coherence. She was then asked to see him again. This time he wanted to cross out where he had said that he would be happy to go back to the USA. Instead he dictated I want to say I dont mind if I stay in England. I dont want to go to the USA but my dad can come to England and I can see him. The officer commented: I suggest that his wishes and feelings reported above provide ample evidence of his confusion, sense of other people's expectations of him, and his inability to differentiate between spontaneously arising feelings and more considered views on situations which at his age he struggles to formulate. Hence in my view it would not be advisable to place too much reliance what K had to say. She found his change of mind worrying and concluded that his expressed thoughts and feelings could not reliably be taken as an objection to return. When considering whether he should be separately represented, she commented that His change of heart could suggest that he may have been susceptible to his mothers wishes and feelings after discussion with her and this could cast doubt on her ability to put forward Ks interests as distinct from her own. Her overall conclusion was: Young children experience the world as an environment of relationships and the overwhelming conclusion I draw from the information I have gleaned is that this is a young child who is finding it impossible to please both parents and is feeling far too much responsibility for trying to resolve the acrimony between them. He is clearly affected by the corrosive conflict that has been going on for some time. I suggest that at his young age his wishes and feelings are not the focus of the legal arguments involved in this application to the court. Sir Peter Singer gave judgment on 17 January 2013 dismissing both the fathers applications: [2013] EWHC 49 (Fam); the fathers appeal to the Court of Appeal was dismissed on 16 July 2013: [2013] EWCA Civ 865; the father was given permission to appeal to this court on each of the grounds in his second application. Habitual residence The mothers failure to comply with the order of 29 August 2012 is clearly a breach of the fathers rights of custody in US law. However, that is not enough for him to succeed in this application. It is not at all uncommon for there to be competing custody orders made in different jurisdictions, as there are here. Under the Convention, the tie breaker is the habitual residence of the child. As the preamble to the Convention states, it was the desire of the States parties to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence. Article 3 provides that: The removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. Hence it is common ground that the father can only succeed in his application under the Convention if K was habitually resident in the United States on either 31 July or 29 August 2012 when the mothers disobedience of the Texan order became wrongful. The Convention does not define the concept of habitual residence and it is clear that not all the states parties would apply an identical test. However, member states of the European Union (apart from Denmark) are also parties to Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, commonly known as the Brussels II Revised Regulation (the Regulation). This lays down a uniform jurisdictional scheme as between Member States. This Court held in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60, [2013] 3 WLR 761, that the provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non member state such as the United States. Hence for that purpose the courts of England and Wales should apply the concept of habitual residence as explained by the Court of Justice of the European Union in the cases of Proceedings brought by A (Case C 523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C 497/10 PPU) [2012] Fam 22. A v A was not a Hague Convention case. Nevertheless, it is common ground between the parties to this case, which include not only the mother and father but also Reunite International Child Abduction Centre (the leading non governmental organisation in the United Kingdom specialising in child abduction and the movement of children across international borders), that the same test should apply in Hague Convention proceedings. There are two good reasons for this. The first is that the Regulation also deals with how child abduction cases are to be dealt with as between member states of the European Union. The second is that the various international conventions dealing with children, including this one, formed part of the legislative history of the Regulation. As Advocate General Kokott explained in Proceedings brought by A, this presumed a uniform understanding of the concept of habitual residence. The essential features of the test adopted both by the CJEU and by this Court are that habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (A v A, para 54). In both Proceedings brought by A and Mercredi v Chaffe, the operative part of the judgment of the CJEU stated that the concept corresponds to the place which reflects some degree of integration by the child in a social and family environment. In A, the CJEU continued, To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the familys move to that state, the childs nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration. In Mercredi, the CJEU also pointed out, at para 55, that: An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where . the infant is in fact looked after by her mother, it is necessary to assess the mothers integration in her social and family environment. In that regard, the tests stated in the courts case law, such as the reasons for the move by the childs mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant. Several further points can be taken from A v A. There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents. The proposition of Lord Brandon of Oakbrook in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, that a young child in the sole lawful custody of his mother will necessarily have the same habitual residence as she does, is to be regarded as a helpful generalisation of fact, which will usually but not invariably be true, rather than a proposition of law (see A v A, paras 44 and 73). As Lord Hughes pointed out, Lord Brandon cannot have intended it as such without destroying his first proposition, which was that habitual residence is a question of fact, to be decided in the light of all the circumstances. Both Lord Hughes and I also questioned whether it was necessary to maintain the rule, hitherto firmly established in English law, that (where both parents have equal status in relation to the child) one parent could not unilaterally change the habitual residence of a child (see In re S (Minors) (Child Abduction: Wrongful Retention) [1994] Fam 70, approved by the Court of Appeal in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887). As the US Court of Appeals for the Ninth Circuit pointed out in In re the application of Mozes, 239 F 3d 1067 (9th Cir 2001), at 1081, such a bright line rule certainly furthers the policy of discouraging child abductions, but if not carefully qualified it is capable of leading to absurd results (referring to EM Clive, The Concept of Habitual Residence [1997] Juridical Review 137, at 145). The court continued: Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its [sic] habitual attachment to a place even without a parents consent. Even when there is no settled intent on the part of the parents to abandon the childs prior habitual residence, courts should find a change in habitual residence if the objective facts point unequivocally to a persons ordinary or habitual residence being in a particular place [referring to the Scottish case of Zenel v Haddow 1993 SLT 975]. Nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a childs leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence. Mr Richard Harrison QC, for the father, is happy to accept that there is no rule that a child is habitually resident where the parent with custody is resident. He argues that in a case like this, where the child is permitted to live in a foreign country pursuant to an order which is under appeal, the child does not acquire the habitual residence of the parent with whom he is living until the appeal is determined. He urges that there are strong policy reasons for adopting this approach, so that orders made in child abduction cases can be speedily implemented, but without prejudice to the re return of the child should the order turn out to have been wrongly made. He also cites from Mozes, at pp 1078 1079: A more difficult question is when evidence of acclimatization should suffice to establish a childs habitual residence, despite uncertain or contrary parental intent. Most agree that, given enough time and positive experience, a childs life may become so firmly embedded in the new country as to make it [sic] habitually resident even though there be lingering parental intentions to the contrary [referring again to Clive, loc cit, at p 145]. The question is how readily courts should reach the conclusion that this has occurred. Despite the superficial appeal of focusing primarily on the childs contacts in the new country, however, we conclude that, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned. That approach is, of course, consistent with the approach of the United States Court of Appeals for the Fifth Circuit in this case (see para 7 above). The problem with Mr Harrisons argument is that it too is seeking to place a legal gloss on the factual concept. The fact of the matter is that the mother brought K to this country pursuant to the order of a court permitting her to do so. The English rule against unilateral changes could not apply in such circumstances clearly a childs residence may change in the teeth of the opposition of one parent if this is permitted by order of a court. The same would apply to any assumption that a shared parental intent is generally required before the childs integration or acclimatisation results in a change of habitual residence, at least where the court order contemplates a permanent or long term move. On the other hand, the fact that the childs residence is precarious may prevent it from acquiring the necessary quality of stability. But in this case every other factor points the other way. The mother was coming home. This was where she had lived and worked before her short lived marriage to the father. This was where she intended to stay. This was where she had a child by another relationship, KWA, now aged two, who lives with her and K. So neither she nor K will have perceived the return here as in any way temporary. From Ks point of view, this was where he had lived for some twenty months before his return to the United States in March 2010. This is where he became integrated into a social and family environment during the eleven and a half months in which he lived here before the US Court of Appeals judgment of 31 July 2012. Against all those powerful factors in favour of the childs integration or acclimatisation, there is only his fathers fervent desire, of which K may very well have been aware, that he should return to live in the United States. Looked at from the point of view of the child, therefore, the judge was entitled to hold that he had become habitually resident in England and Wales by 29 August 2012. It is not for us to say whether the United States Court of Appeals was wrong to hold that he was still habitually resident in the United States during the period after his mother brought him to live here while his father was serving in Afghanistan. The situation was inherently unstable and the mother both represented to the Texan court that she hoped to maintain permanent residence in the United States and accepted its jurisdiction. I also recognise that courts in other jurisdictions might decline to hold that eleven months precarious residence here was sufficient integration or acclimatisation to change the habitual residence established in his country of birth. Inherent Jurisdiction Article 18 of the Convention provides that its provisions on return of children do not limit the power of a judicial or administrative authority to order the return of the child at any time. The High Court has power to exercise its inherent jurisdiction in relation to children by virtue of the childs habitual residence or presence here: Family Law Act 1986, ss 2(3) and 3(1). The welfare of the child is the courts paramount consideration: Children Act 1989, s 1(1). But this does not mean that the court is obliged in every case to conduct a full blown welfare based inquiry into where the child should live. Long before the Hague Convention was adopted, the inherent jurisdiction was used to secure the prompt return of a child who had been wrongfully removed from his home country: see In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, paras 26, 27, and the cases cited therein. Furthermore, it has long been established that, in the interests of international comity, the existence of an order made by a foreign court of competent jurisdiction is a relevant factor. As the Judicial Committee of the Privy Council put it in the Canadian case of McKee v McKee [1951] AC 352, 364: Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, although in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case. In this case, Sir Peter Singer posed himself the following question, at para 63 of his judgment: So the question becomes whether I can on the information presently available to this court reasonably conclude that to leave his mother and London for his father and San Antonio would, at this point, be in his best interests. He answered that question thus in para 65: This is not a case where I would begin to feel justified in making what would be a peremptory return order. I have heard evidence from neither party nor from any witness. I have no Cafcass report directed, as I would need as the barest minimum, to the degree to which KL is secure and settled in his current situation, to ascertain whether he thrives and what he may lack, and importantly to provide some assessment of the likely impact upon him of a move from M to F and from London to Texas. Mr Harrison complains that the judge asked himself the wrong question. The father obviously wants K to move to live with him, but that is not what he immediately proposes. He proposes that K should return to Texas, with his mother, so that the Texan court can consider any application which the mother may make for the modification of its order of 2 March 2010. The fathers evidence was that such an application could be decided within less than three months. In the meantime, the father offers undertakings which would enable the parents to live separately in Texas but to share the care of their son between them. If the outcome were that K returned to live with his father, that would be because it was in his long term best interests to do so. The Court of Appeal acknowledged that ideally Sir Peter would have referred to the protective undertakings and the extent to which they would have resulted in mother and child returning together (para 54), but then introduced considerations relating to the mother and her younger child contained in a statement the admissibility of which had not been formally determined; more importantly, they did not address the essential point that Sir Peter had asked himself the wrong question. That being the case, it is open to this court to ask itself the correct question: is it in Ks best interests to remain in this country so that the dispute between his parents is decided here or to return to Texas so that the dispute can be decided there? As the judge heard no oral evidence, we are also in as good a position as he was to answer it. Although the question comes before the court in an application to invoke the inherent jurisdiction, it might have come before the court in the shape of an application under section 5 of the Family Law Act 1986 to refuse an order or to stay the English proceedings on the ground that the question has already been determined, or that it is more appropriate for it to be determined, in proceedings in another jurisdiction. That was taken to be the position in Re K (Abduction: Consent: Forum Conveniens) [1995] 2 FLR 211, 215, in which the facts were remarkably similar to those in this case. Although the circumstances of each individual child and his family are different, it is worth recalling that the Court of Appeal stressed how similar were the approach and the procedure of the Texan and the English courts in these cases. In favour of Ks remaining here is the fact that he has now been living here with his mother and younger brother for over two years. He is at school here and apparently doing well. Although he is obviously confused and upset by the conflict between his parents, and his conflict of loyalties to them, there is no reason to suppose that he is unhappy here. The evidence as to his current home and school situation is readily available here and no doubt the evidence as to his prospective home and school situation in Texas would be available to a Cafcass reporter, perhaps with the assistance of Children and Families Across Borders (formerly International Social Service). In favour of his returning to Texas is the fact that he is a Texan child. His parents were married there and he was born there. He has an older half brother who is now at University in the United States. He also has a large extended family living in the United States. He has spent three years and seven months of his life living there, most recently in the sole possession (as they put it in Texas) of his father, who has facilitated contact with his mother. He is used to travelling between here and the United States and to changes in parental care. It is clear from his interview with the Cafcass officer that he has fond memories of his time in the United States. The evidence as to what his home and school situation would be if he were to return to live there will be readily available and no doubt the evidence as to his current home and school situation would be available there through the same sort of machinery. The view of the Cafcass officer, albeit in the context of a Convention application, was that this is a case in which K is experiencing such a conflict of loyalties that too much weight should not be given to his wishes and feelings. But no doubt the Texan court would be in just as good a position to investigate these as would the English court. The crucial factor, in my view, is that this is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. For as long as the Texan order remains in force, his mother is most unlikely to allow, let alone to encourage, him to spend his vacations in America with his father. Whilst conflicting orders remain in force, he is effectively denied access to his country of origin. Nor has his mother been exactly enthusiastic about contact here. The best chance that K has of developing a proper relationship with both his parents, and with the country whose nationality he holds, is for the Texas court to consider where his best interests lie in the long term. It is necessary to restore the synthesis between the two jurisdictions, which the mothers actions have distorted. Despite the passage of time, there is not the slightest reason to consider that K would suffer any significant harm by returning to Texas on the basis proposed by the father. Indeed, the mother did not defend the Convention proceedings on the basis either of his objections or of a risk of harm should he be returned (although she did suggest that he had been settled here so long that to return would place him in an intolerable situation). Had it not been for our decision on habitual residence which I accept that courts in some jurisdictions might consider debateable, it would have been our duty to return K to Texas under the Convention. I would therefore allow this appeal and order the return of the child to San Antonio forthwith on the basis of the undertakings offered by his father. But should the mother choose not to avail herself of the opportunity to return with her son, the order for his return will stand. The parties are invited to submit a draft order before this judgment is formally handed down.

UK-Abs

This appeal arises from proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Convention establishes procedures to ensure the prompt return of children to the state of their habitual residence. The question arising is the approach that the courts of this country should take when a child is brought here pursuant to an order made abroad in Convention proceedings which is later overturned on appeal. The proceedings concern a child, K, who was born in 2006 in Texas and is a United States citizen. His father is also a US citizen; his mother came to the UK from Ghana as a very young child and she has indefinite leave to remain in the UK. They married in Texas in December 2005 and lived together there. The marriage broke up and in March 2008 the father issued divorce proceedings in the Texas state court. That court made orders by consent providing for the mother to take care of K (in the former matrimonial home) while the father was posted abroad on military service. In July 2008 she took him to London. In March 2010 a welfare based custody hearing took place in the Texas court in which both parents were represented. The judge in those proceedings decided that it was in Ks best interests that he reside with his father and have contact with his mother. As a result K moved back to the US. The mother applied to the US Federal District Court for an order under the Convention, alleging that K had been habitually resident in the UK in March 2010 and that K had been wrongfully retained in Texas by the father. This argument succeeded in the District Court in August 2011. The father complied with the order to return K and his passport to the mother, whereupon the mother returned to the UK with K and they have lived here ever since. The father appealed against the order. On 31 July 2012 the US Court of Appeals for the Fifth Circuit overturned the decision of the District Court and on 29 August 2012 the District Court ordered Ks return to the US. When the mother did not comply, the father issued applications under the Convention in the UK. He argued that the mothers retention of K in the UK was wrongful because Ks habitual residence had remained in the US. He further argued that the UK court should exercise its inherent jurisdiction to return K to the US in the circumstances of his case, even if it was not required to do so under the Convention. On 17 January 2013 the judge in the High Court dismissed the fathers applications, and his decision was upheld on appeal to the Court of Appeal. The Supreme Court granted the father permission to appeal on the grounds that K had been wrongfully retained in the UK after 29 August 2012 under the Convention and/or that the court should order his return to the US under its inherent jurisdiction. The Supreme Court unanimously allows the appeal by the father and orders the return of K to the US on the basis of the undertakings offered by the father to enable the mother to live in Texas, independently of the father and sharing the care of K between them, pending any application she might make to the Texas court to modify the order relating to Ks residence. The sole judgment is given by Lady Hale. Convention proceedings The fathers application could only succeed if K was habitually resident in the US when the US Court of Appeals overturned the earlier order of the District Court in the mothers favour. [17]. The Convention does not define habitual residence but the UK applies the concept of habitual residence adopted by most member states of the European Union, namely that it is a question of fact and corresponds to the place which reflects some degree of integration by the child in a social and family environment [20]. Parental intention plays a part in establishing or changing a childs residence and this has to be factored in with all the other relevant factors in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence [23]. In this case, the move of the mother with K to the UK in August 2011 was intended by her to be permanent and neither she nor K will have perceived it as temporary, notwithstanding the appeal. K became integrated into a social and family environment in the UK during the year before the appeal succeeded [26]. The judge was entitled to hold that K had become habitually resident in the UK by 29 August 2012 [27]. Thus the father was not entitled to an order for Ks return under the Convention. Inherent jurisdiction Under the Family Law Act 1986 the High Court has power to exercise its inherent jurisdiction in relation to children by virtue of the childs habitual residence and presence here. Before the Convention was adopted this jurisdiction was used to secure the prompt return of children who had been wrongfully removed from their home country. The existence of an order made by a competent foreign court is a relevant factor in deciding whether to exercise it [28]. The judge did not ask himself the correct question, which is whether it is in Ks best interests to remain in the UK, so that the dispute between his parents is decided here, or to return to Texas so that the dispute can be decided there. The Supreme Court is in as good a position as the judge was to answer this as he heard no oral evidence [32]. The approach and procedure of the Texan and English courts are very similar and the fathers evidence is that an application by the mother in Texas would be decided in less than three months [30, 33]. In favour of Ks remaining in the UK is the fact that he has been living here with his mother for over two years, is at school and apparently doing well [34]. In favour of return to the US is the fact that he was born in Texas, has a large extended family in the US, and has spent half his life living there, most recently in the sole care of his father, who has facilitated contact with his mother [35]. The crucial factor is that K is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. While the conflicting orders remain in force he has effectively been denied access to the US. It is necessary to restore the synthesis between the two jurisdictions which the mothers actions have distorted [36]. Despite the passage of time there is no reason to consider that K would suffer any significant harm by returning to Texas on the basis proposed by the father and accordingly the Supreme Court allows the appeal and orders Ks return on these terms. This order is to stand even if the mother chooses not to avail herself of the opportunity to return with her son [38].

Now that it is clear that the test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment there, may the court, in making that determination in relation to an adolescent child who has resided, particularly if only for a short time, in a place under the care of one of her parents, have regard to her own state of mind during her period of residence there in relation to the nature and quality of that residence? In my view this is the principal question raised by these appeals. The appeals are brought within proceedings issued by a mother against a father for the summary return of their four children from England to Spain pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985 (the 1985 Act). The father is a UK national aged 47 and lives in the Thames Valley. The mother is a Spanish national aged 46 and lives in Madrid. The four children are T, a girl, who was born in August 2000 and is now aged 13; L, a boy, who was born in December 2002 and is now aged 11; A, a boy, who was born in November 2004 and is now aged 9; and N, a boy, who was born in December 2008 and is now aged 5. All four children were born in England. They are Spanish nationals and are presumably also UK nationals. They currently reside with the father. At all times until July 2012, when the relationship between the parents broke down, the family had lived in England and had gone for holidays to Spain in order, in particular, to see the maternal grandmother and the other maternal relations. On 24 July 2012 the mother took the four children to reside in Spain. They resided in Spain until 23 December 2012, when they returned to England for what was agreed between the parents to be no more than a holiday with the father which was to end on their return to Spain on 5 January 2013. But the children did not then return to Spain. They have remained in England ever since. In the mothers proceedings under the Convention for the summary return of the children to Spain, instituted on 21 January 2013, the father made an interlocutory application under rule 16.2 of the Family Procedure Rules 2010 (SI 2010/2955) for T to be made a second respondent and to be represented by a childrens guardian. On 12 April 2013 Cobb J dismissed the application. The same judge heard the mothers substantive application over three days in May 2013 and received oral evidence from the parents and from Ms Vivian, an officer in the High Court team of the Children and Family Court Advisory and Support Service (Cafcass). By a reserved judgment, [2013] EWHC 1383 (Fam), Cobb J explained his reasons for then ordering that all four children be forthwith returned to Spain. Four issues were raised for Cobb Js determination. First, the father disputed that the children had been habitually resident in Spain on the date of his retention of them in England, namely on 5 January 2013, and he therefore contended that the retention was not wrongful under article 3 of the Convention. He contended that they had not acquired a habitual residence in Spain at any time between 24 July 2012 and 5 January 2013 and, in particular, that he had not consented to their going to Spain for longer than a holiday in the summer 2012. The result (contended the father) was that they had never lost their habitual residence in England. Cobb J rejected these contentions. He found that in July 2012 the father had agreed with the mother that she should take the children to reside in Spain indefinitely and that, partly for that and partly for another reason which I will explain in paras 28 and 29, all four children had lost their habitual residence in England on or shortly after 24 July 2012, had acquired a habitual residence in Spain during the autumn 2012 and had continued to have it on 5 January 2013. The judge therefore held that the retention was wrongful under article 3. Second, the father contended, pursuant to article 13 of the Convention, that the three older children objected to being returned to Spain and had attained an age and a degree of maturity at which it was appropriate to take account of their views. Cobb J upheld the contention that T objected to being returned to Spain and had attained the requisite age (then 12 years and nine months) and degree of maturity. He found, by contrast, that, although L and A had also attained an age and a degree of maturity at which it was appropriate to take account of their views, their expressed wishes not to return to Spain had the character only of preferences rather than of objections. Third, the father contended, also pursuant to article 13, that there was a grave risk that the return of the children to Spain would place one or more of them in an intolerable situation. Cobb J rejected this contention. Fourth, the father contended that, insofar as Cobb J might have upheld either his second or third contentions in relation to any of the children, he should exercise the discretion thereby conferred on him by article 13 to decline to order the return of that child to Spain. Notwithstanding that he had indeed upheld the fathers second contention in relation to T, Cobb J decided not to exercise his resultant discretion to decline to order her to return to Spain. The father appealed to the Court of Appeal against Cobb Js order. But there were three further appellants, namely, T, L and A. Following Cobb Js order T had consulted a solicitor, who had concluded that she had sufficient understanding to give instructions in the matter; and L and A had consulted another solicitor, who had concluded that they too had sufficient understanding to give instructions. At an interlocutory hearing a single Lord Justice granted permission to all three of them to appeal against Cobb Js failure to make them parties to the proceedings. The Court of Appeal was later to express some doubt (which it put to one side) whether it was open to T to appeal against Cobb Js dismissal of an application made by the father rather than by herself. In fact, since she had been adversely affected by the dismissal, she did have the requisite status to bring an appeal: George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA Civ 12, [2008] 1 WLR 1649. But, on any view, the permitted appeal of L and A was highly problematic in that no one had suggested to Cobb J that they should become parties. On 1 August 2013 the Court of Appeal heard the appeals and on 15 August 2013 it handed down its judgments, [2013] EWCA Civ 1058. Black LJ delivered the substantive judgment and Hallett and Gloster LJJ agreed with it. It is against two of the orders which the court then made that the present appeals are brought. The Court of Appeal dismissed the appeals not only of L and A but also of T against Cobb Js failure (or, rather, in Ts case, his refusal) to make them parties to the proceedings. T now appeals against the dismissal in relation to her. This is the subsidiary appeal before the court. There were in effect three grounds of the fathers appeal to the Court of Appeal. First, he contended that Cobb J had been wrong to hold that the children had been habitually resident in Spain on 5 January 2013. He argued not only that the judge had been wrong to find that he had consented to their removal to Spain for longer than the summer holiday 2012; but also that, on the evidence, they had never been integrated in the Spanish environment to any significant degree and, more specifically, that the judge had failed to consider Ms Vivians reports of statements by the three older children to her that they had never considered that Spain had become their home. The Court of Appeal rejected this first ground of appeal. It is against its refusal to set aside the judges conclusion that the children had become habitually resident in Spain by 5 January 2013 that the father and T appeal. These are the primary appeals before the court. In rejecting the first ground the Court of Appeal held that the judge had not been wrong to find that the father had consented to the removal of the children for an indefinite period. There is no remaining issue in that specific regard: that the father consented to it is therefore now an established fact. The Court of Appeal also held that the judge had been entitled to find that the children had achieved some degree of integration in Spain; and, more specifically, that, insofar as their perceptions were relevant to their integration (which, without deciding, the court conceded was possible), Cobb J had sufficiently considered them. Second, the father contended that Cobb J had been wrong to characterise the wishes of L and A not to return to Spain as only preferences rather than as objections. The Court of Appeal rejected this ground. Third, the father contended that, having found that T objected to being returned to Spain and had attained the requisite age and degree of maturity, Cobb J had erred in deciding not to exercise his resultant discretion to decline to order her to return to Spain. The Court of Appeal upheld this ground. It concluded that, in exercising his discretion, the judge had failed to give sufficient weight either to the robustness of Ts objections or to the fact that until July 2012 she had always lived in England. The Court of Appeals conclusion that T should not be the subject of an order for return to Spain under the Convention created a new dimension to the inquiry in relation to the three younger children. For it precipitated a need to inquire whether there was a grave risk that their return to Spain would place them in an intolerable situation in that, for the first time in their lives, they would be separated from T. The Court of Appeal concluded that the evidence before it was too limited to enable it to determine this issue and that the proceedings should be remitted to a judge of the Family Division for its determination. All three of the younger children have been joined as parties to the remitted proceedings on the basis that, as are L and A in this court, they will be represented by Ms Vivian as their guardian. The further hearing is due to begin shortly. In addressing his application for permission to appeal to this court, Black LJ described the father as having been largely successful in the Court of Appeal. With respect, I do not accept that description. The difficulty for the father is that Spain is a fellow state of the European Union and that therefore, in the present proceedings, the provisions of Council Regulation (EC) No 2201/2003, commonly called Brussels II Revised (B2R), are grafted on to the provisions of the Convention and indeed, by article 60 of B2R and section 1(3) of the 1985 Act, take precedence over them. By recital 12 of B2R the Council observed that the best interests of a child are served by a general rule that the court of the state of her habitual residence should, in the first place, have jurisdiction to determine future arrangements for her. By recital 17 it accepted that under the Convention a state could decline to order a childs return to the state of her habitual residence in specific, duly justified, cases but then it added however, such a decision could be replaced by a subsequent decision by the court of the member state of habitual residence of the child prior to the wrongful removal or retention. In the body of B2R this was duly achieved by a combination of article 10, which provides for the continuing jurisdiction of the state of habitual residence following a wrongful removal or retention save in circumstances immaterial to the present case, and of article 11(8) which provides: Notwithstanding a judgment of non return pursuant to article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with section 4 of Chapter III below in order to secure the return of the child. Section 4 of Chapter III of B2R provides, by article 42(1), that, provided that the judge in the state of habitual residence shall have certified that the parties and, if appropriate, the child were given an opportunity to be heard and that he took account of the reasons for the refusal of the requested court to order the childs return under the Convention, there can be no facility for challenge in the requested state to his order for the childs return. His order enjoys procedural autonomy: Rinau v Rinau (Case C 195/08PPU) [2009] Fam 51, para 63. Thus B2R has added a dramatic further dimension to proceedings under the Convention in which the application is for the childs return to a fellow EU state. When, on whatever basis, it refuses an application under the Convention for return to a non EU state, a court in England and Wales will conventionally embark (or make clear to the unsuccessful applicant that it would be willing to embark) on a merits based inquiry into the arrangements which will best serve the welfare of the child; and it will reasonably anticipate, particularly in the light of the presence of the child here, that its decision will be fully enforceable. But when, by reference to article 13 of the Convention, it refuses an application for a childs return to an EU state, it is aware that an order for return, immune from challenge, may nevertheless be forthcoming from that state; and that therefore the order for non return may well provide no more than a breathing space. Prior to making the provision in article 11(8) of B2R, the Council will no doubt have considered the extra difficulty which faces the court of habitual residence in conducting a satisfactory merits based inquiry in circumstances in which the child is held abroad and the abducting parent, being also abroad, may decide not to participate or may be unable to fund participation. Practical concerns of this character were presumably overridden by the importance attached to the principle of the primacy of the court of habitual residence (recital 12), to the principle of mutual trust between the courts of member states (recital 21) and to the availability of a power in the court of habitual residence, in specified circumstances of fair width, to request another member state to assume jurisdiction if it considers such to be in the best interests of the child (article 15). What, at all events, prompts the father and T to bring the primary appeals to this court is their aspiration to secure, in relation to all the children, or at least to T, the reversal of the judges ascription to them of a habitual residence in Spain on 5 January 2013. For that would preclude an order of the Spanish court under article 11(8) of B2R (which, so the court is told, the mother has already evinced an intention to seek) or at any rate its enforceability in England, in relation to the children or at least to T. Ms Vivian wrote two reports, following two interviews with the three older children in February and April 2013, and she gave oral evidence to Cobb J. The courts direction to her had been to report on their wishes, feelings and, if any, objections, in relation to a return to Spain, and on their degree of maturity, so that it could better appraise the fathers defence under article 13. Inevitably, however, she sought to place her report on these matters in the context of what they said to her about the familys recent history. Ms Vivian reported that T, then aged 12 and a half, was confident and intelligent. T (so Ms Vivian reported) had a maturity beyond her years, which seemed to reflect her innate personality rather than to have been acquired in order to enable her to cope with recent difficulties. Ms Vivian reported that L, then aged ten, was bright, thoughtful and seemingly mature for his age and that A, then aged eight, was thoughtful and quite insightful but less confident than L. According to Ms Vivian, T told her that neither she nor the father had known that the mother was intending to take her and the boys to Spain until days prior to her departure in July 2012 and that it had been only when she started school in Spain that it had become clear to her that the mother intended that they should live there indefinitely. In her oral evidence the mother disputed Ts account and in my view it is important to note that Cobb J in effect rejected much of what T had said in that regard. He found that, well prior to the departure, the father, albeit reluctantly, had agreed to it and that, at least a week prior to it, T had known that she and the boys were leaving England indefinitely. Then, in my view relevantly to this courts despatch of these appeals, T and the older boys made statements to Ms Vivian about their life with the mother in Spain during the following five months. Ms Vivian reported that T said that: i) ii) iii) iv) v) vi) i) ii) iii) iv) she had hated it in Spain; they had not had a home of their own but only a temporary home in the flat of the maternal grandmother; they had attended poor schools which the mother had chosen only because they had been local and convenient; the mother had been pursuing an affair and had neglected them; Spain has never been home it is a bit unreasonable to say that; and she could not settle in Spain. he had liked Spain but not as much as England; he had really liked his school in Spain but also his school in England; they had not had a home of their own in Spain; the mother had given more attention to her boyfriend than to them; and Ms Vivian reported that L said that: v) life in Spain had felt weird because he had been away from his normal home for so long. Ms Vivian reported that A said that: i) ii) he had wanted to go to live in Spain but, once there, had realised that he had made the wrong decision; and he had not liked his school in Spain and had made no friends. Ms Vivians written summary of these statements was: During their time in Spain the children have reported that they have not settled and their mother has not, by their accounts, assisted them to do so. In her oral evidence she added: it was almost like they gave Spain a go and they didnt feel like it was home to them. Then Ms Vivian proceeded to address the current wishes and feelings of the three children. This part of her evidence is not of direct relevance to the present appeals. It is enough to say that T stated to Ms Vivian that she refused to go back to live in Spain and would physically resist any order that she should do so; and that L and A stated to her that, on 4 January 2013, they had hidden their passports behind a microwave in order to disable the father from sending them back to Spain on the following day and that they continued not to want to go back to Spain. It was Ms Vivians view, which Cobb J appeared largely to accept, that the father had not sought to manipulate the children into making these statements. In embarking upon his determination whether the children had become habitually resident in Spain by 5 January 2013, Cobb J suggested that the well known tests propounded in England and Wales (in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309, 343, Lord Scarman) and in the Court of Justice of the European Union (the CJEU) (in Mercredi v Chaffe (Case C 497/10PPU) [2012] Fam 22, para 47) were overlapping and broadly consistent. Cobb J then proceeded to make a clear demarcation between the two older and the two younger children. He noted that the parents had never been married; that the father had been registered on the birth certificates of each of the children; but that the amendments made to section 4 of the Children Act 1989, of which the effect was to confer parental responsibility on a father who was thus registered, took effect only in relation to registrations after 1 December 2003. Cobb J therefore correctly concluded that the father had parental responsibility for A and N but not for T nor for L. Accordingly (reasoned Cobb J) the mother had the right to determine the habitual residence of T and L but English law required the fathers consent to any change on her part of the habitual residence of A and N. The judge then set out his reasons for finding that the father had unconditionally consented to the acquisition by A and N of habitual residence in Spain. In that sense, observed the judge, it is less important for me to look at the integration argument. He did however proceed to look at it and he concluded that all four children had achieved a significant degree of integration into their social and family environment in Spain. In particular he found that they had settled reasonably well into the grandmothers flat and had settled into their new schools. For these reasons he determined that by 5 January 2013 the children had become habitually resident in Spain. It was a singular misfortune for Cobb J to be required to make his determination of the issue of habitual residence (and for the Court of Appeal to be required to review it) so shortly prior to this courts issue, on 9 September 2013, of its judgments in A v A (Children: Habitual Residence) [2013] UKSC 60, [2013] 3 WLR 761. The court there held that: i) ii) iii) the test for the determination of habitual residence under the Convention, under B2R and under domestic legislation should be the same (para 35, Lady Hale); the test set out in the Nilish Shah case, cited above, should be abandoned (para 54(v), Lady Hale); and the test should be the one adopted by the CJEU in Proceedings brought by A (Case C 523/07) [2010] Fam 42, and affirmed by it in the Mercredi case, cited above, namely the place which reflects some degree of integration by the child in a social and family environment (para 54(iii) and (v), Lady Hale). In April 1981 Professor Prez Vera wrote the Explanatory Report referable to the Convention. In para 11, in a section entitled Object of the Convention, she explained that, whether the child was wrongfully removed from his or her state of habitual residence or was wrongfully retained outside it, the outcome was the same, namely that the child is taken out of the family and social environment in which its life has developed. It is satisfactory that, 30 years after the Convention was adopted, in a case (Proceedings brought by A, cited above) unrelated to the Convention, the CJEU should have formulated a test for habitual residence, which now falls to be applied as fully to Convention proceedings as to other proceedings, in terms so intriguingly close to what its signatories had in mind. At last I can begin to address the question set out in para 1. I doubt whether, even by reference to the former English concept of habitual residence, Cobb J was entitled to have stated so categorically that, having sole parental responsibility for them, the mother in July 2012 had the right to determine the habitual residence of T, then aged almost 12, and of L, then aged nine. It is true that in In re P (GE) (An Infant) [1965] Ch 568, 585 586, Lord Denning MR had been similarly categorical about the ordinary residence of a child of tender years who cannot decide for himself where to live, let us say under the age of 16. But in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 579, Lord Brandon had said that where a child of Js age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers. J was aged two and in In re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495, 500, Balcombe LJ therefore took Lord Brandons proposition to apply only to young children. In my view even our old law left open and ajar the door to a conclusion that, no doubt in rare circumstances and perhaps particularly following the adoption by an older, mature, child of a residence in a different country with one parent, the latters habitual residence there might not necessarily render the childs residence there habitual. At all events what our courts are now required to do is to search for some integration on the part of the child in a social and family environment in the suggested state of habitual residence. In the Mercredi case, cited above, the CJEU said: 53 The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant. 54 As a general rule, the environment of a young child is essentially a family environment determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of. 55 That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. In A v A, cited above, this court adopted the propositions in the two latter paragraphs. Lady Hale said, at para 54: (vi) The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned. These propositions, which are carefully expressed to apply only to infants and young children, have an echo in observations made by the High Court of Australia in LK v Director General, Department of Community Services (2009) 237 CLR 582, as follows: 27 When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman. Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too. The same may be said of a situation in which, perhaps after living with a member of the wider family, a child goes to reside there with both parents. But in highly unusual cases there must be room for a different conclusion; and the requirement of some integration creates room for it perfectly. No different conclusion will be reached in the case of a young child. But, where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older childs residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may possibly have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the wishes views intentions and decisions of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parents habitual residence is her state of mind during the period of her residence with that parent. In the Nilish Shah case, cited above, in which he propounded the test recently abandoned, Lord Scarman observed, at p 344, that proof of ordinary (or habitual) residence was ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind. Nowadays some might not accept that evidence of state of mind was not susceptible of objective proof; but, insofar as Lord Scarmans observation might be taken to exclude the relevance of a persons state of mind to her habitual residence, I suggest that this court should consign it to legal history, along with the test which he propounded. It follows that my answer to the question set out in para 1 is: yes. In the light of her age and of Ms Vivians assessment of her maturity, Ts assertions to Ms Vivian about her state of mind during her residence in Spain in 2012, set out in para 26 above, have at least some relevance to a determination whether her residence there was habitual. For they are relevant to whether she was integrated to some degree in a social and family environment there. But not even when, rather as a cross check against his earlier conclusion, Cobb J turned to consider Ts integration (and that of the boys) in Spain did he address her assertions to Ms Vivian. Indeed when, in a later section of his judgment, he addressed her assertions, his focus was on her hostility at that time, namely in 2013, towards a return to Spain. Nowhere did he give separate or any attention to what she had said about her state of mind when in Spain in 2012. The Court of Appeal was impressed by the fact that, in refusing to grant permission to the father to appeal, Cobb J observed that The stated wishes of the three older children to be in England now. did not affect their integration in Spain at the time. Cobb Js observation was correct. But what might have affected the integration at any rate of T was not her wishes when in England in 2013 but what she said about her state of mind when in Spain in 2012. No significant criticism can be levelled at Cobb J in these respects. It is true that, in the course of his unsuccessful submission that she should be made a party to the proceedings, the fathers counsel had suggested that T might have a perspective about her habitual residence different from that of the father; the judge had dismissed the suggestion as a purely speculative possibility. It is also true that, in his opening skeleton argument for the substantive hearing, the fathers counsel had submitted to Cobb J that the childrens own descriptions to Ms Vivian confirmed that they had never achieved integration in Spain. But no submission was made to the judge that he should scrutinise Ts specific assertions to Ms Vivian about her state of mind during her residence in Spain. Accordingly I would set aside the judges conclusion that T was habitually resident in Spain on 5 January 2013 and would remit that issue for fresh consideration in the High Court alongside its forthcoming consideration of the issue relating to the boys which was remitted to it by the Court of Appeal. Counsel for the father and T suggest that the court should go further and, in lieu of the judges conclusion, should substitute a conclusion that T remained habitually resident in England on 5 January 2013. I cannot accede to the suggestion. I perceive six objections to it: i) Ts various assertions to Ms Vivian about her state of mind when in Spain were incidental to an inquiry of which the focus was different. ii) Ts assertions were made after she had left Spain and may not deserve the weight which might attach, for example, to any emails or letters which she might have sent, or to any statements which she might have made on social networking sites, while she was there. Indeed Ts primary purpose was to communicate to Ms Vivian her strong objection to returning to Spain and her purpose may have coloured her descriptions of her state of mind when there. iii) iv) Cobb J has already rejected as inaccurate Ts identification to Ms Vivian of the time when she realised that the familys stay in Spain was intended to be indefinite. v) Since it is only in the proceedings in this court that the searchlight has directly shone on Ts statements to Ms Vivian about her state of mind when in Spain, the mother has had no opportunity to give evidence in response to them or, by counsel, to make detailed submissions about them. vi) Ts statements in that regard require to be weighed against the written and oral evidence which led Cobb J to find that T had achieved some degree of integration in Spain. In relation to her integration, the mother placed before the judge a substantial amount of evidence, including statements not only by herself but also by her mother, her sister and her two brothers and by Ts school in Spain, to which in these appeals no specific reference has been made; and in relation to it the mother also gave oral evidence, of which this court does not even have a transcript. Therefore I do not agree that this court is in a position to regard Ts statements to Ms Vivian as determinative of a conclusion that the mother cannot establish that T acquired a habitual residence in Spain. If the issue of Ts habitual residence in Spain is therefore to be remitted for determination in the High Court, should Cobb Js conclusion that the three boys were habitually resident there also be set aside so that that issue be likewise determined in the High Court? In my view this is the most difficult question posed by these appeals. When they were in Spain, none of the boys was an adolescent or had the maturity of an adolescent. It will be clear from my formulation of the question in para 1 above that in my view it is, in principle, the state of mind of adolescent children during their residence in a place that may affect whether it was habitual. Thus, although when considering the alleged objections of L and A to returning to Spain, Cobb J concluded that they had at least attained an age and a degree of maturity at which it was appropriate to take account of their views and although they made comments to Ms Vivian indicative of lack of integration on their part in Spain, I find it hard to imagine that a judges exploration of their state of mind could, on its own, alter the conclusion about their integration in Spain reached by Cobb J by reference to the other evidence before him. But there is another feature in play: it is the presence of their older sister, T, in the daily life of all three of the boys. Ms Vivian described the four children as a very close sibling group. There was a solidarity in the presentation of the three older children to her. When Cobb J addressed the integration of the children in Spain, he did so compendiously in relation to all four of them. In the fuller, more focussed, inquiry into Ts habitual residence, the High Court will no doubt receive evidence about the integration in Spain of the four children as a whole. Were it to conclude that T never lost her English habitual residence, the court would need at any rate to consider whether its conclusion could sit easily alongside a conclusion that, by contrast, the three boys acquired a habitual residence in Spain. In relation to their habitual residence, might Ts habitual residence in England (if such it was) be a counterweight to the obvious significance of the mothers habitual residence in Spain? It can be inconvenient for a judge at a remitted hearing to have to note that all options have not been left open to him. By a narrow margin, I find myself persuaded that the proper course is to set aside the finding of habitual residence in respect also of the three boys so that the issue can be reconsidered in relation to all four children. to decline to make T a party to the proceedings? In the Court of Appeal Black LJ observed, at para 36, that welfare considerations were by no means out of place in a determination whether a child should be joined as a party to family proceedings. But rule 16.2 of the Family Procedure Rules 2010 (the terms of which are in substance identical to those of its predecessor, namely rule 9.5(1) of the Family Proceedings Rules 1991 (S1 1991/1247)) provides that I turn to the subsidiary appeal: did Cobb J err in exercising his discretion (1) The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so. On any view it is most unusual for the threshold criterion for the making of a case management decision to be a conclusion about a persons best interests. But the meaning of the rule is plain. The best interests of the child represent the threshold criterion and are not just a primary consideration as stated in paragraph 7.3 of Practice Direction 16A supplementary to Part 16 of the 2010 Rules. If, and only if, the court considers that it is in the best interests of the child to make her (or him) a party, the door opens upon a discretion to make her so. No doubt it is the sort of discretion, occasionally found in procedural rules, which is more theoretical than real: the nature of the threshold conclusion will almost always drive the exercise of the resultant discretion. Rule 16.2, set out above, governs the grant to a child of party status in family proceedings generally. There is no special provision in Part 16 of the Rules which governs the grant to a child of party status in proceedings under the Convention. Rule 16.4(1)(c) proceeds to provide that, without prejudice to other rules, and in particular to rule 16.6, a court which has granted party status to a child pursuant to rule 16.2 must appoint a childrens guardian for her. Rule 16.6 specifies most types of private law family proceedings in which, if the court so permits or if a solicitor considers that the child is capable of giving instructions, she can be a party without acting by a guardian. But the types of proceedings there specified do not include proceedings under the Convention. I cannot discern why, if and to the extent that it is appropriate in Convention proceedings for children to be made parties, the facility for some of them to act without a guardian has been blocked. In WF v FJ, BF and RF (Abduction: Childs Objections) [2010] EWHC 2909 (Fam), [2011] 1 FLR 1153, Baker J, in paras 21 and 22, described the exclusion of Convention proceedings from the predecessor of rule 16.6 as anomalous and a lacuna. At all events the result is that, had Cobb J made T a party to the proceedings, she would have been required to act by a guardian. Such is, however, a status which might have been conferred on her solicitor. In In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, Lady Hale, with the agreement of all other members of the House, stated at para 59 that children should be heard far more frequently in. Convention cases than has been the practice hitherto. It is clear from para 58 that, in so stating, Lady Hale had been influenced in particular by article 11(2) of B2R, which had come into force less than two years earlier and which obliged EU states to ensure that the child is given the opportunity to be heard during [Convention] proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. In the In re D case Lady Hale proceeded, at para 60, to suggest that the obligation to hear children of an appropriate age would in most cases be satisfied by a report by a Cafcass officer of an interview with them; would sometimes require the judge in person to talk to them; and only in a few cases would require them to be made parties and thus to be legally represented. Lady Hale added: But whenever it seems likely that the childs views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented. In In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, Lady Hale amplified what she had said in the In re D case. In the In re M case the defendant mother had demonstrated that the children, then aged about 13 and 10, had become settled in [their] new environment in England for the purposes of article 12 of the Convention but the trial judge had nevertheless ordered them to be returned to Zimbabwe. Lady Hale observed in para 57 that a defence under article 12 that children had become settled in their new environment was rare. She suggested that it was the most child centric of all child abduction defences; that the separate point of view of the children alleged to have become settled was particularly important; and that (as this court is told has duly occurred) it should become routine for them to be made parties to the proceedings. One might have held an interesting debate with Lady Hale as to whether such a defence is more child centric than that in which the children are said to object to being returned to the requesting state for the purposes of article 13, being a category of children to whom she also there referred and to whom, she stressed, a grant of party status should not become routine. Lady Hale concluded: In all other cases [than those of alleged settlement], the question for the directions judge is whether separate representation of the child will add enough to the courts understanding of the issues that arise under the. Convention to justify the intrusion, the expense and the delay that may result. I have no difficulty in predicting that in the general run of cases it will not. When in 2007 Lady Hale identified these factors, the threshold criterion for granting party status to a child in proceedings under the Convention was, as now, whether it was in the childs best interests to do so. The intrusion of the children into the forensic arena, which enables a number of them to adopt a directly confrontational stance towards the applicant parent, can prove very damaging to family relationships even in the long term and definitely affects their interests. So does delay in the resolution of the issue whether they should be ordered to return, albeit perhaps only temporarily, to the requesting state. In what follows I must in no way be understood to suggest that it should become routine to join as parties to Convention proceedings children whose habitual residence in the requesting state is in issue. Nevertheless, as Thorpe LJ prefigured in Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 FLR 169, at para 55, there is an analogy between, on the one hand, an inquiry into some degree of integration of a child in the social and family environment of the requesting state during a short period of residence there and, on the other, an inquiry into a childs settlement in the environment of the requested state. To both inquiries an older child may in particular be able to contribute relevant evidence not easily given by either of the parents, namely about her state of mind during the period in question; see again the Cannon case, at para 61. When on 6 April 2011 the Rules came into force, the opportunity was taken to supplement Part 16 with Practice Direction 16A. Guidance is there given about the circumstances in which it is appropriate to grant party status to a child in family proceedings. The reader of it must again bear in mind that it is not focussed on Convention proceedings but much of it is directly apposite to them. Thus para 7.1 of the Practice Direction makes clear that a grant to a child of party status will be made only in cases which involve an issue of significant difficulty and thus only in a minority of cases. Consideration, so it suggests, should first be given to whether an alternative course might be preferable; and the suggestion is well reflected by the courts current practice of inviting an officer in the Cafcass High Court team to see the child before it decides whether to make her a party to Convention proceedings. Para 7.3 of the Practice Direction stresses that a grant to a child of party status may result in delay adverse to her welfare and of which account should therefore be taken. This factor has a particular relevance to Convention proceedings. The need for expedition is written into article 11.3 the Convention; and the aspiration, articulated in the same para, for determination within six weeks of issue is, in the case of EU states, stiffened by article 11.3 of B2R, which positively requires determination within that period save in exceptional circumstances. But it is para 7.2 of the Practice Direction which is of particular significance. It offers non prescriptive guidance about the circumstances which may justify a grant to a child of party status. The examples include, at (a) the case where a Cafcass officer favours the grant; at (d) the case where the childs views cannot adequately be communicated by a report; and at (e) the case where an older child is opposing a proposed course of action. The last example should not in my view be taken to endorse any routine grant of party status to older children objecting to their return to the requesting state in Convention proceedings. But the example most apt to the present case is at (b), namely where the child has a standpoint incapable of being represented by any of the adult parties. In my view the proper despatch of the subsidiary appeal follows in the slipstream of the courts despatch of the primary appeals. What Cobb J failed to address, and what therefore requires his conclusion about Ts habitual residence to be set aside, is her evidence, accurate or inaccurate, about her state of mind when in Spain in 2012. Such is evidence which, although the mother might have a valuable perspective on it, neither of the parents can give. In the language of para 7.2(b) of the Practice Direction T has a standpoint incapable of being represented by either of the adult parties. I conclude that she should have been granted party status and that the Court of Appeal should have allowed her appeal against Cobb Js refusal of it. A grant of party status to a child leaves the court with a wide discretion to determine the extent of the role which she should play in the proceedings. Although, unusually in Convention proceedings, Cobb J heard oral evidence from the parents as well as from Ms Vivian, it would surely have been inappropriate for him to receive oral evidence in court from T even if she had been a party to the proceedings. It is conceivable that, had he considered that her evidence might prove determinative yet needed to be further explored, Cobb J might have invited counsel, particularly counsel for the mother, to ask age appropriate questions of her otherwise than in court and recorded on video tape. In all probability however, the reasonable course would have been to confine Ts participation in the proceedings to i) the adduction of a witness statement by her, or of a report by her guardian, which was focussed upon her account of her residence in Spain including of her state of mind at that time; ii) her advocates cross examination of the mother; and iii) her advocates closing submissions on her behalf. Whether it would have been reasonable for Cobb J to have allowed T to be present in court during the hearing I cannot tell. It would have been for the guardian to decide which of the documents filed in the proceedings should be shown to T. In conclusion I stress the unusual features which give rise to the present appeals. In May 2011 Professor Lowe placed before the Hague Conference a document, No 8C, entitled A Statistical Analysis of Applications Made in 2008 Under the [Hague] Convention. He reported that, of the applications for return made to the Central Authority of England and Wales in 2008, 108 came before the courts, of which 93 resulted in orders for return and 15 resulted in dismissal. Of the 15 dismissals, only three were founded on a conclusion that the child had not been habitually resident in the requesting state. Although some of the 93 orders were no doubt made following unsuccessful submissions to the same effect, Reunite International Child Abduction Centre, an Intervener in these appeals, confirms that issues about the childs habitual residence in Convention proceedings are relatively rare. More importantly, however, the present appeals relate in particular to an older child resident with a parent only for a short time in the suggested state of habitual residence. These are the two features which, more than any others, have precipitated my various conclusions. LADY HALE (with whom Lord Sumption agrees) Lord Wilson has identified the principal question raised by these appeals in relation to an adolescent child: is her state of mind relevant to whether or not she has acquired a habitual residence in the place where she is living? He has answered that question yes and I entirely agree with that answer. However the question cannot be restricted to adolescent children. It also arises in relation to the two younger children, L and A. They are themselves parties to this appeal and are represented by their guardian. That guardian is the same Cafcass officer, Ms Vivian, who has interviewed the children twice in the proceedings. Before this court she has argued that they were not habitually resident in Spain on the relevant date. In my view, the answer to the question of principle has to be the same for all three children: their state of mind is relevant to whether or not they have acquired a habitual residence in the place where they are living. The logic which makes an adolescents state of mind relevant applies equally to the younger children, although of course the answer to the factual question may be different in their case. The logic flows from the principles adopted by the Court of Justice of the European Union in Proceedings brought by A (Case C 523/07) and Mercredi v Chaffe (Case C 497/10PPU) and now adopted by this Court in the recent cases of A v A [2013] UKSC 60, [2013] 3 WLR 761 and In re L (A Child) (Habitual Residence) [2013] UKSC 75; [2013] 3 WLR 1597. The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so. An illegal immigrant may desperately want to become habitually resident in this country, but that does not mean that he does so. A tax exile may desperately want to lose his habitual residence here, but that does not mean that he does so. Hence, although much was made of it in argument, the question of whether or not a child is Gillick competent is not the point. In the case of these three children, as of others, the question is the quality of their residence, in which all sorts of factors may be relevant. Some of these are objective: how long were they there, what were their living conditions while there, were they at school or at work, and so on? But subjective factors are also relevant: what was the reason for their being there, and what were their perceptions about being there? I agree with Lord Wilson (para 37) that wishes, views, intentions and decisions are not the right words, whether we are considering the habitual residence of a child or indeed an adult. It is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there their state of mind. All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed habitual. It would be wrong to overlay these essentially factual questions with a rule that the perceptions of younger children are irrelevant, just as it was to overlay them with a rule (rejected in A v A) that a child automatically shares the habitual residence of the parent with whom he is living. The age of the child is of course relevant to the factual question being asked. As the CJEU pointed out in Mercredi v Chaffe, at para 53: The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant. Clearly, therefore, this is a child centred approach. It is the childs habitual residence which is in question. It is the childs integration which is under consideration. Each child is an individual with his own experiences and his own perceptions. These are not necessarily determined by the decisions of his parents, although sometimes these will leave him with no choice but to buckle down and get on with it. The tiny baby whose mother took him back to her home country in Mercredi v Chaffe was in a very different situation from any of the three children with whom we are concerned. The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment. The quality of a childs stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another. I agree with Lord Wilson that Cobb J did not approach the question in the way in which he no doubt would have done had he had the benefit of this Courts decisions in A v A and In re L. He approached it very much from the point of view of parental rights. Under English law, the mother alone has parental responsibility for the two older children (only because the change in the law giving parental responsibility to all fathers named on the birth certificate only came into force later; we have no evidence as to what the position is under Spanish law). She could therefore change their habitual residence. The father does have parental responsibility for the two younger children, but Cobb J held that he had (albeit reluctantly) consented to their change in habitual residence. But it is not a question of the parents determining the habitual residence of their children. It is a question of the impact of the parental decisions about where they and the children will live upon the factual question of where the children habitually reside. That being so, I would allow the appeal to the extent of setting aside the judges decision that the three older children were habitually resident in Spain on the relevant date, which is 5 January 2013. On a different basis, namely that referred to by Lord Wilson in para 43 above, I would also set aside the judges decision in relation to N: that is the need for the judge at any rate to consider whether the four children were a unit with the result that the habitual residence of any or all of the older children might impact on the habitual residence of the others. The question then arises of whether the case should be sent back to the High Court for the decision to be taken afresh or whether it is open to this Court to take the decision on the basis of the evidence before us. Decide or remit? We were invited by both appellants and by the guardian to decide the matter ourselves. Lord Wilson has pointed to all the reasons why we should not do so (para 42). He is, of course, right to point out that the focus of Ms Vivians inquiries with the children was on the rather different issue of the childrens objections to return. But her oral evidence was that what all three of these children did, which is sort of unusual in my experience of doing Hague interviews, is that the children in their own ways were [talking] about Spain not really being their home, not really being their base. The children were raising the issue even if she was not. Lord Wilson is also right to point to the various reasons for being sceptical about what T, in particular, said to Ms Vivian. However, that is something which we too can take into account. Finally, the mother placed a great deal of evidence before the judge about the childrens lives in Spain (including entries from Ts facebook page). But while we can take the documentary material into account, we do not have a transcript of the oral evidence which she gave. My main concern has been that, if the case is sent back to the High Court, there would have to be further inquiries into the childrens states of mind during their time in Spain. I have grave doubts about whether that would be a fruitful exercise. What the children spontaneously offered when they were first interviewed by Ms Vivian is much more likely to be reliable than anything they can tell her now. They have not changed their minds about where they want to be. They are intelligent and articulate children. Almost every witness, whether adult or child, engages in a certain amount of (conscious or unconscious) manipulation of their recollection of past events to meet their present interests. It would be surprising if that did not happen here. And that would be damaging to the children and to their future relationship with their mother. It would be even more damaging if they were to be called to give evidence and it is not suggested that they should be. It was unfortunate that Ms Vivian was asked to interview them a second time and the children (L in particular) were clearly uncomfortable with this. It would not be in their best interests to be interviewed a third time but it would be wrong to decide the case afresh without doing so. Remitting the matter will also cause delay and further stress to all the family, which may well put further strain on the childrens relationship with their mother. If the matter were governed by the best interests of the children, therefore, I would hold that it is not in their best interests for us to remit the question of their habitual residence to be decided afresh in the High Court. But this matter is governed by the interests of justice, in reaching the right result in a fair manner. I have therefore carefully considered whether it is necessary, in the interests of justice to all parties, to remit the matter. Some common ground The question, it will be recalled, is whether the mother has established that these four children were habitually resident in Spain on 5 January 2013, the date when they were due to fly back there after the Christmas holiday. There are several factors which are relevant to them all: i) Their mother is Spanish, tri lingual in Spanish, French and English. Their father is English, but lived in Spain for much of his childhood and is bi lingual in Spanish and English. The children are also bi lingual. They have many maternal relatives living in Spain. ii) They are all Spanish citizens. We have no evidence about whether they are also entitled to British citizenship, although as their father is a British citizen, this seems likely. iii) Their parents met in Oxford in 1995 and soon began living together, originally in Oxford and latterly in a town in Oxfordshire, but they have never married. The family home is jointly owned by the father and another person. iv) All three children were born here, T on 27 August 2000, L on 4 December 2002, and A on 2 November 2004, as was their younger brother N, who was born on 29 December 2008. v) They lived all their lives here with their mother and father until 24 July 2012, when they flew to Spain with their mother. vi) They all attended school here until the end of the summer term 2012. The boys were at a Roman Catholic primary school. T had also attended that school for her primary education but for the past year she attended a distinguished independent secondary school. vii) They were accustomed to going to Spain for summer holidays with their mother and without their father. viii) The parents relationship had been unhappy for many years and finally broke down in the summer of 2012. The judge found that the father had (albeit reluctantly and in the hope that the situation might change) agreed to the mother taking the children to live in Spain. ix) The mother bought one way tickets for them all in June 2012. She did not take steps to remove the children from their schools and other activities until July. She did not enrol them in Spanish schools until September. They took only two suitcases with them, leaving many possessions behind in England to be sent on later. x) In Spain they lived with their maternal grandmother in a spacious apartment in a gated residential development in a prosperous neighbourhood near Madrid, with many of their maternal relatives near by. xi) They attended schools in the neighbourhood and achieved good results in their first term. xii) They were unsettled after their father visited for three days in early November, coinciding with As birthday. xiii) They came to England with their father for the Christmas holidays on 23 December 2012 and were due to return with him to Spain on 5 January 2013. They did not do so because the boys hid their passports behind the microwave and the father did not find them until it was too late. xiv) The father applied for a residence order in the Oxford County Court on 10 January 2013. The mother issued these proceedings on 22 January 2013. The children were interviewed twice by Ms Vivian, whose reports are dated 28 February 2013 and 7 May 2013. Against this common background, it is necessary to consider the perceptions of each of the children in turn. T was 12 years and 5 months old when she first saw Ms Vivian. She struck Ms Vivian as a confident, intelligent young girl, whose maturity seemed to me to be beyond her years. I think her mature presentation is a reflection [of] her innate intelligence and personality rather than something she has prematurely had to acquire as a coping strategy . She is clearly very intelligent, as is evidenced by her winning a bursary to the school which she attended before moving to Spain. She has wanted to go to Oxford University since the age of eight. The judge concluded that she objected to returning to Spain, within the meaning of article 13 of the Hague Convention, and the Court of Appeal concluded that he should have exercised his discretion not to order her return. She told Ms Vivian that she was not sure if the reason they went to Spain was for a holiday or not, because her mother had repeatedly threatened we would stay, always, we didnt believe her, or really know. She pointed out, correctly, that her mother had contacted her school on the last day of term, 11 July, when she was off ill from school, to tell them that T was not coming back. The mothers email exchange with the school is proof of that and that the school was unhappy that they had not been given the expected terms notice. The exchange also shows that the mother had not at that stage arranged an alternative school for T in Spain. T went on to tell Ms Vivian that when they went to Spain it wasnt clear to me what the plan was. Her mother had told her they were going to stay although she didnt really accept it, thought it wouldnt happen. Asked when it became clear that they had been taken to live in Spain, she said when we started school, I guess, not one moment. She told her solicitor that her mother had sent an email to the school on the last day of term to inform them that they were moving to Spain. The judge pointed out that T knew that she was leaving to go to Spain at least by 17 July, as is apparent from her facebook page for that day. The judge also found that her mother organised a party for her it was essentially a farewell party. T does not agree with that it was four friends round for an early birthday party. Be that as it may, it was because of the facebook page that the judge commented that this is not consistent entirely with what T told Ms Vivian, which is that she thought she may have been going to Spain for a holiday (para 34(v)(a)). The facebook page reads: Q to T: Are you leaving???!!! T to Q: Yep x. Q to T, successively: Whn?, Why?, Whn r u GOIN??. T to Q: on the 24th am leaving 2 spain who told u???. I would tell u 2 keep it secret but since its on my wall not really any point lol. Q to T: Gossip spreads fast . X. T to Q: lol I no bhut who????????? Q to T: Cant remember WE WILL ALL MISS U SO MUCH llxxx Will u come back? No answer is recorded but another friend writes Awww y r u leaving. Again no answer is recorded. The objective evidence records an extraordinary state of affairs. The mother left it until the very last day of term to withdraw her daughter from school. T was clearly not too happy about her friends knowing that she was leaving. This is consistent, both with the judges finding that by then, very late in the day, she knew her mothers plan was that they should move, and with her own account to Ms Vivian that she was not sure what the real situation was, partly because her mother had made similar threats before and partly because she herself did not really accept it. There are, of course, features about their life in Spain, emphasised in the mothers evidence, which point the other way. She was enrolled in a school, where she did reasonably well, although she herself did not think much of the education she was receiving there compared with her education in England. She made friends. She earned pocket money by teaching children English. But she told Ms Vivian that We have no house presumably because they were living with their grandmother and Spain is her mothers home not our home. Its not even home. Spain has never been home, it is a bit unreasonable to say that. Ms Vivian commented that she sees her home, life and future as being in England, that is where she was born and has lived all her life except for five months . She concluded: T regards England as her home; it has been her home throughout her childhood and formative years until the move to Spain last year. She acknowledges that she also has family in Spain and recognises that for her mother Spain is home, but she nonetheless feels that her own roots and those of her immediate family are here in this country. T said very similar things to her solicitor, that England was her home, that she has friends here and best friends that she has known for five or six years. Its just home. L was 10 years and 2 months old when he first saw Ms Vivian. He struck her as being a bright thoughtful boy; he seems to have carefully considered his situation and his own wishes and feelings. He seemed mature for his age, but maybe this is because he is a bright boy and is easily able to convey his thoughts. He missed his mum and wanted his parents to be back together again. Unlike T, he said that he knew he was going to Spain to live before they left, his mum and dad had told him a month before they left. Like T, he said that all those years she said that we were going one day. His view was that his father knew but he didnt agree but didnt want to take the situation to court. But he, L, had always wanted to stay here with his friends and family. He had liked it well enough in Spain, he really liked the school, but we dont have a house or anything there. He also told Ms Chadha, the solicitor who acted for the boys before the guardian took over, that he liked his school in Spain, the teachers and most of the people in his class. But he told Ms Vivian that he liked England more because this is where we live, our normal place and I want to live my life here. He was reluctant to come and talk to Ms Vivian a second time, but he was even clearer: In Spain it didnt feel right or like I was at home. When I got to England it felt cosy. Where I want to live. My house. I find it normal. A bit weird to go to another country where I have never lived for a long time. In Spain, it was not normal. Felt like a holiday really. Felt weird that I was not at my normal home for such a long time. When I went to Spain it didnt feel normal. I wanted to be in my normal house. L told Ms Chadha that it had been his idea to hide the passports. A confirmed that it was Ls idea but that he, A, had thought of hiding them behind the microwave. A was aged eight years and 3 months when he first met Ms Vivian. He seemed to her a thoughtful boy; he was quieter and less outwardly confident in his presentation than his older siblings but was able to answer my questions with clarity and careful thought. He used we a lot rather than I, and she wondered whether this was because of his being influenced to a degree by T. She did think, however, that A was reporting his own feelings, but was more conflicted about taking sides with one parent. He told her that when they went to Spain he knew they were going to live there. But when they got there he realised my actual life is here, where I was born. Unlike L, he had not liked his school in Spain, he had not made friends. He told the solicitor, Ms Chadha, that he had been bullied there, that the boys in his class were hitting him but he did not want to hit the boys back. L confirmed this. A told Ms Vivian that he wanted to stay where we live. Not going to another place where we dont like or feel it. We want to go where our home is. Home meant the place where we were born and living in. Discussion Ms Vivian did not get any sense that the children had been prevailed upon to remain here by their father. She thought that T had had a degree of influence on her brothers (in oral evidence she referred to T as a slightly bossy older sister). But this did not diminish the authenticity of the boys views in her mind. There seemed to be different accounts of the arrangements when they went to Spain in July 2012, but they felt that the decision had been taken by their mother without taking account of their wishes and feelings. They reported that they had not settled during their time in Spain and their mother had not helped them to do so. This had undoubtedly fed into their perception of Spain as not being where their home is. In her second report, she commented that their views remained consistent, both about England and about Spain: they may well be reporting a different experience to that their mother believes they had in Spain, but that does not invalidate what they have to say about their time in Spain and the sense they have made of that experience in comparison with their lives here in this country. It is very tempting to conclude from all this material that the children had not become integrated in a social and family environment during the five short months they were in Spain with their mother or (to use the term enracinement used by Professor Perez Vera in para 109 of her explanatory report on the Hague Convention when commenting on article 12) taken root there. But I have to accept that the question of their habitual residence was not approached in this way by any of the parties to the hearing before Cobb J. This is scarcely surprising, as this is the first case in which the question of principle has been squarely raised. There may well be other relevant material that they would wish to put before the court. In the interests of justice, they should all be given that opportunity. Policy It would indeed be a matter of concern if the swift return of children to their home countries could be frustrated by disputes about their habitual residence prompted by the childrens expressed wishes and feelings. Nor should children interviewed in Hague cases routinely be asked questions about their habitual residence. But in reality, as Lord Wilson explains, there are very few disputes about habitual residence. Most applications concern children who have been removed from the country where they have spent all or most of their lives by a parent who is returning to a country which she regards as home but they most definitely do not. Cases such as this, where children go to live with one parent in a country where they have never lived before and return after a few months to the country where they had always lived, are very rare. In cases concerning peripatetic families, who move from one country to another, the position may be unclear. If so, the perception of the children is at least as important as that of the adults in arriving at a correct conclusion as to the stability and degree of their integration. The relevant reality is that of the child, not the parents. This approach accords with our increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents decisions. Conclusion The case will therefore be remitted to the High Court to decide whether any or all of the four children were habitually resident in Spain on 5 January 2013. If it turns out that any or all of the three boys were, it will also have to be decided whether to return them to Spain when their older sister, or any of their brothers, is not to return will place them in an intolerable situation.

UK-Abs

The appeal relates to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985. It is brought within proceedings issued by a mother (Spanish national living in Spain) against a father (British national living in England) for the summary return of their four children (T (a girl aged 13), L (a boy aged 11), A (a boy aged 9) and N (a boy aged 5)) from England to Spain. The Convention stipulates that, subject to narrow exceptions, a child wrongfully removed from, or retained outside, his or her place of habitual residence shall promptly be returned to it. The test for determining whether a child is habitually resident in a place is now whether there is some degree of integration by him or her in a social and family environment there. The principal question in this appeal is whether the courts may, in making a determination of habitual residence in relation to an adolescent child who has resided for a short time in a place under the care of one of his or her parents, have regard to that childs state of mind during the period of residence there. A subsidiary question is whether, in this case, the trial judge erred in exercising his discretion to decline to make the eldest child, T, a party to the proceedings. The parents met in England and lived in this country throughout their relationship, which ended early in 2012. On 24 July 2012 the mother and the four children, who were all born in the UK, moved to Spain where they then lived with their maternal grandmother. It was agreed that the children would spend Christmas with their father and on 23 December 2012 they returned to England. They were due to return to Spain on 5 January 2013. Shortly before they were due to fly, the two older boys hid the familys passports and they missed the plane. On 21 January 2013 the mother made an application under the Convention for the childrens return to Spain. The father applied for T to be joined as a party so that she might be separately represented, which the High Court refused. The High Court found all four children to be habitually resident in Spain and thus that they had been wrongfully been retained by their father. The judge acknowledged that the eldest, T, objected to being returned to Spain but determined that she should nonetheless be returned along with the three younger children. The Court of Appeal dismissed the appeal against the judges finding that the childrens habitual residence was in Spain. However, the Court of Appeal reversed the judges decision to return T to Spain finding that, so robust and determined were Ts objections, they should be given very considerable weight. The Court of Appeal concluded that the appropriate course was to remit to the judge the question whether it would be intolerable to return the three younger children to Spain in light of the fact that T was not going to go with them. The Court of Appeal dismissed the appeals not only of L and A but also of T against the High Courts failure (in Ts case, refusal) to make them parties to the proceedings. The Supreme Court unanimously finds that Ts assertions about her state of mind during her residence in Spain in 2012 are relevant to a determination whether her residence there was habitual. The Supreme Court sets aside the conclusion that T was habitually resident in Spain on 5 January 2013 and remits the issue to the High Court for fresh consideration. The Supreme Court also sets aside the finding of habitual residence in respect of the three younger children so that the issue can be reconsidered in relation to all four children. The Supreme Court unanimously also concludes that T should have been granted party status and that the Court of Appeal should have allowed her appeal against the judges refusal of it. Lord Wilson gives the lead judgment of the Court. Courts are now required, in analysing the habitual residence of a child, to search for some integration of her in a social and family environment [34]. Where a child goes lawfully to reside with a parent in a state in which that parent is habitually resident it will be highly unusual for that child not to acquire habitual residence there too. However, in highly unusual cases there must be room for a different conclusion, and the requirement of some degree of integration provides such room [37]. No different conclusion will be reached in the case of a young child. Where, however, the child is older, particularly where the child is or has the maturity of an adolescent, and the residence has been of a short duration, the inquiry into her integration in the new environment may warrant attention to be given to a different dimension [37]. Lady Hale, with whom Lord Sumption agrees, would hold that the question whether a childs state of mind is relevant to whether that child has acquired habitual residence in the place he or she is living cannot be restricted only to adolescent children [57]. In her view, the logic making an adolescents state of mind relevant applies equally to the younger children, although the answer to the factual question may be different in their case [58]. The Court notes that what can be relevant to whether an older child shares her parents habitual residence is not the childs wishes, views, intentions or decisions but her state of mind during the period of her residence with that parent [37]. The Court rejects the suggestion that it should substitute a conclusion that T remained habitually resident in England on 5 January 2013 [42]. The inquiry into Ts state of mind in the High Court had been in relation to her objections to returning to Spain and was not directly concerned with her state of mind during her time there [42 (i)]. In addition, the mother has not had the opportunity to give evidence, nor to make submissions, in response to Ts statements to the Cafcass (Children and Family Court Advisory and Support Service) officer regarding her state of mind when in Spain [42 (v)]. Lady Hale expresses grave doubts about whether sending the case back to the High Court for further enquiries into the childrens states of mind would be a fruitful exercise [67]. However, in the interest of justice, she concludes that it should nonetheless be sent back [86]. The majority do not think the state of mind of L or A could alone alter the conclusion about their integration in Spain, but note another significant factor, namely the presence of their older sister, T, in their daily lives [43]. In relation to the habitual residence of the three younger children and in the light of their close sibling bond, the majority query whether Ts habitual residence in England (if such it was) might be a counterweight to the significance of the mothers habitual residence in Spain [43]. Lady Hale agrees with this analysis when applied to the youngest child. [65]. With regard to the subsidiary appeal, the Court notes that an older child in particular may be able to contribute relevant evidence, not easily obtainable from either parent, about her state of mind during the period in question [49]. However, it is considered inappropriate to hear oral evidence from T even as a party. Instead, a witness statement from T; cross examination of the mother by Ts advocate; and the same advocates closing submissions on behalf of T should suffice to represent her contribution as a party [55].

This appeal is concerned with oral discussions between a property developer and his bank about funding a development at Gleneagles, Perthshire. The central issue in the case, which went to proof before the Lord Ordinary, Lord Glennie, in 2009, was whether, on an objective assessment of what the parties said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the purchase of two development plots but also the construction of a house on each plot. In considering that issue, because the matter is raised on appeal, the court must have regard to the limited power of an appellate court to reverse the findings of fact of the judge who has heard the evidence. Those limits are well known. The House of Lords discussed them in Thomas v Thomas 1947 SC (HL) 45. More recently this court has reiterated those limits in McGraddie v McGraddie 2014 SC (UKSC) 12 and Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203; [2014] 1 WLR 2600 and the Judicial Committee of the Privy Council has made similar comments in Beacon Insurance Company Limited v Maharaj Bookstore Ltd [2014] UKPC 21, at paras 11 17. Those limits apply equally in this court as in other appellate courts. The banks action The Royal Bank of Scotland Plc (the bank) lent Mr Carlyle funds to purchase a development plot but later refused to fund its development. The bank raised an action against him for payment of 1,449,660 and interest on 14 August 2008. Mr Carlyle defended the action and counterclaimed for damages, including for alleged lost profit on the development, in a sum that exceeded what the bank claimed from him. Mr Carlyle depended on bank finance for the proposed development. He alleged that because, as the bank knew, the vendor of the plots of land would insist upon a right to buy back the plots if they were not promptly developed, he had sought and obtained an unequivocal commitment from the bank to fund not only the purchase of the plots but also their development. Having received that commitment, he entered into missives to purchase a plot but the bank, in breach of its promise, refused to fund its development. The Lord Ordinary by order dated 6 October 2009 allowed a preliminary proof before answer of the issues (a) whether or not a collateral warranty was given to Mr Carlyle as averred on Record and (b) whether the bank was personally barred from seeking payment of the sums which it claimed. The latter issue is no longer live. Mr Carlyle was ordered to lead at the proof. He gave evidence himself and called as witnesses his accountant, Colin Hamilton, and the banks principal representative in the transaction, Helen Hutchison, who was the assistant director of commercial banking at its Motherwell branch. The bank chose to lead no evidence although its employees, Rebecca Young and Mark McClymont, were also involved in the transaction. In an interlocutor dated 10 May 2010 the Lord Ordinary declared that the bank was in breach of a collateral warranty in terms of which [it] bound [itself] to make development funding of 700,000 sterling available to [Mr Carlyle] by way of loan for the purposes of the development of plot 5, Queens Crescent, Gleneagles Hotel, Perthshire. The bank appealed that decision but the hearing of the reclaiming motion was delayed by the difficulties which Mr Carlyle faced in obtaining legal representation after his estates were sequestrated on 2 November 2009 and he failed to obtain the recall of his sequestration. By interlocutor dated 12 September 2013 the Second Division of the Inner House allowed the banks reclaiming motion, recalled the Lord Ordinarys interlocutor and continued the cause to ascertain the terms of the decree for payment to be pronounced in favour of the bank. Mr Carlyle appeals to this court. The Lord Ordinarys findings of fact As the Lord Ordinarys findings of primary fact were not in dispute, I will summarise them in order to set out the circumstances. Mr Carlyle was a property developer and had enjoyed the support of the bank since 1991. In 2005 he set up a property development company, Carlyco Limited (Carlyco) to purchase and develop a site at Stewartfield Grove, East Kilbride. In February 2007, Mr Carlyle learned that Gleneagles Hotel proposed to sell two plots of ground at Gleneagles, Perthshire. He proposed to purchase and develop one plot (plot 5) and that Carlyco should purchase and develop the other (plot 2). He and Colin Hamilton prepared a presentation for the bank. On 26 March 2007 they met Ms Hutchison, who represented commercial banking, and Ms Young, who represented private banking. Their proposal was that plot 2 would be purchased for 975,000 and plot 5 for 1,250,000 and that the build cost of each plot would be 700,000. They discussed the requirement in the sales brochure that the dwelling house on each plot had to be wind and watertight and all external finishes and hard landscaping completed by 31 March 2011 so that there would not be half completed houses when the Ryder Cup was staged at Gleneagles golf course. The vendor proposed to secure this requirement by a buy back clause which, in the event of non completion on that date, entitled it to re purchase the site at the original purchase price. The purchaser was not allowed to sell the plots to others unless developed. The buy back clause was discussed and the note of the meeting made it clear that Mr Carlyle specifically and clearly stated that, if the bank was to provide funds for the deposits on the plots, then the balance [of the purchase price] for the plots and the Build/Development Costs must be provided as they needed to be built. Mr Carlyle asked for a full commitment on the proposal or nothing. The note recorded that Ms Hutchison and Ms Young understood this, were enthusiastic about the proposal and would push for its approval by the banks head office. Both Mr Carlyle and Mr Hamilton gave evidence confirming this account of the meeting. Mr Carlyle explained that the funding would be in three stages: deposit, land purchase, and build costs. He gave evidence that he asked the bank not to give him money for the land unless it also gave him money to build. He explained that Ms Hutchison said that the bank would have an appetite for the project, that it would involve both commercial and private banking with the former taking the lead, that she would refer it to head office and that she was aiming to get 100% funding for the project. On 28 March 2007, Mr Carlyle and Carlyco submitted qualified offers to purchase the plots. Mr Carlyle then worked on design options over several weeks during which he had telephone conversations with Ms Hutchison or Ms Young. On 24 April 2007 Mr Carlyle emailed Ms Hutchison to inform her that the vendor would accept his offers at 995,000 for plot 2 and 1,350,000 for plot 5. He required a commitment in principle as the vendor was pressing for completion of the missives and the payment of a 5% deposit. Towards the end of May Ms Hutchison and Ms Young advised that they could advance the deposit moneys in early June. Mr Carlyle informed Ms Young in a telephone call that the deposit money was of no use unless he also got the purchase money and the development funding and that he needed a commitment to the whole proposal. He gave evidence that Ms Young responded that the bank knew that he had made that clear from the outset. When he spoke on the telephone with Ms Hutchison on 5 June 2007 he again made clear his position that the bank should not give the deposit money unless everything was agreed and she replied that the bank would not give money only for the land as that would not make sense for it, especially with the buy back clause. He informed her that he would not pay even the deposit until the bank confirmed that it would provide the development funding. The crucial finding of fact relates to a telephone call on 14 June 2007. In para 15 of his opinion the Lord Ordinary stated: On 14 June 2007 Ms Hutchison telephoned [Mr Carlyle]. [He] described her manner as enthusiastic. she said: Youll be pleased to know its all approved, Edinburgh are going for it for both houses. On the strength of this conversation, he instructed Fiona Bryson, his and Carlycos solicitor, to pay the deposits on the plots. At that point he became committed to the project. Counsel, clarifying that finding, informed this court that the deposits were paid on 14 June 2007, which was before the conclusion of the contract to purchase plot 5. The Lord Ordinary also recorded Ms Hutchisons evidence to the effect that Mr Carlyle was told on various occasions that funding for the development would be advanced. She knew of the buy back clause and was aware that the bank would need to fund the development costs. She recalled Mr Carlyle saying to her that the bank should not give any funding unless it agreed to fund the development costs. She thought that she had spoken only of approval of funding the purchase of the plots in the telephone conversation of 14 June 2007. Her position was that the bank had an appetite to fund the development but that the level of funding had not been discussed. She stated that there was a general understanding that there would be development funding at some level, but that the details had to be worked out. In her credit submission to headquarters she had commented that the bank would be approached for future development funding but she had not submitted a request for development funding before the purchase of the plots. The Lord Ordinary accepted the evidence of Mr Carlyle and Mr Hamilton as credible and reliable. He preferred Mr Carlyles evidence to that of Ms Hutchison where they differed and in particular preferred Mr Carlyles account of the telephone conversation on 14 June 2007. In findings of secondary fact (which the bank contests) he stated at para 32 of his opinion that Mr Carlyle was fully justified in believing from the telephone conversation of 14 June 2007, set in the context of the previous discussions, that the bank was committing itself to advancing the purchase price and providing a facility for the build cost. He held (para 33) that Ms Hutchisons statement on 14 June 2007 would have made this clear to Mr Carlyle and that Ms Hutchison ought to have realised this even if she did not intend to convey that impression. He concluded (para 41) that the bank had committed itself to provide funding for the development of plot 5 in an amount up to 700,000. Lord Glennie also recorded the evidence on subsequent events. On 20 June 2007 Ms Hutchison telephoned Mr Carlyle and on the following day he met her to sign indicative terms for the provision of 2.35m to fund the purchase of the two plots. The indicative terms proposed that the facility be reduced to 700,000 by the sale of another development which Mr Carlyle had undertaken at Countess Gate, Bothwell and personal funding by private banking of the purchase of plot 5. It listed as securities the existing securities over the Bothwell development and proposed standard securities over the two plots at Gleneagles as well as a personal guarantee by Mr Carlyle for Carlycos indebtedness. In this action the court is not concerned with the lending to Carlyco but only with the sums advanced to Mr Carlyle personally. On 24 and 25 July 2007 in two loan agreements for 845,000 and 560,000 respectively, the bank gave Mr Carlyle secured personal loans to fund the purchase of plot 5. The repayment date was 12 months after draw down and the loans were interest only mortgages secured over the Bothwell development and plot 5. Interest was at 2% over the banks base rate. Shortly after Mr Carlyle concluded missives to purchase plot 5, Ms Hutchison left her employment at the bank. Mr Carlyle drew down the loan funds and acquired plot 5. He communicated with Mr McClymont, who in December 2007 asked him when he would need the development funding. He also communicated with Ms Hutchisons successor, Louise Burnet, and also Ms Young. In June 2008 he was told that banking management had been transferred to specialised lending services in Edinburgh. After further discussions the bank made it clear in August 2008 that it would not provide funding for the development. It promptly called in the loan and commenced this action. The Lord Ordinary, for completeness, also discussed the banks internal documents between paras 26 and 30 of his opinion. They showed how bank officials thought that sale of a property at Countess Gate, Bothwell would remove Mr Carlyles personal borrowing and with the sale of Carlycos Stewartfield development contribute to the funding of the Gleneagles project, thereby reducing what the bank would have to provide. The documents included a sanction summary sheet dated 2 May 2007 which showed that private banking were prepared to provide 2.01m for plot 5, which included the estimated 700,000 needed to develop the site, and that it would receive the sale proceeds of 11 Countess Gate, Bothwell. The decision of the Inner House The Second Division (the Lord Justice Clerk, Lady Dorrian and Lord Bracadale) disagreed with the Lord Ordinary. They held: (i) that on a proper objective analysis Ms Hutchisons telephone statement on 14 June 2007 was simply informing Mr Carlyle of an internal decision to approve the funding in principle (paras 57 and 61); that the prior transactions between the bank and Mr Carlyle and also the events after the telephone conversation of 14 June 2007 (in particular the signing of the indicative terms and the written loan agreements) showed that the bank was not under any legal obligation until there was a written loan agreement (paras 57 and 62 63); this was consistent with normal banking practice (para 60); and that the alleged promise or warranty was not legally effective as the parties had not agreed terms that were essential to the loan contract including maximum draw down, interest rates, time of draw down, method and time of repayment, and securities (para 58). (ii) (iii) The Second Division also commented on a pleading point, namely that Mr Carlyle had pleaded a collateral warranty rather than a promise to provide the full funding for plot 5 (para 59). But the court did not decide the appeal on the basis of that point. The banks case on appeal In his defence of the Inner Houses opinion in this appeal, Mr Richard Keen QC for the bank addressed the guidance in Thomas v Thomas and other cases on the role of an appellate court. He submitted that the Lord Ordinary was not entitled on the evidence to find in fact that the bank had made an oral commitment to provide the funding for plot 5. He submitted, first, that the Lord Ordinary had accepted Mr Carlyles evidence that characterised what Ms Hutchison said in the telephone call on 14 June 2007 as an agreement in principle to the funding. That was a primary finding of fact which, he submitted, could not support an inferential finding of an intention on the banks part to be legally bound by an oral promise in the telephone call. Secondly, he stressed that at the time of the alleged promise, the cost of developing plot 5 was unknown; thus there was no agreement as to the amount of the loan. There was no evidence from Mr Carlyle that the bank had agreed to advance up to 700,000 for the development; that sum was merely an early estimate of the development cost. Thirdly, he submitted that there was no basis for the Lord Ordinarys finding (in para 40 of his opinion) that Mr Carlyle was entitled on 14 June 2007 to take the view that the bank had already taken into account the extent of his overall indebtedness to it. That could not be so: the bank needed to ascertain the outcomes from Carlycos and Mr Carlyles developments at Stewartfield, East Kilbride and Bothwell respectively, before it could ascertain the extent of Mr Carlyles indebtedness. Discussion (i) The role of the appellate court Were I deciding the matter at first instance and if the findings of fact record all the material evidence, I think that I might have shared the view of the Second Division (a) that the statement by Ms Hutchison on 14 June 2007 did no more than communicate to Mr Carlyle that the bank had reached a decision in principle to provide funding for the development of the two plots and (b) that the parties were required to take further steps to create a legally binding obligation on the bank to advance that funding. But deciding the case as if at first instance is not the task assigned to this court or to the Inner House. It is not appropriate to restate at any length in this judgment the dicta from prior cases which this court recently set out in McGraddie v McGraddie (at paras 1 4) and discussed in Henderson v Foxworth Investments Limited (at paras 61 68). In Thomas v Thomas the House of Lords re asserted the need for an appellate court to defer to the findings of fact of the first instance judge unless satisfied that the judge was plainly wrong (Lord Thankerton at p 55, and Lord MacMillan at p 59). Lord Du Parcq expressed himself differently but to similar effect when he quoted (at pp 62 63) Lord Greene MR in Yuill v Yuill [1945] P 15 (at p 19): It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest considerations, that it would be justified in finding that the trial judge had formed a wrong opinion. Lord Reed summarised the relevant law in para 67 of his judgment in Henderson in these terms: It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified. When deciding that a judge at first instance who has heard the evidence has gone plainly wrong, the appeal court must be satisfied that the judge could not reasonably have reached the decision under appeal. The rationale of the legal requirement of appellate restraint on issues of fact is not just the advantages which the first instance judge has in assessing the credibility of witnesses. It is the first instance judge who is assigned the task of determining the facts, not the appeal court. The re opening of all questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources for what would often be negligible benefit in terms of factual accuracy. It is likely that the judge who has heard the evidence over an extended period will have a greater familiarity with the evidence and a deeper insight in reaching conclusions of fact than an appeal court whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence. On these matters see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911, Lord Wilson at para 53; the US Supreme Court in Anderson v City of Bessemer 470 US 564 (1985), pp 574 575; and the Canadian Supreme Court in Housen v Nikolaisen 2002 SCC 33, para 14, to all of which Lord Reed referred in paras 3 and 4 of McGraddie. (ii) The opinion of the Second Division In my view Mr Roddy Dunlop QC was correct in his submission that the Second Division has disagreed with the Lord Ordinary on questions of fact without facing up to the restricted role of the appellate function on such questions. The Second Division referred to evidence which the Lord Ordinary had not recorded in his judgment, including certain provisions in the indicative terms which Mr Carlyle signed on 21 June 2007 which required the satisfaction of conditions precedent (para 16) and certain terms in the loan agreements which he signed on 24 and 25 July 2007 which stated among other things that the borrower was not bound by the loan until he had signed the agreements (para 19). The court stated, correctly, that those documents could not be dismissed as mere paperwork which was how a businessman such as Mr Carlyle might have viewed them. But they do not undermine the Lord Ordinarys findings of fact as (a) there is no basis for thinking that the Lord Ordinary had not considered their terms and (b) Lord Glennies finding that there was a binding undertaking on 14 June 2007 to provide both purchase finance and development funding is not inconsistent with the view that that undertaking was superseded but only so far as the purchase finance by the subsequent loan agreements of 24 and 25 July 2007. I turn to the three grounds of the Second Divisions decision which I summarised in para 18 above. The first ground was that on a proper analysis of the parties dealings and in particular the telephone call, at most Ms Hutchison was informing Mr Carlyle of a decision in principle and not creating a legal obligation to advance millions of pounds. This overlaps with the second ground as the Second Division prayed in aid the prior dealings of the parties in which the bank agreed in principle to provide funding and then negotiated separate funding packages for the purchase of land and for its development. The court held that the subsequent signing of the indicative terms and the loan agreements for the purchase price in the Gleneagles transaction followed the same pattern. In my view it was open to the Lord Ordinary to have interpreted the evidence in that way and conclude that there was no binding commitment; but he did not have to. It was not suggested that Mr Carlyle was exposed to buy back clauses in the earlier transactions. Further, the fact that parties envisage or agree that their agreement will be set out in a formal contract does not by itself prevent their agreement from having legal effect until then (Stobo Limited v Morrisons (Gowns) Limited 1949 SC 184, Lord President Cooper at p 192). Instead Lord Glennie in assessing the objective meaning of the telephone call on 14 June 2007 gave weight to the unusual circumstances of the buy back clause, to Mr Carlyles repeated requests for a commitment to fund both purchase and development and to the banks undisputed knowledge of those requests. It cannot be said that the evidence could not support the Lord Ordinarys view. Absent some legal error elsewhere in his reasoning, there was a reasonable basis for his finding that on an objective analysis the bank made a legally binding promise to fund the development of plot 5 in the telephone call of 14 June 2007. The second ground rested in part on the improbability, in the absence of special circumstances, that a bank would bind itself to advance up to 3.745m (to Mr Carlyle and Carlyco) without setting out the terms and conditions of the loans in writing. It also rested on Mr Carlyles awareness that he would have to sign a loan agreement before he received funding and his subsequent signing of the indicative terms and then the loan agreements to fund the purchase price. In relation to the first point it is notorious that the prudence which historically has been attributed to Scottish bankers was not always in 28. evidence in commercial and mortgage lending in the years leading up to financial crisis in 2008. As regards the second point, the parties knowledge throughout the transaction that the bank would prepare formal loan agreements before it advanced funds is an indicator which could point against the earlier creation of binding legal obligations. But, as I have said, that is not conclusive; in each case it is a question of fact (Stobo Limited at p 192). The Lord Ordinary was entitled to conclude that Mr Carlyle sought and obtained from the bank a legally binding commitment to provide funding for the purchase and the development in order to enable him to commit himself to pay the deposit and buy the plot. His and the banks shared knowledge that the commitment would eventually be superseded by more detailed loan agreements in relation to the purchase price and then in relation to the development of the site did not prevent the earlier commitment from having effect as a legally binding promise. included this statement: Without specification of the essential elements of [the provision of banking facilities] (including the maximum draw down, interest rates, time of draw down, method and time of repayment and securities), there could be no concluded agreement capable of enforcement. Mr Dunlop QC challenged this statement as a legal error. He referred to the decision of the House of Lords in Neilson v Stewart 1991 SC (HL) 22 in which it was held that in Scots law the contract of loan implied an obligation to repay and did not require express terms as to the rate of interest or the date of repayment. In this case the parties to the loan were clearly identified and the parties had proceeded on the basis that Mr Carlyle would need up to 700,000 for the development of plot 5. Mr Keen QC did not dispute that it was possible to have a valid contract of loan without an express statement of the elements which the Second Division had listed. He suggested in his written case that the Second Division had been considering what the parties would have treated as essential to their bargain in this case and not what were the bare essentials of a contract of loan in the general law. I think that Mr Keen QC was correct in his interpretation of what the Second Division was saying in para 58 as it is very unlikely that they disregarded Neilson v Stewart, to which they were referred, or thought that the listed elements had to be specified in all contracts of loan. But that does not assist the bank. While it was Ms Hutchisons evidence that she understood that the details of the loan had still to be worked out after the banks decision to 29. support the purchase and development of plot 5, neither party gave evidence of any understanding that it was necessary to agree these elements in this transaction before legally binding obligations could arise or of the communication of that understanding to the other party. The Second Division spoke of what the informed observer would expect. In other words the court made its own assessment of what was needed in this case to create a binding contract of loan. The court did not address whether and if so why the Lord Ordinary was not entitled to reach a contrary conclusion on what was an issue of fact, namely whether on an objective assessment the bank intended to make a legally binding promise to provide development funding. I am therefore satisfied that the Second Division did not have an adequate basis for overturning the Lord Ordinarys findings of fact. In reaching that view I do not shut my eyes to the relatively ill defined nature of the obligation to provide the development funding. The Lord Ordinary addressed the issue of legal certainty at para 42 of his opinion and reached the view, with which I agree, that it would have been possible to frame a decree of specific implement to require the bank to make available a facility of up to 700,000. He expressed the view that the rate of interest was never going to be an issue as the parties knew the rates applied to other loans. He also stated that the term of the loan was not likely to be a real issue. While he did not explain the latter comment, I interpret it as referring to the known time constraints on the development of the plot and to the fixing of a reasonable period for the completion and sale of the house. I detect no error in this. Once he was satisfied that the bank had had the intention to make a legally binding promise, he was entitled and indeed required to look for ways to give effect to that promise. In Fletcher Challenge Energy Limited v Electricity Corporation of New Zealand Limited [2002] 2 NZLR 433, the Court of Appeal of New Zealand stated in the majority judgment at para 58: The Court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the Courts attitude will change. It will then do its best to give effect to their intention and, if at all possible, to uphold the contract despite any omissions or ambiguities (Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503; [1932] All ER 494, R & J Dempster Ltd v The Motherwell Bridge and Engineering Co Ltd 1964 SC 308 and Attorney General v Barker Bros Ltd [1976] 2 NZLR 495). I agree with that statement which supports Lord Glennies approach, although there may need to be further evidence in the next stage of this case about the prior dealings between the parties and any shared understandings in order to determine what terms are to be included by implication. 30. 31. 32. (iii) Mr Keen QCs additional points I am not persuaded by any of the additional points which Mr Keen QC raised and which I set out in para 19 above. In relation to the first, the finding of fact about an agreement in principle (para 17 of the Lord Ordinarys opinion) related to Mr Carlyles evidence about the earlier project in Stewartfield in a context in which he was explaining why the request to sign the indicative terms in the Gleneagles transaction did not cause him concern that he might not already have a commitment from the bank. He was saying that he expected to sign such documents in the Gleneagles transaction. In my view the context of the Stewartfield transaction may have been quite different from the Gleneagles transaction as there was no evidence in the former transaction of a buy back clause which would have prevented Mr Carlyle from selling on an undeveloped site and which caused him in the latter transaction to seek a binding funding commitment from the bank. His reference to agreement in principle or commitment in principle does not undermine his repeated assertion that he had asked for and received a clear commitment from the bank. Those phrases were in any event consistent with an understanding that the precise sum which he would require to borrow would depend upon the income which he received from his other transactions by the time he needed the development funds. I accept Mr Dunlop QCs answer to the second point: the bank were well aware of the estimated cost of 700,000 and private banking processed the application to fund plot 5 on that basis before Ms Hutchison communicated the banks decision on 14 June 2007. I am also not persuaded by the third point. Until the developments at East Kilbride and Bothwell had been sold, the bank could only estimate the sale proceeds and therefore the sums it would have to advance for the Gleneagles project. But the bank took a view on the expected proceeds of those sales in estimating the likely extent of the lending required and proposed to protect itself in the interim by securities over all of the properties and the guarantee by Mr Carlyle. (iv) A collateral warranty 33. The pleading of a collateral warranty became a distraction in this case. It was not used as a term of article Either promise or unilateral undertaking would have been a suitable choice of words for the independent legal obligation which Mr Carlyle was asserting. The addition of the word collateral while descriptive of context, would have added nothing to the legal analysis. As the Lord Ordinary said in para 37 of his opinion, there is no magic in a collateral contract. It is simply a contract which is governed by the same rules as other contracts. 35. 34. Whether one views the undertaking as a promise to provide the development funds if he purchased the plot (as I prefer) or (as Mr Dunlop QC argued) as an obligation in a bilateral contract which became binding when Mr Carlyle borrowed the purchase funds and purchased the site does not give rise to a different answer to the question: did the bank intend to enter into a binding legal commitment?. In English contract law, the doctrine of consideration requires the recipient of the representation or promise to give consideration by entering into the envisaged other contract in order to make the representation or promise a binding contractual obligation. This appears to be behind the approach of the English courts to collateral contracts as in Dick Bentley Productions Limited v Harold Smith (Motors) Limited [1965] 1 WLR 623, Lord Denning MR at p 627; J Evans & Son (Portsmouth) Limited v Andrea Merzario Limited [1976] 1 WLR 1078, Lord Denning MR at p 1081F. In Scots law a unilateral undertaking that is intended to have legal effect, such as a promise, is binding without consideration passing from the promisee. The promise may but does not need to be collateral to another contract. The issue is simply whether a legally binding obligation has been undertaken. As in the formation of other contracts the court applies an objective test, asking what a reasonable outside observer would infer from all the circumstances. In this case Mr Carlyles proposal to enter into a contract to purchase plot 5 and, because of the buy back clause, his clearly expressed unwillingness to do so unless the bank provided development funding as well as purchase funding formed important elements of the factual context in which the Lord Ordinary assessed the legal nature of the banks statement on 14 June 2007. That was the important point. The statement that the bank would provide the development funding induced him both to contract to purchase the plot and enter into the loan agreements which funded that purchase. It is legitimate to describe the promise to provide development funding as collateral to the other agreements. But, as I have said, that does not affect the legal analysis in Scots law. (v) The banks application to amend 36. 37. The bank stated in its written case that it did not insist on its minute of amendment. Conclusion 38. I would allow the appeal, set aside the interlocutor of the Second Division dated 12 September 2013 and 3 October 2013, and remit the case to a commercial judge in the Court of Session to proceed accordingly. The Second Divisions third ground was stated in para 58 of their opinion.

UK-Abs

The appellant, Mr Carlyle, is a property developer. In 2007 he purchased a plot of land for development at Gleneagles, Perthshire from the Gleneagles Hotel. He had to complete the construction of a new house on the plot by 31 March 2011, before the Ryder Cup was due to be staged at Gleneagles golf course. The purchase was subject to a buy back clause entitling the vendor to re purchase the plot for the original price if the construction was not completed on time [9]. Mr Carlyle funded the purchase by taking a loan from the respondent, The Royal Bank of Scotland Plc (the bank). On 26 March 2007 Mr Carlyle met with representatives of the bank to discuss the proposed loan. The buy back clause was discussed and Mr Carlyle made it clear that he would need to borrow money to build the house as well as to purchase the plot [9]. In subsequent telephone calls he reiterated that the bank should not lend him the purchase money unless it was also committed to providing him with development funding [10]. On 14 June 2007 the banks representative told him by telephone that his proposal was all approved and Mr Carlyle accordingly paid a deposit to the vendor to secure the purchase [11]. In August 2008 the bank informed Mr Carlyle that it would not provide funding for construction and called in the loan. On 14 August 2008 the bank raised an action against Mr Carlyle for the payment of 1,449,660 plus interest. Mr Carlyle defended the action and counter claimed for his loss of profit on the development [3]. The central issue in the case was whether, on an objective assessment of what the parties said to each other, the bank intended to enter into a legally binding promise to lend Mr Carlyle money for not only the purchase but also the development of the plot [1]. On 10 May 2010 the Lord Ordinary declared the bank was in breach of a collateral warranty to make development funding of 700,000 available to Mr Carlyle [5]. He held that the telephone conversation of 14 June 2007, set in the context of the previous discussions, represented a commitment by the bank both to advance the purchase price and to provide a facility for the build cost [13]. The bank appealed. On 12 September 2013 the Second Division of the Inner House allowed the banks reclaiming motion [6], holding that: (i) in the conversation of 14 June 2007 the bank had simply informed Mr Carlyle of an internal decision to approve funding in principle; (ii) the bank was not under any legal obligation until there was a written loan agreement; and (iii) the alleged promise was legally ineffective because essential terms, including the maximum draw down, had not been agreed [18]. Mr Carlyle appealed to the Supreme Court. The Supreme Court unanimously allows the appeal, sets aside the interlocutor of the Second Division and remits the case to a commercial judge in the Court of Session to proceed accordingly [38]. Lord Hodge, with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agree, gives the judgment. Lord Hodge notes the limited power of an appellate court to reverse the findings of fact of the judge who has heard the evidence [2]. He comments that had he been deciding the matter at first instance, and if the findings of fact record all the material evidence, he might have shared the view of the Second Division that the bank had not entered into a legally binding obligation to provide the development funding [20]. However, when deciding that the trial judge has gone plainly wrong, the appeal court must be satisfied that the judge could not reasonably have reached the decision under appeal [21]. The rationale for this is both that the judge who has heard the evidence will have a deeper insight in reaching conclusions of fact and the different role assigned to the appellate court [22]. The Second Division disagreed with the Lord Ordinary on questions of fact without facing up to the restricted role of the appellate function on such questions [23]. The Lord Ordinary had a reasonable evidential basis for finding on an objective analysis that the bank made a legally binding promise in the telephone call of 14 June 2007 to provide development funding. He might have interpreted the evidence differently and concluded that there was no binding commitment, but he did not have to [25]. The fact that parties envisage that their agreement will be set out in a formal contract in the future does not, by itself, prevent that agreement from taking legal effect [25]. Although Mr Carlyle and the bank knew that the 14 June 2007 commitment would be superseded by more detailed loan agreements, this did not prevent it from having effect as a legally binding promise [26]. The fact that a previous loan transaction between Mr Carlyle and the bank had been conducted differently was not relevant, because in the earlier transaction there had been no buy back clause [30]. It was open to the Lord Ordinary to reach the conclusion he did despite the relatively ill defined nature of the obligation to provide the development funding [29]. The parties had proceeded on the basis that Mr Carlyle would need up to 700,000 for the development of the plot [27]. They were aware of the rates of interest applied to other loans, and the time constraints on the development of the plot [29]. Once the Lord Ordinary was satisfied that the bank had the intention to make a legally binding promise, he was entitled and indeed required to look for ways to give effect to that promise [29]. The pleading of a collateral warranty became a distraction in this case. It was not used as a term of article Either promise or unilateral undertaking would be a suitable description for the independent legal obligation under consideration [33]. In English contract law, the doctrine of consideration gives rise to the concept of a collateral contract, in which one partys promise or representation is given in exchange for the other party entering into the envisaged (separate) contract. In Scots law a unilateral undertaking that is intended to have legal effect, such as a promise, is binding without consideration passing from the recipient of that promise. The promise may be, but does not need to be, collateral to another contract. The issue is simply whether a legally binding obligation has been undertaken [35].

These appeals are concerned with the procedure followed when a prisoner is kept in solitary confinement, otherwise described as segregation or removal from association. The principal question raised is whether decisions to keep the appellants in segregation for substantial periods were taken lawfully. Before the courts below, the arguments focused on the procedural requirements of article 6.1 of the European Convention on Human Rights (the ECHR). Before this court, the primary focus of the parties printed cases was upon the requirements of procedural fairness at common law. During the course of the hearing, however, a different issue came to the forefront, namely whether the segregation was authorised as required by the applicable legislation. For the reasons I shall explain, I have concluded that it was not. In the light of that conclusion, the question whether the requirements of procedural fairness were met does not affect the outcome of these appeals. Nevertheless, the nature of those requirements in this context is a question of general public importance, which has divided judicial opinion and was fully and carefully argued in these appeals. In the circumstances, it is appropriate that this court should deal with it. It may be helpful to begin, however, by summarising the relevant factual background, considering first the history of events, and then the conditions of segregation. The first appellant: the history of events In 2010 the first appellant, Kamel Bourgass, was a prisoner in HMP Whitemoor, which is a high security prison. He was serving a life sentence for the murder of a police officer, concurrent sentences for the attempted murder of two other officers and the wounding of a third, and a 17 year sentence for being part of a terrorist conspiracy to commit public nuisance by the use of poisons and/or explosives. On 10 March 2010 Bourgass was the victim of an assault by another prisoner named Sahebzadeh. Bourgass was then segregated under rule 45(1) of the Prison Rules 1999 (SI 1999/728) (the Rules), for reasons of good order and discipline. He was charged with an offence against discipline, it being alleged by a prison officer that he had been fighting with Sahebzadeh. He appeared before a governor the following day, when he denied the charge and was remanded. Bourgasss segregation was reviewed after 72 hours, on 13 March 2010, and thereafter at fortnightly intervals, on 23 March and 6 April 2010. The review was carried out by a Segregation Review Board (SRB). On each occasion, authority for continued segregation was given, purportedly in compliance with rule 45(2), by the senior prison officer who chaired the SRB (the officer on two of these occasions being Mr Colley, the challenging prisoners manager), on the ground that the investigation into the incident had not yet been completed. On 20 April 2010 Bourgass was found not guilty of the disciplinary charge. On 22 April 2010 he was removed from segregation. In a memorandum of the same date, he was notified by the head of security at the prison that intelligence suggested that he held extreme views, that he exerted a significant influence over other prisoners, and that we suspect you of being linked to threats to other prisoners. In a letter dated 14 May 2010, the prison informed Bourgasss solicitors that he had been kept in segregation during that period as he was influencing other prisoners in their activities. On 23 April 2010 Sahebzadeh was seriously assaulted. Bourgass was not present. He was however segregated under rule 45(1) on the orders of Mr Colley, the reason given being that it was for the maintenance of good order and discipline pending an investigation into a serious assault. Authority for continued segregation was given on 26 April 2010 by another officer, the same reason being given. The assault was referred to the police for investigation. On 29 April 2010 Bourgasss solicitor, Mr Guedalla, wrote to the governor pointing out that his client had not been present at the time of the assault, and requesting an outline of the evidence relied on to justify his segregation. In a letter dated 30 April 2010, the dynamic security governor, Mr Garvie, stated that although not in the area of this assault we believe your client, along with others was behind this assault and as such his presence on normal location poses a threat to the good order and discipline of the Establishment. On 4 May 2010 authority for Bourgasss continued segregation was given by Mr Colley on the ground that you were involved in a serious assault. At about the same time Bourgass was referred for an assessment for transfer to the Close Supervision Centre (CSC), which houses prisoners considered too dangerous and challenging to be held in ordinary locations. On 12 May 2010 Mr Guedalla wrote again asking for information about the evidence relied on. On 14 May 2010 the prison replied, stating that Bourgass was being held in segregation due to his involvement in the planning of an assault on another prisoner [which] is currently being investigated by the police. Continued segregation was authorised on 18 May 2010 pending an investigation into a serious assault. In a letter of the same date, Mr Guedalla again requested an outline of the evidence relied on. On or before 20 May 2010 the police indicated that they did not regard Bourgass as a suspect in connection with the assault on Sahebzadeh, and that he was no longer the subject of investigation by them. Mr Guedalla then wrote to the governor again, referring to the outcome of the police inquiries and requesting disclosure of the reasons for any further segregation, and of the evidence relied on to support it. The prison replied by letter dated 26 May 2010, stating that the investigation was still ongoing. In a letter to Mr Guedalla dated 28 May 2010, Mr Colley stated that Bourgass is a prisoner we believe to hold extremist views and has an influence over other prisoners, that he was being referred to the CSC, and that he would remain segregated until the result of that referral was known. On 1 June 2010 Bourgasss continued segregation was authorised by Mr Colley, the reason given being that you are an unacceptable risk to other prisoners. Mr Colley authorised continued segregation again on 15 June 2010, the reason given being pending CSC referral and investigation. He authorised continued segregation again on 29 June 2010, giving the reason you are being investigated for a serious assault, and again on 13 July 2010, giving as his reason that you were involved in a very serious assault. Continued segregation was again authorised on 27 July 2010 by another officer, on the ground that a final decision was awaited on the CSC referral. In the meantime, Mr Guedalla had initiated judicial review proceedings, which were listed for a hearing on 4 November 2010. On 17 June 2010 the Secretary of State filed a response which said that Bourgass was not being segregated simply because he may be responsible for the assault, but because, for numerous reasons, he is considered to pose an unacceptable risk on normal location. The additional reasons were based on intelligence that he had been involved, prior to the commencement of his segregation on 10 March 2010, in intimidating other prisoners to change faith, and forcing other prisoners to join in prayer sessions and to refrain from eating certain foods for religious reasons. On 2 August 2010 the Secretary of State filed detailed grounds of defence, which disclosed that the basis upon which Bourgass was suspected of involvement in the assault on Sahebzadeh was principally that, during the morning prior to the assault, he had been seen on CCTV speaking to the perpetrator of the assault. It is difficult to understand why that information, and indeed the CCTV footage itself, had not been provided during the previous three months. The Secretary of State also filed a witness statement of Mr Garvie, who stated that Bourgass had been transferred to Whitemoor in the first place because of his perceived influence over other prisoners at his previous prison and suspicion that he was bullying and intimidating other prisoners there. On his arrival at Whitemoor, he had been placed on the prisons anti bullying regime but, according to Mr Garvie, had failed to engage with it and had continued his attempts to intimidate other prisoners. His initial segregation after the incident on 10 March 2010 had been a reaction to that incident, but it had been decided that he should remain in the segregation unit because it was believed that his attempts to influence other prisoners had caused Sahebzadeh to assault him out of frustration. There had been an escalation in violence within the prison that involved prisoners being pressurised into assaulting other prisoners for faith related reasons. It was believed that Bourgass was involved in this. Following his removal from segregation on 23 April 2010, he had again been segregated because he was known to have met the perpetrator of the assault which took place that day, there was intelligence suggesting that he had been involved in the organisation of that assault as retaliation for the previous assault on himself, and there was intelligence suggesting that he had influence over other prisoners. These factors, combined with his history of violence and intimidation, led to the conclusion that he could no longer be managed on normal location. At the meeting of the SRB on 4 May 2010, it had been decided that he should be referred to the CSC. If the CSC referral were refused, Mr Garvie stated, Bourgass would have to be moved to another establishment. Mr Garvie also disclosed that the prison authorities had decided that there was insufficient evidence to bring a disciplinary charge against Bourgass in relation to the assault on Sahebzadeh. They nevertheless considered, on the basis of his history, as well as their suspicion as to his involvement in the organisation of the assault on Sahebzadeh, that there would be a significant risk to the safety of other prisoners if he were returned to normal location. Continued segregation was authorised on 10 August 2010, the reason given being that you are down as a threat to other prisoners and we are awaiting a referral to CSC. On 24 August 2010 continued segregation was again authorised, the reason given being that your behaviour is deemed to be unsuitable for normal location and have been referred to CSC (sic). It was said that he would remain in segregation until the outcome of the referral. On 7 September 2010 continued segregation was authorised by Mr Colley, who reverted to the reason, pending an investigation into a serious assault. On 15 September 2010 the CSC Management Committee decided not to accept Bourgasss referral to the CSC, in the light of a report by the Central Case Management Group, a body within the prison service but external to Whitemoor. Its report stated that the referral was primarily based on alleged violence towards prisoners, with reference to the assault on Sahebzadeh. The report concluded, however, that the referral did not provide sufficient evidence to justify selection for the CSC. It noted that no internal investigation was being carried out into the assault on Sahebzadeh, and that the police did not consider Bourgass to have been involved. As to the allegations of intimidation, it stated that there is very little that shows he is intimidating others. On 21 September 2010 continued segregation was authorised, the reason given being that you will be transferred to another establishment, as we feel you would be a disruptive influence on normal location at Whitemoor. Mr Guedalla wrote to the Treasury Solicitor on 22 September pointing out that one reason which had sometimes been given for Bourgasss segregation, namely involvement in the assault on Sahebzadeh, had been rejected by the police after investigation, and that another, the need to await the outcome of the referral to the CSC, had been superseded. Bourgass had been held in segregation for a period of over seven months, apart from a 24 hour period on 22/23 April 2010. Mr Guedalla reminded the Treasury Solicitor of concerns that had been expressed by the senior forensic psychologist at Whitemoor about the potential effect of prolonged segregation on Bourgasss mental health. On 5 October 2010 continued segregation was authorised, the reason given being that we are trying to transfer you. On 3 November 2010, the day before the judicial review hearing, Bourgass was transferred to HMP Woodhill. He had been in segregation almost continuously since 10 March 2010. On arrival at Woodhill, he was removed from segregation and placed on normal location. The application for judicial review was heard together with that of the second appellant by Irwin J, who dismissed both applications: [2011] EWHC 286 (Admin). Their appeals to the Court of Appeal were heard together with that of a third appellant named King. All three appeals were dismissed: [2012] EWCA Civ 376; [2012] 1 WLR 3602. The conditions of the first appellants segregation During segregation, Bourgass was locked in his cell for 23 hours a day, and was denied association with other prisoners. He was allowed out of his cell for exercise, which he took alone in a caged area. He was unable to participate in activities which involved association with other prisoners, such as work, education and communal religious services. Prisoners in segregation could however have access to education courses in their cells. He was permitted visits, but not physical contact with visitors, until that restriction was lifted during July 2010. He saw a member of the chaplaincy from time to time. He also saw members of staff of the segregation unit when they opened the door to his cell at mealtimes. He was permitted books and a radio, and also had the opportunity to have a television if he displayed consistently good behaviour and a good attitude. The second appellant: the history of events In 2010 the second appellant, Tanvir Hussain, was a prisoner in HMP Frankland, which is another high security prison. He was serving a life sentence, having been convicted of involvement in a terrorist conspiracy. On 26 April 2010 Hussain was placed in segregation under rule 45 on the orders of the residential governor of the prison, Mr Greener, following an incident in which another prisoner, Aslan, was seriously injured. The reason given was to ensure the safety of others and to maintain good order. Disciplinary proceedings also began on the same date, in which it was alleged that Hussain had assaulted Aslan. He was provided with a report by a prison officer who said that he had seen Hussain assaulting Aslan and had heard him make an incriminating remark. The adjudicator decided to refer the matter to the police, and adjourned the adjudication. On 27 April 2010 Hussains continued segregation was authorised by an officer on the ground that following an alleged recent assault on a fellow prisoner we need to assess your risk and future location. A further continuation was authorised on 5 May 2010 by Mr Greener, the reason given being the risks you pose to others. A further continuation was authorised on 19 May 2010, due to the serious nature of the incident you were involved in on J Wing and the risk you pose to others. Hussains solicitor, Mr Guedalla, wrote to the governor the same day requesting an explanation of why it was necessary for Hussain to be kept in segregation, and for an outline of any evidence relied on. In response, the prison stated that segregation had been continued because of the risk Hussain potentially posed to other prisoners. A further continuation was authorised on 2 June 2010, to maintain good order and discipline after an assault on another prisoner. On 14 June 2010 Mr Greener wrote to Mr Guedalla stating that Hussain remained segregated following his physical attack upon another prisoner. It was said that the savage nature of the attack raised obvious risk concerns relating to other prisoners. Further continuations were authorised on 16 and 30 June and 14 July 2010, the reasons given being respectively pending police investigation and security review, due to ongoing investigation into an assault on another prisoner, and pending ongoing investigation into a serious assault on another prisoner. A further continuation was authorised by Mr Greener on 28 July 2010, on the ground that it is believed you may pose a threat to others, and you may be at risk from other prisoners. The latter possibility had not previously been mentioned. In the meantime, Mr Guedalla had initiated judicial review proceedings, which were listed for a hearing together with the proceedings brought by Bourgass. On 30 July 2010 the Secretary of State submitted detailed grounds of defence together with a witness statement of Mr Greener. It was said, in Mr Greeners witness statement, that Hussain had initially been segregated because of the severity of the assault on Aslan, the fact that it appeared to have taken place as the result of a mundane disagreement over food, and the risk which Hussain therefore posed to other prisoners. Consideration had also been given to the risk of reprisals by Aslan or other prisoners. Intelligence information also linked Hussain with the conditioning of segregated prisoners who were susceptible to manipulation. Three such prisoners had informed segregation unit staff that they had changed their religion from Christianity to Islam, having been converted through their cell windows by another prisoner. Intelligence suggested that Hussain was preaching Islam through his cell window to others in a determined attempt to convert non Muslim prisoners to his own interpretation of Islamic ideals. There was concern that his interpretation of the Quran was in line with his terrorist beliefs, and that the promulgation of his ideals had the potential to cause serious disruption both in the segregation unit and in the general prisoner population. Mr Greener did not consider that the risk posed by Hussain could be managed by means of closer supervision on normal location, transfer to another wing or transfer to another establishment. He therefore remained in the segregation unit while he was monitored with the aim of assessing whether he should be referred to the CSC. In a witness statement filed in reply, Hussain gave a detailed response to the allegation of proselytising. He quoted the sentencing remarks of the judge at his trial, to the effect that there was no evidence that he was a religious fanatic, and that his involvement in the offence appeared to be entirely attributable to his loyalty to his co defendant. In correspondence some months later, concerned with Hussains security classification, the prison authorities stated that it was believed not to be Hussain who had converted the prisoners. On 10 August 2010 the judicial review proceedings were listed for a hearing. The following day, it was recorded that Hussain was being considered for transfer to another establishment. A further continuation of segregation was authorised because of an assault on another prisoner. A further continuation of segregation was authorised by Mr Greener on 25 August 2010, pending transfer to another establishment; and due to risks you pose to others. Further continuations of segregation were authorised on 8 and 22 September 2010, the reasons given being respectively that due to the assault on another prisoner you are to remain segregated until transferred out of the establishment, and because of the risk you pose to others on the wing. On or before 19 October 2010 Hussain was transferred to HMP Wakefield. He had been in solitary confinement since 26 April 2010. Following the police investigation, Hussain was charged with an assault upon Aslan. On 3 February 2011 the Crown Prosecution Service informed Hussains solicitors that the proceedings were being discontinued on the ground that there was insufficient evidence to provide a realistic prospect of conviction. The conditions of the second appellants segregation The conditions in which Hussain was kept in segregation were broadly similar to those that applied to Bourgass. He was only able to make a telephone call once every three days, as there were fewer telephones available than on normal location. As there was no electricity in the cells in the segregation unit, he did not have a television. Hussain also claimed to have been denied exercise on some occasions. The regime which was applied to Bourgass and Hussain is similar to that which applies to prisoners undergoing cellular confinement as a punishment for an offence against discipline. Such a punishment can however only be imposed following disciplinary proceedings conducted in accordance with the Rules. It can, in addition, only be imposed for a maximum of 21 days. That maximum reflects the well known risks which solitary confinement poses to the mental health of those subjected to it for prolonged periods: a matter to which I turn next. The effects of segregation In about 2003 the Secretary of State issued Prison Service Order 1700 (the PSO), a non statutory document concerned with segregation. It acknowledges that the number of self inflicted deaths in segregated settings is disproportionate. It continues at p 29: Research into the mental health of prisoners held in solitary confinement indicates that for most prisoners there is a negative effect on their mental wellbeing and that in some cases the effects can be serious. A study by Grassian & Friedman (1986) stated that, Whilst a term in solitary confinement would be difficult for a well adjusted person, it can be almost unbearable for the poorly adjusted personality types often found in a prison. The study reported that the prisoners became hypersensitive to noises and smells and that many suffered from several types of perceptual distortions (eg hearing voices, hallucinations and paranoia). According to a report published in June 2015 by the Prisons and Probation Ombudsman for England and Wales, 28 prisoners took their own lives while being held in segregation units in England and Wales between January 2007 and March 2014. An interim report submitted to the UN General Assembly in August 2011 by Juan E Mndez, the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment expressed particular concern about prolonged solitary confinement (or segregation, as it was also termed), which he defined as solitary confinement in excess of 15 days. He noted that after that length of time, according to the literature surveyed, some of the harmful psychological effects of isolation can become irreversible (para 26). He also noted that lasting personality changes often prevent individuals from successfully readjusting to life within the broader prison population and severely impair their capacity to reintegrate into society when released from prison (para 65). The previous Special Rapporteur, Manfred Nowak, annexed to an earlier report, submitted in July 2008, the Istanbul Statement on the Use and Effects of Solitary Confinement, adopted on 9 December 2007. It stated, in a passage cited by the Special Rapporteur: It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90% of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions. Similar conclusions were reached by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in its 21st General Report of 10 November 2011. It referred to evidence that solitary confinement can have an extremely damaging effect on the mental, somatic and social health of those concerned, which increases the longer the measure lasts and the more indeterminate it is (para 53). It considered the maximum period for which solitary confinement should be imposed as a punishment to be 14 days (para 56(b)). The risks of segregation are recognised by the Secretary of State. On his behalf, it is said that segregation is used as a last resort where other means of addressing risk are considered insufficient. The alternatives include transfer to another wing, to another establishment, to a CSC, or to a Dangerous and Severe Personality Disorder Unit; or closer supervision on normal location, which might include constant CCTV observation, and resort to powers to use physical force so far as necessary; or the use of an incentives and earned privileges scheme. Was the segregation duly authorised? duly authorised. Rule 45 The legal basis for segregation is rule 45 of the Rules. It provides, so far as material: I turn next to the question whether the appellants continued segregation was (1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly. (2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period. (3) The governor may arrange at his discretion for a prisoner removed under this rule to resume association with other prisoners at any time . It is clear from rule 45(1) and (3) that removal from association is something which is arranged, and may be ended, by the governor: an expression with a specific meaning, as I shall explain. It is equally clear from rule 45(2) that removal from association is not to last for a period exceeding 72 hours without the authority of the Secretary of State. The appellants complain that their segregation was ordered without that authority. PSO 1700 As explained earlier, in about 2007 the Secretary of State issued a non statutory document concerned with segregation, known as PSO 1700. The PSO provides for the establishment of SRBs, chaired by a competent operational manager. Counsel for the Secretary of State informed the court that an operational manager is an officer performing a senior role within a prison, such as the head of security or the head of the segregation unit. Such officers are accorded the title governor, although not in fact the governor of the prison or the duty governor for the time being (these expressions will be explained later). The PSO adds that a person who is acting up/temporarily promoted to competent operational manager is able to give authority for the continuation of segregation. The PSO states that the initial SRB must be held within 72 hours of a prisoner being placed in segregation, and that subsequent SRBs should be held at least every 14 days. Those intervals correspond to those required by rule 45(2). The initial SRB should comprise at least a chairman and a healthcare representative, and subsequent SRBs may also include other members of prison staff, such as the chaplain, and the prisoner for at least part of the Board. It is said to be desirable that a member of the independent monitoring board for the prison (the IMB), appointed by the Secretary of State under section 6 of the Prisons Act 1952 as amended (the 1952 Act), should also attend. In relation to procedure, the PSO states that, once a decision has been reached by the SRB, it is good practice for the chairman to ask the IMB member to comment on it and to indicate whether he or she is likely to raise an objection to it. The chairman will then make a final decision on the matter. In that regard, the PSO states: The Review Board decides, after considering all of the factors detailed in section 2 [the part of the PSO headed What the Review Board should consider], whether or not to authorise segregation to continue for a certain period of time (up to the maximum of 14 days). The operational manager chairing the Board has the final authority as to whether to authorise continuation of segregation under rule 45 (YOI rule 49) and must sign the relevant part of the form Segregation Review Board Governors Continued Authority for Segregation. It is common ground that the PSO thus purports to confer on a member of the staff of the prison, namely the operational manager chairing the SRB, the power to authorise the continued segregation of a prisoner after the initial 72 hours ordered by the governor. The first question raised by the appellants is whether authority under rule 45(2) can lawfully be given by an operational manager, as envisaged by the PSO, and as occurred in relation to both appellants, given that rule 45(2) requires authority to be given by the Secretary of State. It is argued on behalf of the Secretary of State that rule 45(2) permits governors and other senior prison officers to take such decisions, when authorised to do so by the Secretary of State, and that such authority has been lawfully granted by the PSO. The Secretary of States argument is not that a blanket authorisation has been granted by the Secretary of State ab ante. The argument, rather, is that the decision of the governor or the operational manager is the decision of the Secretary of State, by virtue of the operation of the Carltona principle. Alternatively, it is argued that the words the Secretary of State, in rule 45(2), should as a matter of construction be interpreted as including prison governors and other senior prison officers. The Carltona principle In Carltona Ltd v Comrs of Works [1943] 2 All ER 560, the Court of Appeal rejected a challenge made to a decision taken by a senior civil servant on the ground that the statutory power was conferred on the minister rather than his officials. Lord Greene MR said at p 563: In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them. The Carltona principle, as it has become known, is not one of agency as understood in private law. Nor is it strictly one of delegation, since a delegate would normally be understood as someone who exercises the powers delegated to him in his own name. Rather, the principle is that a decision made on behalf of a minister by one of his officials is constitutionally the decision of the minister himself. As Jenkins J stated in Lewisham Borough Council v Roberts [1949] 2 KB 608, 629, when rejecting an argument that the principle was one of delegation: I think this contention is based on a misconception of the relationship between a minister and the officials in his department. A minister must perforce, from the necessity of the case, act through his departmental officials, and where as in the Defence Regulations now under consideration functions are expressed to be committed to a minister, those functions must, as a matter of necessary implication, be exercisable by the minister either personally or through his departmental officials; and acts done in exercise of those functions are equally acts of the minister whether they are done by him personally, or through his departmental officials, as in practice, except in matters of the very first importance, they almost invariably would be done. No question of agency or delegation . seems to me to arise at all. An official in a government department is in a different constitutional position from the holder of a statutory office. The official is a servant of the Crown in a department of state established under the prerogative powers of the Crown, for which the political head of the department is constitutionally responsible. The holder of a statutory office, on the other hand, is an independent office holder exercising powers vested in him personally by virtue of his office. He is himself constitutionally responsible for the manner in which he discharges his office. The Carltona principle cannot therefore apply to him when he is acting in that capacity. It is possible that a departmental official may also be assigned specific statutory duties. In that situation, it was accepted in R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254 that the official remained able to exercise the powers of the Secretary of State in accordance with the Carltona principle. It is also possible that the performance of statutory ministerial functions by officials, or by particular officials, may be inconsistent with the intention of Parliament as evinced by the relevant provisions. In such circumstances, the operation of the Carltona principle will be impliedly excluded or limited: Oladehinde at p 303. Furthermore, the authorisation of officials to perform particular ministerial functions must in any event be consistent with common law requirements of rationality and fairness: see, for example, Oladehinde at pp 281 282 per Lord Donaldson of Lymington MR (in the Court of Appeal), and at pp 300 and 303 per Lord Griffiths. The legislative framework In considering rule 45(2), it is necessary to note at the outset that the court was provided with only minimal information about the administrative relationships between prisons (both those staffed by civil servants and those that are contracted out to private operators, to which rule 45(2) also applies), Her Majestys Prison Service, the National Offender Management Service and the Ministry of Justice, and with no information about the governance arrangements or the arrangements in relation to accountability to Parliament. Counsel for the Secretary of State relied upon the decisions in R v Secretary of State for Social Security, Ex p Sherwin (1996) 32 BMLR 1 and Castle v Director of Public Prosecutions [2014] EWHC 587 (Admin); [2014] 1 WLR 4279, implicitly inviting the court to assume that there was no relevant difference between the relationship of the agency officials with which those cases were concerned and the Secretary of State, on the one hand, and the relationship of prison governors and other prison staff and the Secretary of State for Justice, on the other hand. That cannot however be assumed. The decisions in Ex p Sherwin and Castle were based upon evidence concerning the relationship between officials of the Benefits Agency and the Highways Agency, respectively, and the relevant departments of government. No equivalent evidence is before this court. Furthermore, unlike those cases, the relationship between prison governors and other officers, on the one hand, and the Secretary of State on the other hand, is the subject of specific legislation: something which, in itself, points towards a different relationship from that between a departmental official and a minister, since it is not readily reconciled with the idea that prison governors and officers, and the Secretary of State, are constitutionally indistinguishable. Section 3 of the 1952 Act empowers the Secretary of State to appoint such officers and employ such other persons as he may . determine. Under section 4(1), the Secretary of State shall have the general superintendence of prisons and shall make the contracts and do the other acts necessary for the maintenance of prisons and the maintenance of prisoners. Section 4(2) and (3) provide: (2) Officers of the Secretary of State duly authorised in that behalf shall visit all prisons and examine the state of buildings, the conduct of officers, the treatment and conduct of prisoners and all other matters concerning the management of prisons and shall ensure that the provisions of this Act and of any rules made under this Act are duly complied with. (3) The Secretary of State and his officers may exercise all powers and jurisdiction exercisable at common law, by Act of Parliament, or by charter by visiting justices of a prison. Section 7 provides: (1) Every prison shall have a governor, a chaplain and such other officers as may be necessary. (3) A prison which in the opinion of the Secretary of State is large enough to require it may have a deputy governor . The implication is that a prison has only one governor within the meaning of the 1952 Act. Section 8 confers on every prison officer the powers, authority, protection and privileges of a constable. Section 13 provides: Every prisoner shall be deemed to be in the legal custody of the governor of the prison. Other sections confer powers or impose duties specifically upon the governor or prison officers. Examples include sections 16A and 16B, which empower the governor to authorise the testing of prisoners for drugs and alcohol, and empower prison officers to carry out such testing in accordance with the authorisation. Provisions such as these can be contrasted with other provisions conferring powers or imposing duties upon the Secretary of State, generally of wider scope, or of a supervisory nature. There are also provisions which confer separate and overlapping powers on the governor and on the Secretary of State, such as sections 40A to 40E. Apart from a small number of powers for which specific provision is made, such as those I have mentioned, the 1952 Act gives no content to the powers of governors or other prison officers. By section 47(1), however, Parliament has enabled the Secretary of State to make rules conferring a wide range of powers: The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres and for the classification, treatment, employment, discipline and control of persons required to be detained therein. It was under section 47(1) that the Rules were made. Several features of the Rules are relevant to the present question. First, a number of the Rules expressly confer powers upon the Secretary of State. Numerous powers are also conferred or imposed expressly on governors, a term which is defined by rule 2 as including an officer for the time being in charge of a prison. A governor, within the meaning of the Rules, can therefore include an officer who is acting as duty governor, as well as the governing governor of the prison. Secondly, some rules deal separately with the powers and duties of the Secretary of State, on the one hand, and the governor, on the other. For example, rule 35(3) empowers the governor to allow a prisoner an additional letter or visit, and rule 35(7) separately empowers the Secretary of State to allow additional letters and visits in relation to any prisoner. Rule 45 also falls into this category, as I have explained. Thirdly, numerous rules require the governor or prison officers to act in accordance with directions or guidance given by the Secretary of State. For example, rule 55(4) requires the governor, in imposing a punishment, to take into account any guidelines issued by the Secretary of State. It would scarcely be necessary to impose explicit requirements of this kind if the governor and prison officers were, for these purposes, in the position of departmental officials. It would then go without saying that they were bound to carry out the instructions of their minister. Fourthly, several other rules require the governor to act in a specified manner towards the Secretary of State. For example, rule 22(2) requires the governor to notify the Secretary of State of the death of a prisoner. Rules of this kind would again be unnecessary if the governor were in the position of a departmental official. Legislation is scarcely necessary to require departmental officials to provide their minister with the information he desires. In the light of the foregoing, it is apparent that the arrangements governing the relationship between the Secretary of State and prison governors, established by the 1952 Act and the Rules, bear no resemblance to those governing the relationship between a minister and his departmental officials. Prison governors, whether the governor appointed under the 1952 Act or the wider class of governors referred to in the Rules, are the holders of an independent statutory office. The governor, not the Secretary of State, has custody of the prisoners held in the prison in question. He and his officers, unlike the Secretary of State, have the powers of constables. He and his officers exercise the powers over prisoners which are conferred on them by rules made by the Secretary of State, under the power conferred on him by section 47(1). The Secretary of States officers in turn ensure that those rules are complied with, in accordance with section 4(2). Under the Rules, the powers of governors and of the Secretary of State are distinctly demarcated. Some powers are exercised by governors independently. In relation to others, they are expressly required by law to act in accordance with, or have regard to, directions given by the Secretary of State: a requirement which demonstrates their constitutional separation from the Secretary of State and his departmental officials. The case law There are two decisions of the House of Lords in which the relationship between prison governors and the Secretary of State has been considered. In the first, Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, the question was whether a disciplinary decision by a governor was amenable to judicial review. In the course of considering that question, their Lordships made a number of observations which are pertinent to the present issue. Lord Bridge of Harwich, in a speech with which the other members of the House agreed, stated at p 561: The governor of a prison holds an office created by the Act of 1952 and exercises certain powers under rules 47 to 55 of the Rules of 1964 [the disciplinary provisions then in force] which are conferred upon him and him alone. Lord Bridge went on to address the reasoning in an earlier decision of the Court of Appeal, which had distinguished between prison governors and boards of visitors on the basis that governors were servants or agents of the Secretary of State: A prison governor may in general terms be aptly described as the servant of the Secretary of State, but he is not acting as such when adjudicating upon a charge of a disciplinary offence. He is then exercising the independent power conferred on him by the rules. The Secretary of State has no authority to direct the governor, any more than the board of visitors, as to how to adjudicate on a particular charge or what punishment should be awarded. If a Home Office official sought to stand behind the governor at a disciplinary hearing and tell him what to do, the governor would properly send him packing. (p 563) It follows from Lord Bridges observations that the Secretary of State, having no authority to direct the governor in the exercise of his disciplinary powers, could have no constitutional responsibility for the governors exercise of those powers (as distinct from his own supervisory functions), and that the rationale underpinning the Carltona principle would therefore be absent. Lord Oliver of Aylmerton, whose speech was also concurred in by the other members of the House, reiterated that the office of a governor of a prison is the creation of statute (p 569). He went on to observe: The starting point of the inquiry appears to me to be that the prison governor is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties. Many of those duties are of a purely administrative nature and involve no adjudicatory function at all. (p 578) Applying Lord Olivers dictum, plainly the Carltona principle can have no application in so far as the governor is performing those duties. Lord Bridge focused particularly on the governors exercise of disciplinary functions, but, as Lord Oliver recognised, the same principle applies to the exercise of administrative functions. As I explained earlier, the important question is whether the function in question is one which is performed by the governor as the holder of an independent statutory office, as distinct from being a function of the Secretary of State which might be performed by any Crown servant authorised by him. It is also necessary to note the decision of the Court of Appeal in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] AC 58. The case concerned rule 43 of the Prison Rules 1964 as amended, which was the predecessor of rule 45 of the Rules in issue in the present appeals. Under rule 43(1), as under the later rule 45(1), the initial power to segregate was given to the governor. The case arose from the fact that the governor of one prison had purported to authorise the segregation of a prisoner on his arrival at another prison to which he was being transferred, as required by an instruction issued by the Home Office. The prisoners continued segregation at his new prison, after the initial period of segregation expired, was then automatically authorised by the regional director of prisons on behalf of the Secretary of State, in accordance with the same instruction. Both authorisations were held to be ultra vires. The governor of one prison had no power to order the segregation of a prisoner held in another prison: the decision could only be taken by the governor of the prison where the prisoner was currently held. Nor could the Secretary of State lawfully authorise segregation as a matter of routine, without a genuine exercise of his discretion both as to whether it should be given and, if so, for how long. In a judgment with which Nicholls LJ and Sir Nicolas Browne Wilkinson V C agreed, Taylor LJ addressed an argument that the Secretary of State possessed a residual power to initiate segregation under rule 43. He observed at p 107: Whether or not the Secretary of State retains an overall power to segregate a prisoner, he cannot, in my judgment, exercise it under rule 43 because that rule gives powers specifically to the governor. Rule 43(2) provides for authority to be given to the governor to segregate for more than 24 hours by either a visitor or the Secretary of State. But that authority is merely clothing for the governor. The decision under this rule is still his. I do not accept, therefore, that the Secretary of State can act under rule 43 to initiate segregation. Taylor LJ went on to explain the fact that the Secretary of States authority was required as a safeguard provided to protect the prisoners rights (p 110). These passages are doubly relevant to the present case. First, the implication is that segregation is at all times dependent on the governors being of the view that it appears desirable for the maintenance of good order and discipline, as required by rule 43(1) of the 1964 Rules and rule 45(1) of the current Rules. The governor, for these purposes, means the governing governor or the duty governor, to adopt the expressions used by counsel for the Secretary of State. It does not mean any prison officer meeting the description of a competent operational manager. Secondly, the governors functions under rule 43 are distinct from those of the Secretary of State, and neither can perform the functions properly belonging to the other. In particular, since segregation beyond the initial period requires the authorisation of the Secretary of State, as a safeguard for the prisoner, in addition to the governors being of the view that continued removal from association is desirable, it follows that such authorisation cannot be given by the governor (let alone by a more junior member of his staff). The second decision of the House of Lords is that in Somerville v Scottish Ministers [2007] UKHL 44; [2007] 1 WLR 2734. One of the issues in the case was whether the act of the governor of a Scottish prison, in ordering the segregation of a prisoner, was to be regarded as the act of the Scottish Ministers by virtue of the Carltona principle. Under rule 80(1) of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (SI 1994/1931), the governor could order that a prisoner should be removed from association with other prisoners. Rule 80(5) provided that a prisoner who had been removed from association by virtue of an order made by the governor should not be subject to such removal for a period in excess of 72 hours from the time of the order except where the Scottish Ministers had granted written authority on the application of the governor. As Lord Rodger of Earlsferry observed at para 135, the terms of these rules would therefore suggest that, while the basis for the initial segregation of 72 hours would be the governors order, the basis for any segregation for a period of longer than that would be constituted by the governor's order plus the written authority granted by the Scottish Ministers. That is consistent with the view expressed by Taylor LJ in Hague. Lord Rodger accepted the Scottish Ministers argument that, when making an order under rule 80(1), the governor was exercising a specific power which the rules conferred on governors and which could not be exercised by the ministers themselves. In that regard he applied the reasoning of Lord Oliver in Leech, on the basis that it was equally applicable to the governors role under rule 80 as to his disciplinary functions. He added, at para 140: Whoever is acting as governor for the purposes of rule 80 at the relevant time is exercising a distinct function, or distinct functions, which cannot be carried out by the Scottish Ministers. Under rule 80 of the Scottish Prison Rules, the Scottish Ministers have their own distinct functions. The division between the role of the governor and the role of the Ministers is indeed essential if the protections for prisoners contained in the rule are to be effective. It follows that the familiar principle in Carltona Ltd v Comrs of Works [1943] 2 All ER 560 has no application to what the governor does under rule 80. The approach adopted in Somerville is consistent with that adopted in Leech, and as I have explained with that of the Court of Appeal in Hague. The implication of the decisions is that the powers that are confided to the governor by rule 45(1) or its Scottish equivalent are conferred on him in his own right, and not in the performance of functions of the Secretary of State. They are therefore not within the ambit of the Carltona principle. Equally, the Secretary of States function under rule 45(2), or its Scottish equivalent, is distinct from the function of the governor, and exists as a safeguard to protect the prisoner. Counsel for the Secretary of State relied upon a number of other cases. The first was the case of R v Governor of Brixton Prison, Ex p Walsh [1985] AC 154, which was cited in Leech but not referred to in the speeches. The issue in that case was whether the Secretary of State, or the governor of a prison holding remand prisoners, was under a duty to produce them at court in accordance with the terms of their remand. Counsel relied upon a passage in Lord Fraser of Tullybeltons narration of the background circumstances, in which he stated at p 165 that the power conferred on the Home Secretary by section 29(1) of the Criminal Justice Act 1961, to direct that a detained person should be taken to a place where his attendance was desirable in the interests of justice, had been delegated to the governors of prisons for certain purposes. The matter was not argued or discussed. The use of the term delegated suggests that it was not the Carltona principle that Lord Fraser had in mind. In the circumstances, I find this case of no assistance. Reliance was also placed on R v Secretary of State for the Home Department, Ex p Hickling [1986] 1 FLR 543. The case concerned the provision, now contained in rule 12(2) of the Rules, enabling the Secretary of State to permit a woman prisoner to have her baby with her in prison, subject to any conditions he thinks fit. The Secretary of State had issued a general instruction laying down criteria for admission to a mother and baby unit, together with the procedures to be followed, and stating that the final decision in a particular case should rest with the governor. The instruction also stated that the governor should arrange for the removal of the baby if he considered that the mothers behaviour was such as to threaten the serious disruption of the unit or the safety of the baby or other babies in the unit. The Court of Appeal held that the instructions laid down the conditions on which the Secretary of State permitted women prisoners to have their babies with them in prison, as contemplated by the relevant rule. Eveleigh LJ stated that it was not a case of the Secretary of State delegating his authority, but of his laying down conditions which must be fulfilled. Since those conditions addressed matters which the governor was best placed to judge, it was right to allow the governor to decide if they were not being complied with. It is apparent, therefore, that this case was not an application of the Carltona principle. The Carltona principle, statutory construction and rule 45 Returning to rule 45 in the light of the foregoing discussion, it is virtually identical to the rule considered in Hague. Paragraph (1) enables the governor to arrange for the prisoners removal from association. Paragraph (2) provides that a prisoner shall not be removed under the rule for a period of more than 72 hours without the authority of the Secretary of State, and that authority given under this paragraph shall be for a period not exceeding 14 days. Authority is therefore given under rule 45(2) by the Secretary of State to the governor, the governor having already formed the view that continued segregation is desirable. That provision cannot sensibly be construed either as enabling the governor to give authority to himself, or as enabling authority to be given to him by a subordinate officer. Rule 45 is also similar to the Scottish rule considered in the case of Somerville. The only distinction between the Scottish rule and rule 45 which might conceivably be material is that the former expressly states that decisions to authorise removal beyond the initial period are made following an application by the governor. Although that is not expressly stated in rule 45(2), it must be implicit that the Secretary of States authority follows upon an initiative taken by the governor, as Taylor LJ considered in Hague. The minor difference in wording between the Scottish and English rules does not therefore warrant a different approach to the division of roles as between the governor and the Secretary of State from that held to exist, in the Scottish context, in Somerville, and in the English context, under the 1964 Rules, in Hague. The apparent rationale of rule 45(2) is clear. The governor can order segregation at his own hand for a maximum of 72 hours, but any longer period requires the authorisation of the Secretary of State in practice, senior officials from outside the prison in order to protect the prisoner against the risk of segregation for an unduly protracted period. Counsel for the Secretary of State argued, however, that rule 45(2) had no such rationale. His argument was based primarily on a detailed analysis of the history of rule 45 and of two other rules, rule 48 and rule 49. As originally made, rule 45(2) prohibited the removal of a prisoner under rule 45(1) for more than three days without the authority of a member of the board of visitors or of the Secretary of State. Rule 45(2) in its present form was substituted by the Prison (Amendment) (No 2) Rules 2005 (SI 2005/3437) (the 2005 amendments). The material change was the removal of the reference to a member of the board of visitors. Rule 48(1) permits the governor to order the temporary confinement of a prisoner in a special cell, but rule 48(2) prohibits the prisoners confinement there for longer than 24 hours without a direction in writing. In its original form, rule 48(2) required the direction to be given by a member of a board of visitors or by an officer of the Secretary of State (not being an officer of a prison). That rule was amended by the 2005 amendments so as to require the direction to be given by an officer of the Secretary of State. Rule 49(1) permits the governor to order that a prisoner be placed under restraint, but rule 49(4) provides that a prisoner must not be kept under restraint for longer than 24 hours without a direction in writing. In its original form, rule 49(4) required the direction to be given by a member of the board of visitors or by an officer of the Secretary of State (not being an officer of a prison). That part of the rule was not amended by the 2005 amendments. It was however amended by the Prison (Amendment) Rules 2008 (SI 2008/597) (the 2008 amendments), so as to require the direction to be given by a member of the independent monitoring board or by an officer of the Secretary of State (not being an officer of a prison). It was amended again by the Prison and Young Offender Institution (Amendment) Rules (SI 2009/3082) (the 2009 amendments), so as to remove the reference to a member of the independent monitoring board. In counsels submission, the original terms of rules 48(2) and 49(4), which referred to an officer of the Secretary of State (not being an officer of a prison), were designed to make it clear that the direction had to be given by an official external to the prison. Their effect was to draw a distinction between the functions of the governor under rules 48(1) and 49(1), and the functions which could not be performed by the governor, under rules 48(2) and 49(4). There had been no similar words in rule 45(2). The implication, it was argued, was that the function under rule 45(2) could be performed by any officer of the Secretary of State, whether within the prison or not, and including the governor in particular. The 2005 amendments, it was submitted, made the position even clearer. The words (not being an officer of a prison) had been removed from rule 48(2) but not from rule 49(4). The implication was that the function under rule 48(2) could now be performed by any officer of the Secretary of State, including an officer of the prison. Rule 48(2) was therefore placed in the same position as rule 45(2). No analogous amendment had been made to rule 45(2), because none was necessary: its terms had never prevented the function under that rule from being performed by an officer of the prison. The latter rule could not have been intended to be construed in the same way as rule 49(4), since it was expressed in different terms. I am not persuaded by this argument. In the first place, it proves too much. As I have explained, the Rules accord a variety of powers to the Secretary of State. Some of those powers are clearly not intended to be exercised by a governor or other prison officer. For example, rule 46(1) empowers the Secretary of State to direct a prisoners removal from association and his placement in a CSC. There is no express provision that the Secretary of States powers cannot be exercised by an officer of the prison. On counsels argument, it follows from the absence of those words that the Secretary of States powers under rule 46 could be exercised by a governor. In view however of the contrast between the power given by rule 45(1) to a governor to order removal from association in the ordinary case, and the power given by rule 46(1) to the Secretary of State in the special case where removal is to result in placement in a CSC, quite possibly in another prison, it is plain that the power under rule 46(1) is not intended to be exercisable by a governor. The presence of the language found in rule 49(4) (which appears to be unique to that provision), or its absence (as in the numerous other rules which address separately the functions of the governor and of the Secretary of State), cannot therefore be the touchstone. The premise of counsels argument, that whenever the Rules intend to restrict the delegation or devolution of the Secretary of States powers to an officer external to the prison they say so expressly, is not made out. Reliance on the differently worded provisions of rules 48 and 49 cannot therefore determine the meaning of rule 45(2). As in the cases of Hague and Somerville, it can in my opinion be inferred that rule 45(2) is intended to provide a safeguard for the prisoner: a safeguard which can only be meaningful if the function created by rule 45(2) is performed by an official from outside the prison. It makes sense that the governor should be able to act at his own hand initially, since decisions to remove a prisoner from association with other prisoners may need to be taken urgently. It also makes sense that the governor should be able, under rule 45(3), to arrange for the prisoners resumption of association with other prisoners at any time, and, in particular, in response to any medical recommendation. Rule 45(2) however ensures that segregation does not continue for a prolonged period without the matter being considered not only by the governor but also by officials independent of the management of the prison. If, as counsel submitted, rule 45(2) was not intended to provide a safeguard, then the requirement to obtain the authority of the Secretary of State, before segregation can lawfully continue for more than 72 hours, would lack any rationale. It follows that it is implicit in rule 45(2) that the decision of the Secretary of State cannot be taken on his behalf by the governor, or by some other officer of the prison in question. The Carltona principle cannot therefore apply to rule 45(2) so as to enable a governor or other prison officer to exercise the powers of the Secretary of State. It equally follows that the alternative argument advanced on behalf of the Secretary of State, that the expression the Secretary of State, in rule 45(2), implicitly includes the governor and other officers of the prison, must also be rejected. Quite apart from the implausibility of the argument in the light of other provisions of the Rules, as I have explained, it would in any event defeat the purpose of rule 45(2). Any purported performance of the Secretary of States function under rule 45(2) by a governor or other prison officer cannot therefore be treated as constituting performance by the Secretary of State. The Secretary of States purported delegation of his function under rule 45(2) to the chairman of the SRB, in terms of the PSO, was therefore unlawful. It follows that the decisions to continue the segregation of the two appellants were taken without lawful authority, and that their segregation beyond the initial 72 hours was therefore unlawful. Procedural fairness That is sufficient to determine these appeals. It is however appropriate also to deal with the questions of procedural fairness which divided opinion in the courts below and also occupied much of the hearing before this court. They concern two issues: first, the prisoners right to make representations and, for that purpose, to be provided with information about the basis on which authorisation for his continued segregation is sought; and secondly, the scope of judicial review of decisions taken under rule 45(2), and its compatibility with the requirements of article 6.1 of the ECHR, if that provision is applicable. It is important to be clear at the outset as to the nature of the decision making in question. Decisions under rule 45(2) do not involve the determination of a charge against the prisoner or the imposition of a punishment, either in form or in substance. As counsel for the Secretary of State emphasised, segregation decisions are not based on a determination of fact as to whether a particular event has occurred, but involve a judgment as to the risk posed to the good order and discipline of the prison, and whether the particular situation could be equally or better addressed by other measures, such as transfer to another wing, closer supervision on normal location or transfer to another establishment. Allegations may be made against a prisoner, but the subject matter of the Secretary of States decision is not whether the prisoner behaved as alleged: these are not disciplinary proceedings. Representations and the provision of information It is common ground that initial segregation generally has to be decided upon in circumstances of urgency. It is not argued that such decisions, which cannot last for more than 72 hours, must be preceded by any form of hearing. It is also common ground that decisions by the Secretary of State to grant authority for continued segregation are in a different position. On behalf of the appellants, it is submitted that fairness requires that the prisoner be provided with sufficient information about the reasons for seeking authority, and the evidence relied on, to enable him to make effective representations. It is accepted that the evidence may be redacted or summarised where necessary to protect essential interests. On behalf of the Secretary of State, it is accepted that fairness requires that prisoners should usually be given a meaningful opportunity to make representations in relation to such decisions, and entails that they should be provided with relevant information for that purpose. It is submitted that the duty to provide information is limited by countervailing considerations, such as those relating to security and the need to protect sources of information. It is therefore submitted that it is sufficient that the prisoner should be provided with the gist of the reasons for seeking authorisation, and the opportunity to make representations. The Secretary of State also submits that, on the facts of the appellants cases, that is what they were given. In relation to these matters, neither party seeks to support the decision of the Court of Appeal, which considered itself bound by its earlier decision in Hague to hold that the common law gave a prisoner no right to be provided with adequate disclosure or reasons to enable him to challenge his continued segregation. The Court of Appeal had previously declined to follow that aspect of its decision in Hague in relation to the segregation of child offenders (see R (SP) v Secretary of State for the Home Department [2004] EWCA Civ 1750), but considered itself bound by it as far as adult offenders were concerned. In Hague, it was conceded, as in the present appeals, that there was no right to be heard before the initial decision to segregate was made, given the urgency with which such decisions normally have to be made. It was however argued that fairness required that the prisoner be given the right to be heard before continued segregation was ordered. That argument was rejected by the Court of Appeal, primarily, it appears, because of the absence from the then rule 43 of any express procedural requirements, whereas such requirements could be found in the rules governing disciplinary proceedings. The Court of Appeal also considered that there were public policy grounds for not giving reasons to the prisoner, since such disclosure could reveal sensitive information and put security, or informants, at risk. The court supported its decision by reference, in particular, to its earlier decision in Payne v Lord Harris of Greenwich [1981] 1 WLR 754. The law relating to procedural fairness has not stood still since then. In R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 the House of Lords overruled Payne v Lord Harris of Greenwich and, in the speech of Lord Mustill, set out the approach to be followed when considering questions of procedural fairness generally, and more particularly the procedural rights of prisoners in relation to decisions which may affect them adversely. The House also rejected the argument that the existence of express statutory rights to a fair hearing in relation to some kinds of decisions affecting prisoners entailed the absence of any such right in relation to all other such decisions. More recently, in R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115 this court considered the rationale of procedural fairness at common law, and emphasised both the instrumental value of enabling persons to participate in decision making when they may be able to contribute relevant information or to test other information before the decision maker, and the ethical value of allowing persons to participate in decision making which concerns them and is liable to have a significant effect on their rights or interests, where they may have something to say which is relevant to the decision to be taken. The court also referred to research indicating the significance of unfair procedures in prisons, in particular, in affecting prisoners attitudes and their prospects of rehabilitation. Whatever the position may have been in the past, the approach described in Doody and Osborn requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken by the Secretary of State under rule 45(2). That follows from the seriousness of the consequences for the prisoner of a decision authorising his segregation for a further 14 days; the fact that authority is sought on the basis of information concerning him, and in particular concerning his conduct or the conduct of others towards him; the fact that he may be able to answer allegations made, or to provide relevant information; and, in those circumstances, from the common laws insistence that administrative power should be exercised in a manner which is fair. A contrary conclusion cannot be drawn from the absence from rule 45 of procedural provisions similar to those contained in the rules governing adjudication proceedings. It would be extraordinary if, where there was sufficient evidence to warrant disciplinary proceedings, the prisoner were entitled to a fair process at the end of which he might be segregated as a punishment for up to 21 days, yet where there was insufficient evidence, he could be segregated for a much longer period, without procedural protection. The Court of Appeals decision to the contrary in Hague cannot be sustained. A prisoners right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. That will not normally require the disclosure of the primary evidence on which the governors concerns are based: as I have explained, the Secretary of State is not determining what may or may not have happened, but is taking an operational decision concerning the management of risk. It is however important to understand that what is required is genuine and meaningful disclosure of the reasons why authorisation is sought. The reasons for continued segregation which were provided by the prison staff involved in the present cases gave, at best, only the most general idea of the nature of their concerns, and of why those concerns were held. More could and should have been said and was said, in the witness statements filed in these proceedings without endangering the legitimate interests which the prison authorities were concerned to protect. The imposition of prolonged periods of solitary confinement on the basis of what are, in substance, secret and unchallengeable allegations is, or should be, unacceptable. More specifically, in Bourgasss case, although some of the reasons given to him explained that his segregation was based on the assault on Sahebzadeh, the prison failed to provide any information as to why he was considered to have been involved in an assault which took place in his absence, despite being repeatedly asked to do so. The statement that he was to remain in segregation pending an investigation into a serious assault became particularly egregious when repeated after all investigations had ceased. Stating that segregation was pending CSC referral, or that we are trying to transfer you, provided no explanation related to rule 45. Stating that you are an unacceptable risk to other prisoners, that you are known as a threat to other prisoners, that your behaviour is deemed to be unsuitable for normal location, or that you would be a disruptive influence on normal location, told him nothing about the basis on which he was considered to present such a risk or threat or disruptive influence, or about the behaviour which was deemed unsuitable. Similar criticisms apply in Hussains case. He had been provided with information as to the basis on which he was believed to have assaulted another prisoner. It was not explained why, several months later, his suspected responsibility for that assault was still considered to require his segregation, not as a punishment, but for the maintenance of good order and discipline. It was only in the present proceedings that further allegations against him were disclosed, namely that he was suspected of having attempted to convert other segregated prisoners to Islam. Once that was disclosed, he was able to provide a response. It has to be recognised, however, that authority under rule 45(2) will often be sought on the basis of information which cannot be disclosed in full without placing at significant risk the safety of others or jeopardising prison security. Considerations of that kind were relevant in both of the present cases. There may also be cases where other overriding interests may be placed at risk. In such circumstances, fairness does not require the disclosure of information which could compromise the safety of an informant, the integrity of prison security or other overriding interests. It will be sufficient to inform the prisoner in more or less general terms of the gist of the reasons for seeking the authority of the Secretary of State. Judicial review and article 6.1 On behalf of the appellants, it is submitted that decisions to authorise the continued segregation of a prisoner fall within the scope of article 6.1, with the consequence that the prisoner is entitled to a hearing before an independent and impartial tribunal. On behalf of the Secretary of State, on the other hand, it is submitted that article 6.1 has no application to decisions to keep a prisoner in segregation. The question is relevant to the scope of judicial review, since rule 45(2) requires authorisation to be given by the Secretary of State, who is not, of course, an independent and impartial tribunal. Where article 6.1 applies, and the initial decision maker is not an independent and impartial tribunal, then its decision must be subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6.1 (Tsfayo v United Kingdom (2006) 48 EHRR 457, para 42). The only subsequent control exercised by a judicial body over the decisions of the Secretary of State is by way of judicial review. In its Tsfayo judgment, as in a number of others, the European Court held that judicial review did not meet the requirements of article 6.1 in that case, because the central issue was one of fact, and the High Court did not have jurisdiction to rehear the evidence or substitute its own views as to the applicants credibility (para 48). If some decisions under rule 45(2) are centrally concerned with disputed questions of fact, then there is accordingly a question whether the availability of judicial review is sufficient to secure compliance with article 6.1. There have been a number of cases in which the European Court of Human Rights has considered the application of article 6.1 in relation to court proceedings in which prisoners challenged restrictions on their activities. In this context, as in others, it has asked, first, whether there was a genuine and serious dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law, and secondly, whether the right in question was a civil one. In relation to the first question, most of the relevant cases have concerned restrictions on activities, such as visits, correspondence and telephone calls, in respect of which prisoners were explicitly recognised as possessing rights under the relevant legal systems. The earliest case appears to be Ganci v Italy (2003) 41 EHRR 272, where the applicants complaint concerned the failure of an Italian court to give a decision on his appeals against executive acts restricting his rights to visits and telephone calls: rights which were recognised under Italian law. The case of Glmez v Turkey (Application No 16330/02) given 20 May 2008, concerned prison disciplinary proceedings, and subsequent proceedings on appeal, which had resulted in a restriction on the applicants right to receive visits: a right recognised in Turkish law. In that case, the Second Section gave an affirmative answer to the first question (whether there was a dispute over a right recognised under domestic law) simply on the basis that the applicant had a right to challenge the disciplinary sanctions before the domestic courts. That reasoning was criticised by a minority of the court. The case of Enea v Italy (2009) 51 EHRR 103 was similar on its facts to Ganci, but was decided by a Grand Chamber. The court held, as in Ganci, that since the Italian court had failed to reach a decision on the applicants appeal against restrictions imposed on rights recognised under Italian law, it followed that the first question should be answered in the affirmative. In relation to the second question, some of the restrictions alleged by the applicant, such as rights restricting contact with his family and those affecting his pecuniary rights, fell within the sphere of personal rights and were therefore civil in character. The first case in which the court considered the imposition of segregation appears to have been Stegarescu v Portugal (Application No 46194/06) given 6 April 2010. Having recorded the Governments submission that the applicants had failed to identify any rights under domestic law which had been restricted, the Second Section noted that article 6.1 had been held in cases such as Ganci and Glmez to be engaged in relation to other restrictive measures imposed on prisoners. It then cited the passage in the Enea judgment dealing with the second question: a passage which proceeded on the basis that the existence of a dispute over a right recognised under domestic law had been established, and addressed the question whether the right was of a civil character. The Second Section noted that the placement of the applicants in segregation led to the restriction of visits, the restriction of exercise, and the impossibility, for one of the applicants, of continuing his studies and sitting exams. It concluded that in the eyes of the court these are restrictions on individual civil rights, and that article 6.1 was applicable. It did not refer to domestic law in support of its conclusion. The same approach has been adopted by the Second Section in more recent cases, such as Nusret Kaya v Turkey (Application Nos 43750/06, 43752/06, 32054/08, 37753/08 and 60915/08) given 22 April 2014, a case concerned with restrictions on prisoners telephone calls. The Second Section adopted a similar approach in Boulois v Luxembourg (Application No 37575/04) given 14 December 2010, a case concerned with release on licence. There was a vigorous dissent by a minority of the court. The decision of the majority in that case was relied on by Elias LJ, along with Stegarescu, in reaching the conclusion, contrary to the majority of the Court of Appeal, that article 6.1 applied in the present cases. The case of Boulois was however referred to the Grand Chamber, which reiterated that for article 6.1 in its civil limb to be applicable, there must be a dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law: (2012) 55 EHRR 941. The Grand Chamber added (para 91): The court may not create by way of interpretation of article 6(1) a substantive right which has no legal basis in the state concerned. The starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. This court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law. The Grand Chamber also explained that Enea had concerned a restriction on the existing scope of rights (para 98). It emphasised the significance in that case of the judgment of the Italian Constitutional Court, recognising that domestic rights were involved. It concluded that prison leave was a privilege which might be granted, in relation to which the prison authorities were intended to enjoy a certain discretion. It followed that prisoners had no right to obtain it, even if they met the required criteria (para 99). There was a dissenting opinion by Judge Tulkens, who had presided over the Second Section in Glmez and Stegarescu and had sat in the Section in Boulois, and Judge Yudkivska. They argued that the term right in article 6.1 was an autonomous concept which should not be dependent on the classification adopted in domestic law, and that the reasoning in Stegarescu should be applied. That was clearly a minority view. It is notable that in the case of Stegarescu it was not the imposition of segregation itself which was considered to engage article 6.1, but consequential restrictions on visits, exercise and access to educational facilities. The same is true of the case of Marin Kostov v Bulgaria (Application No 13801/07) given 24 July 2012. That case was concerned with court proceedings in Bulgaria in which the applicant appealed against the imposition of solitary confinement as a punishment for offences against prison discipline. While in solitary confinement, his ordinary rights in relation to such matters as visits, telephone calls and parcels were suspended. The Fourth Section followed the orthodox approach to the scope of article 6.1, noting that the applicants solitary confinement entailed restrictions of a set of prisoners rights explicitly recognised by Bulgarian law. While the case law of the European Court does not speak entirely in unison on this issue, the prevailing and most authoritative view is therefore that the applicability of article 6.1 in this context depends, in the first place, on whether there is a dispute over a right recognised in domestic law. There are certain circumstances in which prolonged segregation may result in an arguable violation of a prisoners rights under English law which may then be the subject of a dispute: where, for example, the prisoner seeks damages for negligence resulting in injury to his mental or physical health, or seeks a remedy for a violation of his Convention rights under the Human Rights Act 1998. In circumstances such as these, where it is necessary to determine a dispute over a right recognised by English law, there is also a remedy before a court possessing jurisdiction to determine all aspects of the case, as required by article 6.1. Whether the authorisation of continued segregation involves the determination of any right recognised by English law is a different question. Counsel for the appellant founded on a line of authority concerned with prisoners access to the courts, to legal advice and to confidential correspondence with their solicitor. In that context, Lord Wilberforce said in Raymond v Honey [1983] 1 AC 1, 10 that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. One right which plainly is not retained, as Lord Bingham of Cornhill noted in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, para 5, is the right of a person to move freely and choose his associates. The argument that the right to associate (and therefore the right to move freely for that purpose) survives imprisonment, in an attenuated form, was considered in Hague as part of a submission that a prisoner segregated in breach of the Prison Rules had a cause of action for false imprisonment, or alternatively for breach of statutory duty. The submission was rejected. The concept of a residual liberty retained by the prisoner was also rejected. Lord Bridge stated: The concept of the prisoners residual liberty as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another. (p 163) Lord Jauncey also rejected the idea of a residual liberty, and added that, absent a deliberate abuse of power, in which event there would be a cause of action for misfeasance in public office, it followed that the prisoners only judicial recourse for segregation in breach of the Prison Rules was to the public law remedies applicable to administrative action (p 173). The other members of the House agreed. Article 6.1 is not, of course, confined to disputes arising under private law. Equally, not all administrative decisions fall within article 6.1. The availability of a remedy in public law to determine whether a public body has acted lawfully does not, therefore, imply that persons with standing to seek such a remedy are the possessors of a right for the purposes of article 6.1. As Lady Hale explained in R (A) v Croydon London Borough Council (Secretary of State for the Home Department intervening) [2009] UKSC 8; [2009] 1 WLR 2557, para 36 et seq, article 6(1) has been applied to cases where the determination of a public law question is also decisive of the existence of private law rights. It has also been applied to cases concerning rights in public law which are regarded as closely resembling rights in private law, such as rights to state benefits. In Ali v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2010] UKSC 8; [2010] 2 AC 39, the critical feature of cases in the latter category was identified as being that the benefits in question were the subject of precise definition and could therefore amount to an individual right of which the applicant could consider herself the holder. Those were distinguished from benefits which were, in their essence, dependent on the exercise of judgment by the relevant authority. That is consistent with the approach adopted by the Grand Chamber in Boulois. As was explained in Hague, a prisoner has no private law right to enjoy the company of other prisoners. Some degree of association is, of course, a normal feature of imprisonment; and rule 45 is based on that premise. Nevertheless, a prisoner does not possess any precisely defined entitlement to association as a matter of public law. The amount of time which he is permitted to spend outside his cell, and the degree of association which he is in consequence permitted to have with other prisoners, will depend on an assessment by the prison authorities of a variety of factors, such as the number and characteristics of the prisoners held in the prison, the number of staff on duty, security concerns, disturbances in the prison, and other contingencies such as industrial action by prison officers. The extent of association may therefore vary from one prison to another and from one day to the next. It is thus dependent upon the exercise of judgment by those responsible for the administration of the prison. That conclusion is not inconsistent with that exercise of judgment being subject to review on public law grounds. There is however no analogy with the circumstances in which article 6.1 has been applied to disputes arising in public law. I should add that although I am not persuaded that a decision to authorise continued segregation falls within the ambit of article 6.1, it appears to me that judicial review would in any event meet the requirements of that provision in this context. When the European Court stated in Tsfayo that article 6.1 requires that an administrative decision falling within its scope should be subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6.1, the words full jurisdiction do not necessarily mean jurisdiction to re examine the merits of the case, but jurisdiction to deal with the case as the nature of the decision requires (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295, para 87, per Lord Hoffmann). It is true that judicial review proceedings do not usually involve the determination of questions of fact, and therefore do not usually involve issues of credibility. But, as I have explained, decisions taken by the Secretary of State under rule 45(2) are unlikely to turn on the determination of disputed questions of fact. There may be underlying issues of fact which are contentious, as there were in the present cases, but, if rule 45 is being applied correctly, its application will not normally require the Secretary of State to resolve those issues one way or the other. The critical question is whether the prisoners continued segregation is justified having regard to all the relevant circumstances. Those will include the reasonableness of any apprehension that his continued association with other prisoners might lead to a breakdown in good order and discipline within the prison; the suitability of available alternatives; the potential consequences to the prisoner if authorisation is granted; and the potential consequences to others if it is not. The answer to the question requires the exercise of judgment, having regard to information and advice from a variety of sources, including the governor, health care professionals and the prisoner himself. In proceedings for judicial review, the court has full jurisdiction to review evaluative judgments of that kind, considering their reasonableness in the light of the material before the decision maker, whether the appropriate test has been applied, whether all relevant factors have been taken into account, and whether sufficient opportunity has been given to the prisoner to make representations. This court has explained that the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests: see, for example, Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591. The potential consequences of prolonged segregation are so serious that a court will require a cogent justification before it is satisfied that the decision to authorise its continuation is reasonable. It should also be noted that although judicial review does not usually require the resolution of disputes of fact, or cross examination, that is not because they lie beyond the scope of the procedure. Judicial review is a sufficiently flexible form of procedure to enable the court to deal with the situation before it as required: see, for example, R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545; [2002] 1 WLR 419. Conclusion For these reasons I would allow the appeals, and grant a declaration in each case that the appellants segregation beyond the initial period of 72 hours was not authorised by the Secretary of State and was accordingly unlawful.

UK-Abs

The question raised in these appeals is whether decisions to keep the appellant prisoners in solitary confinement (also known as segregation) for substantial periods were taken lawfully. The decisions were made under the Prison Act 1952, rule 45 of the Prison Rules 1999 and PSO 1700, a non statutory document issued by the Secretary of State. Rule 45, paragraph (1) enables the governor of the prison to arrange for the prisoner to be segregated. Paragraph (2) provides that the prisoner shall not be segregated under the rule for more than 72 hours without the authority of the Secretary of State and that authority given under this paragraph shall be for a period not exceeding 14 days. In 2010 the first appellant, Kamel Bourgass, was serving a life sentence in HMP Whitemoor. On 23 April 2010 a prisoner who had previously assaulted Bourgass was himself assaulted. Bourgass was not present. He was segregated under rule 45(1) on the orders of the challenging prisoners manager, Mr Colley. The reason given was investigation into a serious assault. He remained in segregation for seven months. His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the prisons Segregation Review Board (SRB), including Mr Colley. Authority for his segregation was accompanied by the same reason on a number of occasions, i.e. investigation of the assault. In May 2010 the police indicated that they did not regard Bourgass as a suspect in connection with the assault. After that another reason given for continued segregation was that the prison was referring Bourgass to the Close Supervision Centre (CSC). Bourgasss representatives initiated judicial review proceedings. In his response of June 2010 the Secretary of State said that Bourgass was segregated not only because of the assault but because he is considered to pose an unacceptable risk on normal location. It was alleged that he had been intimidating other prisoners to change faith. On 2 August 2010 the Secretary of State filed detailed grounds of defence to the judicial review claim, disclosing that on the morning prior to the assault, Bourgass had been seen on CCTV speaking to the perpetrator. This had not been disclosed previously. The Secretary of State also filed a witness statement repeating the suspicions about the assault and intimidation. In September 2010 the CSC decided not to accept Bourgass, stating that there was insufficient evidence to support the allegations. Segregation continued to be authorised until Bourgass was transferred to HMP Woodhill in November 2010. The second appellant, Tanvir Hussain, was serving a life sentence in HMP Frankland. On 26 April 2010 he was placed in segregation under rule 45(1) on the orders of the residential governor Mr Greener, following an incident in which another prisoner was seriously injured. He remained in segregation for six months. His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the SRB, including Mr Greener. The reasons given were the assault, police and prison investigations into it, and, later, the risk of reprisals from other prisoners. Judicial review proceedings were initiated. On 30 July 2010 the Secretary of State submitted detailed grounds of defence and a witness statement of Mr Greener, stating that Hussain was initially segregated because of the assault and the risk he posed to others. Another reason was intelligence linking Hussain with converting other prisoners in segregation to his interpretation of Islam (an allegation which the prison subsequently withdrew). In October 2010 Hussain was transferred to HMP Wakefield. The applications for judicial review focused on issues of procedural fairness. They were dismissed by the High Court. Appeals to the Court of Appeal were dismissed. The Supreme Court unanimously allows the appeals and grants a declaration in each case that the appellants segregation beyond the initial period of 72 hours was not authorised, so was unlawful. Lord Reed gives a judgment with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree. There are two issues: whether the segregation was lawfully authorised, and whether the procedure followed met the requirements of fairness under the common law and, if applicable, article 6(1) of the European Convention on Human Rights. On the first issue, the decisions taken under rule 45(2) were not taken by the Secretary of State, but by the senior prison officer or operational manager chairing the SRB, in accordance with PSO 1700. The argument was that the decision of the operational manager was the decision of the Secretary of the State, by virtue of the Carltona principle. [44 46, 58, 60, 72] Under the Carltona principle, a decision of a departmental official is constitutionally the decision of the minister himself. [48 49] However, the relationship between governors and other prison officers on the one hand, and the Secretary of State on the other, is the subject of specific legislation: this is not readily reconciled with the idea that prison governors and other officers are constitutionally indistinguishable from the Secretary of State. [55] Prison governors are the holders of an independent statutory office. In both the 1952 Act and the Rules there are provisions imposing duties specifically on the governor or prison officers and provisions that confer separate powers on the Secretary of State. It is clear that the relationship between the governor, or his officers, and the Secretary of State bears no resemblance to the relationship between a minister and his officials. [58 60, 64] Neither can perform the functions properly belonging to the other. Rule 45(2) is intended to provide a safeguard for the prisoner against excessively prolonged segregation by the local prison management. It can only operate as a safeguard if it ensures that segregation does not continue for a prolonged period without being considered by officials who are independent of the prison. It follows that the Carltona principle cannot apply to rule 45(2) so as to enable a governor to take the decision on the Secretary of States behalf. [88 89] That is sufficient to allow the appeals, but it is also appropriate to consider the second issue, procedural fairness: first, the prisoners right to make representations and second, the scope of judicial review of decisions under rule 45(2), and its compatibility with article 6(1) ECHR. [91] Common law fairness requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken to authorise continued segregation. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. In the present cases, more could and should have been said. [98, 100] As to whether the decisions to authorise continued segregation fall within article 6(1), so that the prisoner is entitled to a hearing before an independent and impartial tribunal, this depends on whether the decision involves the determination of a civil right recognised by English law. [117] A prisoner does not possess any private law right to association, or any precisely defined entitlement as a matter of public law. Article 6(1) therefore does not apply. In any event judicial review could meet the requirements of article 6(1) in this context. [122 126]

These three appeals raise a number of issues concerning the duty of local housing authorities towards homeless people who claim to be vulnerable, and therefore to have a priority need for the provision of housing accommodation under Part VII of the Housing Act 1996. Those issues turn on the interpretation of the 1996 Act, but some of them also involve consideration of the Equality Act 2010. Part VII of the Housing Act 1996 As its title indicates, Part VII of the 1996 Act is concerned with homelessness, and it imposes duties on local housing authorities to provide assistance and advice, or suitable accommodation, to those who are homeless or threatened with homelessness. By virtue of subsections (1) (3) of section 175, a person is homeless if there is no accommodation (i) which is available for his occupation, (ii) which he is entitled to occupy by virtue of an interest, by virtue of a court order, under a licence, a statute or rule of law, (iii) to which he can secure entry or (in the case of mobile accommodation) which he can place and reside in, and (iv) which it would be reasonable for him to continue to occupy. Section 176 explains that accommodation is only to be treated as available for a person if it is also available for any other person who normally resides, or who might reasonably be expected to reside with him. Section 177 contains examples of circumstances in which it would not be reasonable for a person to occupy accommodation which would otherwise be available to him. By virtue of section 175(4) a person is threatened with homelessness if it is likely that he will become homeless within 28 days. If a person (referred to as an applicant) applies to a local housing authority (an authority) for accommodation or assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness, then, subject to certain exceptions which are irrelevant for present purposes, section 183 provides that the subsequent sections of Part VII apply. If the authority have reason to believe that an applicant may be homeless or Priority need is of central relevance to these appeals, and section 189(1) threatened with homelessness, section 184 requires them to make inquiries whether an applicant is eligible for assistance and if so what duties are owed to him (and to inform the applicant of their decision). Sections 188, 190, 192 and 193 impose duties on authorities depending on the status of the applicant. There are three statuses of importance when deciding on the extent of an authoritys duties, namely eligibility for assistance, priority need, and intentional homelessness. Eligibility for assistance and intentional homelessness are respectively defined in sections 183(2) and 191, and neither is in point for the purposes of the instant appeals. identifies those who have priority need for accommodation as being: (a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside; (b) a person with whom dependent children reside or might reasonably be expected to reside; (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside; (d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster. Section 189(2) enables the Secretary of State to specify further descriptions of priority need and to amend or repeal any part of subsection (1). By the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051), the Secretary of State added four new priority need categories. They are (i) children between 16 and 18, other than certain children for whom local authority childrens services have responsibility, (ii) those under 21 who were between 16 and 18, in care or fostered (other than certain students), (iii) those over 21 who are vulnerable as a result of having been in care (other than certain students), or having served in the armed forces or having been in custody, and (iv) those who are vulnerable as a result of leaving accommodation on account of violence or threats of violence. Under section 188, if the authority have reason to believe that an applicant may be homeless and have a priority need, they must secure that accommodation is available for his occupation pending a decision as to the duty owed to him. Section 190 is concerned with cases where an authority are satisfied that an applicant is homeless but became homeless intentionally. If such an applicant also has priority need, the authority must provide him with (a) accommodation for a period which is sufficient to give him a reasonable opportunity to find alternative accommodation, and (b) advice and assistance in securing such accommodation section 190(2). Section 190(3) provides that, if such an applicant does not have priority need, he shall only be provided with such advice and assistance. Sections 192 and 193 are concerned with cases where an authority are satisfied that an applicant is homeless, but did not become homeless intentionally. Section 192 applies where the authority are satisfied that such an applicant does not have priority need. In such a case, the authority must provide the applicant with advice and assistance in attempting to secure accommodation, and they may (but not must) secure that accommodation is available to him section 192(2) and (3). Section 193 applies where the authority are satisfied that such an applicant has priority need. In such a case, subject to exceptions which are irrelevant for present purposes, the authority must secure that accommodation is available for the applicant. Sections 195 and 196 are concerned with cases where the authority are satisfied that an applicant is threatened with homelessness, and for present purposes it suffices to say that an authoritys obligations in such a case reflect the obligations in sections 190, 192 and 193 in relation to the actual homeless. Section 202 entitles an applicant to seek an internal review of an authoritys decision, inter alia, under sections 190 to 193 and 195, or as to the suitability of any accommodation offered to him. The procedure under any such review is governed by section 203. Section 204 permits any applicant who is dissatisfied with the outcome of any such review to appeal to the County Court on a point of law. An appeal lies from the decision of the County Court to the Court of Appeal, and from there to the Supreme Court, but in each case permission to appeal is needed in the normal way. The Equality Act 2010 Section 4 of the 2010 Act lists the protected characteristics, and they include disability, which is itself defined in section 6 as including mental or physical impairment, whose nature is further explained in Schedule 1. Section 13 deals with direct discrimination generally, and it involves A treat[ing] B less favourably than A treats or would treat others because of a protected characteristic. By virtue of section 15(1), discrimination against a disabled person also occurs if (a) A treats B unfavourably because of something arising in consequence of Bs disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (This definition effects a statutory reversal of the majority House of Lords decision in Lewisham LBC v Malcolm [2008] UKHL 43, [2008] 1 AC 1399.) Section 19 deals with indirect discrimination. Section 29(1) and (2) provides that a person concerned with providing a service to the public must not discriminate against a person by not providing the service or as to the terms on which the service is provided. Section 29(6) specifically outlaws discrimination by [a] person in the exercise of a public function which is not the provision of a service. Section 29(7) imposes a duty to make reasonable adjustments on a person who provides a service to the public or who exercises another public function. Section 20(1) and (2) states that where a person, A, has to make adjustments, the obligation involves satisfying three requirements, of which only one is potentially relevant in the present context, namely that identified in section 20(3) which provides: The first requirement is a requirement, where a provision, criterion or practice of As puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. Section 149 contains the public sector equality duty (the equality duty) and it provides: A public authority must, in the exercise of its functions, have due regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic [which by subsection (7) includes disability] and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons disabilities. Pursuant to various provisions of the Act, the Secretary of State has power to make regulations as to the determination of disability, and that power has been exercised through the Equality Act 2010 (Disability) Regulations 2010 (2010/2128). Regulation 3 provides that, unless the addiction was the result of medically prescribed drugs or other medical treatment, addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the [2010] Act. Regulation 4 provides that certain other conditions, including a tendency to steal should not be treated as amounting to an impairment under the 2010 Act, but that this should not prevent them from being taken into account where it aggravates the effect of any other condition. The facts of the three appeals in summary Johnson v Solihull Metropolitan Borough Council. Craig Johnson was born in 1975 and has been a persistent offender since 1991. He has been convicted of 78 offences, mostly stealing, and has been in and out of prison. Shortly following his most recent release in April 2010, he made an unsuccessful application to Solihull Metropolitan Borough Council (Solihull) for accommodation under Part VII, on the ground that he had priority need under section 189(1)(c). He made a further application in October 2011. He claimed to be vulnerable because (i) he had become addicted to heroin while in prison, (ii) he had lower back trouble and cant climb up stairs, (iii) he suffered from sleeping problems, depression and paranoia, and (iv) he suffered from asthma. Solihull considered his application and rejected his contention that he was vulnerable and therefore in priority need. He exercised his right to seek a review. On 8 May 2012, Gemma Thompson of Solihulls Housing Strategy, Policy and Spatial Planning Services Department notified him of the outcome of the review. She rejected his claim to be vulnerable and therefore in priority need. In the review letter, Ms Thompson said: i) She should ask herself whether [Mr Johnson], when homeless, would be less able to fend for [himself] than an ordinary homeless person so that injury or detriment to [him] would have resulted when a less vulnerable person would be able to cope without harmful effect, and explained that her conclusion was that he would not be less able to fend for [himself] than an ordinary homeless person for reasons she proceeded to give. ii) She was not satisfied that [Mr Johnson is] suffering from depression or had suffered from depression. iii) She also highlight[ed] that research from Homeless Link has shown that mental health problems and homelessness are closely linked both as a cause and as a result of homelessness, and after quoting some figures continued [t]his clearly shows that the fact that [Mr Johnson is] suffering from depression does not necessarily mean that [he is] vulnerable. Given that [he is] not receiving any treatment for depression, [she was] not satisfied that [he] suffer[ed] from a particular form of depression that would make [him] vulnerable. Despite suffering from knee and back pain it has no significant impact upon [Mr Johnson] and [he] would be able to continue with treatment provided by [his] GP and/or physiotherapist. iv) v) So far as drug use is concerned, [a]lthough [he is] taking heroin at present [he does] not appear to have suffered any irreversible secondary medical problems. The evidence shows that [Mr Johnson has] the ability to remain abstinent from drugs [and] whilst it may be harder for [Mr Johnson] to remain off drugs while street homeless, nevertheless [he] can maintain the support that [he] currently ha[s] and would reasonably be able to remain off drugs, and [e]ven if [he does] slip back into using drugs, this would not necessarily be anything unusual in relation to homeless people, as shown by a survey. vi) She acknowledged that Mr Johnson had been in and out of prison since the age of 16, but she was not satisfied either that he had been instititutionalised, having been out of prison for two years and managed [his] affairs, or that he would suffer injury or detriment if [he was] street homeless. vii) Finally, she consider[ed] whether [his] circumstances taken as a whole [made him] vulnerable, and stated that his ability to fend for [himself] is not significantly compromised, and that she was satisfied that there is nothing that differentiates you from other homeless people. Mr Johnson appealed to the Birmingham County Court and His Honour Judge Oliver Jones QC dismissed his appeal, on the ground that the review did not include any significant misdirection of law and resulted in a conclusion which a reasonable reviewer could have arrived at. Mr Johnsons appeal to the Court of Appeal was also dismissed effectively on the same ground [2013] EWCA Civ 752, [2013] HLR 524. In the course of her ex tempore judgment (with which Jackson and McCombe LJJ agreed), Arden LJ said at para 6 that, when determining whether a person is vulnerable within the meaning of section 189(1)(c), a local housing authority must pay close attention to the particular circumstances of the individual, but also was bound to discharge its obligations by taking into account its own burden of homeless persons and finite resources. Hotak v Southwark London Borough Council. Sifatullah Hotak was born in Afghanistan 25 years ago and was granted leave to remain in the UK as a refugee in 2011. He has significant learning difficulties, with a measured IQ on one test of 47, a history of self harming, and symptoms of depression and post traumatic stress disorder. His brother, Ezatullah, entered the UK in 2006, and has recently been granted leave to remain, albeit for a limited period. Sifatullah Hotak is reliant on his brother to prompt him to carry out such routine activities as washing, changing his clothes, and undertaking personal care routines, and to organise health appointments, meals, the making of benefit claims, and the finding of accommodation. The two brothers lived in a room in a flat in Peckham, Southwark, from July 2010, until they had to vacate in March 2011 because the flat was overcrowded. Ezatullah Hotak was ineligible under Part VII owing to his immigration status, but he arranged for his brother, who was not ineligible, to apply to Southwark London Borough Council (Southwark) for accommodation for both of them on the ground that Sifatullah Hotak was in priority need, by virtue of section 189(1)(c), and his brother was a person with whom he resided and indeed could reasonably be expected to reside. Southwark provided the brothers with temporary accommodation under section 188, but in due course rejected the application for accommodation under section 193 on the ground that, while Sifatullah Hotak was homeless, eligible for assistance, and had not become homeless intentionally, he was not in priority need because, if homeless, he would be provided with the necessary support by his brother. Southwark nonetheless rightly accepted that they were obliged to provide advice and assistance to Sifatullah Hotak under section 192. Sifatullah Hotak, through his brother, sought a review of that decision, and the review, carried out by Kojo Sarpong, Southwarks Review Team Leader, confirmed the decision, and declined to exercise the discretionary power to provide accommodation under section 192(3). The review letter is dated 30 June 2011, and it runs to almost six fairly closely typed pages. It includes the following statements: i) [T]he Council must ask itself whether the applicant, when street homeless, is less able to fend for himself/herself so that injury or detriment will result where a less vulnerable street homeless person would be able to cope without harmful effect. ii) [W]e do not believe [that under] section 189 an authority is required to make provisions for households who are comprised of adults in reasonable physical health. v) iv) iii) [I]t is reasonable to expect a fit and healthy adult to attempt to house and support his brother whilst they are homeless together. In addition [Ezatullah Hotak] has confirmed that he currently looks after [his brother] and he would continue to do so if they were street homeless together. We acknowledge that [Sifatullah Hotak] has learning difficulties and disabilities and it would be reasonable to assume that he may find difficulty in finding and maintaining accommodation. If on his own and street homeless [he] may also be at risk . However, we are satisfied that his brother is capable of providing him with continued housing and support if they were street homeless together. Even though we acknowledge that he has learning disabilities and difficulties, we are satisfied that Ezatullah [Hotak] would assist him if street homeless and his circumstances do not confer priority need Sifatullah Hotak, again acting through his brother, appealed against this review to the Lambeth County Court. His Honour Judge Blunsdon dismissed his appeal, and his decision was upheld by the Court of Appeal for reasons given by Pitchford LJ, with whom Moore Bick and Richards LJJ agreed [2013] EWCA Civ 515, [2013] PTSR 1338. The sole point in the Court of Appeal, as in this Court, was whether, as a matter of law, the reviewing officer was entitled to take into account the fact that Sifatullah Hotak could be expected to receive help and support from his brother if he was homeless. If, as the Court of Appeal held, that fact could be taken into account, then it is conceded on Sifatullah Hotaks behalf that this appeal must fail whereas, if it could not be taken into account, Southwark concedes that Sifatullah Hotak would be vulnerable and his appeal must succeed. Kanu v Southwark London Borough Council. Patrick Kanu is currently aged 48, and has physical problems, including back pain, hepatitis B, hypertension and haemorrhoids, as well as psychotic symptoms and suicidal ideation. His wife assists him in taking the necessary drugs, but stress raises his hypertension to what his doctors characterise as quite dangerous levels, which requires an increase in the dose of the relevant drugs. An order for possession had been made against Mr Kanu in respect of his home, a flat in Devonshire House, London SE1, in January 2011. Having made an initial application (which was rejected by Southwark on grounds which were subsequently found to be bad), Mr Kanu applied in early November 2011 to Southwark for accommodation on the ground that he had not become homeless intentionally and in priority need under section 189(1)(c). Although their Medical Assessment Service advised that he should be treated as having priority need because he was at risk of self harming and of harming others, Southwark decided that while Mr Kanu had not become homeless intentionally and was eligible for advice and assistance, he was not in priority need. Mr Kanu sought a review of this decision, and a review dated 17 April 2012 confirmed the decision. However this review was quashed by an order made by HHJ Blunsdon in the Lambeth County Court. This led to a further review, contained in a letter dated 21 March 2013 which also confirmed the decision, and went on to consider and reject the possibility of voluntarily providing Mr Kanu with accommodation under section 192(3). The review, which was carried out by Bernadette Emmanuel, a Reviews Officer of Southwark, runs to no less than 14 fairly closely typed pages. The letter includes the following: i) While accepting that Mr Kanu may be vulnerable, Ms Emmanuel noted that [he] has a wife and adult son included on his homelessness application, who form members of his household and it has been confirmed during interviews with [Mr Kanu] and his wife that he relies upon both his wife and son to provide him with assistance needed for him to perform the tasks of daily living that he is unable to perform for himself. ii) Ms Emmanuel was not satisfied that if [Mr Kanus] household was faced with street homelessness they would be at risk of injury or detriment greater than another ordinary street homeless person due to Mr Kanus wife and son's ability to fend for the whole household, including [Mr Kanu]. iii) She did not believe that an authority is required to make provisions for households who are comprised of or include adults in reasonable physical health. iv) Mr Kanu has been able to continue any treatment even when he was threatened with homelessness, when he became homeless and during periods when he stated that his illness was severe enough to require him to visit hospital on an emergency basis. v) Ms Emmanuel referred to the medical evidence that Mr Kanu had thoughts of self harming but had not done so, and said that she was not satisfied that [he] would be more at risk of committing suicide than another ordinary homeless street person, and she also considered that Mrs Kanu has already demonstrated an ability to prevent him from self harming. vi) Mr Kanu had not encountered any significant difficulties maintaining his present accommodation and that he has been actively seeking employment, and that he would be able to fend for himself if street homeless. vii) As to the haemorrhoids, Ms Emmanuel said that he was not being treated for them and they would not lead to problems. viii) In respect of the hepatitis B and high blood pressure, the doctors had prescribed medication and medical treatments and the information available shows that [Mr Kanu] with assistance from his family has been compliant with his treatments and [Ms Emmanuel was] satisfied that he could continue to do so if street homeless. ix) The letter also stated that consideration had been given to the Disability and Equality Act 2010 and that the public sector equality duty informs the decision making process; however it does not override it. Mr Kanu appealed to the Lambeth County Court, where Mr Recorder Matthews allowed his appeal. This was mainly on the ground that the review had wrongly proceeded on the basis that the view that, if homeless, Mr Kanu would be looked after by his family was not on its own sufficient to prevent him from being vulnerable: Ms Emmanuel should have gone on to ask herself whether he would nonetheless be vulnerable, and she failed to do so. The Recorder also considered there was no evidence that Mr Kanu would get adequate access to treatment when street homeless, as well as thinking that the review had not taken into account the evidence that Mr Kanus condition had worsened in certain respects. He also considered that the references to the equality duty were so perfunctory that they showed that no real regard had been had to it. Southwark appealed to the Court of Appeal and their appeal was successful [2014] EWCA Civ 1085, [2014] PTSR 1197. In his judgment (with which Aikens and Kitchin LJJ agreed), Underhill LJ considered each of the grounds upon which the Recorder had allowed Mr Kanus appeal and held that they were ill founded. Essentially, he considered that the main ground amounted to a criticism that Ms Emmanuel should have checked with the medical experts before concluding that Mr Kanu would, when homeless, not be vulnerable if looked after by his wife. However, said Underhill LJ, there was ample evidence in relation to his physical health and a good deal of evidence as to his mental health to enable Ms Emmanuel to reach a conclusion on an issue which doctors were [not] peculiarly qualified to answer (para 42). He was similarly unimpressed with the other grounds, holding that the public sector equality duty add[ed] nothing to the duty under section 193(2) so far as the issue of priority need is concerned (para 55), and that, in the particular circumstances of this case, it add[ed] nothing to the enquiry under section 189(1)(c) (para 57). The principal issues raised in these appeals These three appeals all thus concern the assessment of an applicants vulnerability for the purpose of determining whether he can claim to have a priority need under section 189(1)(c) of the 1996 Act. The issues which section 189, and in particular subsection (1)(c), throws up were well described by Lord Walker of Gestingthorpe in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430, para 114. He said that [e]stablishing priority need may call for the exercise, and sometimes for a very difficult exercise, of evaluative judgment and the identification of a vulnerable person may present real problems. The three principal issues which have been discussed in these appeals are as follows: i) Does the assessment of whether an applicant is vulnerable for the purposes of section 189(1)(c) of the 1996 Act involve an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined? ii) When assessing vulnerability, is it permissible to take into account the support and assistance which would be provided by a member of his family or household to an applicant if he were homeless? iii) What effect, if any, does the public sector equality duty under section 149 of the 2010 Act have on the determination of priority need under section 189 of the 1996 Act in the case of an applicant with a disability or any other protected characteristic? Although these were the three issues which were identified as being in dispute on these appeals, a number of other points emerged during the hearing which should also be mentioned, and I shall turn to them before addressing the three main issues. Some points of significance First, the vulnerability with which section 189(1)(c) is concerned is an applicants vulnerability if he is homeless. It is true that para (c) uses the present tense and does not expressly link the word vulnerable to any specific situation. However, the context of the word renders it clear that it is concerned with an applicants vulnerability if he is not provided with accommodation. Part VII is concerned with the provision of accommodation, and section 189 is directed to those who are entitled to accommodation rather than advice and assistance in finding it. Thus, the plain inference is that section 189(1)(c) directs an enquiry as to the applicants vulnerability if he remains or becomes a person without accommodation. As was said by Lord Griffiths in R v Oldham Metropolitan Borough Council, Ex p Garlick [1993] AC 509, 519E, when referring to Part III of the Housing Act 1985, the predecessor of Part VII of the 1996 Act, it is primarily to do with the provision of bricks and mortar and not with care and attention for the gravely disabled which is provided for in other legislation and see the fuller discussion in R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808, paras 7 29 per Lady Hale. Secondly, when assessing whether or not an applicant is vulnerable, an authority must, as Arden LJ said in para 6 of her judgment in the Johnson case, pay close attention to the particular circumstances of the applicant. Indeed, as Ms Thompson, the reviewing officer in Mr Johnsons case rightly said (see para 21(vii) above), the issue of vulnerability must be determined not so much by reference to each of the applicants problems, but by reference to them when taken together. Thus, the question whether an applicant is vulnerable must involve looking at his particular characteristics and situation when homeless in the round. Thirdly, Arden LJ was not right to go on to say that the authority must, or even can, tak[e] into account its own burden of homeless persons and finite resources when assessing whether an applicant is vulnerable. In making that observation it may well be that Arden LJ thought that she was following earlier guidance given by Auld LJ in Osmani v Camden London Borough Council [2004] EWCA Civ 1706, [2005] HLR 325, para 38(4) which she had quoted in the preceding paragraph of her judgment. However, as all counsel in these appeals rightly agreed, an authoritys duty under Part VII of the 1996 Act is not to be influenced or affected by the resources available to the authority. Once they have determined the status of an applicant under Part VII of the 1996 Act, their duty to that applicant is as defined in the Act: the fact that the authority may be very short of money and/or available accommodation cannot in any way affect whether an applicant is in priority need. In so far as a balancing exercise between housing the homeless and conserving local authority resources is appropriate, it has been carried out by Parliament when enacting Part VII. Of course, an authoritys resources may be relevant in relation to a number of aspects of its duty under Part VII of the 1996 Act (see eg per Lord Hoffmann in Holmes Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, para 13), but they can have no part to play when assessing whether an applicant is vulnerable. Fourthly, certain expressions seem to have entered the vocabulary of those involved in homelessness issues, which can lead to difficulties when they are applied to strictly legal problems. In particular, for instance, street homelessness and fend for oneself are expressions which one finds, in one or more of the review letters in the present appeals. Such expressions may be useful in discussions, but they can be dangerous if employed in a document which is intended to have legal effect. There are obvious dangers of using such expressions. They may start to supplant the statutory test, which is normally inappropriate in principle, and, when they originate from a judgment, they may be apt for the particular case before the court, but not necessarily for the general run of cases. Additionally, they may mean different things to different people. The expression fend for oneself was used by Waller LJ in R v Waveney District Council, Ex p Bowers [1983] QB 238, 244H, and no doubt was a useful way of expressing oneself in the context of that case (which was concerned with section 2(1)(c) of the Housing (Homeless Persons) Act 1977, which was effectively identical to section 189(1)(c) of the 1996 Act). However, it is not the statutory test, and at least to some people a person may be vulnerable even though he can fend for himself. Furthermore, the expression could mislead. For instance, where, as in two of the instant appeals, the issue is whether an applicant is vulnerable if he will be fully supported by a family member, the answer most people would give would be no, if the test is literally whether he could fend for himself. The expression street homeless is also much used, but it is not to be found in the 1996 Act (although it is to be found, and indeed defined in section 71 of the Housing (Wales) Act 2014, which is concerned with the meaning of vulnerable). It seems to have entered into the Court of Appeals vocabulary in the judgment of Auld LJ, in Osmani see paras 23 28 and para 38(7). When Lord Hughes raised the question of the precise meaning of street homeless with counsel during argument, it took until the following day before he got a clear answer. The expression can plainly mean somewhat different things to different people. Homeless, as defined in the 1996 Act, is an adjective which can cover a number of different situations, and the very fact that the statute does not distinguish between them calls into question the legitimacy of doing so when considering the nature or extent of an authoritys duty to an applicant. Fifthly, as Ms Rhee pointed out, the use of statistics to determine whether someone is vulnerable is a very dangerous exercise whatever the correct test of vulnerability under section 189(1)(c) may be. The point was very well put by Underhill LJ in Ajilore v Hackney London Borough Council [2014] EWCA Civ 1273, para 58, where he was discussing statistical evidence relied on in a section 202 review in relation to an applicant who was said to be a suicide risk if he was made homeless: [E]ven if it is right, as seems plausible enough even in the absence of statistics, that the incidence of suicide is higher among homeless people than in the remainder of the population, I am not sure how that is relevant to the question which the reviewing officer had to decide. It might show only that a disproportionate number of people with the kind of history or personality that renders them specially liable to attempt suicide tend to be made homeless. The fact that there might be disproportionately many such people in the homeless population would not in itself mean that they were any the less vulnerable within the meaning of section 189 (1)(c) any more than it would if there were a disproportionately large number of homeless people suffering from severe mental illness. The question of who constitutes the ordinary homeless person cannot be answered purely statistically. Sixthly, to characterise those who fall within paragraphs (a), (b) and (d) of section 189(1) as vulnerable is a mistake. I mention that because it was suggested that this was a helpful approach when deciding how to interpret paragraph (c). The linking characteristic of the people who fall within the four paragraphs is that they have priority need, not that they are vulnerable. The statute only uses the word vulnerable in paragraph (c), and that is because not all those who fall within the specific classes referred to in that paragraph, namely old age, mental illness or handicap or physical disability, are within the scope of the paragraph: it is only those who are vulnerable. On the other hand, Parliament has decided that everyone who is pregnant, living with dependent children, or is homeless as a result of an emergency is in priority need. The Secretary of State drew the same distinction between the first two and the last two of the additional categories added by the Order referred to at para 9 above. Seventhly, the reviews in the Hotak and Kanu cases reveal a belief on the part of some reviewing officers which is quite mistaken and should be recorded as such. Thus, in her review in the Kanu case, Ms Emmanuel suggested that a local housing authority was not required to make provisions for households who are comprised of or include adults in reasonable physical health see para 31(iii) above and the same point was made (I think) in the Hotak review see para 26(ii) above. This is plainly wrong. It is clear from the wording of section 189(1)(c) that (i) an applicant can be vulnerable even if he resides or can be expected to reside with a third party, and (ii) once an authority has decided that an applicant is vulnerable, then the duty to house him extends to such a third party. It is nothing to the point that the third party is not vulnerable. Of course, if the support which the third party would give to the applicant can be taken into account when deciding whether the applicant is vulnerable (the second issue identified in para 35(ii) above), then the fact that the third party is in good physical and mental health may be of some relevance, but that is as far as the third partys state of health can go in playing any part in determining an applicants vulnerability. Eighthly, the cases reveal a disagreement as to whether section 189(1)(c) gives rise to a two stage test (i) whether the applicant is vulnerable, and (ii) whether it is as a result of old age, mental illness or handicap or physical disability or other special reason or whether there is a single, composite test. This is a somewhat arid argument, and I am unconvinced that it is sensible to force housing authorities and reviewing officers into a straitjacket on this sort of issue. In any event, the correct answer may depend on the facts of the particular case. However, given the reference to other special reason , and given the fact that in many cases there will be a mixture of reasons as to why an applicant is said to be vulnerable, I suspect that the one stage test will probably be more practical in most cases. and, having considered them, I will deal with the three appeals. Vulnerability: a comparative concept, but compared with what? There have been a number of decisions of the Court of Appeal on the issue of whether or not an applicant was vulnerable within the meaning of section 189(1)(c) or its statutory predecessor. When it comes to the proper approach to the issue, there are two decisions which have been frequently referred to. The first is Ex p Bowers [1983] QB 238, where at pp 244H 245A, Waller LJ said vulnerable in the context of this legislation means less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects. The second, which has proved particularly influential, is R v Camden London Borough Council, Ex p Pereira (1998) 31 HLR 317, where at p 330 in the last paragraph of his judgment, Hobhouse LJ gave fuller guidance. In a passage similar to that in Bowers, but with an important addition, he said that the authority must ask themselves whether the applicant when homeless [will be] less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects (emphasis added). To the same effect, he said this a little later: It must appear that his inability to fend for himself whilst homeless will result in injury or I turn now to the three issues which have been argued between the parties, detriment to him which would not be suffered by an ordinary homeless person who was able to cope. Waller LJs formulation suffers from the rather fundamental defect that it seeks to explain who is a vulnerable person by reference to a less vulnerable one, which is logically circular and therefore highly questionable. Although the first of the two sentences I have quoted from Hobhouse LJs judgment suffers from the same problem, his guidance is potentially more helpful. However, I think that it should be approached with caution essentially for two reasons. First, it has been treated in some decisions of courts and reviewing officers almost as a statutory definition, when it was simply intended to be guidance to Camden housing authority as to how to approach Mr Pereiras application, which was being remitted for reconsideration. Thus, no doubt because there was no question of Mr Pereira being supported by a family member, Hobhouse LJ used the expression fend for himself, which I have discussed above. The second reason for treating Hobhouse LJs guidance with caution is that the term ordinary homeless person can plainly be interpreted in more than one way, as Mr McGuire QC rightly submitted. One feature which the reasoning in all the previous cases share in this connection is the notion that vulnerability has to be assessed comparatively as is clear from the two cases just referred to. However, in these appeals, it is argued on behalf of Mr Johnson that this is wrong, and that there is no need for a comparable against which to judge whether an applicant is vulnerable for the purposes of section 189(1)(c). Although the argument was advanced by Mr Luba QC with his usual ability and fluency, it is not right. As Lord Wilson pointed out in argument, vulnerable, like virtually all adjectives, carries with it a necessary implication of relativity. In the very type of case under consideration, it can fairly be said that anyone who is homeless is vulnerable, as Lord Glennie pointed out in Morgan v Stirling Council [2006] CSOH 154, [2006] HousLR 95, para 4. Accordingly, as he went on to suggest, it follows that section 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position (especially given the words or other special reason which show that vulnerability arising from many causes is covered). Mr Luba contended that anyone who cannot cope without harm with homelessness is vulnerable. But that formulation merely restates the problem and does so by reference to non statutory wording (including the word cope which may have similar problems to the expression fend for himself). Virtually everyone who is homeless suffers harm by undergoing the experience, and therefore one is thrown back on the notion of a homeless person who suffers more harm than many others in the same position. Accordingly, I consider that the approach consistently adopted by the Court of Appeal that vulnerable in section 189(1)(c) connotes significantly more vulnerable than ordinarily vulnerable as a result of being rendered homeless, is correct. But that leaves open the question of the comparator group. In Ex p Pereira 31 HLR 317, 330, as explained above, Hobhouse LJ suggested that the comparator was the ordinary homeless person, which is, as I have mentioned, an uncharacteristically imprecise expression. It could mean (i) the ordinary person if rendered homeless, or (ii) the ordinary person who is actually homeless (a) viewed nationally, or (b) viewed by reference to the authoritys experience. At least judging from the decisions to which we were referred, this uncertainty was initially not resolved thus, it seems to have been left open in Auld LJs summary of the legal principles in Osmani, at para 38(4) and (5). However, shortly thereafter, in Tetteh v Kingston upon Thames London Borough Council [2004] EWCA Civ 1775, [2005] HLR 21, para 21, Gage LJ seems to have assumed that the ordinary homeless person was a notional homeless person based on the particular authoritys experience. That also seems to have been the approach of Arden LJ in Johnson [2013] HLR 524, at paras 18 and 20, as pointed out by Gloster LJ in Ajilore, at para 14, an approach which she also adopted. While it is not entirely clear, this suggests that the test being adopted is possibility (ii)(b), but it may be (ii)(a). Despite the argument of Mr Rutledge QC to the contrary, in my judgment that is not the right approach. I do not consider that it would be right for the comparison to be based on the group of people in England and Wales who are homeless ie possibility (ii)(a); still less do I consider that the comparison should be based on the group of people who are homeless in the area of the relevant authority ie possibility (ii)(b). In my view, possibility (i) is correct. It does not seem probable that Parliament intended vulnerability to be judged by reference to what a housing officer thought to be the situation of an ordinary actual homeless person. Such an assessment would be more likely to lead to arbitrary and unpredictable outcomes than if one takes the ordinary person if rendered homeless, and considers how the applicant would fare as against him. Equally importantly, if the comparison is with the ordinary actual homeless person, then especially if possibility (ii)(b) were correct as Sedley J pointed out in R v Hammersmith & Fulham London Borough Council, Ex p Fleck (1997) 30 HLR 679, 681, there would be a real risk that a sick and vulnerable individual (and I do not use the word vulnerable in its statutory sense) is going to be put out on the streets, which he described as a reproach to a society that considers itself to be civilised. In my opinion, properly understood, both Waller LJ in Bowers and Hobhouse LJ in Pereira intended the vulnerability comparison under section 189(1)(c) to be with an ordinary person if made homeless, not with an ordinary person actually homeless. That seems to me to be apparent from Waller LJs reference to a less vulnerable man, as opposed to a less vulnerable homeless man. I think it also follows from Hobhouse LJs reference (in a passage at p 330 which I have not so far quoted) to an individual who suffer[s] from some mental or physical handicap which makes him unable to cope with homelessness as someone who would fall within section 189(1)(c). There was no suggestion that, if such a person could be said to be ordinary in the context of the actual homeless, he would fall outside the section. Accordingly, I consider that, in order to decide whether an applicant falls within section 189(1)(c), an authority or reviewing officer should compare him with an ordinary person, but an ordinary person if made homeless, not an ordinary actual homeless person. In fact as Lady Hale has pointed out, comparing an applicant with other homeless people is not the precisely accurate comparison. Section 189 is concerned with those who have need for accommodation. Accordingly, strict accuracy suggests that, when assessing his vulnerability for the purposes of section 189(1)(c), an applicant should be compared with an ordinary person who is in need of accommodation. I am unpersuaded that that could ever lead to a different result from a comparison with an ordinary person who is homeless, but, given that I have been anxious to emphasise the primacy of the statutory words, it would be wrong not to acknowledge this point. Before leaving this point, I should mention that Mr Rutledge argued that Parliament had impliedly approved what was said by Hobhouse LJ in Pereira by having made subsequent amendments to Part VII of the 1996 Act without in any way amending section 189(1)(c). This is a useful opportunity to emphasise that this is a misconceived argument for the reasons which Lady Hale and I gave in R (N) v Lewisham London Borough Council [2014] UKSC 62, [2014] 3 WLR 1548, paras 167 168 and 143 148, which, albeit in dissenting judgments, represent the law on this topic. As Mr Luba rightly said, there is a stronger argument that the substantial re enactment of section 21(1)(c) of the 1977 Act as section 189(1)(c) of the 1996 Act can be said to suggest Parliamentary approval of Bowers, but even that is a weak argument, as (i) it is not a powerful point of principle (see the citations in paras 145 146 of R (N) v Lewisham London Borough Council), (ii) the re enactment was not in identical language, (iii) there is nothing to suggest that Bowers had been viewed by the courts as laying down a definition of universal application, (iv) there is nothing to suggest that Parliament was aware of the decision as laying down a principle, and (v) in any event, the passage relied on is logically flawed in so far as it is said to be a definition (see para 49 above). Vulnerability: the relevance of support from family members In Hotak, the reviewing officer, His Honour Judge Blunsdon, and the Court of Appeal all came to the conclusion that an applicant who would otherwise be vulnerable within section 189(1)(c) might not be vulnerable if, when homeless, he would be provided with support and care by a third party (often no doubt a family member with whom he was living). In my judgment, that conclusion, which was subsequently followed in Kanu, is correct, but it has to be applied with considerable circumspection. As explained in para 37 above, an applicants vulnerability under section 189(1)(c) has to be assessed by reference to his situation if and when homeless. In other words, it is not so much a clinical assessment of his physical and mental ability (to use a shorthand expression): it is a contextual and practical assessment of his physical and mental ability if he is rendered homeless (which, as just explained, must be compared with the ability of an ordinary person if rendered homeless). The fact that it is a contextual and practical question points strongly in favour of the conclusion that, when deciding if he is vulnerable, one must take into account such services and support that would be available to the applicant if he were homeless. Such a conclusion is also supported by consideration of the purpose of Part VII of the 1996 Act generally and section 189 in particular. Part VII is aimed at assisting the homeless, and as Lord Hoffmann observed in ORourke v Camden London Borough Council [1998] AC 188, 193, it involves public money [being] spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest. As he went on to explain, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. Virtually everyone is better off housed than homeless, but it is those people who will be more vulnerable in practice if they are homeless who could be expected to receive priority treatment. It would seem contrary to common sense if one were to ignore any aspect of the actual or anticipated factual situation when assessing vulnerability. It is also relevant to note that paras (a), (b) and (d) of section 189(1) are all concerned with practical situations. As Lord Wilson pointed out, this conclusion is supported by considering an applicant with a physical or mental condition which, if not treated, would render him vulnerable, but which can be satisfactorily treated by regular medication. If such an applicant, when homeless, would be perfectly capable of visiting a doctor to obtain a prescription and a pharmacist to collect his medication, and then of administering the medication to himself, it would be unrealistic to describe him as vulnerable, when compared with an ordinary person when homeless. Mr Brown QC tried valiantly to meet that point, but it does not appear to me that it is answerable. Once one accepts that point, it is very hard to see any logical reason for ignoring any support or assistance which an applicant would receive when homeless. For similar reasons, it is also very hard to see any principled basis for disregarding support or assistance simply because it would come from the authority (eg through its social services department) or from a family member. Unlike Lady Hale, I do not consider that it matters, at least in principle, whether the support is provided pursuant to a legal obligation. As I see it, although I have sympathy with the notion in terms of policy, the conclusion that support only qualifies if provided pursuant to a legal obligation involves implying a limitation into the statute. Having said that, I agree with Lady Hale that housing authorities can only take third party support into account where they are satisfied that, as a matter of fact, the third party will provide such support on a consistent and predictable basis. In that connection, the question whether there is a legal obligation on the third party to provide the support could sometimes be relevant, in that it may be said to be intrinsically more likely that a person will continue to provide support if he or she has a legal obligation to do so. So, where an otherwise vulnerable applicant would not be vulnerable if he was receiving third party support, the question is simply one of fact: will the third party provide the support on a consistent and predictable basis? Mr Brown did, however, make one very powerful point. Section 189(1)(c) extends priority need not only to a vulnerable applicant but also to a person with whom he resides or could be expected to reside. If such a person is prepared to look after the applicant when they are both homeless, then the applicant may not qualify as having priority need and they will not receive accommodation, whereas if that person refuses to look after the applicant, they will both qualify under section 189(1)(c) and receive accommodation. That indeed is the effect of the decisions in Hotak and Kanu. Further, as Lady Hale pointed out, an even starker example could arise where a mother, who has been provided with accommodation for herself and her disabled child under section 189(1)(b), loses priority status when her child comes of age. In such circumstances, her child might only be vulnerable if she was not prepared to look after him if homeless, so they would both be housed if she refused to care for the child, but they would not be housed if she acted as any caring mother would be expected to act. This point gives rise to a real concern whether the view I have expressed in paras 62 64 above can be correct. However, in the end, I do not consider that it undermines it. The curious, indeed somewhat distasteful, consequence of that conclusion where it is a family member (as it normally would be) residing with the applicant who provides the support cannot justify changing that conclusion generally: it would involve the tail wagging the dog. Nor can one imply an exception into the general principle that support is to be taken into account when assessing vulnerability: at least on its own, the fact that a statutory provision is capable of producing a distasteful result in some circumstances cannot justify some sort of judicially created legislative exception. While it cannot be denied that Mr Browns point has force, I think that the apparent paradox which he identifies is, on analysis readily explicable. The primary focus of section 189(1)(c) is on the putative vulnerable applicant, and the inclusion of a third party in the provision of accommodation is either to avoid breaking up the household or family unit or to benefit the vulnerable person, and not to benefit the third party. If one is looking at the applicant, the only relevant factual question when it comes to the issue of support is what support he would receive; the fact that the answer to this question may produce counter intuitive results in relation to a third party with whom he lives is therefore not as surprising as it seems at first blush. The purpose of Part VII of the 1996 Act is not to reward the virtuous, but to deal with a practical problem. In any event, it is by no means obvious that the curious outcome identified by Mr Brown is attributable to a Parliamentary oversight. While some may think that it would be appropriate to make an exception for care when provided by a family member, it may equally be thought that, if such care is provided, it would place an excessive burden on housing authorities and work unfairly on other applicants, if it was disregarded when assessing the applicants vulnerability, however perverse the result may seem when viewed from the perspective of the family members position. While an otherwise vulnerable applicant may not be vulnerable if he would be provided with care and support when homeless, it is very important indeed to emphasise that the mere fact that such support would be available may not prevent the applicant from being vulnerable. Thus, the observation in the Hotak review that, because Ezatullah Hotak looks after his brother and he would continue to do so if they were street homeless together (see para 26(iii) above) does not of itself mean that Sifatullah Hotak would therefore not be vulnerable. It is still incumbent on the reviewing officer to ask whether, even when looked after by his commendable brother, he would be vulnerable. The same point applies in Kanu, where the review letter relied on Mr Kanus wife and son's ability to fend for the whole household, including [Mr Kanu] see para 31(ii) above: this conclusion does not of itself necessarily mean that Mr Kanu would not be vulnerable. Equally dangerous is the preceding sentence in the Hotak letter, namely it is reasonable to expect a fit and healthy adult to attempt to house and support his brother while they are homeless together, at least if it is intended to suggest that there was an irrebuttable, or even a strong, presumption that a person will do what it is reasonable to expect him to do. I accept that it is not unreasonable to expect members of the same family to support each other if they are living together, but (i) whether a particular applicant will in fact receive support and if so what support, must be a case specific question, to which the answer must be based on evidence (which can of course include appropriate inferences), (ii) in a particular case, the level of support may have to be so high to obviate vulnerability that it goes beyond what can be expected on any view, and (iii) as already explained, the fact that there may very substantial support does not of itself necessarily mean that the applicant will not be vulnerable. Thus, in some cases, the support may be every bit as good as the applicant would receive if he were housed, but it would still not prevent him from being vulnerable. Accordingly, the reviewing officer must always consider very carefully whether the applicant would be vulnerable, after taking into account any support which would be available. The point was very well made by Pitchford LJ in para 42 of his judgment in Hotak, where he said this (albeit that it must be corrected to allow for the fact that fending for oneself is not quite the appropriate test): Even if the reviewing officer is satisfied that the support network would remain in place it may not, in a situation of homelessness, be sufficient to enable the applicant to fend for himself as would the average homeless person. For example, the old age or mental ill health or physical disability of the applicant may be such that no amount of support will enable the applicant to cope with homelessness as would a robust and healthy homeless person. The Equality Act 2010 The complaint raised under the 2010 Act against the review in the Kanu case by Ms Mountfield QC is that it failed to comply with the equality duty in that Ms Emmanuel accorded insufficiently careful or critical scrutiny to Mr Kanus disability, and to the consequences to him of the adverse decision that he was not vulnerable. The equality duty has been the subject of a number of valuable judgments in the Court of Appeal. Explanations of what the duty involves have been given by Dyson LJ (in relation to the equivalent provision in the Race Relations Act 1976) in Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, [2009] PTSR 809, paras 30 31,Wilson LJ (in relation to section 49A of the Disability Discrimination Act 1995, as inserted by section 3 of the Disability Discrimination Act 2005, the predecessor of section 149 of the 2010 Act) in Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104, [2011] PTSR 565, paras 28 and 32, and McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] Eq LR 40, para 26 which pulls together various dicta, most notably those of Elias LJ in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), paras 77 78 and 89. I do not propose to quote those passages in extenso: they are not challenged in these appeals, and in my view, at least as at present advised, rightly so. As Dyson LJ emphasised, the equality duty is not a duty to achieve a result, but a duty to have due regard to the need to achieve the goals identified in paras (a) to (c) of section 149(1) of the 2010 Act. Wilson LJ explained that the Parliamentary intention behind section 149 was that there should be a culture of greater awareness of the existence and legal consequences of disability. He went on to say in para 33 that the extent of the regard which must be had to the six aspects of the duty (now in subsections (1) and (3) of section 149 of the 2010 Act) must be what is appropriate in all the circumstances. Lord Clarke suggested in argument that this was not a particularly helpful guide and I agree with him. However, in the light of the word due in section 149(1), I do not think it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact sensitive and dependant on individual judgment. As was made clear in a passage quoted in Bracking, the duty must be exercised in substance, with rigour, and with an open mind (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is for the decision maker to determine how much weight to give to the duty: the court simply has to be satisfied that there has been rigorous consideration of the duty. Provided that there has been a proper and conscientious focus on the statutory criteria, he said that the court cannot interfere simply because it would have given greater weight to the equality implications of the decision. Pieretti is particularly in point as it concerned the interrelationship of Part VII of the 1996 Act and what is now the 2010 Act, and the Court of Appeal rightly held that what is now the public sector equality duty applied to a housing authority when performing its functions under Part VII. At para 28, Wilson LJ referred to the six specified aspects of the duty in the predecessor to subsections (1) and (3) of section 149 as complement[ing] the duties of local authorities under Part VII. The specific issue in the case was whether the reviewing officer had complied with what was the statutory predecessor of the equality duty, when deciding that the applicant and his wife were voluntarily homeless because they had failed to pay the rent due on their previous home as a result of which they were evicted. The Court of Appeal held that, on the specific facts of the case, the reviewing officer was in breach of her duty under section 49A(1)(d), because she fail[ed] to make further inquiry in relation to some such feature of the evidence presented to her as raised a real possibility that the applicant was disabled in a sense relevant to whether he acted deliberately and in particular to whether he acted in good faith per Wilson LJ at paras 35 36. In cases such as the present, where the issue is whether an applicant is or would be vulnerable under section 189(1)(c) if homeless, an authoritys equality duty can fairly be described as complementary to its duty under the 1996 Act. More specifically, each stage of the decision making exercise as to whether an applicant with an actual or possible disability or other relevant protected characteristic falls within section 189(1)(c), must be made with the equality duty well in mind, and must be exercised in substance, with rigour, and with an open mind. There is a risk that such words can lead to no more than formulaic and high minded mantras in judgments and in other documents such as section 202 reviews. It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result vulnerable. Mr Underwood QC argued that the equality duty added nothing to the duty of an authority or a reviewing officer when determining whether an applicant is vulnerable. I quite accept that, in many cases, a conscientious reviewing officer who was investigating and reporting on a potentially vulnerable applicant, and who was unaware of the fact that the equality duty was engaged, could, despite his ignorance, very often comply with that duty. However, there will undoubtedly be cases where a review, which was otherwise lawful, will be held unlawful because it does not comply with the equality duty. In Holmes Moorhouse [2009] 1 WLR 413, at paras 47 52, I said that a benevolent and not too technical approach to section 202 review letters was appropriate, that one should not search for inconsistencies, and that immaterial errors should not have an invalidating effect. I strongly maintain those views, but they now have to be read in the light of the contents of para 78 above in a case where the equality duty is engaged. Ms Monaghan QC supported Ms Mountfields case that the equality duty would apply in a case where an applicant had a relevant protected characteristic. She also suggested that the effect of section 15 of the 2010 Act was to render unlawful a decision that such an applicant was not vulnerable because he could rely on the support of a third party. I do not accept that submission. Even assuming that it can be said that section 15(1)(a) is satisfied and such a decision amounted to what may be characterised as prima facie unlawful discriminatory treatment (which I would leave open, not least because it was not fully argued before us or even raised below), it seems to me that the treatment would be lawful pursuant to section 15(1)(b) on the basis that it was a proportionate means of achieving a legitimate aim. Section 189(1)(c) is part of a scheme whose aim is to assist homeless people generally, and in particular to allocate the scarce resource of accommodation available to an authority to particular classes of homeless people. In section 189(1), Parliament has decided the principles by reference to which that allocation is to be effected, and those principles cannot possibly be described as unreasonable. When an authority assesses what support and care would be available to an applicant with a relevant protected characteristic, and whether that would, as it were, take him out of section 189(1)(c), it is simply putting Parliaments decision into effect. Conclusions on these appeals Mr Kanus appeal should be allowed, and Southwarks decision quashed. The review letter is a full and considered document, but it suffers from the errors of (i) assessing Mr Kanus vulnerability by reference to another ordinary street homeless person, and (ii) assuming that an authority is entitled to treat members of a household as not vulnerable if one of them is mentally and physically healthy see paras 31(ii) and (iii) above. It is plain that an appeal against a review cannot succeed in every case where the wrong comparator has been invoked or a wrong legal assumption is made. Indeed, I do not think that Mr Kanus appeal could succeed if the only error was the reference to street homeless. But in this case, the important factor to my mind is that Mr Kanu had and has what appears to be a pretty strong case for claiming to be vulnerable. It is therefore quite conceivable that the review would have gone the other way if the right comparator had been used. I would not, however, have allowed his appeal based on the equality duty. While some might find the outcome of the review surprising, in my view, albeit in a rather prolix and slightly confusing way, Ms Emmanuel did approach the question of Mr Kanus vulnerability in a sufficiently full and considered way to satisfy the equality duty. The letter appears to identify each aspect of his disability; to address with care the questions of how they would be dealt with if he was homeless; how they would affect him, if he was homeless; whether he would therefore be vulnerable; and why, in Ms Emmanuels view, he would not. In forming this view, I do not place significant weight on the fact that she specifically mentioned the equality duty (although she gave the 2010 Act the wrong name) see para 31(ix) above. If the earlier part of the letter had not complied with the duty, I doubt very much that the throw away reference to the equality duty could have saved it. We were told that Mr Kanus medical condition had deteriorated since the review decision had been made, and that he was in hospital. We were also told that, to their credit, Southwark had written to his solicitors indicating that he should make a fresh application as his deteriorating health justified a fresh Part VII application being made (following the guidance in Tower Hamlets London Borough Council v Rikha Begum [2005] EWCA Civ 340, [2005] 1 WLR 2103). Mr Johnson can raise the same argument as Mr Kanu as to the use of the wrong comparator, and he can also raise the argument that the reviewing officer, Ms Thompson, wrongly relied on statistical evidence see para 21(i) and (iii) above. Nonetheless, I would dismiss his appeal. The review letter in his case is in my opinion a clear example of a review whose conclusion is not impeached by the fact that the proper comparator was not invoked nor indeed by the fact that the reviewing officer inappropriately relied on statistical evidence. Thus, it appears clear from the review letter that Ms Thompson concluded that Mr Johnson did not suffer from depression, and therefore her comparison with ordinary actually homeless people and her reliance on the statistics were irrelevant as they would only come into play if he did suffer from depression see para 21(ii) above. She also found that his physical ailments were irrelevant to the issue of vulnerability, for reasons which seem to me to be unexceptionable see para 21(iv) above. Similarly, she concluded that his experiences in prison did not render him vulnerable see para 21(vi) above. As to Mr Johnsons heroin problem, assuming (without deciding) that actual or potential problems with drugs fall within the expression other special reason, it appears to me that the finding that Mr Johnson was not vulnerable on this ground cannot be faulted. It is true that the passages from the review letter quoted at para 21(v) above include references to the wrong comparator and statistical evidence. However, as with the depression and physical complaints, I consider that those references are irrelevant. That is because the earlier passages, read fairly, amount to a finding that his drug problems would have no significant effect on Mr Johnsons situation if he was homeless as he was not misusing drugs, and, even if he did misuse them, he [would] maintain the support that he currently [had]. It is fair to say that the passage dealing with Mr Johnsons drugs problem is not conspicuous for its clarity, but that appears to be its effect. It is also germane to bear in mind that the equality duty does not extend to Mr Johnsons misuse of drugs (or to his predilection for thieving) in the light of the Regulations referred to in para 18 above I turn, finally to Mr Hotak. It is clear that his appeal must be dismissed as it was agreed between counsel that the outcome of the appeal turned entirely on the answer on the second main issue, and, as I am against Mr Hotak in relation that point, his appeal must fail. However, I must confess to real disquiet about that conclusion. It does appear to me that the reviewing officer in his case went wrong in the same way as the reviewing officer in Mr Kanus case compare paras 26(i) and (ii) with paras 31(ii) and (iii) above and he also appears to have proceeded on the basis that he was entitled to assume that Ezatullah Hotak would continue to support Sifatullah Hotak if he was homeless see para 26(iii) above. I readily accept that even the combination of the errors of (i) using a comparator based on the ordinary actual homeless person, (ii) referring to street homeless, (iii) apparently thinking that there was no duty to provide accommodation, and (iv) apparently thinking that a person could be assumed to support a vulnerable brother may not render a review decision bad in law. Thus, there is a powerful case for saying that the third and fourth points were merely badly expressed (as otherwise it is unclear why the letter went on to consider Sifatullah Hotaks situation). However, given the fact that Sifatullah Hotak appears to have had a strong case for saying that he did fall within section 189(1)(c), I would have taken the same view of his appeal as that of Mr Kanu. However, I do not think that it would be right to allow Mr Hotaks appeal on a ground which has not been raised on his behalf at any stage of these proceedings not even in writing or orally on his appeal to this court. We were told that, very properly, Southwark were continuing to house the Hotak brothers pending the outcome of this appeal. I am well aware of the pressures on both the personnel and the financial resources of housing authorities in general, and of Southwark in particular. However, in the light of his unusual degree of disability and concerning circumstances, I would very much hope that, despite the fact that we are dismissing his appeal, Sifatullahs potential homelessness will be reconsidered by Southwark. Since we made this judgment available in draft to counsel for the parties, an application was made on behalf of Mr Hotak requesting the court to consider whether to quash the review letter in his case in the light of what is said in paras 87 and 88 above and by Lady Hale in para 102 below. Rather than delay handing down the decision, we have asked Southwark to make submissions on this application, whereupon we will decide how to dispose of it. In the event, however, I would dismiss the appeals in Hotak v Southwark London Borough Council (subject to what I say in para 89 above) and in Johnson v Solihull Metropolitan Borough Council, and would allow the appeal in Kanu v Southwark London Borough Council. Counsel can no doubt agree appropriate forms of order. LADY HALE: (dissenting in part) Glossing the plain words of statutory provisions is a dangerous thing, as these cases show only too clearly. The statutory provision says simply that: The following have a priority need for accommodation . (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside. Yet we had reached the point where decision makers were saying, of people who clearly had serious mental or physical disabilities, that you are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality; and further, that if a person living with you, or who might reasonably be expected to live with you, is able and willing to look after you on the streets then you are not vulnerable. In my view, both of those propositions are wrong. The first question is whether it is necessary to introduce any comparison into the word vulnerable. Adjectives are capable of bearing an objective meaning: one can say that a person is mentally ill without setting a comparative standard. But I appreciate that there usually is some comparative standard implicit if I say that a person is tall, I probably mean that he is taller than average or perhaps taller than me. It is also the case that many old people and most people who suffer from mental illness or handicap or physical disability are for that reason alone vulnerable in the dictionary sense of being susceptible to harm. But the legislator did not provide that they were all in priority need, only that they are in priority need if they are vulnerable as a result. The concept of being vulnerable must therefore have been intended to add something to those other characteristics. But what? To answer that, one needs to know what they will be vulnerable to or at risk of harm from. The obvious answer is that they must be at risk of harm from being without accommodation: the object of the section is to identify those groups who have a priority need for accommodation. Is that enough by itself? The problem, of course, is that we are all to some extent at risk of harm from being without accommodation women perhaps more than men, but it is easy to understand how rapidly even the strongest person is likely to decline if left without anywhere to live. So this is why a comparison must be implied. The person who is old, mentally disordered or disabled, or physically disabled, must as a result be more at risk of harm from being without accommodation than an ordinary person would be. This is what I understand Lord Neuberger to mean by an ordinary person if homeless. I agree. The comparison is with ordinary people, not ordinary homeless people, still less ordinary street homeless people. And it is ordinary people generally, not ordinary people in this locality. It is when we come to the second proposition that I venture to disagree with Lord Neubergers view. In my view, the source of the predicted third party support makes a difference. I accept that, when considering whether the person concerned is more at risk of harm from being without accommodation than others, it is right and proper to take into account the statutory services which will be available to him in any event. He will still be able to get the medication he needs. He should still be able to obtain medical and nursing care from the National Health Service. He should still be able to obtain counselling and other community services available for people with mental disorders or disabilities. There is a statutory duty to supply such services and a corresponding right to receive them. Charitable services are another matter, unless these are provided by arrangement with the statutory services in fulfilment of their statutory duties. There is no legal obligation to provide charitable services. Charitable services may come and go there may be a regular soup or sandwich run in some places at some times but not everywhere always. Charitable services will set their own criteria for whom they will help and whom they will turn away. Charitable services may run out of money. I appreciate that the days are long gone when we could even think that the statutory services have a bottomless pit of money. But we are all agreed that this is not a context in which local authorities are entitled to take their own resources into account. But if they are entitled to take third party support into account, it must at the very least be consistent and predictable and reasonable to expect the third party to provide it for this particular person. That is one reason for doubting whether it is appropriate to take family support into account but there is another more important one. I do not see how it can be consistent with the intention of the statute to take into account help which may be available from other members of the household, that is, those already living with the vulnerable person or those who might reasonably be expected to do so. These will usually be other family members, including cohabitants, although they might be friends who have been sharing a home together. Most people who live together help one another to some extent, and especially if the person who needs help is old, mentally disordered or disabled, or physically disabled. It would be a sad world indeed if they did not. I do not believe that this provision was catering only for that sad world. It is premised on there being at least one member of the household who is vulnerable and one or more others who are not. Both the vulnerable and the non vulnerable qualify as being in priority need. The non vulnerable can apply on behalf of them both. It is difficult to think that Parliament contemplated that the non vulnerable could only apply on behalf of them both if he was not looking after the vulnerable one. Why on earth would Parliament want to give such a heartless person priority and priority over the person who was fulfilling his familial duties? This is a separate point from the perverse incentive that taking into account help from household members would produce. It is a point about the people whom Parliament is most likely to have wanted to single out as having a priority need. The section draws no distinction between those who are and those who are not providing help to their old or disabled house mate, but if Parliament had wanted to distinguish between the two, it would surely have found the helpful one more worthy of priority than the unhelpful. This view of the matter is at least consistent with that of all members of the House of Lords in R v Tower Hamlets London Borough Council, Ex p Ferdous Begum, reported with R v Oldham Metropolitan Borough Council, Ex p Garlick [1993] AC 509. The applicant was a 24 year old Bangladeshi woman who lacked all hearing, speech and education. She could communicate only through a form of sign language unique to her. She arrived in the United Kingdom with her parents, sisters and a brother. Her fathers application for accommodation under the forerunner to the 1996 Act was declined on the ground that the family had become homeless intentionally, having left accommodation in Bangladesh which it was reasonable for them to continue to occupy. The daughter, with the help of her father and solicitor, then made her own application, contending that because of her incapacity she could not have acquiesced in any act or omission of her father rendering her homeless. The local authority held that if she could not acquiesce in her fathers behaviour, neither could she acquiesce in making her own application. The majority of the House of Lords accepted, not only that she could not apply, but also that her father could not apply on her behalf. But this was very clearly on the basis that, had the family not become homeless intentionally, the father would have been in priority need because of his daughters vulnerability. Lord Griffiths said this (p 519G): Many vulnerable people are cared for in the community by their relatives or other good hearted people with whom they live. If such a carer should have the misfortune to become homeless then [section 189(1)(c)] gives him the status of priority need, and provided his homelessness was not intentional, he will qualify for an offer of accommodation which will enable him to continue to look after the vulnerable person. Lord Slynn of Hadley disagreed with the majority. In his view the father could apply on behalf of the daughter who lacked the capacity to do so. But he agreed with them on the point made above, at p 522E: If the vulnerable person is alone with no existing carer, he may need special accommodation. If he is not alone but has an existing carer or family who might reasonably be expected to reside with him then the accommodation must be available for their occupation also. It might, of course, be said that no one took the point which is now taken in this case. In fact the reverse was the case. It was an essential part of the argument of counsel for the local authority, Mr Underwood QC, that, if a homeless person was mentally incapable of making an application, but had a carer in the same household who was unintentionally homeless, the carer would be entitled to accommodation (under the predecessor to section 189(1)(c)) for them both. Counsel in this case has cited no authority at all for the proposition that the existence of a carer within the same household can mean that a person who is otherwise obviously vulnerable is not to be so taken. Ex p Ferdous Begum is the closest the cases get to discussing the point and it is all the other way. In my view, therefore, Sifatullah Hotak remains vulnerable for the purpose of section 189(1)(c) of the 1996 Act despite the devoted care which he receives from his brother Ezatullah. As it is clear that the authority would have accepted that he was vulnerable were it not for his brothers support, I would allow the appeal and declare that the appellant is in priority need. But even if I were wrong about that, I would allow his appeal. It is true that the issue of law upon which Mr Hotak was given permission to appeal to this court was whether the local authority was entitled to take into account the existence of third party support and assistance. But within the grounds of appeal was an attack upon the courts application of the principles laid down in R v Camden London Borough Council, Ex p Pereira (1998) 31 HLR 317 and Osmani v Camden London Borough Council [2004] EWCA Civ 1706. This court has agreed upon a substantial modification of those principles, with the result that the local authority misdirected themselves in law in at least two respects: We do not believe . that an authority is required to make provisions for households who are comprised of adults in reasonable physical health, and we are not satisfied that he will be at more risk of harm, injury or detriment than another ordinary street homeless person if he were street homeless . There is, as it seems to me, good reason to predict that, even taking into account his brothers help, the local authority would now conclude that Mr Hotak remained more vulnerable than an ordinary person. To decline to give him the same relief as we have given for those reasons to Mr Kanu is surely the triumph of form over substance. Had his counsel been asked whether he also adopted the argument of counsel for Mr Kanu, should he fail on his main point, he would, I am sure, have said yes.

UK-Abs

Under section 188 of the Housing Act 1996 (the 1996 Act) local authorities have a duty to secure that accommodation is made available for applicants who are homeless and have priority need. Priority need is defined in section 189(1) of the 1996 Act and includes at paragraph (c) persons who are vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside. The Appellants applied for accommodation on the basis that they had priority need. The First Appellant has very significant learning difficulties and symptoms of depression and PTSD. He is cared for by his brother. Southwark Borough Council (Southwark) refused his application on the grounds that, if homeless, he would be provided with the necessary support by his brother. The Second Appellant has multiple physical problems as well as psychotic symptoms and suicidal ideation. He was deemed by Southwark not to be in priority need because he would not be at a greater risk of injury or detriment than an ordinary street homeless person due to the ability of his wife and son to fend for the whole household. The Third Appellant claimed to be vulnerable because he had become addicted to heroin while in prison and was in poor physical and mental health. Solihull Metropolitan Borough Council (Solihull) found that he was not in priority need on the basis that he would not be less able to fend for himself than an ordinary homeless person. The First and Third Appellants were unsuccessful in the courts below. The Second Appellant succeeded in the County Court but lost in the Court of Appeal. Three issues arise in the present appeal: (1) Does the assessment of whether an applicant is vulnerable for the purposes of section 189(1)(c) of the 1996 Act involve an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined? (2) When assessing vulnerability, is it permissible to take into account the support which would be provided by a family member to an applicant if he were homeless? (3) What effect, if any, does the public sector equality duty under section 149 of the Equality Act 2010 (the 2010 Act) have on the determination of priority need under the 1996 Act in the case of an applicant with a disability or any other protected characteristic? Lord Neuberger (with whom Lord Clarke, Lord Wilson and Lord Hughes agree) dismisses the First Appellants appeal, but Lady Hale would have allowed his appeal. All five Justices allow the Second Appellants appeal and dismiss the Third Appellants appeal. On the first issue in the appeal, vulnerable in section 189(1)(c) connotes that the applicant must be significantly more vulnerable than an ordinary person who happened to be in need of accommodation [55, 59]. The decisions of the Court of Appeal on this issue have all accepted that vulnerability has to be assessed comparatively [48] [50]. This is correct; vulnerable carries a necessary implication of relativity. It can fairly be said that anyone who is homeless is vulnerable. So, it follows that section 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position [51]. Parliament probably did not intend vulnerability to be judged by reference to what a housing officer thought to be the situation of an actual homeless person. Such an approach would be more likely to lead to arbitrary and unpredictable outcomes. The comparator could not be an ordinary homeless person in the area of the relevant authority as this could lead to unacceptable outcomes with vulnerable people being put out on the streets [56]. The 1996 Act does not refer to street homeless as a category or distinguish between the situations which may constitute homelessness; this calls into question the authority making use of the term in assessing their duty to an applicant [42] As to the relevance of support from family members, an applicants vulnerability under section 189(1)(c) has to be assessed by reference to his situation if and when homeless, which involves a contextual and practical assessment of the applicants physical and mental ability when homeless. As such, any services and support that would be available to the applicant if he were homeless must be taken into account [62]. This conclusion is supported by the purpose of the legislation in question. Those who are more vulnerable in practice if they are homeless can be expected to receive priority treatment. It would be contrary to common sense to ignore any aspect of the actual or anticipated factual situation when assessing vulnerability [63]. It does not matter whether the support is provided pursuant to a legal obligation, but housing authorities can only take third party support into account where they are satisfied that it will be provided on a consistent and predictable basis [65]. The primary focus of section 189(1)(c) is on the applicant, not the benefit of the third party and it would place an excessive burden on housing authorities if family support were disregarded. However, the mere fact that support is available does not of itself prevent the applicant from being vulnerable; there must be a case specific analysis of whether the support can obviate the vulnerability [69] [70]. On the third issue in the appeal, the weight and extent of the public sector equality duty are highly fact sensitive and dependent on individual judgment [74]. The authoritys equality duty was complementary to its duty under the 1996 Act. Each stage of the decision must be made with the equality duty well in mind and the officer must focus very sharply on: (i) whether the applicant has a relevant protected characteristic, (ii) its extent, (iii) its likely effect, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is vulnerable as a result [78]. Lady Hale would have allowed the First Appellants appeal. She concludes that, while any statutory services which will be available to an applicant should be taken into account when assessing his vulnerability, family support should not [93]. It is not consistent with the intention of the statute to take into account help which may be available from other members of the household. Both the vulnerable person and their non vulnerable family member qualify as being in priority need. The 1996 Act permits the non vulnerable family to apply on behalf of both themselves and the vulnerable person. Parliament did not intend applications to be made by a family member who was not looking after the vulnerable person [95]. There is House of Lords authority for this proposition and none for the suggestion that the existence of a carer within the same household can mean that a person who is otherwise obviously vulnerable is not to be treated as such [99].

These appeals arise out of tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions (the DPP) relating to prosecutions of those who are alleged to have assisted a suicide is lawful. The appeals arise out of claims brought by three men, Tony Nicklinson, Paul Lamb and someone known for the purpose of these proceedings as Martin, each of whom was suffering such a distressing and undignified life that he had long wished to end it, but could not do so himself because of his acute physical incapacity. Mr Lamb contends that the law should permit him to seek assistance in killing himself in this country, and, if it does not, it should be changed so as to enable him to do so. He is supported by the widow of Mr Nicklinson, who has died since the proceedings were issued. Martins case is that there should be clearer guidance in the policy published by the DPP with regard to prosecuting those from whom he would like advice and assistance in connection with killing himself. An outline of the facts The first appeal arises from the fact that Mr Nicklinson suffered a catastrophic stroke eight or nine years ago, when he was aged 51. As a result, he was completely paralysed, save that he could move his head and his eyes. He was able to communicate, but only laboriously, by blinking to spell out words, letter by letter, initially via a perspex board, and subsequently via an eye blink computer. Despite loving and devoted attention from his family and carers, his evidence was that he had for the past seven years consistently regarded his life as dull, miserable, demeaning, undignified and intolerable, and had wished to end it. Because of his paralysed state, Mr Nicklinson was unable to fulfil his wish of ending his life without assistance, other than by self starvation, a potentially protracted exercise, involving considerable pain and distress. His preference was for someone to kill him by injecting him with a lethal drug, such as a barbiturate, but, if that was not acceptable, he was prepared to kill himself by means of a machine invented by Philip Nitschke, an Australian doctor. This machine, after being loaded with a lethal drug, could be set up so as to be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer. Because he was told that it would be unlawful for someone to kill him or even to assist him in killing himself, Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his rights under article 8 of the Convention. While expressing great sympathy and respect for Mr Nicklinsons situation and wishes, the High Court, in an impressive judgment given by Toulson LJ, with whom Royce and Macur JJ agreed, refused him both forms of relief [2012] EWHC 2381 (Admin). Following that decision, Mr Nicklinson embarked on the very difficult and painful course of self starvation, refusing all nutrition, fluids, and medical treatment, and he died of pneumonia on 22 August 2012. Mr Nicklinsons wife, Jane, was then both added (because she contended that she had a claim in her own right) and substituted (in her capacity as administratrix of Mr Nicklinsons estate) as a party to the proceedings, and pursued an appeal to the Court of Appeal. The Court of Appeal, while again sympathetic and respectful of her position, dismissed her appeal for reasons given in a similarly impressive judgment by Lord Dyson MR and Elias LJ, with whom Lord Judge CJ agreed [2013] EWCA Civ 961; [2014] 2 All ER 32. Because it was feared that there might be a challenge to Mrs Nicklinsons right to pursue an appeal, Paul Lamb was added as a claimant in the proceedings before the hearing in the Court of Appeal. Since a catastrophic car crash in 1990, Mr Lamb has been completely immobile, save that he is able to move his right hand. He requires carers 24 hours a day, suffers pain every day, and is permanently on morphine. His condition is irreversible, and he wishes a doctor to end his life, which he regards as consisting of a mixture of monotony, indignity and pain. He therefore applied for the same relief as Mr Nicklinson had sought, and it was similarly refused by the Court of Appeal. The second appeal arises from the fact that Martin (who wishes to be so described in order to maintain his privacy) suffered a brainstem stroke in August 2008, when he was 43. He is almost completely unable to move and can only communicate thorough slow hand movements and via an eye blink computer. His condition is incurable, and, despite being devotedly looked after by his wife and carers, his evidence is that he wishes to end his life, which he regards as undignified, distressing and intolerable, as soon as possible. Apart from self starvation, Martins only way of achieving this is by travelling to Zurich in Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. However, he first needs (i) to find out about this service, (ii) to join Dignitas, (iii) to obtain his medical records, (iv) to send Dignitas money, and (v) to have someone accompany him to Zurich. For understandable reasons, his wife does not want to be involved, and he does not want to involve any other member of his family, in this project. So, as he says, he needs assistance from one of his carers or from an organisation such as Friends At The End. Martin began proceedings seeking an order that the DPP should clarify, and modify, his published Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, published in February 2010 (the 2010 Policy) and other relief. He seeks the clarification and modification to enable responsible people, including, but not limited to, carers who are willing to do so, to know that they could assist Martin in committing suicide through Dignitas without the risk of being prosecuted. Martins proceedings were heard together with those brought by Mr Nicklinson, and they failed in the High Court. A few months later, he embarked on an attempt to end his life by self starvation, but abandoned it in distressing circumstances. Martins appeal, which was heard together with that of Mrs Nicklinson and Mr Lamb, was partially successful, in that Lord Dyson and Elias LJ considered that, in certain respects, the 2010 Policy was not sufficiently clear in relation to healthcare professionals [2013] EWCA Civ 961, para 140; [2014] 2 All ER 32. Lord Judge CJ took a different view, and would have dismissed Martins appeal. The Court of Appeal gave Mrs Nicklinson and Mr Lamb (the appellants) permission to appeal to the Supreme Court in the first appeal. In the second appeal, the Court of Appeal gave the DPP permission to appeal, and Martin permission to cross appeal, as he contends that the order of the Court of Appeal in his case does not go far enough. The tragic situations in which Mr Nicklinson, Mr Lamb and Martin found or find themselves are not as uncommon as some may like to think. There is reliable statistical and anecdotal evidence which indicates that, in recent years, hundreds of people suffering from terminal or chronic conditions, whose lives are often painful and/or undignified, committed suicide annually, that a significant number of them were assisted in doing so, and that there are many who wish to die, but (like Mr Nicklinson, Mr Lamb and Martin) cannot do so without assistance or advice, which it is generally assumed that they are unable to obtain because of the current state of the law. Examples of such evidence may be found in Assisted Dying for the Terminally Ill Bill First Report HL Paper 86 I, 2005, especially para 77, and the Report on Assisted Dying, the Falconer Report, 2012, especially pp 108 138. The legal and policy background The domestic law relating to killing and suicide Murder represents the most serious form of homicide, and it is a common law offence in England and Wales, although some of its ingredients have been altered by legislation, most significantly by the Homicide Act 1957 (the 1957 Act). For present purposes, it suffices to say that the offence of murder involves the perpetrator killing a person when intending either to kill or to inflict grievous bodily harm. A conviction for murder carries a mandatory life sentence. Manslaughter is also a common law offence with statutory amendments, again most notably in the 1957 Act. The offence of voluntary (as opposed to involuntary) manslaughter is, in effect, murder in circumstances where the perpetrator is able to raise certain specified grounds of mitigation, including diminished responsibility and loss of control (all of which are subject to certain requirements). Manslaughter carries a maximum sentence of life imprisonment, and there is no minimum sentence. Mercy killing is a term which means killing another person for motives which appear, at least to the perpetrator, to be well intentioned, namely for the benefit of that person, very often at that persons request. Nonetheless, mercy killing involves the perpetrator intentionally killing another person, and therefore, even where that person wished to die, or the killing was purely out of compassion and love, the current state of the law is that the killing will amount to murder or (if one or more of the mitigating circumstances are present) manslaughter see per Lord Judge CJ in R v Inglis [2011] 1 WLR 1110, para 37. As Lord Browne Wilkinson said in Airedale NHS Trust v Bland [1993] AC 789, 885, the doing of a positive act with the intention of ending life is and remains murder. Nonetheless, a doctor commits no offence when treating a patient in a way which hastens death, if the purpose of the treatment is to relieve pain and suffering (the so called double effect) see per Lord Goff of Chieveley in Bland at p 867. The House of Lords in that case decided that no offence was involved in refusing or withdrawing medical treatment or assistance, ultimately because this involved an omission rather than a positive act. While Lord Goff, Lord Browne Wilkinson and Lord Mustill were all concerned about the artificiality of such a sharp legal distinction between acts and omissions in this context, they also saw the need for a line to be drawn, and the need for the law in this sensitive area to be clear see at pp 865, 885 and 887 respectively. Until 1961, it was an offence to commit suicide, which was regarded as self murder; people who unsuccessfully attempted to kill themselves were not infrequently prosecuted. Section 1 of the Suicide Act 1961 (the 1961 Act) provided that [t]he rule of law whereby it is a crime for a person to commit suicide is hereby abrogated. As suicide was regarded as self murder before 1961, a person who aided or encouraged another person to commit suicide committed an offence; thus, the survivor of a suicide pact was guilty of murdering the successful self murderer see R v Croft [1944] 1 KB 295. Section 4 of the 1957 Act provided that such a survivor would only be guilty of manslaughter. However, the abolition of suicide four years later as a crime meant that it was necessary to address the question of what to do about assisting and encouraging suicide. Parliament dealt with that issue in section 2 of the 1961 Act (section 2), subsection (1) of which has now been repealed and re enacted in the form of subsections (1) (1C) by section 59(2) of the Coroners and Justice Act 2009 (the 2009 Act). The relevant parts of section 2 in its current form provide as follows: (1) A person (D) commits an offence if (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide. (1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years. (4) [N]o proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions. The involvement of the civil courts In Bland, the House of Lords held that it was lawful for doctors to discontinue treatment of a person who was in what was then called a persistent vegetative state. As Lord Goff explained at p 864, it had already been established that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. Where a person was unable to communicate his wishes, the correct question to ask, according to Lord Goff at p 868, was whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, and in that case the answer was in the negative. In adopting the best interests principle, the House of Lords followed its earlier decision in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, and in adopting the omission/commission distinction, it followed the approach of the Court of Appeal in two cases which raised the question of medical treatment for a severely disabled child In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 (Re B (Wardship)) and In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33. Lord Goff accepted that there was a fundamental difference between a positive action which caused death and an omission which resulted in a death. At p 866, he said: [T]the doctor's conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. The way in which that passage is expressed indicates a certain and understandable discomfort with the notion that switching a machine off actually is an omission. A little later, Lord Goff dealt with another difficulty to which his conclusion gave rise, when he contrasted the position of a doctor in such a case with that of an interloper who maliciously switches off a life support machine. Although he did not expressly say so, such an action must, I think, amount to murder or manslaughter, and Lord Goff dealt with the difficulty by saying that such an interloper would be actively intervening to stop the doctor from prolonging the patients life, and such conduct cannot possibly be categorised as an omission. Subsequently, there has been a number of cases where, in the best interests of a patient, and often contrary to the wishes of his close family, the court has authorised switching off a life support machine, stopping providing food and drink, and withholding medical treatment (even of an elementary nature), all of which would lead inevitably to death. As was said in Bland, the common law has always recognised the right of a person to refuse treatment in advance, and, in that connection, Parliament has intervened to an extent through sections 24 26 of the Mental Capacity Act 2005, which permits individuals with capacity to make a valid advance direction refusing medical treatment, including treatment which would be life sustaining. Further, the courts have also recognised that, where a patient is unable to give her consent, it is lawful to give her treatment if it is necessary in her best interests see Re F. In cases of withdrawal of treatment, the House of Lords recommended in Bland that, before treatment could be withheld in any case where it was impossible for the patient to be consulted, permission should be sought from the High Court until a body of experience and practice [had] buil[t] up which will obviate the need for application in every case pp 873 4. The role of the court in such cases was recently discussed by Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] 3 WLR 1299, paras 18 22 and 35 39. As Hoffmann LJ said in Bland at p 825, Modern medicine faces us with fundamental and painful decisions about life and death which cannot be answered on the basis of normal everyday assumptions. The accuracy of this observation was subsequently demonstrated by the decision of the Court of Appeal In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 (Conjoined Twins). This decision took the law further in that the court authorised surgeons to separate conjoined twins, a positive act rather than omission, which would inevitably hasten the death of one twin in order to improve very considerably the life expectancy of the other. In the subsequent case of In re B (Consent to Treatment Capacity) [2002] 1 FLR 1090 (Re B (Treatment)), the applicant, who was effectively tetraplegic, and who was dependent on an artificial ventilation machine in order to breathe, wished the machine to be turned off, as she wanted to die, owing to the very poor quality of her life. Her doctors refused to turn the machine off, and she applied to the court for an order that they do so. Having concluded that the applicant had the mental capacity to make the decision, Dame Elizabeth Butler Sloss P decided that the issue was not to be determined by considering what the court concluded was in her best interest. As explained in para 23 above, under the common law, it was purely a matter for the applicant whether or not the machine was turned off, provided that she was in a fit mental state to form a view. And, as she wanted the machine turned off, and she was mentally fit, the continued application of the machine to her body constituted in law trespass to the person. Accordingly she was granted the relief which she sought. The Convention and assisted suicide The two most central rights contained in the Convention for the purposes of the present appeals are in articles 2 and 8. Article 2, in summary form, guarantees the right to life, and, unsurprisingly, it is an unqualified right. Article 8.1 entitles everyone to respect for his private life. This right is qualified, as article 8.2 prohibits any interference by a public authority with the exercise of this right unless (i) it is in accordance with the law, and (ii) it is necessary in a democratic society, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 (Pretty v DPP), Mrs Pretty, who suffered from the progressive condition of motor neurone disease, complained that (i) the refusal of the DPP to grant her husband proleptic immunity from prosecution if he assisted her in killing herself (which she wished to do when her disease became intolerable), and/or (ii) the prohibition on assisting suicide in section 2, violated her rights under articles 2, 3, 8, 9 and 14 of the Convention. The House of Lords held that Mrs Prettys desire to end her life prematurely did not engage her rights under any of those articles. The House went on to find that, if this was wrong, the government, to quote Lord Bingham at para 30, ha[d] shown ample grounds to justify the existing law and the current application of it, although this was not to say that no other law or application of it would be consistent with the Convention. This view was also adopted by Lord Steyn, Lord Hope, and Lord Scott at paras 62, 97, and 124, and, albeit implicitly, by Lord Hobhouse at paras 111 and 120. Mrs Pretty then applied to the European Court of Human Rights (the Strasbourg court), where she was partially successful, in that it was held, albeit in somewhat guarded terms, that her desire to end her life did engage article 8.1, but not any other article see Pretty v United Kingdom (2002) 35 EHRR 1 (Pretty v UK), para 67. In three subsequent decisions, the Strasbourg court has stated in clear terms that article 8.1 encompasses the right to decide how and when to die, and in particular the right to avoid a distressing and undignified end to life (provided that the decision is made freely) see Haas v Switzerland (2011) 53 EHRR 33, para 51, Koch v Germany (2013) 56 EHRR 6, paras 46 and 51, and Gross v Switzerland (2014) 58 EHRR 7, para 60. These cases also establish that the fact that a third party may have to be involved in enabling a person to die does not prevent that person from invoking article 8.1. Furthermore, it is clear from Koch, paras 43 46 that a person in Mrs Nicklinsons position, namely a spouse or partner who shares a close relationship with the person who wishes to die, and is closely involved in that persons suffering and desire to die, can invoke an article 8 right of her own in that connection. It is also clear from Koch, paras 78 82 that, at least in the Strasbourg court, Mrs Nicklinson would not be able to rely on her late husbands article 8 rights in her capacity as his personal representative or sole beneficiary. Although Mrs Prettys article 8 rights were held to have been interfered with in Pretty v UK, she failed in her claim, because the interference with her right was held to be justified by article 8.2, at least from the perspective of the Strasbourg court. In para 74 of its decision, the Strasbourg court described section 2 as designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. The court also said that many terminally ill individuals will be vulnerable, and it is the vulnerability of the class which provides the rationale for the law in question. Accordingly, it was primarily for states to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or exceptions were to be created. At para 76, the Strasbourg court said this: The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided . It does not appear arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. The court accordingly concluded in para 78 that the interference in this case may be justified as necessary in a democratic society for the protection of the rights of others, so that there was no violation of article 8. In Haas, the applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. The Strasbourg court referred at para 55 to the fact that the vast majority of member states seem to attach more weight to the protection of the individuals life than to his or her right to terminate it, and therefore considered that the states enjoy a considerable margin of appreciation in this area. The court accordingly concluded in para 56, that, although it had sympathy with the applicants wishes, the regulations put in place by the Swiss authorities pursue, inter alia, the legitimate aims of protecting everybody from hasty decisions and preventing abuse. The court also observed in para 58 that the right to life guaranteed by article 2 obliges states to establish a procedure capable of ensuring that a decision to end ones life does indeed correspond to the free wish of the individual concerned. In Koch, the applicants late wife, who was tetraplegic, needed his help to commit suicide. The Strasbourg court considered that the German courts failure to entertain his application, which was for a declaration that the refusal of a Federal drugs institute to enable him to obtain a lethal dose of medication was unlawful, infringed his article 8 rights, which could encompass a right to judicial review, even in a case in which the substantive right in question had yet to be established para 53. For present purposes, the case is of interest mainly because, in para 26, the court explained that in 36 of the 43 member states (including the UK) any form of assistance to suicide is strictly prohibited and criminalised by law, in three (Germany, Sweden and Estonia) such assistance is not a criminal offence, and four (Switzerland, Belgium, the Netherlands and Luxembourg) allowed medical practitioners to prescribe lethal drugs, subject to specific safeguards. At para 70, the court stated that the fact that the state parties to the Convention are far from reaching a consensus on the legal treatment of assisting suicide points to a considerable margin of appreciation enjoyed by the state in this context. In Gross, the applicant had become so old and frail that she found her quality of life so bad that she had for some time wished to kill herself. However, she was unable to find a doctor in Switzerland who would provide her with the necessary prescription for a lethal drug, because her counsel was unable to guarantee that any doctor who prescribed the drug would not risk any consequences from the point of view of the code of professional medical conduct para 11. At para 62, the court observed that there could be positive obligations inherent in an effective respect for private life, and that this could include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals rights and the implementation, where appropriate, of specific measures. At para 63, the court explained that the applicants case primarily raises the question whether the State had failed to provide sufficient guidelines defining if and under which circumstances medical practitioners were authorised to issue a medical prescription to a person in the applicants circumstances. Having considered the Swiss law on the topic, the court (in what was a bare majority judgment, as three of the seven judges dissented) held that the applicants article 8 rights were infringed. The court said in para 65 that there was a lack of clear legal guidelines, which was likely to have a chilling effect on doctors who would otherwise be inclined to provide someone such as the applicant with the requested medical prescription. In the following paragraph, the court explained that, if there had been clear, state approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition, the applicant would not have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life. So far as the domestic position is concerned, section 1 of the Human Rights Act (the 1998 Act) defines Convention rights as, inter alia, the rights set out in articles 2 12 and 14 of the Convention. Section 3(1) provides that [s]o far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. Section 4 states that where one of the more senior courts in the UK concludes that a statutory provisions is nonetheless incompatible with a Convention right, it may make a declaration of that incompatibility. Section 6 requires public authorities to act compatibly with the Convention save where statute prevents them from doing so. The role of the DPP Section 2(4) of the 1961 Act precludes any prosecution of a person who has allegedly contravened section 2(1) without the DPPs consent. However, as Lord Hughes convincingly demonstrates in his judgment, section 2(4) has a relatively limited function. The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPPs prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service (CPS), it would have prevented the police prosecuting without the consent of the DPP). However, that does not undermine the importance of the prosecutorial discretion in connection with assisting suicide. The public importance of, and the public concern about, this discretion in the present context were recognised by the DPP in December 2008, when he voluntarily published a decision containing his full reasons for not prosecuting the parents of a tetraplegic young man for taking their son to Zurich to enable him to be assisted to kill himself, as discussed by Lord Hope and Lord Brown in R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, paras 49 51 and 79 81 respectively. The proceedings in Purdy were brought following the decision of the Strasbourg court in Pretty v UK, in order to require the DPP to spell out his policy in relation to his prosecutorial discretion in a public document. Ms Purdy suffered from progressive multiple sclerosis and expected that a time would come when she would regard her continued existence as intolerable and would wish to end her life. She would need the assistance of her husband to do so (by taking her to Switzerland to enable her to use the services of Dignitas) and wished to ensure, as far as possible, that he would not be prosecuted under section 2(1) of the 1961 Act. She sought information from the DPP as to his likely attitude to a prosecution of her husband in those circumstances, and he declined to give it. While maintaining her claim for information, Ms Purdy accepted that the DPP could not give her husband a guarantee of immunity from prosecution, as this would be a matter for Parliament (per Lord Hope at para 30). Departing from its decision in Pretty v DPP, following the Strasbourg courts decision in Pretty v UK, the House of Lords upheld her contention that the DPPs refusal infringed her article 8 rights. Given that her article 8 rights were engaged, Ms Purdy was entitled to expect the law to be accessible and foreseeable, and this required that the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise, as Lord Hope said at para 43 quoting from Hasan and Chaush v Bulgaria (2000) 34 EHRR 1339, para 84. The Strasbourg court also observed that [t]he level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. The DPPs argument in Purdy was that his Code for Crown Prosecutors, issued under section 10 of the Prosecution of Offences Act 1985, provided sufficient guidance, but the House rejected this argument as the Code applied to all crimes and [fell] short of what [was] needed to satisfy the Convention tests of accessibility and foreseeability in relation to assisting a suicide per Lord Hope at para 53. As Lady Hale put it in para 64, the object of the exercise should be to focus, not upon a generalised concept of the public interest, but upon the features which will distinguish those cases in which deterrence will be disproportionate from those cases in which it will not. Accordingly, as Lord Hope said at para 56, the DPP should be required to promulgate an offence specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdys case exemplifies, whether or not to consent to a prosecution. Within three months of this decision, the DPP issued a draft policy, identifying sixteen factors which would favour prosecution, and thirteen which would point against prosecution. Eight of the sixteen and seven of the thirteen were said to carry more weight than the remaining eight and six respectively. The CPS consulted widely about the contents of this draft policy, raising a large number of questions, and receiving over 4700 responses, which the DPP describes as being of a high quality and the largest number of responses the CPS has ever received about a single topic. As a result, he modified the draft policy and produced the 2010 Policy. The 2010 Policy The 2010 Policy is detailed. After making a number of points, including the need for a prosecutor to be satisfied that a case satisfies the evidential requirement before considering whether it satisfies the public interest requirement, it deals with the relevant public interest factors from para 39. Para 39 makes the points that each case must be determined on its own merits, and that an overall assessment is required, a point repeated at para 47, where it is also stated that the list of factors in the 2010 Policy is not intended to be exhaustive. Para 39 also states that sometimes a single factor one way will outweigh a number of factors the other way, and para 40 points out that the absence of a specified factor should be regarded as neutral. Paras 41 and 42 deal with the reliability of the evidence relating to the factors. The 2010 Policy then turns to Public interest factors tending in favour of prosecution and continues: 43. A prosecution is more likely to be required if: 1. The victim was under 18 years of age; 2. The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide; 3. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide; 4. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect; 5. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative; 6. The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim; 7. The suspect pressured the victim to commit suicide; 8. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; 9. The suspect had a history of violence or abuse against the victim; 10. The victim was physically able to undertake the act that constituted the assistance him or herself; 11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication; 12. The suspect gave encouragement or assistance to more than one victim who were not known to each other; 13. The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance; 14. The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care; 15. The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present; 16. The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. 44. On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit financial or otherwise from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspects act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts. The 2010 Policy then turns to Public interest factors tending against prosecution, and continues: 45. A prosecution is less likely to be required if: 1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide; 2. The suspect was wholly motivated by compassion; 3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance; 4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide; 5. The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide; 6. The suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance. The DPPs evidence in these proceedings is that there has been only one prosecution under section 2, and that was a successful prosecution of someone who provided petrol and a lighter to a vulnerable man known to have suicidal intent, and who subsequently suffered severe burns as a result. The DPP also informed the Court that it appears from Dignitass website that, between 1998 and 2011, a total of 215 people from the UK used its services, and that nobody providing assistance in that connection has been prosecuted. Assisted dying: the debate In Pretty v DPP at para 54, Lord Steyn explained that the subject of euthanasia and assisted dying have been deeply controversial for a very long time, and continued: The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless. The literature is vast . It is not for us, in this case, to express a view on these arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken diametrically opposite views and still do. Following the decision in Bland, the House of Lords Committee on Medical Ethics, after receiving evidence, reported that [a]s far as assisted suicide is concerned, they saw no reason to recommend any change in the law (see HL Paper 21 I, 1994, para 26). This was primarily based on the message which society sends to vulnerable and disadvantaged people, which should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life (ibid, para 239). The Government in its response agreed on the grounds that a change in the law would be open to abuse and put the lives of the weak and vulnerable at risk (1994) Cm 2553, page 5. The possibility of relaxing the statutory prohibition on assisting suicide has been debated in the House of Lords and House of Commons on at least six occasions in the past nine years. Thus, in November 2005, following the publication of HL Paper 86 1 referred to in para 14 above, Lord Joffe unsuccessfully introduced the Assisted Dying for the Terminally Ill Bill (the 2005 Bill) in the House of Lords, and in July 2009, Lord Falconer of Thoroton moved an amendment that would have permitted assisting the terminally ill to commit suicide during the debate on the Bill which became the Coroners and Justice Act 2009. During the debate on the 2005 Bill, Lord Joffe made it clear that he did not support assisted dying for patients who are not terminally ill, and that this was reflected in the Bill, on the basis that after three years of legislative effort on the subject, I have no intention of pursuing this issue beyond the ambit of the present Bill Hansard (HL Debates), 12 May 2006 Col 1188. During the July 2009 debate on the Bill which became the 2009 Act, the House of Lords defeated the amendment Hansard (HL Debates) 7 July 2009, cols 595ff. Their Lordships approved section 59 of the 2009 Act, whose purpose, as explained above, was to re enact section 2 of the 1961 Act in clearer terms. There was an adjournment debate on assisted dying in the House of Commons in November 2008 Hansard (HC Debates), 11 November 2008, cols 221WHff. The House of Commons also approved the 2009 Act in a brief debate during which the purpose of section 59 was explained Hansard (HC Debates), 26 January 2009, col 35. More recently, there was a debate on the Directors 2010 Policy in the House of Commons in March 2012, where changes in the law were mooted, but the 2010 Policy was approved see Hansard (HC Debates), 27 March 2012, cols 1363ff. In September 2010, Lord Falconer set up and chaired a commission on Assisted Dying, which took evidence from many individuals and organisations, and the commissions report was published in January 2012. While it is a full and apparently balanced report, Lord Falconer is a strong and public supporter of liberalising the law on assisted dying, much of the funding of the commission came from people who take the same view, and some people who were against assisted dying refused to give evidence to the commission. The evidence from doctors and other caring professionals was mixed. The views of the medical professional bodies was also mixed ranging from being against doctor involvement, via neutral to being in favour of it. The Falconer Report indicated that in three jurisdictions where it was permissible to assist suicide, there was no evidence of vulnerable groups being subject to any pressure or coercion to seek an assisted death. The same view was expressed in the 2011 report of the Royal Society of Canada Expert Panel on End of Life Decision Making and in the 2012 report of the Quebec National Assembly Dying with Dignity Select Committee. The Falconer Report concluded that there [was] a strong case for providing the choice of assisted dying for terminally ill people, while protecting them and vulnerable people generally from the risk of abuse or indirect social pressure to end their lives. However, the members of the Commission were unable to reach a consensus on the issue of whether a person who has suffered a catastrophically life changing event that has caused them to be profoundly incapacitated should be able to request an assisted death, but they were agreed that people who assisted loved ones and friends in that situation should continue to be treated by the law with compassion and understanding. The issues in these appeals Introductory In the first appeal, the appellants, Mrs Nicklinson and Mr Lamb, contend that section 2(1) of the 1961 Act, at least if read in accordance with conventional principles, constitutes a disproportionate, and therefore an unjustifiable, interference with the article 8 rights of people who have made a voluntary, clear, settled and informed decision to commit suicide, and, who, solely because of their physical circumstances, require the assistance of a third party to achieve that end. I will refer to such people as Applicants, a neutral and convenient, if not entirely accurate, expression. The appellants case is that the article 8 rights of Applicants should be accommodated by their being able to seek the assistance of third parties to enable them to kill themselves in a dignified and private manner, at a time of their choosing, in the United Kingdom, subject to some appropriate form of control so as to ensure that their decision to commit suicide is indeed voluntary, clear, settled and informed. Accordingly, they bring these proceedings against the Secretary of State for Justice, contending that this Court should either (i) read section 2(1) in such a way as to enable it to comply with the Convention (under section 3 of the 1998 Act), or, if that is not possible, (ii) make a declaration that section 2 is incompatible with the Convention (under section 4 of the 1998 Act). The Secretary of State contends that, in the light of the Strasbourg jurisprudence, this is not a contention which is capable of properly being raised before a court, and, even if that is wrong, bearing in mind the practical, moral and policy issues involved, this is not a contention which a domestic court should entertain under the United Kingdoms constitutional settlement. Martins argument in the DPPs appeal in the second appeal is rather different in its target. Although he also relies on article 8, Martin does not challenge the compatibility of section 2 with the Convention. His first argument is that the terms of the 2010 Policy are insufficiently clear in relation to the likelihood of prosecution of those individuals (other than relatives and close friends of the person concerned), especially including doctors and other members of the caring professions, who might otherwise be prepared, out of compassion, to provide a person who has a voluntary, clear, settled and informed wish to commit suicide, with information, advice and assistance in connection with that wish. His second argument is that the Policy should be modified to make it clear that, at any rate absent any aggravating circumstances, such an individual would not be liable to be prosecuted. The DPP argues that it would be inappropriate for a court to seek to dictate what her policy should be. The first appeal raises the following issues: a. Does section 2 impose an impermissible blanket ban on assisted suicide, outside the UKs permitted margin of appreciation? If not, b. Given that the Strasbourg court has decided that it is for the member states to decide whether their own law on assisted suicide infringes article 8, does this Court have the constitutional competence to decide whether section 2 infringes article 8? If so, c. Bearing in mind the nature of the issue, is it nonetheless inappropriate for this Court to consider whether section 2 infringes article 8, on the ground that it is an issue which is purely one for Parliament? If not, d. In the light of the evidence and the arguments presented on this appeal, should the Court decide that section 2 infringes article 8? And finally, e. In the light of the answers to these questions, what is the proper order to make on the first appeal? It is perhaps worth explaining at this stage the difference between issues (b) and (c). Issue (b) raises the general question whether, in a case where the Strasbourg court decides that a point is within a member states margin of appreciation, it is open to a domestic court to declare that a statutory provision, which is within that margin, nonetheless infringes Convention rights in the United Kingdom. Issue (c), which only arises if the court does have such power, is more specific to this case; it is whether, bearing in mind the nature of the point raised in the first appeal, a domestic court is an appropriate forum for considering whether the statutory provision involved, section 2 of the 1961 Act, infringes Convention rights in the United Kingdom, or whether the issue is best left entirely to Parliament. The second issue may be said to raise a constitutional point, whereas the third issue involves more of an institutional point. The second appeal raises two points, namely: f. (raised by the DPPs appeal) does the 2010 Policy comply with the requirements of article 8, and hence section 6 of the 1998 Act, and in particular the requirement of foreseeability? and g. (raised by Martins cross appeal) if the DPP were to prosecute in a case such as Martins, would it represent a disproportionate interference with his article 8 rights? I shall deal with these issues, some of which have more than one facet, in Is section 2 within the UKs margin of appreciation under article 8? issue (a) The appellants contend, as a self contained point, that the effect of the four Strasbourg court decisions on assisted suicide is that a blanket ban such as that imposed by section 2 infringes article 8, even allowing for the wide margin of appreciation accorded to member states. In other words, the appellants argue that, even allowing for the wide margin of appreciation afforded to member states on the issue of assisted suicide, a blanket ban would be regarded by the Strasbourg court as impermissibly outside that wide margin. This contention is said to be supported by the more general proposition that, where a ban curtails a Convention right, the Strasbourg court would hold that it cannot be a blanket ban. In support of this proposition, the appellants cite Hirst v UK (2005) 42 EHRR 41, which was concerned with the right of prisoners to vote. I do not accept this argument. So far as the general point is concerned, the expression blanket ban is not helpful, as everything depends on how one defines the width of the blanket. Thus, a blanket ban on voting for all those serving life sentences would appear to be acceptable to the Strasbourg court and certainly should be in my view. As for the more specific point, I do not consider that the Strasbourg jurisprudence suggests that a blanket ban on assisted dying is outside the margin of appreciation afforded to member states and, even if it is, then, in any event, the provisions of section 2(4) prevent the ban in this jurisdiction being a blanket ban. In connection with the specific point, the opening two sentences of para 76 of the Strasbourg courts decision in Pretty v UK (quoted in para 32 above) are not particularly happily worded. However, it appears to me that the effect of that decision is that, so far as the Strasbourg court is concerned, a national blanket ban on assisted suicide will not be held to be incompatible with article 8. The word therefore in the first sentence refers back to what precedes the paragraph, which (ignoring the discursion in para 75) is a passage at the end of para 74, which seems to me to say that it is a matter for each member state whether, and if so in what form, to provide for exceptions to a general prohibition on assisted suicides. This conclusion is, I think, strongly supported by the fact that the court stated that the great majority of member states have what the appellants would characterise as blanket bans on assisted suicide. The decision in Koch is said by the appellants to support the notion that a blanket ban on assisting a suicide cannot comply with article 8. I do not accept that. The question whether the German substantive law relating to the provision of prescriptions infringed article 8 was specifically left open, and the decision was limited to the fact that the applicants article 8 rights had been infringed by the German courts refusal to consider that issue see paras 52 and 71 of the judgment. Further, the Strasbourg court also made it clear in paras 70 71 that it was for the national court to decide whether what was effectively a prohibition on prescribing drugs to enable people to kill themselves infringed article 8, which appears to me to indicate that such a prohibition did not give rise to a problem under article 8 so far as the Strasbourg court was concerned. Accordingly, I would reject the argument that a blanket ban on assisting suicide is outside the margin of appreciation afforded by the Strasbourg court to member states. In any event, it seems to me that, even if this is wrong, there can be no question of the Strasbourg court holding that section 2 infringes article 8 on the ground that it contains a blanket ban. What it said in paras 76 78 of Pretty v UK appears to me to make it clear that, whatever argument might have been raised if section 2(1) had stood on its own, prosecutorial discretion reinforced by section 2(4), provided that it was implemented so as to render the law accessible and foreseeable, ensured that the current UK law relating to assisted suicide complied with the Convention so far as the Strasbourg court was concerned. None of the subsequent three decisions of that court on assisted suicide call this conclusion into question. (Of course, this would not mean that every aspect of the implementation of national law on assisted dying would be outside the scope of the Strasbourg courts consideration cf the decisions in Koch and Gross). Is it constitutionally open to the UK courts to consider compatibility? issue (b) The Strasbourg court explained in Pretty v UK, para 74, and Haas, para 57, that, when considering legislation on assisted suicide, one has to balance the article 8.1 rights of those who wish to be so assisted, against the need to protect the weak and vulnerable in relation to their article 2 and article 8.1 rights. The court has also acknowledged that views as to where the balance should come down can vary (eg in Gross, para 66), and that this is reflected by the different approaches in different members states see Haas, para 55 and Koch, paras 26 and 70. As explained, this has led the Strasbourg court to conclude that member states enjoy a wide margin of appreciation on the issue of assisted dying see Pretty v UK, para 74, Haas, para 55 and Koch, paras 70 and 71. At first sight, it may appear from this that, as the High Court held, it would be inappropriate for this Court even to consider whether it should determine whether or not section 2 is incompatible with article 8. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20, Lord Bingham said that [t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less, and the Strasbourg court has determined that, at any rate so far as its jurisdiction is concerned, section 2 is consistent with the Convention. Accordingly, it might seem to follow that a UK court should not take a different view. It was, in part, on this basis that the Court of Appeal rejected the contention that section 2 was inconsistent with article 8 see at [2013] EWCA Civ 961, paras 111 114; [2014] 2 All ER 32. In my judgment, however, that is not a good answer to the claims made by the appellants. Lord Binghams observation in Ullah was directed to the majority of cases raising claims that Convention rights have been infringed, where the Strasbourg court concludes either that there has been an infringement or that there has been no infringement. In such cases, in so far as they are capable of being of wider application than to the particular case before it, the Strasbourg court would intend that its conclusions and reasoning be applicable to all member states. So far as the law on assisted suicide is concerned, the conclusion reached by the Strasbourg court is of a different nature. As explained above, the court has held that there is a wide margin of appreciation accorded to each state in this area, and that it is for each state to decide for itself how to accommodate the article 8 rights of those who wish and need to be assisted to kill themselves with the competing interests of the prevention of crime and the protection of others see Pretty v UK, para 74, Haas, para 55 and Koch, paras 70 and 71. In those circumstances, it does not appear to me that the dictum quoted above from Ullah is in point. (For this reason, this is not the occasion to address the question whether, and if so how far, the principle enunciated by Lord Bingham in Ullah, para 20, should be modified or reconsidered.) In a case such as this, the national courts therefore must decide the issue for themselves, with relatively unconstraining guidance from the Strasbourg court, albeit bearing in mind the constitutional proprieties and such guidance from the Strasbourg jurisprudence, and indeed our own jurisprudence, as seems appropriate. Support for this conclusion is to be found in In re G (Adoption: Unmarried Couple) [2009] 1 AC 173. In paras 33 35, Lord Hoffmann pointed out that Convention rights, as defined in section 1 of the 1998 Act, were domestic and not international rights, and that the duty of domestic courts under section 2 of that Act was to take into account, rather than to regard themselves as bound by, decisions of the Strasbourg court, but that there were normally good reasons why we should follow the interpretation adopted in Strasbourg. At para 36 of re G, however, Lord Hoffmann said that different considerations apply in cases in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says the question is within the margin of appreciation. In the following paragraph, Lord Hoffmann stated that in such cases, it is for the court in the United Kingdom to interpret [the relevant article or articles of the Convention] and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. He expanded on this by adding that [t]he margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. Lord Hope agreed with Lord Hoffmann at para 50, and Lady Hale expressed similar views at paras 116 120, saying pithily that if the matter is within the margin of appreciation which Strasbourg would allow us, then we have to form our own judgment. Lord Mance, at para 130, took the same view, explaining that when performing their duties under sections 3 and 6 [of the 1998 Act], courts must of course give appropriate weight to considerations of relative institutional competence. Having then emphasised the importance of giving weight to the decisions of a representative legislature and democratic government within the discretionary area of judgment accorded to those bodies, he made the point that the precise weight will depend, inter alia, on the nature of the right and the extent to which it falls within an area in which the legislature, executive, or judiciary can claim particular expertise. As Lord Hoffmann and Lord Mance explained, their approach does not involve the court calling into question the sovereignty of Parliament. The court has jurisdiction to consider whether a provision such as section 2 is compatible, or can be rendered compatible, with article 8, because that is part of the courts function as determined by Parliament in the 1998 Act. As it happens, it also reflects what the Strasbourg court decided about an individuals right of access to the court in Koch. In an interesting passage in para 229 below, Lord Sumption suggests that, where an issue has been held by the Strasbourg court to be within the margin of appreciation, the extent to which it is appropriate for a UK court to consider for itself whether the Convention is infringed by the domestic law may depend on the reason why the Strasbourg court has concluded that the issue is within the margin. I agree that the reasoning of the Strasbourg court must be taken into account and accorded respect by a national court when considering whether the national law infringes the Convention domestically, in a case which is within the margin of appreciation just as in any other case as section 2(1)(a) of the 1998 Act recognises. However, both the terms of the 1998 Act (in particular sections 2(1) and 4) and the principle of subsidiarity (as expounded for instance in Greens and MT v UK [2010] ECHR 1826, para 113) require UK judges ultimately to form their own view as to whether or not there is an infringement of Convention right for domestic purposes. It is true that in Re G, the House of Lords was concerned with a statutory instrument, but the passages to which I have referred must, as a matter of logic and principle, be as applicable to primary, as to secondary, legislation. It is also true that the decision in Re G was based on the irrationality of the legislation concerned. Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to members states, it would be wrong in principle and contrary to the approach adopted in Re G, for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in Re G, the extent to which a UK court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject matter, and the extent to which the legislature or judiciary could claim particular expertise or competence. In these circumstances, given that the Strasbourg court has held that it is for each state to consider how to reconcile, or to balance, the article 8.1 rights of a person who wants assistance in dying with the protection of morals and the protection of the rights and freedoms of others, I conclude that, even under our constitutional settlement, which acknowledges parliamentary supremacy and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8. The more difficult question, to which I now turn, is whether we should do so. Is it institutionally appropriate to consider whether section 2 infringes article 8? issue (c) Introductory Having concluded that the court does have jurisdiction in principle to determine whether section 2 infringes the Convention, the next question is whether it is institutionally appropriate for a domestic court to consider whether section 2 infringes the article 8 rights of individuals such as Mr Nicklinson and Mr Lamb. In that connection, I have summarised the nub of their case in para 55 above. In approaching this question, it is important to bear in mind that, as Lord Mance explained in Re G, what we have to consider is the breadth of the discretion which the courts should accord to Parliament, or, to put it another way, the limits of the courts deference to Parliaments judgment, on the issue of the extent to which assisting suicide should be criminalised. A summary of the parties respective contentions Section 2 interferes with the article 8 right of Applicants (as I have called them) to determine how and when they should die. Accordingly, it can only be a valid interference if it satisfies the requirements of article 8.2, ie if it is necessary in a democratic society for one or more of the purposes specified in that article, which in the present context would be for the prevention of disorder or crime, for the protection of health or morals, or, most importantly for present purposes, for the protection of the rights and freedoms of others. When considering whether legislative measures satisfy those requirements, four questions generally arise, as Lord Wilson explained in R (Aguilar Quila) v The Secretary of State for the Home Department [2012] 1 AC 621, para 45 (as recently illuminatingly discussed by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] 3 WLR 179, 222, paras 20ff): (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? The appellants accept that the legislative objective of section 2 is to safeguard life, and in particular the lives of the vulnerable and the weak, including those who are not in a position to take informed decisions against acts intended to end life or assist in ending life, to quote from Pretty v UK, para 74, or, as Lady Hale put it in Purdy at para 65, people who are vulnerable to all sorts of pressures, both subtle and not so subtle, to consider their own lives a worthless burden to others. As to the four requirements, as I will call them, identified in Lord Wilsons analysis, the appellants accept that requirement (a) is satisfied in that this objective is sufficiently important to justify limiting a fundamental right, namely the article 8 right of those wish to end their lives and need the assistance of others to do so. They also accept that, so far as requirement (b) is concerned, section 2 has been designed to meet this objective and is rationally connected to it. Accordingly, the issue whether section 2 infringes article 8 turns on whether requirements (c) and (d), necessity and balance, are satisfied. In that connection, the appellants case is that the absolute terms of section 2 are more than necessary to achieve its end, or that they do not strike a fair balance between the interests of Applicants and those of the weak and vulnerable, bearing in mind the grave and significant interference which it involves with the article 8 rights of Applicants, and that this is an argument which a domestic court should consider. In summary terms, the Secretary of States case is that, given that it is accepted that the statutory ban on assisting suicide, subject to prosecutorial discretion, can be rationally justified by the need to protect the weak and vulnerable and was recently affirmed by Parliament in the 2009 Act, any question of decriminalisation should be left to Parliament, as it is a controversial, difficult and sensitive moral and politico social issue, which requires the assessment of many types of risk and the imposition of potentially complex regulations, and it is not a matter on which judges are particularly well informed or experienced. The Secretary of State also relies on the fact that section 2 was held to comply with the Convention by the House of Lords in Pretty v DPP less than thirteen years ago. The protection of the weak and vulnerable Although, as mentioned above, the appellants accept the Secretary of States contention that section 2 is designed to meet the objective of protecting the weak and vulnerable and is rationally connected to that objective, it is worth examining that contention. So far as assisting (as opposed to encouraging) suicide is concerned, section 2 is a somewhat indirect and blunt instrument in that it is, as a matter of practice, aimed at those who need assistance in committing suicide rather than those who are weak and vulnerable. It is a measure of the relative weakness of the connection that, in para 350 below, Lord Kerr concludes that, contrary to the appellants concession, requirement (b) is not satisfied. I do not agree with that conclusion, because it seems to me, in general terms, that a blanket ban on assisting suicide will protect the weak and vulnerable, and, more particularly, that it may well be that those who are in the same unhappy position as Applicants, but do not wish to die, are in a particularly vulnerable position. However, the somewhat tenuous connection between the actual and intended targets is not irrelevant when one turns to requirements (c) and (d). More specifically, if one concentrates on the appellants argument that section 2 should be modified so as to exclude Applicants, it seems to me that the concern about the weak and vulnerable has two aspects. First, there would be a direct concern about weak and vulnerable people in the same unhappy position as Applicants, who do not have the requisite desire (namely a voluntary, clear, settled and informed decision to commit suicide), but who either feel that they have some sort of duty to die, or are made to feel (whether intentionally or not) that they have such a duty by family members or others, because their lives are valueless and represent an unjustifiable burden on others. (This aspect is more fully described by Lord Sumption at para 228 below). Secondly, there is a concern that the extension of the law to permit assisted suicide would send a more general message to weak and vulnerable people, who would consequently be more at risk of committing, or seeking assistance to commit, suicide while not having the requisite desire to do so. The appellants argue that the article 8 rights of Applicants to put an end to their lives, which are rights of a very high order bearing in mind their very cruel circumstances, should not be sacrificed for a merely speculative concern about another class of persons. They say that the harmful effect that liberalising the law on assisting suicide may have on vulnerable and weak people is no more than speculative, because no evidence has been adduced to suggest otherwise, and because in jurisdictions where assisted suicide is permitted, there do not seem to have been any undesirable consequences for the weak and vulnerable. It is true that the Falconer Report, supported by the reports of the two Canadian panels, states that in the Netherlands, Oregon and Switzerland there is no evidence of abuse of the law, which permits assisting a suicide in prescribed circumstances and subject to conditions. However, negative evidence is often hard to obtain, there is only a limited scope for information given the few jurisdictions where assisted suicide is lawful and the short time for which it has been lawful there, and different countries may have different potential problems. In other words, the evidence on that point plainly falls some way short of establishing that there is no risk. The most that can be said is that the Falconer commission and the Canadian panels could find no evidence of abuse. As Lord Sumption points out in paras 224 225 below, however, while the factual evidence in this connection is sparse, anecdotal, and inconclusive, the expert experienced and professional opinion evidence does provide support for the existence of the risk. In all the circumstances, this concern cannot, in my opinion, possibly be rejected as fanciful or unrealistic. Having said that, if a proposal were put forward whereby Applicants could be helped to kill themselves, without appreciably endangering the lives of the weak and vulnerable, then this objection could be overcome, or at least circumnavigated. In that connection, Lady Hale, during argument, brought home to me the significance of the point that it has been regarded as quite acceptable in cases such as Re B (Treatment) that the High Court should have the power to accede to a request by an individual that her life support machine be turned off. Furthermore, albeit less relevantly, I note that in the Mental Capacity Act 2005 Parliament has recognised the right of individuals to give advance directions that they be refused medical treatment. In the former case, the appropriate protection for the weak and vulnerable appears to be that a High Court Judge must first be satisfied that the request is based on a settled, informed and voluntary desire. In the latter case, it would seem that a formal document recording the desire will suffice. The moral arguments The contention that there is a moral justification for the present law did not feature much in argument, and then only in very general terms. In so far as the argument is based on the sanctity, or primacy, of other human lives, it does little more, in my view, than replicate the concerns about the lives of the weak and vulnerable. In so far as it is based on the sanctity or primacy of Applicants lives, it has been substantially undermined by the enacting of section 1 of the 1961 Act. I find it hard to see how a life can be said to be sacred if it is lawful for the person whose life it is to end it; to put the point another way, if the primacy of human life does not prevent a person committing suicide, it is difficult to see why it should prevent that person seeking assistance in committing suicide. I also agree with what Lord Wilson says in this connection in paras 199 and 200 below. Another moral justification briefly advanced for not changing the law was that Parliament did not want to send out a message that human life is to be undervalued. I am somewhat sceptical about semaphore justifications for legislative or judicial decisions, but I accept that we should proceed on the basis this may have some force. However, it seems to me that, once again, this argument is another way of expressing the concern about the need to protect weak and vulnerable people, albeit a larger class of weak and vulnerable people. There is a rather different moral issue, which was not really covered in argument, namely that, while it is one thing for a person to take his own life, it is another thing to take, or even to assist in the taking of, someone elses life. In other words, there may be a view that, even though it is morally acceptable for people to take their own lives, it would be morally corrupting for another person, and indeed for society as a whole, if that other person could assist people in taking their lives. I think that there would be significantly more force in this point if the assister actually performed the act which caused the death, such as actually administering the barbiturate, as opposed to setting up a system which enables the person who wishes to commit suicide to activate the machine to perform the final act. In the eyes of the law, there is a very large difference between the two courses: the first is murder or manslaughter, and the second an offence under section 2. In this connection, the decision of the House of Lords in R v Kennedy (No 2) [2008] 1 AC 269 is very much in point. In that case, the House of Lords, in a powerful opinion given by Lord Bingham, overruled a decision that a defendant was guilty of manslaughter when he had produced a situation in which [the alleged victim] could inject herself [with a lethal drug], in which her self injection was entirely foreseeable and in which self injection could not be regarded as extraordinary on the ground that this decision conflicted with the rules on personal autonomy and informed voluntary choice para 16. Accordingly, [t]he finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him para 18. To my mind, the difference between administering the fatal drug to a person and setting up a machine so that the person can administer the drug to himself is not merely a legal distinction. Founded as it is on personal autonomy, I consider that the distinction also sounds in morality. Indeed, authorising a third party to switch off a persons life support machine, as in Bland or Re B (Treatment) seems to me, at least arguably, to be, in some respects, a more drastic interference in that persons life and a more extreme moral step, than authorising a third party to set up a lethal drug delivery system so that a person can, but only if he wishes, activate the system to administer a lethal drug. Indeed, if one is searching for a satisfactory boundary between euthanasia or mercy killing and assisted suicide, which Lord Sumption discusses at para 227 below, I believe that there may be considerable force in the contention that the answer, both in law and in morality, can best be found by reference to personal autonomy. Subject to those cases where the act can be classified as an omission (eg, to my mind somewhat uncomfortably in terms of common sense, switching off a life supporting machine at least if done by an appropriately authorised person, as in Bland and Re B (Treatment)), it seems to me that if the act which immediately causes the death is that of a third party that may be the wrong side of the line, whereas if the final act is that of the person himself, who carries it out pursuant to a voluntary, clear, settled and informed decision, that is the permissible side of the line. In the latter case, the person concerned has not been killed by anyone, but has autonomously exercised his right to end his life. (I should perhaps make it clear that I am not thereby seeking for a moment to cast doubt on the correctness of the decisions in Bland and Re B (Treatment), both of which appear to me to have been plainly rightly decided). The argument based on the value of human life is not one which can only be raised by the Secretary of State. The evidence shows that, in the light of the current state of the law, some people with a progressive degenerative disease feel themselves forced to end their lives before they would wish to do so, rather than waiting until they are incapable of committing suicide when they need assistance (which would be their preferred option). Section 2 therefore not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives. For the reasons I have discussed, therefore, while it would be wrong to ignore the moral arguments against permitting Applicants to be assisted to kill themselves, I do not consider that they are particularly telling. Indeed, by requiring one to focus on the important feature of personal autonomy, they appear to me to provide a degree of support for the appellants case. In any event, quite apart from the points already made, the mere fact that there are moral issues involved plainly does not mean that the courts have to keep out. Even before the 1998 Act came into force, the courts were prepared to make decisions which developed the law and involved making moral choices of this type. Re B (Wardship), Re J, Bland, Re F and (albeit only by a week) Conjoined Twins were all decided before the 1998 Act was in force, and each decision would have been regarded as involving a wrong moral choice by some people. Further, in Re B (Treatment) the court was prepared to decide that an action should be taken (albeit that it was classified as an omission by Lord Goff) which would end a persons life because that person wanted that action to be taken (although, of course, it should not have been necessary to go to court to give effect to Bs wishes, unless there was some concern over her mental capacity or some other special reason). Thus, the courts have been ready both to assume responsibility for developing the law on what are literally life and death issues, and then to shoulder responsibility for implementing the law as so developed. It is perhaps worth noting in the present context that, despite pleas from judges, Parliament has not sought to resolve these questions through statutes, but has been content to leave them to be worked out by the courts. The argument that the issue should be left to Parliament The Secretary of State contends that, under our constitutional settlement, the determination of the criminal law on a difficult, sensitive and controversial issue such as assisted suicide is one which is very much for Parliament. There is obvious force in that argument, given that, less than five years ago, Parliament approved the general prohibition on assisting suicide, by redrafting section 2(1), so that it continued to render all cases of assisted suicide criminal, and by leaving subsection (4), with its control by the DPP, in place. Nonetheless it is self evident that the mere fact that Parliament has recently enacted or approved a statutory provision does not prevent the courts from holding that it infringes a Convention right. By the 1998 Act, Parliament has cast on the courts the function of deciding whether a statute infringes the Convention. In a case such as the present, where the margin of appreciation applies, a court will only invoke this function where it has concluded that the issue is within its competence, in which case the fact that Parliament has recently considered the issue, while relevant, cannot automatically deprive the courts of their right, indeed their obligation, to consider the issue. It is not easy to identify in any sort of precise way the location of the boundary between the area where it is legitimate for the courts to step in and rule that a statutory provision, which is not irrational, infringes the Convention and the area where it is not. However, it is not, I think, sensible or even possible to seek to define where the boundary lies. In Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, the House of Lords had to consider whether, by changing the common law they would be overstepping the boundary which separates legitimate development of the law from judicial legislation. Lord Goff said this at p 173: I feel bound however to say that, although I am well aware of the existence of the boundary, I am never quite sure where to find it. Its position seems to vary from case to case. Indeed, if it were to be as firmly and clearly drawn as some of our mentors would wish, I cannot help feeling that a number of leading cases in your Lordships House would never have been decided the way they were. If that is the position with regard to a long existing boundary, it is scarcely surprising that it should be the same in relation to a boundary which has been in existence for less than fourteen years. In connection with the present case, the Secretary of State can justifiably place reliance on Lord Binghams observations about the Hunting Act 2004 in R (Countryside Alliance) v Attorney General [2008] 1 AC 719, para 45: There are of course many who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after an intense debate a majority of the countrys democratically elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue. Here we are dealing with a law which is very recent and must be taken to reflect the conscience of a majority of the nation. The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament. Those observations serve as a salutary reminder that we, as judges, should be very cautious before being prepared to hold that we should exercise our jurisdiction under section 4 of the 1998 Act in the present case. However, Lord Binghams words plainly do not by themselves justify a simple refusal to hold that we have or should exercise the jurisdiction. Furthermore, the reasons for, and nature of, the controversy in that case were very different from those in this appeal, and the interference with the article 8 rights of people such as Mr Lamb as a result of section 2 is enormously greater than any arguable alleged interference with the rights of those who wished to hunt in the Countryside Alliance case. Quite apart from this, there is force in the point that difficult or unpopular decisions which need to be taken, are on some occasions more easily grasped by judges than by the legislature. Although judges are not directly accountable to the electorate, there are occasions when their relative freedom from pressures of the moment enables them to take a more detached view. As Lord Brown said in the Countryside Alliance case at para 158, [s]ometimes the majority misuses its powers. Not least this may occur when what are perceived as moral issues are involved. However, (save, as some have argued, in circumstances which are very unlikely ever to arise) Parliamentary sovereignty and democratic accountability require that the legislature has the final say, as section 4 of the 1998 Act recognises: Lord Kerr accurately records the position in para 343 below. As for the other points relied on by the Secretary of State, it is true that in Pretty v DPP the House of Lords unanimously rejected the contention that section 2 infringed the article 8 rights of Ms Pretty, even if such rights were engaged. However, that was immediately after the House had wrongly concluded that her article 8 rights were not engaged, and before the Strasbourg court had considered the issue in the cases referred to in paras 29 38 above. Further, the arguments deployed in Pretty v DPP on this issue were very general in nature (see at p 805D). Indeed, as I shall seek to explain later in this judgment, it seems to me that the arguments deployed by the appellants in this appeal were not sufficiently focussed to justify a declaration of incompatibility in the first appeal. The extent of the need for assessing views, experiences and expertise, as invoked by the Secretary of State, will depend very much on the nature of the appellants proposals, as well as the evidence and arguments. Similarly, the degree of familiarity and confidence which the judiciary can claim in relation to the proposal, which will depend on the precise nature of the proposals. However, as the cases considered in paras 21 26 above demonstrate, the courts are used to dealing with life and death issues of the sort to which the present proceedings give rise. The Secretary of States reliance on the need for detailed provisions and regulatory safeguards has some force, but the court is not being asked to set up a specific scheme under which Applicants could be assisted to commit suicide such that it would be disproportionate for the law to forbid them from doing so. As Lord Hughes says in para 267 below, it is a matter for Parliament to determine the precise details of any scheme. But that does not prevent the court from concluding that there are a number of possible schemes. For the purpose of deciding that article 8 is infringed, the court needs to consider that aspect no further than is necessary to satisfy itself that some such scheme or schemes could be practically feasible. It is also relevant to bear in mind the current position, whereby, with Parliaments approval, the policy of the DPP is to investigate any assisted suicide after the event, and to lean against prosecuting where the assister was a close relative or friend activated by compassion, at least where there are no other, aggravating, relevant factors. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPPs office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view. It is also appropriate to ask which of those two courses would be more satisfactory for the compassionate friend or relative (whose article 8 rights may also be engaged). Furthermore, it is clear from the 2010 Policy, the evidence summarised in para 48 above, as well as from the DPPs decision referred to in para 39 above, that those people who, out of compassion, assist relations and friends who wish to commit suicide, by taking or accompanying them to Dignitas, are routinely not prosecuted. In other words, those people who have access to supportive friends and relations, and who possess the means and physical ability to travel to Switzerland, are able in practice to be assisted in their wish to commit suicide, whereas those people, such as Mr Lamb and Martin, who lack one or more of those advantages, cannot receive any such assistance. Further, even those who can in practice be helped to travel to Switzerland to die would, understandably, prefer to die without the upheaval involved, at their homes with dignity in peace. The point discussed in paras 92 95 above, relating to the moral difference between a doctor administering a lethal injection to an Applicant, and a doctor setting up a lethal injection system which an Applicant can activate himself, is also of significance in relation to institutional competence. It could be said to be a radical step for a court to declare a statutory provision incompatible, if such a declaration involved effectively stating that the law should be changed so as to decriminalise an act which would unquestionably be characterised as murder or (if there were appropriately mitigating circumstances) manslaughter. If, on the other hand, Dr Nitschkes machine, described in para 4 above, could be used, then a declaration of incompatibility would be a less radical proposition for a court to contemplate. Conclusion on this issue In my view, bearing in mind all the features discussed in the preceding 26 paragraphs, the arguments raised by the Secretary of State do not justify this Court ruling out the possibility that it could make a declaration of incompatibility in relation to section 2. The interference with Applicants article 8 rights is grave, the arguments in favour of the current law are by no means overwhelming, the present official attitude to assisted suicide seems in practice to come close to tolerating it in certain situations, the appeal raises issues similar to those which the courts have determined under the common law, the rational connection between the aim and effect of section 2 is fairly weak, and no compelling reason has been made out for the court simply ceding any jurisdiction to Parliament. Accordingly, while I respect and understand the contrary opinion, so well articulated by Lord Sumption and Lord Hughes, I am of the view that, provided that the evidence and the arguments justified such a conclusion, we could properly hold that that section 2 infringed article 8. A court would therefore have to consider an application to make a declaration of incompatibility on its merits, and it seems to me that it would be inappropriate for us to fetter the judiciarys role in this connection in advance. More specifically, where the court has jurisdiction on an issue falling within the margin of appreciation, I think it would be wrong in principle to rule out exercising that jurisdiction if Parliament addresses the issue: it could be said with force that such an approach would be an abdication of judicial responsibility. In that connection, I agree with what Lord Mance says in para 191 below. Further, in practical terms, given the potential for rapid changes in moral values and medicine, it seems to me that such an approach may well turn out to be inappropriate in relation to this particular issue. However, I consider that, even if it would otherwise be right to do so on the evidence and arguments which have been raised on the first appeal, it would not be appropriate to grant a declaration of incompatibility at this time. In my opinion, before making such a declaration, we should accord Parliament the opportunity of considering whether to amend section 2 so as to enable Applicants, and, quite possibly others, to be assisted in ending their lives, subject of course to such regulations and other protective features as Parliament thinks appropriate, in the light of what may be said to be the provisional views of this Court, as set out in our judgments in these appeals. It would, of course, be unusual for a court to hold that a statutory provision, conventionally construed, infringed a Convention right and could not be construed compatibly with it, and yet to refuse to make a declaration under section 4 of the 1998 Act. However, there can be no doubt that there is such a power: section 4(2) states that if there is an incompatibility, the court may make a declaration to that effect, and the power to grant declaratory relief is anyway inherently discretionary. The possibility of not granting a declaration of incompatibility to enable the legislature to consider the position is by no means a novel notion. As pointed out by Lady Hale, Lord Nicholls in Bellinger v Bellinger [2003] 2 AC 467, para 53, said this: It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may not then be able, during the transitional period, to complain that his rights have been violated. The admissibility decision of the court in Walden v Liechtenstein (Application no 33916/96) (unreported) 16 March 2000 is an example of this pragmatic approach to the practicalities of government. In my view, even if the facts and arguments otherwise justified a declaration of incompatibility on the first appeal (which for the reasons given below, I consider they do not), this is one of those exceptional cases where it would have been inappropriate to grant a declaration of incompatibility at this stage. That view is based on considerations of proportionality in the context of institutional competence and legitimacy which are well articulated by Lord Mance in paras 166 170 below, taking forward his discussion in Re G, referred to in paras 71 73 above. There is a number of reasons which, when taken together, persuade me that it would be institutionally inappropriate at this juncture for a court to declare that section 2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration. First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts. Secondly, this is not a case like Re G where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly. Thirdly, section 2 has, as mentioned above, been considered on a number of occasions in Parliament, and it is currently due to be debated in the House of Lords in the near future; so this is a case where the legislature is and has been actively considering the issue. Fourthly, less than thirteen years ago, the House of Lords in Pretty v DPP gave Parliament to understand that a declaration of incompatibility in relation to section 2 would be inappropriate, a view reinforced by the conclusions reached by the Divisional Court and the Court of Appeal in this case: a declaration of incompatibility on this appeal would represent an unheralded volte face. In para 204 below, Lord Wilson refers to the power of the court under section 4 of the 1998 Act as giving rise to mechanism for collaboration between the courts and Parliament, and many judges and academics have referred to the dialogue which takes place between national courts and the Strasbourg court. While those expressions should not detract from the seriousness of a declaration of incompatibility, they may be helpful metaphors. Dialogue or collaboration, whether formal or informal, can be carried on with varying degrees of emphasis or firmness, and there are times when an indication, rather than firm words are more appropriate and can reasonably be expected to carry more credibility. For the reasons just given, I would have concluded that this was such a case. Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made. It would not be appropriate or even possible to identify in advance what amounts to a reasonable time in this context. However, bearing in mind the predicament of the Applicants, and the attention the matter has been given inside and outside Parliament over the past twelve years, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future, either along with, or in addition to, the question whether there should be legislation along the lines of Lord Falconers proposals. Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made, as indicated in para 112 above. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration. In that connection, Lord Wilsons list of factors in para 205 below, while of real interest, might fairly be said to be somewhat premature. Should the Court grant a declaration of incompatibility? issue (d) This question does not need to be answered in the light of the conclusion I have reached in the immediately preceding paragraphs. However, it would, I think, be wrong to leave the first appeal without stating that, even if I had concluded that it would in principle have been institutionally appropriate to make a declaration of incompatibility in these proceedings, I would not have done so on the basis of the evidence and arguments laid before the courts. Before we could uphold the contention that section 2 infringed the article 8 rights of Applicants, we would in my view have to have been satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and that the reasonable concerns expressed by the Secretary of State (particularly the concern to protect the weak and vulnerable) were sufficiently met so as to render the absolute ban on suicide disproportionate. I do not consider that we can be properly confident that we have the evidence or that the courts below or the Secretary of State have had a proper opportunity to address the issue, in order to determine whether requirement (c) or (d) in Aguilar Quila is satisfied. That brings me to the appellants specific proposals, which in my view suffered from a lack of proper focus. As I understand it, they rely heavily on the recommendations of the Falconer Report and the conclusions of Smith J in the Canadian case of Carter v Canada [2012] BCSC 886, but I would find it hard to accept either of them as a sound basis for supporting the appellants case. So far as the Carter case is concerned, I have nothing to add to what Lord Mance says at paras 178 182 below. As for the Falconer Commission, in common with the proponents of change in 2006 and 2009 in the House of Lords, it recommended that section 2 should be cut down only to the extent that assistance could be accorded to those who were terminally ill with twelve months or less to live. (I believe that Lord Falconer is currently proposing a shorter period, six months.) That would not assist Applicants. Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live. Further, the Falconer Report suggests that the decision whether to permit someone to be assisted to die should be left to doctors. That is understandable (though I am not entirely convinced by it) if the issue is whether the person concerned will die shortly. However, if the people who are to be assisted are in the sad situation of Applicants, I would have thought that there is much to be said for the idea, first mooted by Lady Hale and developed in her judgment in paras 314 316 below, that it should be a High Court Judge who decides the issue. Indeed, it appears to me that it may well be that the risks to the weak and vulnerable could be eliminated or reduced to an acceptable level, if no assistance could be given to a person who wishes to die unless and until a Judge of the High Court has been satisfied that his wish to do so was voluntary, clear, settled and informed. As explained in paras 21 26 above, over the past twenty five years, the High Court has been able to sanction a number of actions in relation to people which will lead to their deaths or will represent serious invasions of their body sterilisation, denial of treatment, withdrawal of artificial nutrition and hydration, switching off a life support machine, and surgery causing death to preserve the life of another. It is true that in most of these cases, the court is involved because the person concerned cannot express his wishes. However, that is not true of cases such as Re B (Treatment), where the issue for the court would be identical to that in the type of case raised by the appellants. In these circumstances, I consider that it is certainly conceivable that a court could conclude that section 2 infringes article 8 in so far as it precludes an Applicant from receiving assistance in committing suicide, provided that a High Court Judge has formally determined that he has a voluntary, clear, settled and informed wish to do so. However, over and above the reason discussed in paras 113 118 above, it would not have been appropriate to reach such a conclusion in these proceedings. Neither the Secretary of State nor the courts below have had a proper opportunity to consider this, or any other, proposal. As Lord Mance explains more fully in paras 175 177 below, in both the High Court and the Court of Appeal, the claim of a declaration of incompatibility was rather a fall back argument, and the appellants contended that the issue could not be determined without further fact finding. Further, the argument in those courts was primarily advanced on the basis that someone would actually have to kill Mr Nicklinson and Mr Lamb, as opposed to enabling them to administer a fatal dose themselves through operating an eyeblink computer, and, for the reasons given in paras 92 95 and 110 above, the ability of an Applicant to commit suicide through the use of a machine such as the eye blink computer is of importance in my view. In any event, at least on the basis of the arguments and evidence which have been put before the Court, there would have been too many uncertainties to justify our making a declaration of incompatibility. Of course, it is for Parliament to decide how to respond to a declaration of incompatibility, and in particular how to change the law. However, at least in a case such as this, the Court would owe a duty, not least to Parliament, not to grant a declaration without having reached and expressed some idea of how the incompatibility identified by the court could be remedied. Thus, it appears to me that it would be necessary to consider purely factual matters, such as whether devices such as Dr Nitschkes machine are reliable, whether they could be activated by Applicants, and whether it would be feasible to use them. There would also be mixed factual and policy issues to consider, such as whether appropriate safeguards (including by whom and on what basis the decision to permit an assisted suicide should be made) could be developed to protect both those who firmly wish to die and those who do not, whether Applicants could be fairly identified and regulated as a self contained collection of people, whether there would be implications for people who were not Applicants but wished to be assisted in killing themselves, and if so what the implications were, and how they should be dealt with. The disposal of the first appeal issue (e) In these circumstances, I consider that we should dismiss the first appeal. However, it is right to add that, if I had concluded that article 8 was infringed by section 2 as conventionally interpreted, I would have had no hesitation in rejecting the appellants contention that section 2 could be read, in the light of section 3 of the 1998 Act, so as to comply with the Convention. The only argument put forward to support the contention was that, a person who assisted an Applicant to die could rely on the doctrine of necessity to avoid criminal liability under section 2. As Lord Dyson and Elias LJ explained in para 25 of their judgment in the Court of Appeal, to extend the defence of necessity to a charge of assisted suicide would be a revolutionary step, which would be wholly inconsistent with both recent judicial dicta of high authority, and the legislatures intentions. As to judicial dicta, see R v Howe [1987] 1 AC 417, 429B D and 453B F, per Lord Hailsham and Lord Mackay respectively, Bland, pp 892E 893A per Lord Mustill, and Inglis at para 37, per Lord Judge CJ. So far as legislative intention is concerned, in 1961, Parliament decided, through section 2(1), to create a statutory offence of assisting a suicide in a provision which admitted of no exceptions, and it confirmed that decision as recently as 2009 (when section 2(1) was repealed and re enacted in more detailed terms) following a debate in which the possibility of relaxing the law on the topic was specifically debated. I turn then to the issues raised by the DPPs appeal. Does the 2010 Policy infringe article 8? issue (f) The challenge to the validity of the 2010 Policy In Purdy at para 41, Lord Hope explained that any law which restricts a Convention right must satisfy the two requirements of accessibility and foreseeability. He went on to explain that the requirement of foreseeability is satisfied where the person concerned is able to foresee. the consequences which a given action may entail, a formulation which was derived from the Sunday Times case, para 49, and a number of subsequent decisions of the Strasbourg court. The level of precision required of domestic legislation, as was stated in Hasan and Chaush, para 84, depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. The decision in Purdy was not merely justified by the fact that the crime of assisting suicide can engage articles 2 and 8; it was more because the crime, at least in many cases, has a unique combination of features, all of which point firmly towards a requirement for clear guidance. First, section 2(1) renders it a crime to assist someone else to do an act which is not itself in any way a crime. Secondly the victim is not merely a willing participant, but the instigator. Thirdly, the victims article 8 rights are interfered with unless the crime is committed. Fourthly, the person committing the offence will be a reluctant participant, motivated by compassion for the so called victim, and not by emotions which normally stimulate criminal behaviour. It is true that the last three of these four characteristics are not an inevitable feature of a case of assisting a suicide, but they will all frequently feature in such cases. Indeed, it was because assisting suicide was such an unusual crime that subsection (4) was included in section 2 see Purdy, para 46. Even more centrally, it was because all four characteristics were such likely features of a potential offence under section 2 that Purdy was decided in the way that it was. The requirement for a specific policy was not to protect the interests of those who were contemplating putting pressure on the vulnerable, or seeking to benefit from someones suicide, but to protect the interests of the very people assistance of whose suicide would involve all four characteristics see Purdy, paras 53, 68, 86 and 102. The need for a clear policy in this area is said to be supported by the reasoning of the majority of the Strasbourg court in Gross. It concerned a somewhat different aspect of assisted dying, but the courts emphasis in para 66 on the need for guidelines to avoid a person being in a state of anguish and uncertainty regarding the extent of her right to end her life, seems to me to apply to a case such as those that have given rise to these appeals. I note also the conclusion in para 69 that it was up to the domestic authorities to issue comprehensive and clear legal guidelines as to whether and under which circumstances an individual not suffering from a terminal illness should be granted the ability to acquire a legal dose of medication allowing them to end their life. Martins argument in the second appeal is that, as a result of a lack of clarity in the 2010 Policy, the law relating to the crime of assisting suicide fails to live up to the foreseeability requirement. The lack of clarity is said to arise where a person who has a voluntary, clear, settled and informed wish to die and who requires assistance, is given such assistance by a third party, who is acting purely out of compassion and who has exerted no pressure on the person, but is not a relation or friend, and would often be a doctor or other professional carer. Where the third party is a friend or relation, then in the absence of any aggravating factor, the 2010 Policy indicates that a prosecution would be unlikely, but in any other case the position could fairly be described as more opaque. The evidence suggests that this uncertain state of affairs leads doctors and other professional carers almost always to refuse to give any information or advice to those who wish to end their lives. This degree of caution, although understandable, appears to go too far, and I gladly associate myself with the accurate and helpful guidance given in para 255(2), (3) and (4) of Lord Sumptions judgment. Having said that, Lord Dyson MR and Elias LJ expressed the problem which was said to exist with the 2010 Policy very well at para 140 of the Court of Appeals judgment: How does [the 2010 Policy] apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In short, we accept the submission that the Policy does not provide medical doctors and other professionals with the kind of steer that it provides to relatives and close friends acting out of compassion . Is it appropriate to expect greater foreseeability? Lord Hughes and Lord Kerr rightly point out that (i) the state of the law is clear, indeed could not be clearer, in the sense that any form of assisting a suicide is a crime under the unconditional provisions of section 2, and (ii) the role of the DPP is constitutionally limited, in that it is not, and indeed cannot be, to make the law, let alone to change the law, but to decide how much guidance she can properly give in her policy with regard to prosecutions under section 2(1). We are not therefore in the same area as that which was being discussed in the passages cited from Gross in para 135 above, which was concerned with what conduct would be lawful in Swiss law. Further, any policy which the DPP has (whether published or not) must be applied after the event. In these circumstances, it is inevitable that any policy issued by the DPP has to retain a degree of flexibility: each case has to be assessed after the event by reference to its own particular facts. However, I do not share Lord Hughess concerns about (i) the decision in Purdy (the correctness of which was not challenged by anyone in these appeals), or (ii) the risk of a spill over into other statutory crimes where there is a provision such as section 2(4). As to (i), particularly given the unique combination of features identified in para 133 above, it was appropriate to require the DPP to publish a policy in relation to assisting suicide, given that his existing general code did not satisfactorily apply to that crime. It was not as if the House was seeking to say what that policy should be. As to (ii), although section 2(4) was given weight in Purdy, it is the DPPs general prosecutorial discretion which is the relevant power which gave rise to the decision in that case. More importantly, as already mentioned, it is the unique character of the offence, coupled with the decision in Pretty v UK, which led the House to decide that a specific published policy for assisting suicide was required. Accordingly, we are here concerned with a very unusual crime which is the subject of a specific policy. However, that does not undermine the force of the constitutional argument that it is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy. The purpose of the DPP publishing a code or policy is not to enable those who wish to commit a crime to know in advance whether they will get away with it. It is to ensure that, as far as is possible in practice and appropriate in principle, the DPPs policy is publicly available so that everyone knows what it is, and can see whether it is being applied consistently. While many may regret the fact that the DPPs policy is not clearer than it is in relation to assistance given by people who are neither family members nor close friends of the victim, and while many may believe that the policy should be the same for some categories of people who are not family members or close friends as for those who are, it would not be right for a court in effect to dictate to the DPP what her policy should be. A further point In these circumstances, were it not for one point, I would simply have accepted the DPPs case on the second appeal. However, the matter is not quite so simple in light of what was said by Lord Judge CJ (dissenting on this point) in the Court of Appeal about the 2010 Policy: 185. [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance. 186. Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the victim to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution. For the reasons given by Lord Dyson MR and Elias LJ quoted in para 138 above, I do not agree with Lord Judge CJ that one can spell out of the 2010 Policy the approach which he sets out so clearly in those two paragraphs. However, the important point for present purposes is that what is said in those two paragraphs represents, according to her counsel on instructions, the view of the DPP herself, as to the appropriate policy. If the DPPs policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty, both as a matter of domestic public law and in the light of the Strasbourg jurisprudence as a public authority, to ensure that the confusion is resolved. However, I am of the view that it would not be appropriate, at least at this stage, to make an order which would require the DPP to amend the 2010 Policy. Rather, I think, it is appropriate to leave it to her to review the terms of the 2010 Policy, after consultation if she thinks fit, with a view to amending it so as to reflect the concerns expressed in the judgments of this Court, and any other concerns which she considers it appropriate to accommodate. There are three reasons which persuade me that it would be inappropriate to make any order against the DPP at this stage. First, it is really only as a result of the hearing of this appeal that it has become clear that the 2010 Policy may not reflect the DPPs views. It would therefore be somewhat harsh for the court to impose a duty on her to deal with the problem, as opposed to giving her the opportunity to do so. Secondly, although her agreement with Lord Judge CJs analysis was no doubt considered, the DPP should not be regarded as bound by it. She should have a proper opportunity to consider the 2010 Policy, after making such enquiries as she thinks appropriate. Thirdly, in any event, the contents of any order would either be very vague or they would risk doing that which the court should not do, namely usurping the functions of the DPP, or even of Parliament. Given that, in an important respect, the 2010 Policy does not appear to reflect what the DPP intends, it seems to me inevitable that she will take appropriate steps to deal with the problem, particularly in the light of the impressive way in which her predecessor reacted to the decision in Purdy. However, if the confusion is not sorted out, then, at least in my view, the courts powers could be properly invoked to require appropriate action, but, as I have said, it seems very unlikely that this will be necessary. The contents of the Policy issue (g) In the light of my conclusion in the immediately preceding paragraphs, Martins cross appeal does not arise. Conclusions For the reasons I have given (which are generally the same as those of Lord Mance) I would summarise my conclusions as follows: a) In common with all other members of the Court, I do not consider that section 2 imposes what the Strasbourg court would regard as an impermissible blanket ban on assisted suicide, which would take it outside the margin of appreciation afforded on this issue to member states; c) b) Given that the Strasbourg court has decided that it is for the member states to decide whether their own law on assisted suicide infringes article 8, I consider, in common with other members of the Court, that domestic courts have the constitutional competence to decide the issue whether section 2 infringes article 8; (i) Unlike Lord Sumption, Lord Clarke, Lord Reed and Lord Hughes, I do not consider that it would be institutionally inappropriate, or only institutionally appropriate if Parliament refuses to address the issue, for a domestic court to consider whether section 2 infringes the Convention, but, (ii) Unlike Lady Hale and Lord Kerr, I do not consider that it would be institutionally appropriate for us to determine the issue at this time; d) Notwithstanding the views of Lady Hale and Lord Kerr to the contrary, I am of the view that, quite apart from my view in para (c)(ii), in the light of the evidence and the arguments presented on this appeal the Court is not in a position to decide the issue; In common with all members of the Court, I do not consider that the Court should involve itself with the terms of the DPPs policy on assisted suicide, albeit that I would expect the DPP to clarify her policy. e) In these circumstances, I would dismiss the appeal brought by Mrs Nicklinson and Mr Lamb, allow the appeal brought by the DPP, and dismiss the cross appeal brought by Martin. LORD MANCE I agree generally with the reasoning and conclusions of Lord Neuberger on the appeals by Mrs Nicklinson and Mr Lamb, read with the following observations of my own. On the appeal and cross appeal in the case of Martin, I agree that the Director of Public Prosecutions appeal should be allowed and Martins cross appeal dismissed, for reasons given by Lord Neuberger and Lord Sumption, supplemented by short observations of my own. The appeals by Mrs Nicklinson and Mr Lamb Before us the appeals by Mrs Nicklinson and Mr Lamb have acquired a different focus from that of Mr Nicklinsons case below. Below, Mr Nicklinsons case, as recorded by Toulson LJ in paras 15 and 21 of his judgment in the Divisional Court, was that the only way in which [he] could end his life other than by self starvation would be by voluntary euthanasia. Although a statement had been produced by a North Australian doctor, Dr Nitschke, to the effect that it would be technologically possible for Mr Nicklinson to take the final step of initiating suicide with the aid of a machine which Dr Nitschke has invented, pre loaded with lethal drugs and capable of being digitally activated by Mr Nicklinson by a blink of his eye (para 16), Toulson LJ went on to say that In these circumstances [Mr Nicklinson] wants to be able to choose to end his life by voluntary euthanasia at a moment of his choosing (para 17); and he added that, although Dr Nitschkes evidence meant that the claim that s.2 of the Suicide Act 1961 was incompatible with article 8 of the Convention was not entirely academic, the main part of the argument on Mr Nicklinsons behalf under article 8 was directed to establishing that it requires voluntary active euthanasia to be permitted by law (para 21). In the Divisional Court (para 122) and Court of Appeal (para 105), the cases of R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800 and Pretty v United Kingdom (2002) 35 EHRR 1 were treated as binding on the issue whether the blanket ban contained in s.2 of the Suicide Act is compatible with the Convention as interpreted by the Strasbourg court. The Court of Appeal added the caveat that the court must also satisfy itself as to the proportionality of the ban as a matter of domestic law (para 110), but concluded that in a case like this, it would be improper for a court to find a blanket prohibition disproportionate where this is not dictated by Strasbourg jurisprudence (para 111). In the courts below, therefore, the main focus was on Mr Nicklinsons submissions that necessity should be recognised as a defence to murder at common law and/or in the light of article 8 of the European Convention on Human Rights. That case is not now pursued. The case now advanced is that a machine like Dr Nitschkes would offer a feasible means of suicide, and that the prohibition on assisting suicide in s.2(1) of the Suicide Act 1961, as amended by s.59 of the Coroners and Justice Act 2009, should be read down to permit this assistance to be volunteered, or if that is not possible that the prohibition should be declared incompatible with article 8 of the Convention on Human Rights. In my opinion the decision of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 establishes at the international level that it is within the margin of appreciation of Member States of the Council of Europe to legislate in terms involving a blanket prohibition of assisted suicide. More recent cases, such as Haas v Switzerland (2011) 53 EHRR 33, Koch v Germany (2013) 56 EHRR 6 and Gross v Switzerland (2014) 58 EHRR 7 throw no doubt on this, since they concern either a state (Switzerland) which permits assisted suicide or a state (Germany) whose courts had acted contrary to article 6 of the Convention by refusing even to address the issue. It is of interest to compare the European Court of Human Rights decision in Pretty with the majority reasoning of the United States Supreme Court in Washington v Glucksberg 521 U.S. 702 (1997). The United States Supreme Court was concerned with the due process clause in the American Constitution, under which a wide range of fundamental liberties has in the past been recognised, including the right to marry, to have and direct the upbringing of children and to have an abortion (Roe v Wade 410 U.S. 113 (1973) and Planned Parenthood v Casey 505 U.S. 833 (1992) and the right to refuse unwanted lifesaving medical treatment (Cruzen v Director, Missouri Dept. of Health 497 U.S. 261 (1990). It held that the right to due process did not extend to a right to commit assisted suicide, and that the State of Washingtons blanket prohibition on assisted suicide was accordingly not unconstitutional. It noted that the overwhelming majority of States prohibited assisted suicide, some after quite recent debates about it, but it also noted that voters in Oregon had in 1994 enacted a Death with Dignity Act legalising physician assisted suicide for competent, terminally ill adults (p 717). Its comment was that this showed that the States are currently engaged in serious, thoughtful examination of physician assisted suicide and other similar issues (p 719). It is a comment of some relevance in my opinion to the position in which this Court finds itself in relation to Parliament, a subject to which I shall return. I do not read paragraph 76 of the European Court of Human Rights judgment in Pretty as suggesting that a blanket prohibition may be incompatible with article 8 at the international level. I agree with Lord Neubergers analysis in his paragraphs 62 to 65. When the European Court of Human Rights said in paragraph 76 in Pretty that: It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. it was, as I see it, reaffirming the legitimacy (at the international level and bearing in mind the margin of appreciation) of a blanket prohibition, but recognising that, at the subsequent stage of enforcement and adjudication, some flexibility in approach was appropriate. In Purdy, at para 74, Lord Brown thought it implicit in the Courts reasoning in Pretty v United Kingdom that in certain cases, not merely will it be appropriate not to prosecute, but a prosecution under section 2(1) would actually be inappropriate. He went on: If in practice the ban were to operate on a blanket basis, the only relaxation in its impact being by way of merciful sentences on some occasions when it is disobeyed, that would hardly give sufficient weight to the article 8 rights with which the ban, if obeyed, is acknowledged to interfere. The emphasis in this passage is on the distinction between merciful sentencing and the decisions not to prosecute at all which the Director is expressly authorised to take under s.2(4). The passage does not suggest that a blanket ban is in principle impermissible (if it did, it would be contrary to much else that the Court said in Pretty v United Kingdom and later cases). It is recognising the exercise of the Directors discretion under s.2(4) as an important concomitant of the blanket ban in the United Kingdom context. But it is a concomitant, not intended to undermine or qualify the legitimacy of the blanket prohibition, but directed to the treatment of those who infringe it. In Haas, para 55, the Court observed that the vast majority of member States seem to attach more weight to the protection of the individuals life than to his or her right to terminate it. It follows that the States enjoy a considerable margin of appreciation in this area. In Koch v Germany (2013) 56 EHRR 6, para 70, the Court repeated its reference to a considerable margin of appreciation. It is, in these circumstances, important to note how the Court put the position under article 8 in Haas at para 51, and repeated it in Koch, para 52 and Gross, para 59. It said that, in the light of the previous case law: an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. It would be wrong in my view to deduce from this that the Strasbourg jurisprudence accepts that those capable of freely reaching a decision to end their lives, but physically incapable of bringing that about by themselves, have a prima facie right to obtain voluntary assistance, which is now the issue in this case, to achieve their wish. article 8.1 is, on the authority of Pretty v United Kingdom, engaged in this area. But it does not by itself create a right. A right only exists (at least in any coherent sense) if and when it is concluded under article 8.2 that there is no justification for a ban or restriction. Autonomy is an important value. But, as soon as the giving of assistance to those physically incapable of committing suicide without assistance comes into question, other factors, in particular the wider implications for third parties (not just the voluntary assister), also require consideration. The European Court of Human Rights words capable of . acting in consequence were carefully devised. To distinguish in this respect between those capable of committing suicide by themselves and others is not unjustifiably to discriminate against the latter. A submission to contrary effect was rejected by the House of Lords in R (Pretty), where Lord Bingham said: She contends that the section is discriminatory because it prevents the disabled, but not the able bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. A similar answer was also given by the European Court of Human Rights in Pretty v United Kingdom. In relation to the applicants complaint that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide (para 86), the Court said: 87. For the purposes of article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi vs the Netherlands, no. 28369/95, 37, ECHR 2000 X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos vs Greece [GC], no. 34369/97, 44, ECHR 2000 IV). 88. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. It follows from the margin of appreciation which exists at the international level that it is for domestic courts to examine the merits of any claim to receive assistance to commit suicide: see Koch, para 71. The United Kingdom position is on the face of it clear. Parliament has legislated for a blanket prohibition, combined with a discretion on the part of the Director of Public Prosecutors to decide whether in any particular case to prosecute. Pursuant to the House of Lords decision in R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, the Director has issued his 2010 Policy statement, set out in Lord Neubergers judgment at paras 46 and 47. As the Court of Appeal noted (para 110), the fact that Parliament has legislated a blanket ban is not the end of the matter as far as United Kingdom courts are concerned. Under the Human Rights Act 1998, it is the courts role to consider United Kingdom legislation in the light of the Convention rights scheduled to that Act. Where a considerable margin of appreciation exists at the international level, both the legislature and the judiciary have a potential role in assessing whether the law is at the domestic level compatible with such rights. That means considering whether a blanket prohibition is in accordance with law, in the sense that it not only meets a legitimate aim, but does so in a way which is necessary and proportionate. The legislators choice is not necessarily the end of the matter: see In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173. At this point, however, questions of institutional competence arise at the domestic level. The interpretation and ambit of s.2 are on their face clear and general, and whether they should be read down or declared incompatible in the light of article 8 raises difficult and sensitive issues. Context is all, and these may well be issues with which a court is less well equipped and Parliament is better equipped to address than is the case with other, more familiar issues. On some issues, personal liberty and access to justice being prime examples, the judiciary can claim greater expertise than it can on some others. The same applies to the legislature even though I fully accept, that, while the legislature is there to reflect the democratic will of the majority, the judiciary is there to protect minority interests, and to ensure the fair and equal treatment of all. Whether a statutory prohibition is proportionate is, in my view, a question in the answering of which it may well be appropriate to give very significant weight to the judgments and choices arrived at by the legislator, particularly when dealing with primary legislation. In their impressive judgments in the courts below, Toulson LJ (at paras 57 to 62 and 75 to 84) and Lord Dyson MR (at paras 49 and 56 to 60) cited extensively from prior authority cautioning against courts interference in difficult ethical and social issues better fitted for Parliamentary resolution under our democratic traditions. One such case was Airedale NGHS Trust vs Bland [1992] UKHL 5; [1993] AC 789, where the House of Lords addressed the narrow but vital distinction between mercy killing and the discontinuance of life sustaining measures in the context of an application to discontinue measures of the latter kind in respect of a patient in a permanent vegetative state. In this context, Lord Browne Wilkinson said (p.880A B) that it is not for the judges to seek to develop new, all embracing, principles of law in a way which reflects the individual judges moral stance when society as a whole is substantially divided on the relevant moral issues (p 880A B per Lord Brown Wilkinson Lord Mustill said (p.890G 891C): These are only fragments of a much wider nest of questions, all entirely ethical in content, beginning with the most general "Is it ever right to terminate the life of a patient, with or without his consent?" I believe that adversarial proceedings, even with the help of an amicus curiae, are not the right vehicle for the discussion of this broad and highly contentious moral issue, nor do I believe that the judges are best fitted to carry it out. On the latter aspect I would adopt the very blunt words of Scalia J. in Cruzan vs Director, Missouri Department of Health (1990) 110 S.Ct. 2841, 2859, where a very similar problem arose in a different constitutional and legal framework. These are problems properly decided by the citizens, through their elected representatives, not by the courts. My Lords, I believe that I have said enough to explain why, from the outset, I have felt serious doubts about whether this question is justiciable, not in the technical sense, but in the sense of being a proper subject for legal adjudication. The whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the general criminal law, but also of a sound procedural framework within which the rules can be applied to individual cases. The rapid advance of medical technology makes this an ever more urgent task, and I venture to hope that Parliament will soon take it in hand. Meanwhile, the present case cannot wait. We must ascertain the current state of the law and see whether it can be reconciled with the conduct which the doctors propose. In that case, as Lord Mustills final sentences indicate, the House had to address the point under the law as it then stood. I note however that the United States Supreme Court reached a similar result in another decision under the due process clause: Vacco v Quill 521 U.S. 793 (1997), handed down on the same day as Washington v Glucksberg. Rejecting an argument that the State of New Yorks ban on assisted suicide by the prescription of lethal medication to mentally competent, terminally ill patients suffering great pain was unconstitutional, the Supreme Court said that the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognised and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational (pp 800 801), and that even though the line between the two may not be clear, . certainty is not required, even were it possible (p 808). In the present appeal, current United Kingdom law is clear. Prior to the Human Rights Act 1998 that would have been the end of the matter. The question is how far the Human Rights Act requires a different approach. It is in my view a mistake to approach proportionality as a test under the Human Rights Act which is insensitive to considerations of institutional competence and legitimacy. The qualifying objectives reflected in article 8.2 of the Convention can engage responsibilities normally attaching in the first instance to other branches of the state, whether the executive or the legislature. When considering whether a particular measure is necessary and all the more when considering whether it is justified on a balancing of competing and often incommensurate interests, courts should recognise that there can still be wisdom and relevance in the factors mentioned in the preceding two paragraphs. This is all the more so when the court is considering the scope of the Convention rights, as enacted domestically, in a situation, like the present, which the European Court of Human Rights has held to fall within the United Kingdoms international margin of appreciation. That Parliament has regularly addressed the general area and is still actively engaged in considering associated issues in the context of Lord Falconers Assisted Dying Bill 2013 underlines the significance of the point. This does not mean that there is a legal rule that courts will not intervene (as to which see Lord Steyn, extra judicially in Deference: A Tangled Story, [2005] PL 345, commenting on R (ProLife Alliance) v British Broadcasting Corp [2003] UKHL 23, [2004] 1 AC 185, paras 74 77 per Lord Hoffmann) or that the courts have no role. It means merely that some judgments on issues such as the comparative acceptability of differing disadvantages, risks and benefits have to be and are made by those other branches of the state in the performance of their everyday roles, and that courts cannot and should not act, and do not have the competence to act, as a primary decision maker in every situation. Proportionality should in this respect be seen as a flexible doctrine. That institutional competence is important in the context of judgments made on issues of proportionality has been recognised in a series of cases: see e.g. A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, paras 29 and 38 39, per Lord Bingham, R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, para 34, per Lord Bingham, R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312, para 53, per Lady Hale, R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] 1 AC 719, para 45, per Lord Bingham (the passage quoted by Lord Neuberger in his para 102) and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, paras 68 76 per Lord Reed, with whose observations in these paragraphs Lord Sumption, Lady Hale, Lord Kerr and Lord Clarke agreed at para 20 and Lord Neuberger agreed at para 166. Lord Reeds observations, worth study in their entirety, included the following: 71. An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs. Those are not however the only relevant factors. One important factor in relation to the Convention is that the Strasbourg court recognises that it may be less well placed than a national court to decide whether an appropriate balance has been struck in the particular national context. For that reason, in the Convention case law the principle of proportionality is indissolubly linked to the concept of the margin of appreciation. That concept does not apply in the same way at the national level, where the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend on the context, and will in part reflect national traditions and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg court. 74. The judgment of Dickson CJ in Oakes (R v Oakes [1986] 1 SCR 103) provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in de Freitas (de Freitas v Permanent Secretary if Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69), and the fourth reflects the additional observation made in Huang (Huang v Secretary of State for the Home Department [2007] 2 AC 167). I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. 75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd [1986] 2 SCR 713, 781 782 that the limitation of the protected right must be one that it was reasonable for the legislature to impose, and that the courts were not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173, 188189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a least restrictive means test would allow only one legislative response to an objective that involved limiting a protected right. 76. In relation to the fourth criterion, there is a meaningful distinction to be drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four). As Lord Reed also observed at para 69: 69. Proportionality has become one of the general principles of EU law, and appears in article 5(4) of the EU Treaty. The test is expressed in more compressed and general terms than in German or Canadian law, and the relevant jurisprudence is not always clear, at least to a reader from a common law tradition. In R v Ministry of Agriculture, Fisheries and Food, Ex p Fedesa (Case C 331/88) [1990] ECR I 4023, the European Court of Justice stated, at para 13): The court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. The intensity with which the test is applied that is to say, the degree of weight or respect given to the assessment of the primary decision maker depends on the context. The flexibility of proportionality in the parallel context of European Union law was underlined in the Court of Appeal with regard to legislative choices made by a minister in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] 2 QB 394 (see especially at paras 126 134 and 203 per Arden LJ and Lord Neuberger MR, respectively) and was, still more recently, underlined in my judgment (in which Lord Neuberger and Lord Clarke joined) in Kennedy v The Charity Commission [2014] UKSC 20, para 54. It is also demonstrated instructively in the context of Convention law in an article by Julian Rivers, Proportionality and Variable Intensity of Review (2006) 65 CLJ 174. The main justification advanced for an absolute prohibition on assisting suicide, even in cases as tragic as Mr Nicklinsons and Mr Lambs, is the perceived risk to the lives of other, vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so. The relevant measure is the prohibition, which on this basis has a legitimate aim. Whether it is rationally connected to that aim depends upon the existence of the perceived risk. Whether it is necessary depends upon whether a lesser measure would have achieved, or at least not unacceptably have compromised, the aim. Whether it is proportionate depends upon identifying what the measure achieves and balancing this against the consequences for other interests. These four stages, derived from the passage in Lord Reeds judgment in Bank Mellat quoted in para 168 above, are analytically useful. They are also subject to some modification in particular contexts, not here directly relevant. (For example, the third stage may not apply in quite the same way under article 1 of Protocol No 1.) The third and fourth stages may raise potentially overlapping considerations, but the distinction between them is important. The third asks whether the aim could have been achieved without significant compromise by some less intrusive measure. The fourth involves the critical exercise of balancing the advantages of achieving the aim in the way chosen by the measure against the disadvantages to other interests. This balancing exercise, often involving the weighing of quite different rights or interests, is a core feature of the courts role, and can be described as involving proportionality in the strict sense of that word. How intensely the court will undertake the exercise, and to what extent the court will attach weight to the judgment of the primary decision maker (be it legislature or executive), depends at each stage on the context, in particular the nature of the measure and of the respective rights or interests involved. The primary decision makers choices as to the aim to adopt and the measure to achieve it may be entitled to considerable respect. But at the fourth stage other interests may come into play, the intrinsic and comparative weight of which the court may be as well or even better placed to judge in the light of all the material put before it. The existence of a risk to other vulnerable individuals is a premise of the decisions of the European Court of Human Rights at the international level. Thus, in Pretty v United Kingdom, para 74, the Court said of s.2(1) of the Suicide Act 1961: Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. Further, at the United Kingdom domestic level, the existence of such a risk was also accepted by the House of Lords in R (Pretty) as an alternative ground of decision if article 8.1 was engaged. It is submitted on the present appeal that developments and further evidence available since the Pretty v United Kingdom and Purdy cases require the Supreme Court to reach a conclusion opposite to its considered view in R (Pretty) (which also formed the starting point for its decision in Purdy) that the blanket prohibition in s.2(1) was proportionate. As to this, first, I do not consider that either the reasoning on legal or other issues or the decision in Pretty v United Kingdom and the more recent Strasbourg cases of Haas, Koch and Gross or the Houses reasoning or decision in Purdy affect the view expressed on this point in R (Pretty). The experience acquired regarding the s.2(4) discretion does not mean that the principle needs reconsideration. Of 85 cases referred to the CPS between 1 April 2009 and 1 October 2013, 64 were not proceeded with and 11 were withdrawn. 9 are ongoing and only 1 has been successfully prosecuted. The Directors discretion is evidently effective to avoid prosecutions which would serve no useful purpose after the event, but these figures do not appear to me to bear on the appropriateness of the blanket prohibition or on risks that could develop without it. I would accept that it is in principle open to claimants in the position of the appellants to invite a court to revisit an issue of proportionality previously decided between different parties in the light of different evidence, and, further, that this would not involve inviting the Supreme Court to depart precedentially from Purdy. Proportionality is here a judgment reached in the light of evidence, so that it is capable of being re litigated in this way, although courts should no doubt discourage such re litigation in the absence of fresh and significantly different evidence. However, examination of the course of the present case raises in my view serious questions about its suitability for any such exercise. At no stage does this litigation appear to have been approached on the basis that the court should hear primary evidence about the issues. There has been nothing like the wide ranging examination of expert and statistical material concerning suicide and the psychological factors and risks bearing on its occurrence which appears to have informed the United States Supreme Courts judgments in Washington v Glucksberg. Much of the material put before the Supreme Court on the present appeal has been second hand, adduced in other litigation or by other inquiries. Thus Toulson LJ, when referring to the January 2012 report of the Commission on Assisted Dying chaired by Lord Falconer, said (para 24): We were asked to read the report and have done so. However, it is important to stress that it was not an officially appointed commission. Its report contains an interesting analysis of arguments and views, but it would not be right for the court to treat it as having some form of official or quasi official status. The report in fact records that some prominent individuals and organisations that are fundamentally opposed to any form of assisted dying being legally permitted in the UK refused to participate in giving evidence (p.39). Toulson LJ also records (para 25) that after judgment was given at first instance by Smith J in Carter v Canada [2012] BCSC 886, counsel for Mr Nicklinson applied for leave to introduce the evidence in that case into the present case, recognising that, if it were admitted, there would have to be a further hearing in order to enable the witnesses to be called and cross examined. Similarly, before the Court of Appeal counsel accepted that determination of the question whether there had been a disproportionate interference with article 8 rights would involve consideration of a vast array of detailed evidence, including sociological, philosophical and medical material, which would have to be conducted by the Divisional Court. Before the Supreme Court, on the other hand, the appellants primary case has become not to invite the Supreme Court to embark upon a close study of the evidence that is now available of the relative risks and advantages of relaxing the prohibitions on assisted suicide, but instead to submit that the Supreme Court can strike the necessary balance without such a forensic exercise because it has been conducted already by a number of expert bodies whose conclusions are remarkably similar and upon whose conclusions the Court can place weight. In the alternative, if the Court considers that it cannot carry out the balancing exercise without further exploration of the underlying evidential issues, they repeat their request that the case should be remitted to the High Court for that exercise to be conducted along the lines of that in Carter v Canada [2012] BCSC 886, with appropriate guidance as to how the balancing exercise is to be conducted. The appellants primary case before the Supreme Court amounts in substance to an invitation to short cut potentially sensitive and difficult issues of fact and expertise, by relying on secondary material. There can in my opinion be no question of doing that. Their secondary case (their primary case below) is that the case should in effect re commence from the beginning with directions for evidence to be called and examined on the relevant issues of fact. But the handing down of the first instance decision in Carter v Canada shortly before the Divisional Court hearing is not a justification for not applying at the outset for a trial of the relevant issues on the basis of evidence directly examined before the court. The main basis relied upon for departing from the view expressed in Pretty is the fresh evidence said to have been gained in the meantime. That comes, first, from those few states where assisted suicide is lawful (Switzerland, Oregon, Vermont and Montana) or where both euthanasia and assisted suicide are lawful (the Netherlands, Belgium and Luxembourg), and, second, from other sources, such as the Falconer Commission on Assisted Dying (January 2012), the Royal Society of Canada (RSC) Expert Panel on End of Life Decision Making (2011), the Quebec Dying with Dignity Select Committee Report (March 2012) and the examination of the issue by Smith J at first instance in Carter v Canada [2012] BCSC 886 (over ruled at [2013] BCCA 435 on the ground that the issue was covered by the prior authority of Rodriguez v British Columbia (Attorney General) [1993] 3 S.C.R. 519). As I have already noted, the Falconer Commission did not receive (though it would have liked to) the evidence of committed opponents of the idea of assisted suicide, and some of the other evidence is open to the comment that it was commissioned by or involved persons already on record as committed to a change in the law. In Carter v Canada, where both claimants suffered from intractable and progressive diseases, the RSC Report was also tendered without there being the opportunity to cross examine its makers. The Government of Canada criticised it as essentially argument on one side of the debate (and largely legal argument), rather than a balanced or comprehensive review of the issues, and noted that three of the authors were expert witnesses for the plaintiffs, while a fourth author had been assisting the plaintiffs with instructing expert witnesses. Canada also called another Fellow of the Royal Society of Canada, who said that, in his view, the RSC Report reads as though it was written with a pre ordained conclusion, commented on the rapidity with which the panel had proceeded, and noted that its membership lacked representation from the palliative care community, and included persons who had previously expressed views supportive of physician assisted dying. In the event, Smith J said this: [129] I have now reviewed the RSC Report and have concluded that it will be admitted in evidence, in the main for the fact that the expert panel made the recommendations that it did. I have not relied upon it as evidence on any contentious matters such as the efficacy of safeguards in jurisdictions that permit physician assisted dying. Its review of the legal landscape regarding end of life care in Canada is not evidence, but the equivalent of a law review article or a legal text. In Rodriguez every judge at every level had agreed that the purpose of protecting vulnerable persons from inducement to commit suicide was pressing and substantial, and it was also held that the prohibition on assisted suicide was rationally connected to that purpose. No challenge was made to either conclusion in Carter v Canada. The issue there was focused on whether the prohibition was the minimum step necessary and was proportionate in the pursuit of that purpose. Smith J said that considerable deference was due to Parliament on that issue, but that this did not relieve the court of its role in assessing such matters. Ultimately, she concluded: 1267. With respect to the absolute prohibitions alleged salutary effects in preventing wrongful deaths, or in preventing abuse of vulnerable people, my review of the evidence from Canada and elsewhere leaves me unconvinced that an absolute prohibition has that effect in comparison with a prohibition combined with stringently limited exceptions. On that basis, she concluded: the benefits of the impugned law are not worth the costs of the rights limitations they create (para 1285). It is in my view clear from the judgment at first instance in Carter v Canada and from even the superficial examination of the evidence which the appellants now in effect invite as their primary case (paragraph 175 above) that it would be impossible for this Court to arrive at any reliable conclusion about the validity of any risks involved in relaxing the absolute prohibition on assisting suicide, or (which is surely another side of the same coin) the nature or reliability of any safeguards which might accompany and make possible such a relaxation, without detailed examination of first hand evidence, accompanied by cross examination. This has not occurred in this case, but, in its absence, I do not see how one can accept the appellants submission that the circumstances have so changed that R (Pretty) v Director of Public Prosecutions should now no longer be followed. Whatever else may be said about the evidential position, it is not in my opinion sustainable to suggest that there is no evidence and to describe as ruminations a conclusion that permitting assisted suicide in the case of persons in Mr Nicklinsons and Mr Lambs position would pose a relevant risk to vulnerable people (compare paras 349 to 351 of Lord Kerrs opinion). There is a rational connection between the current prohibition in s.2(1) and its aim. As I have already mentioned, both R (Pretty) and Pretty v United Kingdom proceed on that basis. So too, the United States Supreme Court in Renquist CJs forceful majority judgment in Washington v Glucksberg regarded it as unquestionable that the State of Washingtons ban on assisted suicide was rationally related to legitimate government interests (p 728). I also note that Lord Joff himself, when moving the second reading of his Assisted Dying for the Terminally Ill Bill on 12 May 2006 (Hansard, col 1188) said: When I gave evidence to the Select Committee about the original Bill, I expressed my personal conviction, which was honestly held at the time, that I would welcome a widening of the scope of the legislation. I no longer hold that view. One of the advantages of the Select Committee process was the opportunity to see different regimes in operation, and to hear a wealth of evidence from those who have thought deeply about the issues and are intimately involved in them. At the end of the process, it is now my firm view that the extent of legislative change that I put before the House today . will have the most advantage and carry the least risk. I would not support further extension into the field of euthanasia, or support assisted dying for patients who are not terminally ill. Others, of course, may have different views, but after three years of legislative effort on the subject, I have no intention of pursuing this issue beyond the ambit of the present Bill. The Falconer Commission also concluded that it could only recommend a relaxation of s.2 of the Suicide Act in respect of the terminally ill, and Lord Falconers bill, like Lord Joffes bill was so confined (though the End of Life Assistance (Scotland) Bill introduced in Scotland in January 2010 and defeated by 18 votes to 16 in December 2010 covered persons (a) diagnosed as terminally ill and finding life intolerable or (b) permanently physically incapacitated to such an extent as not to be able to live independently and finding life intolerable). The Falconer Commission heard evidence about and accepted the risks of any greater extension. It said in its summary of its conclusions at p.27: The Commission accepts that there is a real risk that some individuals might come under pressure to request an assisted death if this option should become available, including direct pressures from family members or medical professionals, indirect pressures caused by societal discrimination or lack of availability of resources for care and support, and self imposed pressures that could result from the individuals having low self worth or feeling themselves to be a burden on others. Giving a specific example, the Falconer Commission recorded at p.201 the evidence of Professor Raymond Tallis representing Healthcare Professionals for Assisted Dying, who cautioned against any such extension, with the words: I think that there are genuine dangers in extending the scope of assisted dying to people who are not terminally ill, who are disabled. All those things that disability groups fear, I think that it would certainly play into those appropriate fears. The Falconer Commission also received evidence from many disabled people and does not consider that it would be acceptable to recommend that a non terminally ill person with significant physical impairments should be made eligible under any future legislation to request assistance in ending his or her life (p.27). Finally, the Falconer Commission reported (p.323): The Commission was unable to reach a consensus on the issue of whether a person who has had a catastrophically life changing event that has caused them to be profoundly incapacitated should be able to request an assisted death, and we consider that this lack of consensus reflects the mixed views of society on this issue. Bearing in mind the considerable concerns of many disabled people about such a provision, we have recommended that it would not be appropriate for such a provision to be included in future legislation. The most persuasive case that may be made on behalf of persons in the tragic positions of Mr Nicklinson or Mr Lamb is that they represent a distinct and relatively small group, within which it should be possible to identify in advance by a careful prior review (possibly involving the court as well as medical opinion) those capable of forming a free and informed decision to commit suicide and distinguish them from those who might be vulnerable; and that, on this basis, any risks associated with other groups, or with any proposal that might be made to allow assisted suicide within other groups, can and should be disregarded. On such a basis, it may be argued that the current blanket prohibition is unnecessary or disproportionate. The present position is that some persons (whether or not capable of committing suicide unaided) are assisted to do so (unlawfully though it be) without any such prior review. Further, decisions such as Bland to which I have referred in para 165 above and the further cases referred to by Lord Neuberger in paras 21 to 26 and 98 show that the law and courts are already deeply engaged in issues of life and death. Lord Neuberger also shows in paras 92 to 97 that assisting a suicide could be seen not only as promoting the autonomy of the person committing suicide, but also as involving a less drastic interference in life than some interferences already authorised by law, and conceivably also as enabling some people to postpone suicide. A system permitting assisted suicide in limited circumstances such as the present after careful prior review could on its face have some positive benefits when compared with the current blanket prohibition, coupled with the de facto occurrence of assisted suicides in relation to which the Director of Public Prosecution has to undertake the more difficult task after the event of deciding whether the suicide assisted was the result of a voluntary, clear, settled and informed decision: see the Directors guideline number 1 tending to weigh against, and guideline number 4 weighing in favour of, prosecution. The case which I have outlined in the previous paragraph in favour of a relaxing of the prohibition on assisted suicide is not however one on which even the Falconer Commission was able to reach agreement, and it would at the very least require detailed expert investigation and evidence before its premises could be accepted. This is so, quite apart from any argument that it would be difficult if not impossible to determine what should be the ambit of the persons who should be entitled to take advantage of any relaxation of the current prohibition difficult in particular to draw the line between the sort of unbearable suffering which persons in the position of Mr Nicklinson and Mr Lamb undergo and the suffering which others not subject to their physical disability may subjectively feel (which would in turn raise the question what is meant by unbearable suffering, touched on by the Falconer Commission at pp.202 203.) Toulson LJ (at paras 85 to 86) observed correctly that the courts could not themselves fashion any scheme which would define circumstances in which or safeguards subject to which assisted suicide might be appropriate. By the same token, it is impossible, at least on present material, to say with confidence in advance that any such scheme could satisfactorily and appropriately be fashioned. This militates strongly against the courts intervening in this area, at least at this stage, to declare s.2 incompatible at the domestic level, when it is compatible at the international level. In saying this, I note that the Joint Committee on Human Rights in its Seventh Report of Session 2002 2003 (HL Paper 74, HC 547) and Twelfth Report of Session 2003 2004 (HL Paper 93, HC 603) was in each case generally content with the safeguards proposed in respect of assisted suicide of the terminally ill in Lord Joffs bill. But the terminally ill represent a different group which may call for different safeguards from those which the present would require; the current focus of legislative proposals on the terminally ill may also be influenced by the thought that, since their life expectancy is short, the consequences of any risks materialising of the sort identified by the Falconer Commission at p 27 (para 185 above) may be seen as less serious. Moreover, any assessment of evidence about risks and potential safeguards must inevitably raise questions regarding the degree of residual risk which is acceptable in this present context. In Carter v Canada (paras 1196 1199) the Government of Canadas argument, that the legislation was justified because its purpose was to eliminate all risk, was, not surprisingly, rejected. But any relaxation of the present blanket prohibition would require value judgments of difficulty and delicacy in particular, how much risk would attach to and be acceptable in consequence of a relaxation coupled with the introduction of safeguards, and how such risk should be measured against the benefits to persons such as Mr Nicklinson and Mr Lamb, in relation to whom it may be said with certainty that they formed their wish to commit suicide with clear and independent minds, so that there was and is no such risk. The issue at this point is primarily how to assess and balance the factors bearing on acceptability and proportionality which arise for consideration at the third and/or fourth stages of the exercise identified by Lord Reed in Bank Mellat, para 74. As in the different context of Sinclair Collis, so too here I think that the legislators assessment of the value of the evidence and of the choices to be made in its light is entitled to considerable weight, even if the evidence appears to a court weaker and less conclusive than it might be: see e.g. Sinclair Collis, paras 161, per Arden LJ, and 236 239 and 255, per Lord Neuberger MR. In these circumstances, the position has not been shown by any convincing evidence to have changed materially since R (Pretty) v Director of Public Prosecutions, and I would refuse to make a declaration of incompatibility. In the light of the way in which it has been presented and pursued, remission to the Divisional Court would not be appropriate. To remit would in reality amount to ordering the case to begin over again with a fresh first instance investigation involving a full examination of expert evidence. I see no basis for that exceptional course. I am also influenced in the view that this is not an appropriate time to contemplate such an investigation by, firstly, the very frequent consideration that Parliament has given to the subject over recent years (see Lord Neubergers judgment, para 51) and by, secondly, the knowledge that Parliament currently has before it the Assisted Dying Bill and the hope that this may also give Parliament an opportunity to consider the plight of individuals in the position of Mr Nicklinson and Mr Lamb. Parliament has to date taken a clear stance, but this will give Parliament the opportunity to confirm, alter or develop its position. I would, in particular, associate myself at this point with Lord Neubergers conclusions at paras 110 to 117 of his judgment. While I would, like him, not rule out the future possibility of a further application, I would, as matters presently stand, adapt to the present context a thought which Renquist CJ expressed in a slightly different context in Washington v Glucksberg, p 735: that there is currently an earnest and profound debate about the morality, legality, and practicality of . assisted suicide and [o]ur holding permits this debate to continue, as it should in a democratic society. Parliament is certainly the preferable forum in which any decision should be made, after full investigation and consideration, in a manner which will command popular acceptance. However, (and as is implicit in paras 164 et seq above) this does not mean that I agree with Lord Sumptions view that it would be unconstitutional for the courts to consider in the present context whether Parliaments ultimate decision meets the requirements of the Convention rights scheduled to the Human Rights Act 1998, or that, in considering this, the courts role is limited to assessing the rationality of Parliaments decision, as I understand that paras 230, 233 and 234 of Lord Sumptions judgment may suggest. Ultimately, Parliament has itself assigned to the courts a constitutional role in balancing the relevant interests, public and private. Lord Sumption accepts that, in performing this role, courts may up to a point be required to confront the moral consequences of their decisions (para 233). But, although judges must work within a framework of legal principle, reasoning and precedent, very little, if any, judicial decision making, especially at an appellate level, is or ought to be separated from a consideration of what is just or fair, and the balancing of interests required under the Human Rights Convention merely underlines this. In circumstances such as the present, it may be incumbent on a court to weigh social risks to the wider public and the moral convictions of a body of members of the public together with values of human autonomy and of human dignity in life and death advocated by other members, and in doing so it will attach great significance to the judgment of the democratically informed legislature. But Lord Sumptions view that that legislative judgment must, in the present social and moral context, necessarily be determinative, reminds me of a submission raised by the Attorney General and rejected by the House of Lords in a political context in A v Secretary of State for the Home Department [2005] 2 AC 68, paras 37 42, where Lord Bingham said (para 42): I do not in particular accept the distinction which [the Attorney General] drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it The courts are charged by Parliament with delineating the boundaries of a rights based democracy (Judicial Deference: servility, civility or institutional capacity? [2003] PL 592, 597). The appeal and cross appeal in Martins case. In Purdy the House held the Director was under a duty to clarify his position as to the factors which he regarded as relevant for and against prosecution in such a case and was required to promulgate an offence specific policy identifying the facts and circumstances which he would take into account in deciding whether a prosecution should be brought. The criticism made of the current 2010 policy is that factor (14) recited as favouring prosecution (viz, that the suspect was acting in his or her capacity as a healthcare professional and the victim was in his or her care) leaves unclear the Directors policy in a case where such a professional, without previous influence or authority over the person proposing to commit suicide, renders assistance to that end in the period immediately before the suicide, motivated by compassion. In the Court of Appeal, Lord Judge CJ, in an interpretation which the Director expressly endorsed before the Supreme Court, explained (para 185) that factor (14) was not intended to embrace healthcare professionals brought in from outside, without previous influence or authority over the victim, or his family, for the simply purpose of assisting the suicide after the victim has reached his or her own settled decision to end life. I agree with both Lord Neuberger and Lord Sumption that it is not clear that factor (14) has this significance. But I would not order the Director to clarify it in the sense explained by the Director. As Lord Sumption observes, it is open to question whether the sense confirmed by the Director before the Supreme Court would on consideration prove to be consistent with other aspects of the Directors policy, particularly those arising from factors (6), (12), (13) and (16) set out as favouring prosecution. I agree with Lord Neuberger and Lord Sumption that there is nothing on the face of the policy as it presently stands which is open to objection, and that the only appropriate course, in the light of the discussion and submissions before this Court, is that the Director should be left to consider the position and either confirm or reformulate her policy, as she may then decide. I have considered Lord Sumptions summary of the current legal position in his para 255. The second sentence of para (1) of that summary may be open to different interpretations, and I have stated my own approach to s.2(1) of the Suicide Act in this judgment. In all other respects, I find useful and agree with Lord Sumptions summary. I would therefore allow the Directors appeal and dismiss Martins cross appeal. I would leave her to review her published policy in the light of the judgments given on this appeal, and to confirm or reformulate it as she may or may not then decide to be appropriate. LORD WILSON At the end of the six months in which all the members of this court have deliberated upon these appeals with an intensity unique in my experience, I find myself in agreement with the judgment of Lord Neuberger. I regard his crucial conclusions on the first appeal as the following: (a) The evidence before the court is not such as to enable it to declare that section 2(1) of the 1961 Act either was incompatible with the rights of Mr Nicklinson or is incompatible with the rights of Mr Lamb (para 119). (b) For the evidence does not enable the court to be satisfied either that there is a feasible and robust system whereby those in their position can be assisted to commit suicide or that the reasonable concerns of the Secretary of State, particularly to protect the weak and vulnerable, can be sufficiently met so as to render the absolute ban in the subsection disproportionate (para 120). (c) Even were the evidence such as to have enabled the court to make it, a declaration of incompatibility would at this stage have been inappropriate (para 115). (d) It would have been inappropriate because, even prior to the making of any declaration, Parliament should have the opportunity to consider whether, and if so how, to amend the subsection to permit assistance to commit suicide to be given to those in the position of Mr Nicklinson and Mr Lamb (para 116). (e) In particular because the Assisted Dying Bill is presently before it, it would be reasonable to expect Parliament in the near future to enlarge its consideration so as to encompass the impact of the subsection on those in their position (para 118). (f) Were Parliament not satisfactorily to address that issue, there is a real prospect that a further, and successful, application for a declaration of incompatibility might be made (para 118). (g) The risks to the weak and vulnerable might well be eliminated, or reduced to an acceptable level, were Parliament to provide that assistance might be given to those in their position only after a judge of the High Court had been satisfied that their wish to commit suicide was voluntary, clear, settled and informed (para 123). Lady Hale and Lord Kerr put forward a powerful case for making a declaration of incompatibility even at this stage. But two principal objections are levelled against it. The first objection is founded upon the sanctity (or, for those for whom that word has no meaning, the supreme value) of life which, for obvious reasons, is hard wired into the minds of every living person. It lies at the heart of the common law and of international human rights and it is also an ethical principle of the first magnitude. As Hoffmann LJ suggested in his classic judgment in the Court of Appeal in Airedale NHS Trust v Bland [1993] AC 789 at 826, a law will forfeit necessary support if it pays no attention to the ethical dimension of its decisions. In para 209 below Lord Sumption quotes Hoffmann LJs articulation of that principle but it is worth remembering that Hoffmann LJ then proceeded to identify two other ethical principles, namely those of individual autonomy and of respect for human dignity, which can run the other way. In the Pretty case, at para 65, the ECtHR was later to describe those principles as of the very essence of the ECHR. It was in the light (among other things) of the force of those two principles that in the Bland case the House of Lords ruled that it was lawful in certain circumstances for a doctor not to continue to provide life sustaining treatment to a person in a persistent vegetative state but relevantly to the practical resolution of the issue raised by the present appeals that prior authorisation of the non continuation of the treatment should, as a matter of good practice, be obtained in the Family Division of the High Court. In making the latter recommendation the House was reflecting its conclusion In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, at 56 and 79, reached in the light of a review of practice in the U.S. and Australia, that an operation of sterilisation should not be performed on an incapable adult without prior judicial authorisation. I agree with the observation of Lord Neuberger at para 94 that, in sanctioning a course leading to the death of a person about which he was unable to have a voice, the decision in the Bland case was arguably more extreme than any step which might be taken towards enabling a person of full capacity to exercise what must, at any rate now, in the light of the effect given to article 8 of the ECHR in the Haas case at para 51, cited at para 29 above, be regarded as a positive legal right to commit suicide. Lord Sumption suggests in para 212 213 below that it remains morally wrong and contrary to public policy for a person to commit suicide. Blackstone, in his Commentaries on the Laws of England, Book 4, Chapter 14, wrote that suicide was also a spiritual offence in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for. If expressed in modern religious terms, that view would still command substantial support and a moral argument against committing suicide could convincingly be cast in entirely non religious terms. Whether, however, it can be elevated into an overall conclusion about moral wrong and public policy is much more difficult. The second objection relates to the so called slippery slope. In respectful disagreement with Lord Kerr at para 354 below, I consider that, unless the court can be satisfied that any exception to the subsection can be operated in such a way as to generate an acceptably small risk that assistance will be afforded to those vulnerable to pressure to seek to commit suicide, it cannot conclude that the absolute prohibition in the subsection is disproportionate to its legitimate aim. In this respect the court may already be confident; but it cannot be satisfied. In an area in which the community would expect its unelected judiciary to tread with the utmost caution, it has to be said that, in appeals which the Court of Appeal understood to be presented to it on the basis that Mr Lamb could not commit, and that the late Mr Nicklinson could not have committed, suicide even with assistance, with the result that the issue which it addressed was their alleged right to euthanasia, the evidence and argument available to this court fall short of enabling it to be satisfied of what, like Lord Neuberger, I regard as a pre requisite of its making a declaration of incompatibility. Were Parliament for whatever reason, to fail satisfactorily to address the issue whether to amend the subsection to permit assistance to be given to persons in the situation of Mr Nicklinson and Mr Lamb, the issue of a fresh claim for a declaration is to be anticipated. It would no doubt be issued, as was that of Mr Nicklinson, in the Family Division of the High Court. The Crown would be entitled pursuant to section 5(1) of the 1998 Act to notice of the claim and I expect that the Attorney General would thereupon see fit to intervene pursuant to section 5(2). In that way the court would, I hope, receive the focussed evidence and submissions which this court has lacked. While the conclusion of the proceedings can in no way be prejudged, there is a real prospect of their success. Two features of a declaration are worth noting. The first is that it is indeed legitimate for a declaration to be made even though the provision only sometimes operates incompatibly with human rights. Thus in the Bellinger case, cited by Lord Neuberger at para 114 above, the former provision in section 11(c) of the Matrimonial Causes Act 1973, namely that a marriage shall be void if the parties are not respectively male and female, was declared incompatible even though it infringed the rights under article 8 only of those who had undergone gender reassignment and wished to marry persons of their own genetic sex. The concomitant is, however, that, in making a declaration, it behoves the court precisely to identify in the circumstances of the successful applicant the factors which precipitate the provisions infringement of his human rights. In addressing its task of fashioning a response to the declaration, Parliament deserves no less. The second, linked, feature of a declaration is that it affords to the courts of the U.K., no doubt uniquely, an opportunity to collaborate to some extent with Parliament in the amendment of the statutory provision which is discovered to have overridden human rights. I do not regard a degree of collaboration as objectionable or, in particular, as compromising judicial independence. But a court will be of maximum assistance to Parliament in this regard if it not only identifies the factors which precipitate the infringement but articulates options for its elimination. In this latter regard I wish expressly to indorse Lord Neubergers suggestion at para 123 that, in formulating an exception to the subsection, Parliament might adopt the procedure approved in the F and Bland cases and require that a High Court judge first be satisfied that a persons wish to commit suicide was (to use words which Parliament may feel able to improve) voluntary, clear, settled and informed. I am unaware of any situation in which the courts have acknowledged an inability to distinguish between the expression of an intention which genuinely reflects the speakers wish and one which does not do so. The ways in which the intentions have been expressed; the consistency or otherwise of its expression; the explanation proffered for it; and, of course, the quality of the speakers life; all these would inform the courts inquiry. A court might wish to hear evidence from the claimant himself, directly or indirectly; from members of his family; from his friends; from his medical practitioner and other professionals involved in his care; and no doubt also from a doctor and/or psychiatrist and/or other medical expert introduced into the case in order to report to the court. As a former judge of the Family Division, but with hesitation apt to the absence of submissions in this regard, I identify the following factors which the court might wish to investigate before deciding whether it can be so satisfied: (a) the claimants capacity to reach a voluntary, clear, settled and informed decision to commit suicide and the existence of any factor which, notwithstanding the requisite capacity, might disable him from reaching such a decision; (b) the nature of his illness, physical incapacity or other physical condition (the condition); (c) the aetiology of the condition; (d) its history and the nature of the treatments administered for it; (e) the nature and extent of the care and support with which the condition requires that he be provided; (f) the nature and extent of the pain, of the suffering both physical and psychological and of the disability, which the condition causes to him and the extent to which they can be alleviated; (g) his ability to continue to tolerate them and the reasonableness or otherwise of expecting him to continue to do so; (h) the prognosis for any change in the condition; (i) his expectation of life; (j) his reasons for wishing to commit suicide; (k) the length of time for which he has wished to do so and the consistency of his wish to do so; (l) the nature and extent of his discussions with others, and of the professional advice given to him, about his proposed suicide and all other options for his future; (m) the attitude, express or implied, to his proposed suicide on the part of anyone likely to benefit, whether financially or otherwise, from his death; (n) the proposed mechanism of suicide and his proposed role in achieving it; (o) the nature of the assistance proposed to be given to him in achieving it; (p) the identity of the person who proposes to give the assistance and the relationship of such person to him; (q) the motive of such person in proposing to give the assistance; and (r) any financial recompense or other benefit likely to be received by such person in return for, or in consequence of, the proposed assistance. Lord Neuberger comments at para 118 that it may be somewhat premature for me to identify the above factors. But, in that a majority of the court expects that even now, prior to the making of any declaration, Parliament will at least consider reform of the law, I put forward the factors with a view only to enabling Parliament to appreciate the scrupulous nature of any factual inquiry which it might see fit to entrust to the judges of the Division. On balance I concur in upholding the appeal of the Director of Public Prosecutions in the proceedings brought by Martin and in dismissing his cross appeal. By issue of the current policy, the director has done all that the House of Lords required in the Purdy case, cited at para 39 above. There is certainly a case for concluding that she might reasonably do more to clarify, in one way or another, the size of the risk that she would consent to the prosecution of health care professionals who, out of a sense of professional concern, perhaps even of perceived obligation and in any event of sympathy, propose to relieve their patients of profound and permanent suffering by assisting them to commit suicide. But big questions are raised, particularly in the judgment of Lord Hughes below, whether the fact that she might reasonably do more can properly be translated by the principle of legality in article 8 into a legal obligation. A more satisfactory outcome for the health care professionals than more detailed exposition of the directors policy would be a courts conclusion that their proposed assistance falls within a statutory exception to the prohibition in the subsection. By the judgments of five members of this court in the other appeals, the prospect of some such exception has come at least somewhat closer and, were it to materialise, it would represent a resolution to the unenviable difficulties currently confronting them which would be sounder in law as well as more satisfactory to themselves. LORD SUMPTION Introduction: assisted suicide English judges tend to avoid addressing the moral foundations of law. It is not their function to lay down principles of morality, and the attempt leads to large generalisations which are commonly thought to be unhelpful. In some cases, however, it is unavoidable. This is one of them. Suicide is not a novel issue. The moral and legal objections to it have been debated for centuries. There is a case for saying that the only proper concern of the law is to ensure that a person who commits suicide or tries to do so is in a position to make an informed and rational choice. It is the same case today as it was two millennia ago when Seneca described suicide as the last defence of a free man against intolerable suffering: It makes a great deal of difference whether a man is lengthening his life or only his death. If the body is useless for service, then why should he not free the struggling soul? Perhaps he should even do it a little before he needs to, lest when the time comes he may be unable to perform the act. Since the danger of living in wretchedness is so much greater than the danger of dying soon, he is a fool who refuses to sacrifice a little time to win so much. Few men have lasted through extreme old age to death without impairment, and many have lain inert and useless. How much more cruel, then, do you suppose it really is to have lost a portion of your life, than to have lost your right to end it?: Ep. LVIII. This is the classic statement of the principle of autonomy. But it expresses only one side of a complex moral dilemma. There are some moral values, of which the state is the proper guardian, with no rational or utilitarian justification, but which are nevertheless accepted because they are fundamental to our humanity and to our respect for our own kind. The principle of autonomy is one of these values. Its basis is the moral instinct, which is broadly accepted by English law subject to well defined exceptions, that individuals are entitled to be the masters of their own fate. Others are bound to respect their autonomy because it is an essential part of their dignity as human beings. There is, however, another fundamental moral value, namely the sanctity of life. A reverence for human life for its own sake is probably the most fundamental of all human social values. It is common to all civilised societies, all developed legal systems and all internationally recognised statements of human rights. I cannot put the point better than Hoffmann LJ did in the Court of Appeal in Airedale NHS Trust v Bland [1993] AC 789, 826C E: we have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable. Leaving aside purely regulatory offences, the criminal law necessarily responds to moral imperatives which command general acceptance among the population at large. The problem in this case is that on the issue of suicide, our most fundamental moral instincts conflict. Our belief in the sanctity of life is not consistent with our belief in the dignity and autonomy of the individual in a case where the individual, being of sound mind and full capacity, has taken a rational decision to kill himself. These are ancient dilemmas. Ours is not the first generation to confront them. But they are more acute and controversial today, for two main reasons, which are related. One is that advances of medical science have made it possible to preserve life well beyond the point where it is worth living. The other is that it is more difficult in modern conditions for intensely personal end of life choices to be made informally, within the family and with the support of a trusted medical practitioner. The medical profession, for wholly understandable reasons, is less willing in a transparent, highly regulated and litigious world to take the responsibility for cutting life short or helping someone else to do so, without an assurance of immunity which in the present state of the law is impossible to give. The answer which English law gives to these questions is entirely clear. Suicide was a common law offence in England until 1961. It was treated as a form of murder. A particular feature of the law of murder, which makes it unusual among offences against the person, is that the consent of the victim is not a defence to a charge of deliberate killing. Suicide, or self murder, was therefore an offence notwithstanding its voluntary character. It followed that an unsuccessful attempt at suicide was criminal, and so was the act of an accessory. The Suicide Act 1961 abolished the rule of law which made suicide an offence, but preserved the criminal liability of accessories. As amended by the Coroners and Justice Act 2009, section 2(1) created a statutory offence committed by any person who does an act which is (a) capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) intended to encourage or assist suicide or an attempt at suicide. The reason for decriminalising suicide was not that suicide had become morally acceptable. It was that imposing criminal sanctions was inhumane and ineffective. It was inhumane because the old law could be enforced only against those who had tried to kill themselves but failed. The idea of taking these desperate and unhappy individuals from their hospital beds and punishing them for the attempt was as morally repugnant as the act of suicide itself. It was ineffective because assuming that they truly intended to die, criminal sanctions were incapable by definition of deterring them. For these reasons, attempted suicide had probably never been an offence in Scotland and by 1961 had long ceased to be one in most European countries. Even in England, prosecution had become rare by the time that the offence was abolished. These points are discussed in Glanville Williams, The Sanctity of Life and the Criminal Law (1958), 248 249. However, the continuing legal objection to suicide was reflected in the fact that very many countries in which suicide was lawful nevertheless imposed criminal liability on those who advised or assisted it. Research summarised in the judgment of the European Court of Human Rights in Koch v Germany (2013) 56 EHRR 6 at para 26 suggests that of the 42 members states of the Council of Europe for which information was available, 36 imposed criminal liability on any form of assistance to suicide and another two, while not imposing criminal liability on direct assistance in suicide, prohibited the prescribing of drugs in order to facilitate it. In Haas v Switzerland (2011) 53 EHRR 33, at para 55 the Court concluded that the vast majority of member states seem to attach more weight to the protection of the individuals life than to his or her right to terminate it. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, Lord Bingham said at para 35 that, while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Lord Hope, in the same vein, observed at para 106 that the Act did not create a right to commit suicide. It followed, as both of them pointed out, from the continuing prohibition of advice and assistance under section 2 of the Act. By this they were plainly not seeking to suggest that suicide remained a legal wrong. The point was that it belonged to the familiar category of acts lawful in themselves but contrary to public policy. This is a categorisation which primarily affects the legal responsibilities of third parties. In particular, it has consequences for the criminal liability of secondary parties or for the enforceability of associated contractual and other legal obligations. The different legal treatment of the person who wishes to commit suicide and the person who is willing to assist him is not arbitrary. It responds to the same moral instincts which give rise to most dilemmas in this field. Recommendation 1418 (1999) of the Council of Europe recorded at paragraph 9c the Councils view that a terminally ill or dying persons wish to die never constitutes any legal claim to die at the hand of another person, and that a terminally ill or dying persons wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death. This is because, as Lord Hobhouse observed in his speech in Pretty at para 111, the intervention of another party puts the conduct into a different category from conduct which has involved the deceased alone. I think that Hoffmann LJ came close to the heart of the matter in Airedale NHS Trust, when he pointed out (at page 831) that this was, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. Why should this be so? There are at least three reasons why the moral position of the suicide (whom I will call the patient from this point on, although the term may not always be apt) is different from that of a third party who helps him to kill himself. In the first place, the moral quality of their decisions is different. A desire to die can only result from an overpowering negative impulse arising from perceived incapacity, failure or pain. This is an extreme state which is unlikely to be shared by the third party who assists. Even if the assister is moved by pure compassion, he inevitably has a greater degree of detachment. This must in particular be true of professionals such as doctors, from whom a high degree of professional objectivity is expected, even in situations of great emotional difficulty. Secondly, whatever right a person may have to put an end to his own life depends on the principle of autonomy, which leaves the disposal of his life to him. The right of a third party to assist cannot depend on that principle. It is essentially based on the mitigating effect of his compassionate motive. Yet not everyone seeking to end his life is equally deserving of compassion. The choice made by a person to kill himself is morally the same whether he does it because he is old or terminally ill, or because he is young and healthy but fed up with life. In both cases his desire to commit suicide may be equally justified by his autonomy. But the choice made by a third party who intervenes to help him is very different. The element of compassion is much stronger in the former category than in the latter. Third, the involvement of a third party raises the problem of the effect on other vulnerable people, which the unaided suicide does not. If it is lawful for a third party to encourage or assist the suicide of a person who has chosen death with a clear head, free of external pressures, the potential arises for him to encourage or assist others who are in a less good position to decide. Again, this is a more significant factor in the case of professionals, such as doctors or carers, who encounter these dilemmas regularly, than it is in the case of, say, family members confronting them for what will probably be the only time in their lives. The Nicklinson and Lamb appeal: Is section 2 of the Suicide Act in principle compatible with the Human Rights Convention? The sole directly relevant authority is Pretty v United Kingdom (2002) 35 EHRR 1. Mrs Pretty suffered from motor neurone disease. She wanted to be able to count on the assistance of her husband to commit suicide when her suffering became intolerable to her and she was no longer capable of reaching the Dignitas clinic in Switzerland unaided. The European Court of Human Rights held that section 2 of the Suicide Act, by interfering with Mrs Prettys right to end her life, engaged article 8.1 of the Convention. In its subsequent decision in Haas v Switzerland (2011) 53 EHRR 33, at paras 50 51, the Court held that the effect of this decision was that an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. Article 8.1 was engaged because respect for Mrs. Prettys private life entailed accepting her autonomy in making her own end of life choices. This is not exactly a right to commit suicide. It is an immunity from interference by the state with the settled decision of a person of full legal and mental capacity to kill himself, unless the interference can be justified under article 8.2. That being so, the question arose whether the prohibition of all acts of assistance by section 2 of the Suicide Act was justifiable under article 8.2. In that context, the question could not be addressed simply on the footing that her autonomy entitled her to choose death. She needed the assistance of a third party whose own position had to be considered. Of the three considerations that I have summarised above (paragraph 215), it was the third which the Court regarded as decisive. It was held that section 2 of the Suicide Act was justifiable by considerations of public health and in particular by the implications for vulnerable people. The relevant considerations were summarised as follows at para 74: [T]he Court finds. that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals. The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. After a brief discussion of the question whether this analysis would create a dangerous precedent, the Court concluded, at para 76: The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. In my opinion the passages which I have quoted express the ratio of this decision. The question whether to impose a blanket ban on assisted suicide lay within the margin of appreciation of the United Kingdom. This was because it was for each state to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were relaxed or if exceptions were to be created. Section 2 was capable of being justified because although it applied to many people who were not in need of protection, it was open to the United Kingdom to take the view that it had to apply generally in order to serve the needs of those who were. It is clear from the way in which the Court treated the separate complaint of a contravention of article 14 that it considered that the United Kingdom had taken that view and been entitled to do so. At para 89, the Court wrote: Even if the principle derived from the Thlimmenos case is applied to the applicants situation, however, there is, in the Courts view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable. Similar cogent reasons exist under article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. The same conclusion had been reached for substantially the same reasons by the Supreme Court of Canada, dealing with a very similar issue in Rodriguez v Attorney General of Canada [1993] 3 SCR 519, which the Strasbourg Court regarded as persuasive in Pretty: see para 74. Section 7 of the Canadian Charter of Rights and Freedoms provided that every person had the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Court held that the Canadian prohibition of assisted suicide did not violate the Charter. Writing for the majority, Sopinka J held that section 7 was engaged but that it was justified because of the difficulty of protecting the life of others without a blanket ban: Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it cannot be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society. I am thus unable to find that any principle of fundamental justice is violated by section 241(b). (p 608) As I have sought to demonstrate in my discussion of s.7, this protection is grounded on a substantial consensus among western countries, medical organizations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the slippery slope. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuses of the exception. (p 613) The relevance of prosecutorial discretion In Pretty, the European Court of Human Rights considered at para 76 the discretionary elements of English criminal proceedings which in practice mitigated the blanket character of the ban on assisted suicide: 76 . The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in 22 cases in which mercy killing was an issue, there was only one conviction for murder, with a sentence for life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences. It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. 77 Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicants husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable. 78 The Court concludes that the interference in this case may be justified as necessary in a democratic society for the protection of the rights of others and, accordingly, that there has been no violation of article 8 of the Convention. I do not read these observations as making the conformity of section 2 with article 8 dependent on the existence of a prosecutorial discretion or the way that it is exercised. The conformity of section 2 with article 8 depended, as I have pointed out, on whether the states assessment of the risk and likely incidence of abuse was such as to justify a blanket ban. This is the sole factor identified at paras 74 and 89 of the Courts judgment. The existence and limits of the prosecutorial discretion are put forward at para 76 (i) as matters which a member state may properly take into account in deciding whether a blanket ban on assisted suicide is proportionate, and (ii) as a reason for rejecting Mrs. Prettys complaint that the Director of Public Prosecutions had refused to give her an advance undertaking not to prosecute her husband if he helped her to kill herself. Applying the margin of appreciation It follows that it is for the United Kingdom to decide whether in the light of its own values and conditions section 2 of the Suicide Act is justifiable under article 8.2 of the Convention in the interest of the protection of health. That gives rise to two issues of principle. One is the nature of the decision, and in particular the extent to which the evidence requires the conformity of section 2 with article 8 to be reassessed. The other is whether in a case with the particular features of this one such a reassessment is a proper constitutional function of the Courts as opposed to Parliament. The role of evidence The evidence before us of the risk of abuse if the rule against assisted suicide were to be relaxed or qualified consists substantially of material from two sources: the report of Lord Falconers Commission on Assisted Dying, and the decision of Lynn Smith J in the Supreme Court of British Columbia on a very similar issue in Carter v Canada [2012] BCSC 886. We were invited to conclude on the basis of this material that the views of Parliament in 1961 and of the Strasbourg Court at the time of Pretty had now been overtaken by the more recent knowledge. Lord Mance has reviewed this material and summarised the problems associated with it in terms with which I agree. There are obvious difficulties about reaching a concluded view on untested, incomplete and second hand material of this kind. The authority of these sources is also diminished by other considerations. The Commissions report, although measured and, as far as one can tell, objective, was inspired by a campaign to change the law. Committed opponents of assisted suicide declined to give evidence before it. Lynn Smith Js review of the extensive evidence before her excluded a substantial body of apparently relevant material as inadmissible and was ultimately set aside by the Court of Appeal on the ground that it was inconsistent with the law laid down by the Supreme Court of Canada in Rodriguez. However, I would in any event reject the submission that the issue has been overtaken by more recent knowledge because I think that this material even if taken at face value is inconclusive both factually and legally. It is inconclusive factually, for reasons which emerge very clearly from the report of the Commission on Assisted Dying. The only jurisdictions with experience of legalised assisted suicide are certain states of the United States, of which the most important is Oregon, and the Netherlands, Belgium and Switzerland. The data from these sources is contested and acknowledged to be of variable robustness. It is also sensitive to underlying conditions such as standards of education, the existence of long term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom. Indeed, there may well be significant regional and sociological variations within the United Kingdom. It is plain from the expert evidence reviewed by the Commission that there is a diversity of opinion about the degree of risk involved in relaxing or qualifying the ban on assisted suicide, but not about its existence. The risk exists and no one appears to regard it as insignificant. There is a reputable body of experienced opinion which regards it as high. It includes the British Geriatrics Society, the British Association of Social Work and Action against Elder Abuse. It may fairly be said that their evidence was not empirical but judgmental and anecdotal. But that may be thought to reflect the nature of the issue, which makes it unrealistic to expect decisive empirical evidence either way. The concept of abuse embraces at least two distinct problems. One is that the boundary between assisted suicide and euthanasia is so porous that in practice it may be crossed too often, sometimes even in cases where there was no true consent. The other is the risk that that if assisted suicide were lawful, some people would be too ready to bring an end to their lives under real or perceived pressure from others. I can deal shortly with the first kind of abuse. It is true that the boundary between assisted suicide and euthanasia is porous. The point is illustrated by the existence of machines for committing suicide, such as Dr Nitschkes, which involve an elaborate process of production and preparation in which everything is done by the assister apart from the final activation of the equipment which he has set up. There seems to me to be no moral and very little functional distinction between suicide by this method and a lethal injection administered by a third party. Nonetheless, I am sceptical of arguments based on this fact, because they assume that assisters, and in particular medical practitioners, would not understand or respect the boundary between voluntary and involuntary choices or between euthanasia and assistance. The papers for this appeal disclose no evidence to support that assumption and a certain amount of evidence to contradict it. I do not doubt that both assisted suicide and euthanasia occur, but they occur in spite of the present state of the law, and would occur in spite of any safeguards that might be included in some alternative state of the law. The vulnerability to pressure of the old or terminally ill is a more formidable problem. The problem is not that people may decide to kill themselves who are not fully competent mentally. I am prepared to accept that mental competence is capable of objective assessment by health professionals. The real difficulty is that even the mentally competent may have reasons for deciding to kill themselves which reflect either overt pressure upon them by others or their own assumptions about what others may think or expect. The difficulty is particularly acute in the case of what the Commission on Assisted Dying called indirect social pressure. This refers to the problems arising from the low self esteem of many old or severely ill and dependent people, combined with the spontaneous and negative perceptions of patients about the views of those around them. The great majority of people contemplating suicide for health related reasons, are likely to be acutely conscious that their disabilities make them dependent on others. These disabilities may arise from illness or injury, or indeed (a much larger category) from the advancing infirmity of old age. People in this position are vulnerable. They are often afraid that their lives have become a burden to those around them. The fear may be the result of overt pressure, but may equally arise from a spontaneous tendency to place a low value on their own lives and assume that others do so too. Their feelings of uselessness are likely to be accentuated in those who were once highly active and engaged with those around them, for whom the contrast between now and then must be particularly painful. These assumptions may be mistaken but are none the less powerful for that. The legalisation of assisted suicide would be followed by its progressive normalisation, at any rate among the very old or very ill. In a world where suicide was regarded as just another optional end of life choice, the pressures which I have described are likely to become more powerful. It is one thing to assess some ones mental ability to form a judgment, but another to discover their true reasons for the decision which they have made and to assess the quality of those reasons. I very much doubt whether it is possible in the generality of cases to distinguish between those who have spontaneously formed the desire to kill themselves and those who have done so in response to real or imagined pressure arising from the impact of their disabilities on other people. There is a good deal of evidence that this problem exists, that it is significant, and that it is aggravated by negative modern attitudes to old age and sickness related disability. Those who are vulnerable in this sense are not always easy to identify (there seems to be a consensus that the factors that make them vulnerable are variable and personal, and not susceptible to simple categorisation). It may be, as Lord Neuberger suggests, that these problems can be to some extent be alleviated by applying to cases in which patients wish to be assisted in killing themselves a procedure for obtaining the sanction of a court, such as is currently available for the withdrawal of treatment from patients in a persistent vegetative state. But as he acknowledges, there has been no investigation of that possibility in these proceedings. It seems equally possible that a proper investigation of this possibility would show that the intervention of a court would simply interpose an expensive and time consuming forensic procedure without addressing the fundamental difficulty, namely that the wishes expressed by a patient in the course of legal proceedings may be as much influenced by covert social pressures as the same wishes expressed to health professionals or family members. These are significant issues affecting many people who are not as intelligent, articulate or determined as Diane Pretty or Tony Nicklinson. They disclose in turn a more fundamental problem. There is a variety of reasons why the resolution of some issue may lie within the margin of appreciation of the state. It may be because the Strasbourg court has recognised that a legitimate diversity of cultural values among member states of the Council of Europe makes a range of possible answers equally consistent with the Convention. Such issues as the prohibition of abortion in Ireland (A v Ireland (2011) 53 EHRR 13) and the presence of crucifixes in Italian classrooms (Lautsi v Italy (2012) 54 EHRR 3) are cases in point. In cases like these, if the Strasbourg court has held the rule or practice of the particular state to be within the states margin of appreciation, then absent a fundamental shift of cultural values either within the state in question or among the members states of the Council of Europe generally, there is usually little if any scope for a national court in that state to say that the rule or practice in question is contrary to the Convention. Strasbourg has said that it is not. Different considerations arise if the reason why the rule or practice is within a states margin of appreciation is that the proportionality of some measure or its rational connection with some legitimate objective in itself is sensitive to national conditions which are more effectively assessed by national institutions. The latter exercise calls for an evaluation by national authorities of local needs and conditions: see Buckley v United Kingdom (1996) 23 EHRR 101 at para 75. But these are not rigid or mutually exclusive categories, and one of the problems about the present issue is that it shares some features of both. The question whether the protection of the health of the vulnerable requires a general prohibition on assistance for suicide cannot be a pure question of fact susceptible to decision on evidence alone. Like many issues in the area of human rights, it turns at least partly on a judgment about the relative importance of the different and competing interests at stake. There is no complete solution to the problem of protecting vulnerable people against an over ready resort to suicide. I doubt whether even a procedure for obtaining judicial sanction would be a complete solution, although with more information than we have at present it might prove to be a partial one. The real question about all of these possibilities is how much risk to the vulnerable we are prepared to accept in this area in order to facilitate suicide by the invulnerable. This is a particularly difficult balance to draw in a case where the competing interests are both protected by the Convention. For this reason, there is an important element of social policy and moral value judgment involved. The relative importance of the right to commit suicide and the right of the vulnerable to be protected from overt or covert pressure to kill themselves is inevitably sensitive to a states most fundamental collective moral and social values. Parliament or the Courts? The Human Rights Convention represents an obligation of the United Kingdom. In a matter which lies within the margin of appreciation of the United Kingdom, the Convention is not concerned with the constitutional distribution of the relevant decision making powers. The United Kingdom may make choices within the margin of appreciation allowed to it by the Convention through whichever is its appropriate constitutional organ. That will depend on its own principles of constitutional law. In In Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, the House of Lords accepted that where questions of social policy were within the United Kingdoms margin of appreciation and admitted of more than one rational choice, that choice would ordinarily be a matter for Parliament, but considered that even in the most delicate areas of social policy, this would not always be so. They held that the rule in question, namely the ineligibility of unmarried couples to adopt children, was irrational and unjustifiably discriminatory because it erected a reasonable generalisation (that children were better brought up by married couples) into a universal rule of eligibility preventing unmarried couples from even being considered. It therefore contravened articles 8 and 14 of the Convention: see paras 16 20 (Lord Hoffmann), 53 (Lord Hope), 129 130, 143 144 (Lord Mance). Doubtless, where there is only one rational choice the Courts must make it, but the converse is not true. Where there is more than one rational choice the question may or may not be for Parliament, depending on the nature of the issue. Is it essentially legislative in nature? Does it by its nature require a democratic mandate? The question whether relaxing or qualifying the current absolute prohibition on assisted suicide would involve unacceptable risks to vulnerable people is in my view a classic example of the kind of issue which should be decided by Parliament. There are, I think, three main reasons. The first is that, as I have suggested, the issue involves a choice between two fundamental but mutually inconsistent moral values, upon which there is at present no consensus in our society. Such choices are inherently legislative in nature. The decision cannot fail to be strongly influenced by the decision makers personal opinions about the moral case for assisted suicide. This is entirely appropriate if the decision makers are those who represent the community at large. It is not appropriate for professional judges. The imposition of their personal opinions on matters of this kind would lack all constitutional legitimacy. Secondly, Parliament has made the relevant choice. It passed the Suicide Act in 1961, and as recently as 2009 amended section 2 without altering the principle. In recent years there have been a number of bills to decriminalise assistance to suicide, at least in part, but none has been passed into law. Lord Joffe introduced two bills on the House of Lords in 2004 and 2005. The 2005 bill went to a second reading in May 2006, but failed at that stage. Lord Falconer moved an amendment to the Coroners and Justice Bill 2009 to permit assistance to a person wishing to travel to a country where assisted suicide is legal. The amendment also failed. The Assisted Dying Bill, sponsored by Lord Falconer, is currently before the House of Lords. In addition to these specific legislative proposals, the issue of assisted suicide has been the subject of high profile public debate for many years and has been considered on at least three occasions since 2000 by House of Lords Select Committees. Sometimes, Parliamentary inaction amounts to a decision not to act. But this is not even an issue on which Parliament has been inactive. So far, there has simply not been enough Parliamentary support for a change in the law. The reasons why this is so are irrelevant. That is the current position of the representative body in our constitution. As Lord Bingham observed in R (Countryside Alliance) v Attorney General [2008] AC 719 at para 45, [t]he democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament. Cf. Axa v The Lord Advocate [2012] 1 AC 868 at para 49 (Lord Hope). Third, the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic polycentric problem. But, perhaps critically in a case like this where firm factual conclusions are elusive, Parliament can legitimately act on an instinctive judgment about what the facts are likely to be in a case where the evidence is inconclusive or slight: see R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394, esp. at para 239 (Lord Neuberger), and Bank Mellat v H.M. Treasury (no. 2) [2013] 3 WLR 179, 222 at paras 93 94 (Lord Reed). Indeed, it can do so in a case where the truth is inherently unknowable, as Lord Bingham thought it was in R (Countryside Alliance) v Attorney General at para 42. In the course of argument, it was suggested that the case for the Respondents in the Nicklinson appeal required the Appellants to suffer a painful and degrading death for the sake of others. This is a forensic point, but up to a point it is a legitimate one. It is fair to confront any judge, or indeed legislator, with the moral consequences of his decision. The problem about this submission, however, is that there are many moral consequences of this decision, not all of them pointing in the same direction. For my part, I would accept a less tendentious formulation. In my view, if we were to hold that the pain and degradation likely to be suffered by Mr Lamb and actually suffered by Mr Nicklinson made section 2 of the Suicide Act incompatible with the Convention, then we would have to accept the real possibility that that might give insufficient protection to the generality of vulnerable people approaching the end of their lives. I conclude that those propositions should be rejected, and the question left to the legislature. In my opinion, the legislature could rationally conclude that a blanket ban on assisted suicide was necessary in Convention terms, i.e. that it responded to a pressing social need. I express no final view of my own. I merely say that the social and moral dimensions of the issue, its inherent difficulty, and the fact that there is much to be said on both sides make Parliament the proper organ for deciding it. If it were possible to say that Parliament had abdicated the task of addressing the question at all, so that none of the constitutional organs of the state had determined where the United Kingdom stood on the question, other considerations might at least arguably arise. As matters stand, I think it clear that Parliament has determined that for the time being the law should remain as it is. For this reason I would not wish to encourage the notion that if the case for Mr Nicklinson and Mr Lamb had been differently presented and procedures for scrutinising cases in which patients expressed a desire for assistance in killing themselves had been examined on this appeal, the decision of this court might have been different. In my opinion, the issue is an inherently legislative issue for Parliament, as the representative body in our constitution, to decide. The question what procedures might be available for mitigating the indirect consequences of legalising assisted suicide, what risks such procedures would entail, and whether those risks are acceptable, are not matters which under our constitution a court should decide. I have not dealt with the possibility that the present state of the law might also be justifiable under article 8.2 for the protection of morals. That is because the point was hardly argued, and because the protection of health seems to me to be a sufficient justification. But I would certainly not rule it out. The criminal law is not a purely utilitarian construct. Offences against the person engage moral considerations which may at least arguably be a sufficient justification for a general statutory prohibition supported by criminal sanctions. The fact that the parties to these proceedings chose not to argue a point which might nevertheless legitimately influence Parliament illustrates one of the difficulties of deciding an issue of this kind judicially in the course of contested forensic litigation. The Martin appeal: are the Director of Public Prosecutions Guidelines to Prosecutors sufficiently clear? Although the acts covered by section 2(1) of the Suicide Act constitute an offence in all cases, an important element of discretion is introduced at two stages of the criminal process. The first is the discretion of the Director of Public prosecutions whether to prosecute or consent to a prosecution under section 2(4). The second is the discretion of a sentencing court upon conviction. These discretions are closely related. The Directors decision will be governed by the long standing practice, published in the Code for Crown Prosecutors and associated guidelines, which requires a prosecutor to be satisfied not only that the evidence is available to justify a conviction, but that it is in the public interest to prosecute. The public interest test depends on the presence of factors mitigating culpability, in other words on the same factors which would be taken into account by a sentencing court if there were a conviction. Indeed the link was once overt. In his classic statement of the policy in 1951, the then Attorney General Lord Shawcross observed that it is not always in the public interest to go through the whole process of the criminal law if, at the end of the day, perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed (Hansard (HC Debates) 483, col 683, 29 January 1951). I have already expressed the view that section 2 of the Act is compatible with the Convention regardless of the operation of the Directors discretion. There are, however, many circumstances in which the domestic law of a state is not required by the Convention to confer some right or discretion, but nevertheless if it does so, it will be held to the Conventions standards. A Convention state is not required to allow assisted suicide, and if it does, it may qualify it with conditions designed to prevent abuse: Haas v Switzerland (2011) 53 EHRR 33 at paras 57 58. In Gross v Switzerland, (2014) 58 EHRR 7, the European Court of Human Rights held that the ambit of the right and the scope of any restrictions upon it must, within the bounds of practicality, be clear. Therefore in Switzerland, one of the few countries to allow assisted suicide in principle, article 8 was infringed by the Swiss guidelines concerning the circumstances in which medical practitioners might prescribe lethal drugs. This was because they did not sufficiently clearly show how they applied to persons (such as Mrs. Gross) who were not terminally ill. To be justifiable under article 8.2 of the Convention, a measure engaging article 8.1 must be in accordance with the law. For this purpose, law has an extended definition embracing those respects in which the application of the law depends on practice. In R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, the House of Lords held that the Code for Crown Prosecutors and any associated guidelines fell within the broad category of law for the purpose of deciding whether section 2 of the Suicide Act was justifiable. It followed that the principle of legality required them to be sufficiently accessible and clear, which they were not. It is important to understand what the House regarded as sufficient level of precision and clarity, and why. The problem about law whose application depends on administrative discretion is that, unless the criteria for the exercise of that discretion are made clear in advance, it offers no protection against its inconsistent and arbitrary application. This is the basis of the Strasbourg Courts jurisprudence on the point. As the Court observed in Glmez v Turkey (Application no 16330/02) (unreported, 20 May 2008), at para 49, [d]omestic law must afford a measure of protection against arbitrary interference by public authorities with Convention rights, in respect of which the rule of law would not allow unfettered powers to be conferred on the Executive. Lord Hope, with whom Lord Phillips and Lord Neuberger agreed in terms and Baroness Hale and Lord Brown in substance, recognised this in Purdy: see paras 41, 46. He cited as the guiding principle the test stated by the European Court of Rights in Hasan and Chaush v Bulgaria (2003) (2000) 34 EHRR 1339 at para 84: In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. Lord Hope considered that protection against arbitrary exercises of discretion required that the Directors policy should be stated in advance with sufficient precision to make the consequences of a given course of action reasonably foreseeable. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary. Para 41 A high standard of clarity and precision is required of any law defining the elements of a criminal offence. We are not, however, concerned with the elements of criminal liability but with the likelihood that those who have incurred criminal liability will be prosecuted. That is not a matter of definition but of discretion. The degree of clarity and precision which it is reasonable to expect of a published policy about the exercise of the prosecutorial discretion is different in at least two important respects from that which can be expected of a statutory provision creating an offence. The first is that the pursuit of clarity and precision must be kept within the bounds of practicality. What is practically attainable, as the European Court of Human Rights recognised in the passage which Lord Hope quoted from Hasan and Chaush v Bulgaria, (quoted at para 238 above), must depend on the range of people and situations to which it is expected to apply. It is not practically possible for guidelines to prosecutors to give a high level of assurance to persons trying to regulate their conduct if the range of mitigating or aggravating factors, or of combinations of such factors, is too wide and the circumstances affecting the weight to be placed on them too varied for accurate prediction to be possible in advance of the facts. The second limitation is a point of principle. The pursuit of clarity and precision cannot be allowed to exceed the bounds of constitutional propriety and the rule of law itself. The Code and associated guidelines may be law in the expanded sense of the word which is relevant to article 8.2 of the Convention. But they are nevertheless an exercise of executive discretion which cannot be allowed to prevail over the law enacted by Parliament. There is a fine line between, on the one hand, explaining how the discretion is exercised by reference to factors that would tend for or against prosecution; and, on the other hand, writing a charter of exemptions to guide those who are contemplating breaking the law and wish to know how far they can count on impunity in doing so. The more comprehensive and precise the guidelines are, the more likely they are to move from the first thing to the second. As Lord Bingham observed in R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 at para 39, the Director has no power to give a proleptic grant of immunity from prosecution. This is not just a limitation on the statutory powers of a particular public official. It is a constitutional limitation arising from the nature of the function which he performs. The Bill of Rights declares that the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal. The European Court of Human Rights expressed the same notion in Pretty at para 77, when it pointed out that strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. Mrs Pretty had originally made an extreme claim. She wanted the Director to give her an assurance that her husband would not be prosecuted if he helped her to kill herself. But the point made by the Strasbourg Court would have applied equally, as they pointed out, to a case where the exemption was sought for classes of individuals, and this must be so whether those classes are defined by their acts or in any other way. Although both of these limitations emerge clearly from the Strasbourg case law cited by Lord Hope in support of his analysis in Purdy, neither of them was considered in detail in that case. This was because the published criteria which were held to be inadequate in Purdy were exceptionally vague. They consisted at that stage only in the Code which, because it had to cover the whole range of criminal offences, was necessarily couched in wholly general terms. No one was suggesting that the Director should do more than set out the most significant factors that would guide his decision: see the argument of Lord Pannick QC at page 350B/C. Lord Hope concluded from his examination of the principle that the Director should be required to to promulgate an offence specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdys case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act: para 56. Lord Brown of Eaton under Heywood considered at para 86 that what was needed was a custom built policy statement indicating the various factors for and against prosecution. In the event, the order of the House was made in the precise terms suggested by Lord Hope. Anything more than that would, as it seems to me, have been both impractical and contrary to constitutional principle, both problems of which the Committee was profoundly conscious. The Committee must have regarded the limited form of order which they made as satisfying the principle which they had declared. They must also have appreciated that guidance stating the principles on which the discretion was exercisable and indicating the factors for and against prosecution would not in all cases enable the individual to know in advance whether he would be prosecuted, but only what matters would be taken into account. The Directors published policy The Directors current policy is described in her predecessors Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, published in February 2010 after the decision in Purdy. Lord Neuberger has set out the relevant parts, and I will not do so again. In summary, it lists sixteen public interest factors tending in favour of prosecution and six public interest factors tending against prosecution. The factors tending in favour of prosecution include (6) that the suspect was not wholly motivated by compassion, (12) the suspect gave encouragement or assistance to more than one victim who were not known to each other, (13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance, (14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not],. and the victim was in his or her care, and (16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. Paragraph 44 recommends a common sense approach to the question of personal gain: It is possible that the suspect may gain some benefit financial or otherwise from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts. The factors in favour of and against prosecution are all subject to the general considerations at paragraphs 36 42. For present purposes, it is enough to quote paragraphs 39 and 40: 39 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. 40 The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the victim was not under 18 years of age does not transform the factor tending in favour of prosecution into a factor tending against prosecution. In formulating the published policy the Director did exactly what the order in Purdy required him to do. In the words of Lord Hopes statement of the principle at para 41, it set out the scope of the discretion and the manner of its exercise. The Director identified the factors that he would take into account, adding appropriate caveats about the importance of taking each case on its merits and considering the weight to be attached to each factor in the light of all the relevant circumstances. Moreover, the policy was carefully drafted so as avoid the risk of appearing to dispense from the operation of the law in certain cases, by identifying relevant factors rather than categories of persons or acts which would not, or probably not be prosecuted. Unless we are prepared to say that the House of Lords was wrong in Purdy to regard the order which it made as answering the principle which it declared, or unless circumstances have changed in some relevant respect, we should not now say that the February 2010 published policy is inadequate. No relevant change of circumstances has been alleged, and far from regarding the order made in Purdy as wrong, it seems to me to have been soundly based on principle. Martins case is that the current guidelines are inadequate because they do not make it sufficiently clear that an assister who has done nothing to encourage the suicide and whose assistance was motivated by nothing but compassion, will not be prosecuted. In particular, he says that they draw an unjustifiable distinction between assistance given by those who are connected to the patient by ties of love and affection (which he calls Class 1 cases), and others with no such connection (Class 2 cases). Martin accepts that the published policy is sufficiently clear about the former category. Unless there is particular cause for concern, all the factors tend against the prosecution of assisters in this category. They can assume, he says, that they will not be prosecuted. But he says that the position of those without emotional ties to the patient is unclear, especially if they are healthcare professionals or other professional carers. It is to their position that his submissions have been mainly directed. The Directors published policy has deliberately and rightly not been framed by reference to categories of suspect. But the factors listed do suggest a difference in treatment between those whose assistance is given in a professional capacity, whether as doctors, nurses or carers, and others who are connected by emotional bonds to the patient, in practice generally members of his family. In my view, Martin is wrong to suggest that those in the latter category can count on escaping prosecution. That will depend on all the relevant circumstances, of which the emotional bond may well be the most important but is unlikely to be conclusive. However, the published policy does show that assisters of this kind are less likely to be prosecuted than professionals or other outsiders, other things being equal, which they may not be. Thus, the professional character of an assisters involvement will itself tell in favour of prosecution (factor 14). In addition he, and others without emotional ties to the patient, may not be regarded as wholly motivated by compassion (factor 6) and are quite likely to be paid for their assistance (factor 13). Martin objects to these distinctions, as well as to the leeway left to prosecutors by the advice at paragraph 39 that the weight to be given to each factor should be assessed case by case instead of being subject to weightings set out in the published policy. This case was substantially accepted by the majority of the Court of Appeal. But in my view, it was wrong in principle for a number of reasons. In the first place, although presented as a complaint about the lack of clarity in the published policy, it is in reality a complaint about its substance. As I have pointed out, professionals and other outsiders differ in important respects from those whose willingness to assist the patient arises from an emotional relationship with him. The moral issues raised by the intervention of an outsider are more difficult to assess than those arising from assistance given by (say) members of the patients family. The answer is likely to be affected by an altogether wider range of factors and therefore to be correspondingly less clear in advance. One can illustrate this by reference to the significance of compassion, which everyone agrees is critical in most of these cases. In the case of a close family member, for example a parent, child or spouse, the compassionate character of his or her motivation will usually be obvious, even if the assister stood to benefit financially by the patients death. So far as anything is straightforward in this difficult field, it is the overwhelming emotional impact of the patients suffering on those closest to him. What constitutes a purely compassionate motive in the case of an outsider is likely to be much less obvious. At one extreme, the professional who assists the patient to kill himself may be a long term living in carer who has formed an emotional bond with the patient not unlike that of his closest relatives. At the opposite end of the range, the professional may have little or no personal acquaintance with the patient, but out of compassion for human suffering in general holds himself out as being ready to assist patients who have freely chosen suicide. Between these extremes there is an infinitely complex range of possibilities. The position of the professional is likely to be affected by his closeness to the patient, the length of his acquaintance with him, the extent of his previous responsibility for the patients care, his relations with the patients family, his opinions about the legal prohibition of assisted suicide, any relevant rules or guidance of his professional body, any involvement on his part in assisting other patients to commit suicide, whether he is paid for his assistance and if so how much, and many other matters. In addition to being more difficult to evaluate, the involvement of the professional raises issues with important implications for other terminally ill or suffering patients, many of whom may be vulnerable. The most that the Director can reasonably be expected to do in the face of such a complex process of evaluative judgment is to identify the main factors that will be relevant. It is neither possible nor proper for him to attempt a precise statement in advance of the facts about when a professional will or will not be prosecuted. Either such a statement will have to be so general and qualified as to be of limited value for predictive purposes, or else it is liable to tie the Directors hands in a way that would in practice amount to a dispensation from the law. In the Divisional Court Toulson LJ at paras 141 143 gave three reasons why it would be wrong to require the Director to reformulate her policy: 141. First, it would go beyond the Convention jurisprudence about the meaning of law in the context of the rule of law. Even when considering the meaning of law in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to law in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action. 142. Secondly, it would be impractical, if not impossible, for the DPP to lay down Guidelines which could satisfactorily embrace every person in Mr Havers class 2, so as to enable that person to be able to tell as a matter of probability whether he or she would be prosecuted in a particular case. As Mr Havers rightly observed, the factors for and against prosecution may point in opposite directions. I do not see how the DPP could be expected to lay down a scheme by which a person would be able to tell in advance in any given case whether a particular factor or combination of factors on one side would be outweighed by a particular factor or a combination of factors on the other side. The DPP is not like an examiner, giving or subtracting marks in order to decide whether a candidate has achieved a pass mark. The DPP has expressed his opposition to any such schematic approach for the good reason that each case ultimately involves a personal judgment. 143. Thirdly, it would require the DPP to cross a constitutional boundary which he should not cross. For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion. In my opinion, the Court of Appeal had no convincing answer to these points. This is, I think, because there is none. Ultimately, the question of legal principle posed by the reasoning of the House of Lords in Purdy is whether the uncertainty about the position of professionals allows the arbitrary and inconsistent exercise of executive discretion. In my opinion it does not. Any lack of clarity or precision does not arise from the terms of the Directors published policy. It arises from the discretionary character of the Directors decision, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case. All of these are proper and constitutionally necessary features of the system of prosecutorial discretion. The terms of the published policy reflect them. The document sets out the principal relevant factors for and against. It treats the professional character of an assisters involvement as a factor tending in favour of prosecution. It is at least as clear as any sentencing guidelines for this offence could be. The Lord Chief Justices interpretation of the Directors published policy I turn, finally, to a question which arose in the course of the argument, and which has assumed greater prominence than was perhaps expected when the appeal was opened. Lord Judge dissented in the Martin appeal, mainly because he took a different view of the interpretation of the published policy from the rest of the Court of Appeal. Paras 185 and 186 of his judgment have been set out, substantially in full, by Lord Neuberger at para 142 of his judgment. In summary, Lord Judge thought that factor 14 tending in favour of prosecution was concerned only with professionals who abused a position of trust arising from their professional relationship with the patient, for example by bringing undue influence to bear upon him. He thought that it did not extend to a professional carer who, with no earlier responsibility for the care of the victim, comes in from outside to help. He would have regarded it as an extraordinary anomaly that such a person should be more likely to be prosecuted than the family members who brought him in, at any rate if he was not profiteering. This, in Lord Judges view, was because such a person would be doing no more than (say) the patients wife would do if she could. He regarded it as an extraordinary anomaly, that those who are brought in to help from outside the family circle, but without the natural love and devotion which obtains within the family circle, are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the victim to achieve his desired suicide. Like Lord Neuberger, I do not think that this is what the Directors published policy says. On its face, it discloses a much more general principle that the professional character of an assisters involvement is in all circumstances a factor tending in favour of prosecution, although one whose weight will vary (like all the listed factors) according to the circumstances. Nonetheless, in the course of argument, Counsel for the Director accepted, on her specific instructions, that paras 185 and 186 of Lord Judges judgment correctly represented her policy. If this is so, and if, as I consider, the published policy as it stands says something different, then it is clear that the Director is bound to resolve the inconsistency one way or the other. However, I am not prepared to say that she must resolve it by incorporating Lord Judges interpretation into the published document. I am not prepared to do this for three reasons. First, it is unnecessary. I have no doubt that the Director will in any event wish to review the terms of the published policy in the light of the judgments on this appeal, especially on this point. Secondly, it is legally inappropriate. The Directors duty is to ensure (i) that her published policy is clear, and (ii) that it accurately represents her actual policy. It is not her duty to adopt Lord Judges interpretation as her policy, and in the absence of her concession in argument nobody could have suggested that it was. Third, it would not be appropriate to make an order the effect of which would be to hold her to that concession, until she has had the fullest opportunity of considering the implications of the two relevant paragraphs of Lord Judges judgment for the published policy as a whole, in the light of her legal and constitutional role as a prosecuting authority and in the light of our judgments in this case. The third point requires some expansion. The reason for making it is that Lord Judges two paragraphs cannot simply be incorporated into the existing published policy. They beg a number of questions, some of them fundamental, on which we do not know the Directors views, and on which she may not yet have formed concluded views. Lord Judge was interpreting factor (14) tending in favour of prosecution. But the relationship between a revised factor (14) and the other factors would need careful consideration if the resulting document is to be clear and coherent. The various listed factors for and against prosecution set out in the existing published policy are concerned with two main matters: (i) whether the assister was entitled to believe that the patient had made a free, settled and unpressured decision to die, and (ii) whether the assister was motivated wholly by compassion. The most difficult issue concerns the relationship between a revised factor (14) and the existing factor (6), which treats it as a factor tending in favour of prosecution that the suspect was not wholly motivated by compassion. The purely compassionate character of the assisters motivation is a major head of mitigation, which is more likely to be available to someone with an emotional connection to the patient than it is to an outsider with no emotional or even a prior professional connection. There may be very little mitigation available to, say, an assister acting under no compelling pressure arising from a prior relationship with the patient, who has simply been brought in to contribute his technical expertise to the commission of a criminal offence. It can fairly be said that in many cases this approach will deprive those closest to the patient of the means of enabling him to kill himself. This is so. But it is not the object of the published policy to facilitate assisted suicide. Its object is to enable prosecutors to address the main factors which mitigate guilt. Otherwise he is at risk of moving away from the concept of mitigating guilt, and towards that of dispensing certain categories of person from the operation of the Act. The relationship between a revised factor (14) and the existing factor (6) is probably the most delicate issue, but it is not the only one. What kind of professional carer with no earlier responsibility for the care of the victim will be covered by the revised policy? One may infer from the existing factor (12) tending in favour of prosecution that they will not generally include those who held themselves out as giving technical assistance for suicide or who, without holding themselves out, had done it before. Lord Judge appears to have made the (surely realistic) assumption that they would charge for their services, although not in a profiteering way. But how would such persons be affected by factor (13), which treats the receipt of payment as a factor tending in favour of prosecution. And what would constitute profiteering? Equally delicate questions may arise when one broaches the question what kind of assistance is to be covered by the revised policy. One may infer from factor (16) that the revised policy would not extend to the provision of suicide clinics in the United Kingdom to do what Dignitas does in Switzerland. But highly contentious issues may arise as to the application of the revised policy to some forms of assistance falling well short of that extreme. The context of Lord Judges remarks and the facts of Martins case suggest that he was thinking mainly of assistance consisting in accompanying the patient to Dignitas in Switzerland. But the same considerations would not necessarily apply to supplying lethal prescription drugs or specialised equipment. All of these questions might require consultation with the medical professions or even the general public, as occurred before the publication of the current policy. Unless the Director proposes to modify factors (6), (12) (14) and (16), the circumstances in which Lord Judges professional carer with no earlier responsibility for the care of the victim will be protected may be far too narrowly confined to justify Lord Judges prediction at para 186 that they are most unlikely to be prosecuted. But for present purposes the decisive consideration is that it is a matter for the Director and not for us to decide whether to adopt Lord Judges interpretation of the policy and if so how and how far to do so. The present state of the law The current position may fairly be summarised as follows: (1) In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life. (2) A person who is legally and mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes: Sidaway vs Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, 904 905; In re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1; Airedale NHS Trust v Bland [1993] AC 789. A patient (or prospective patient) may express his wishes on these points by an advance decision (or living will). (3) A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give and receive information is guaranteed by article 10 of the Convention. If the law were not as I have summarised it, I have difficulty in seeing how it could comply. (4) Medical treatment intended to palliate pain and discomfort is not unlawful only because it has the incidental consequence, however foreseeable, of shortening the patients life: Airedale NHS Trust v Bland [1993] AC 789, 867D (Lord Goff), 892 (Lord Mustill), R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, 831H 832A (Lord Steyn). (5) Whatever may be said about the clarity or lack of it in the Directors published policy, the fact is that prosecutions for encouraging or assisting suicide are rare. Between 1998 and 2011, a total of 215 British citizens appear to have committed suicide with medical assistance at the Dignitas clinic in Switzerland. Not one case has given rise to prosecution. Although cases of assisted suicide or euthanasia are periodically reported to the police (85, we were told, between 1 April 2009 and 1 October 2013) there has been only one recent prosecution for assisting suicide, and that was a particularly serious case. This state of English law and criminal practice does not of course resolve all of the problems arising from the pain and indignity of the death which was endured by Tony Nicklinson and is now faced by Mr Lamb and Martin. But it is worth reiterating these well established propositions, because it is clear that many medical professionals are frightened by the law and take an unduly narrow view of what can lawfully be done to relieve the suffering of the terminally ill under the law as it presently stands. Much needless suffering may be occurring as a result. It is right to add that there is a tendency for those who would like to see the existing law changed, to overstate its difficulties. This was particularly evident in the submissions of Dignity and Choice in Dying. It would be unfortunate if this were to narrow yet further the options open to those approaching death, by leading them to believe that the current law and practice is less humane and flexible than it really is. Conclusion I would dismiss the appeal of Mrs Nicklinson and Mr Lamb. I would allow the Directors appeal in Martins case, and dismiss Martins cross appeal. LORD HUGHES The claimants in these cases, and Mrs Nicklinson's husband before his death, together with some other people in similar positions, see themselves as in a cruel paradox. They have concluded that their lives are not worth living. Whether others in comparable positions would think the same of themselves is, for them, not the point. No one questions their mental capacity to reach the decisions that they have. It is impossible not to understand the depth of their dismay, given the combination of appalling limitation on even the most basic of functions and constant pain. If they were able, unassisted, to commit suicide, they have decided that they would. But their disabilities are so great that they cannot do so, unless they can persuade someone else to help them. Their physical conditions are not likely to be terminal in the near future, so that they will remain unable to achieve their wish for an indefinite period. Whatever the legal position, their appeal for relief will not fail to touch most hearers. A court can, however, only respond to this appeal by applying the law. That is, of course, not the same as deciding what individual judges would personally like the law to be. Under our constitutional arrangements, firmly entrenched even if largely unwritten, the legislative function is committed to Parliament and courts must not usurp it. Courts do have the necessary function to interpret statutes and to decide what they mean, and to synthesise the different sources of English law, statute law, common law and European. An essential question in this case is whether these latter, properly judicial, functions, can extend to afford the claimants the relief they seek. In this case there is a perfectly clear Act of Parliament. The Suicide Act 1961 abolished the offence of suicide, so that the suicide himself or herself is no longer committing an offence. But it deliberately, and plainly, created in section 2(1) a separate offence of assisting someone else to commit suicide. True it is that this was fifty years ago, but, even if the law knew a concept of statutory obsolescence, as it does not, this statute was deliberately re enacted in 2009, after lively public and Parliamentary debate, and after a private member's Bill designed to relax the law had been considered in Parliament and rejected. If anything, the new sections 2A and 2B inserted into the 1961 Act in 2009 somewhat extend the scope of the offence under section 2(1). There is no escape from the fact that unless section 2(1) of the Suicide Act is for some reason or to some extent ineffective, anyone who assists the present claimants or people in like position to commit suicide is guilty of an offence. The only possible route to qualifying the statute lies in the European Convention on Human Rights ("ECHR"), as part of English law via the Human Rights Act 1998. The argument that it does so in the present cases depends on deploying article 8 of the Convention, by one or other of two possible legal routes. Article 8 provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The scheme of article 8 is well known. Like several other articles dealing with so called qualified rights, it first states an area in which it is concerned to limit State action affecting individuals, and then, by paragraph (2) sets out the i) ii) qualifications which must be exhibited by State action if it is to be legitimate. Those qualifications are two, the first of legality and the second of justification: the State's action must be 'in accordance with the law'; and it must be justified as a proportionate means to a legitimate end. The reach of article 8 can now be seen to be extensive. "Private and family life" undoubtedly covers a wide range of personal activity. There are times when, as a sphere of personal activity is identified as falling within the reach of article 8, it is tempting to say that there is therefore a fundamental right to that particular form of activity. The better view is that the fundamental right is to what article 8.1 actually speaks of namely respect for private and family life. Whether there is a right to do the particular thing under consideration depends on whether the State is or is not justified in prohibiting it, or placing conditions upon it, and that in turn depends on whether the State's rules meet the requirements of article 8.2. To take a simple example unconnected with the present appeals, the consumption of drugs whether for reasons of health, pain relief, athletic performance or simple recreation may well be an aspect of private life within the reach of article 8.1. But it does not follow that there is a fundamental right to take cannabis or steroids, ecstasy or cocaine, still less for others to supply such drugs to would be users. The great majority of European States prohibit at least some drug usage in the general public interest, and such prohibition is generally more than fully justified under article 8.2. It is now clear that a person's autonomy in making decisions about how to end his life engages article 8. I agree that it follows that his autonomy in deciding to seek advice or assistance also does so. One ought not, however, in the present cases, to begin with the proposition that an individual has a right to make an end of life decision and to seek assistance in carrying it out. That would be to fall into the error explained in the last paragraph and to assume the answer to these cases. These cases depend not simply on article 8.1 but on its interrelation with article 8.2. And although the claimants in both appeals invoke article 8 they rely on quite different aspects of it. In the first appeal, of Mrs Nicklinson and Mr Lamb, the issue is now whether the claimant can lawfully engage the assistance of a medical practitioner such as Dr Nitschke to provide a complex machine to deliver a lethal injection, which the claimant can himself activate. Their wish is to undergo this process in England. Their case depends upon the justification limb of article 8.2. They can succeed only if the application of section 2(1) to them in their situations would fail the test of proportionate pursuit of legitimate aim. In effect, they can succeed only if in law the generalised ban upon assisted suicide in section 2(1) is contrary to their article 8 rights. In the second appeal, AM challenges not section 2(1) but the position of the Director of Public Prosecutions. He contends that the policy statement issued by the Director following the order to provide such which was made in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345 is not enough and must be amplified to deal more specifically with the position of a medical carer who assists, as distinct from a friend or relative who does. He has two distinct arguments. First and principally, he invokes article 8.2 not for the rule of proportionate justification but for the rule of legality. His contention is that a restriction on his private life must, to be in accordance with the law, make it sufficiently foreseeable whether a medical carer will be prosecuted. His secondary contention, advanced on his cross appeal, is that the Director's policy statement discourages the sort of professional compassionate assistance which he seeks, and that it is thus a disproportionate interference with his article 8 rights. This secondary position involves, like the appeal of Mrs Nicklinson and Mr Lamb, the invocation of the justification limb of article 8.2. This distinction is central to these appeals. So far as the first appeal is concerned, I have little to add to the reasoning of Lord Sumption, with which I respectfully agree. I also agree with the reasons given in the Court of Appeal, which on this point was unanimous. It is plain that the Strasbourg court has not found that a generalised prohibition on assisting others to commit suicide is a breach of article 8. Given the great preponderance of European States which adopt such a rule, and not least recommendation 1418 of the Council of Europe in 1999, it would have been extremely surprising if it had done so. It is true that Strasbourg thus regards the question as one to be resolved by individual States within their margin of appreciation. But in this country, with our constitutional division of responsibility between Parliament and the courts, this is very clearly a decision which falls to be made by Parliament. For the moment, the balance between the public interest in the protection of the vulnerable and the preservation of life on the one hand and the private interests of those minded to commit suicide on the other has been struck by the 1961 Act, re enacted in 2009. A change, whether desirable or not, must be for Parliament to make. That is especially so since a change would be likely to call for an infrastructure of safeguards which a court decision could not create. The position of the DPP Historically, England and Wales came late to a State public prosecutor considerably later than Scotland and much later than many European countries. The office of Director of Public Prosecutions was not created until 1879 and then in the face of no little opposition. Leaving aside bodies specially authorised to prosecute in particular areas, such as Local Authorities or Health and Safety Inspectors, for more than a century after this prosecutions remained essentially in the hands of the police, each local force of which was independent of any other. Those local police forces prosecuted either through the office of local solicitors instructed for the purpose, or, later, in some cases through solicitors established by the force for this specific purpose. Although the Director of Public Prosecutions had throughout that time the power to take over a prosecution if he judged it necessary, he had a very limited staff and was concerned only with a small number of the most serious cases. It was only with the Prosecution of Offences Act 1985 that a single body, the Crown Prosecution Service, came into existence with the duty, amongst others, of handling virtually all prosecutions initiated by the police, and the Director became its head. Whichever has been the body initiating prosecutions, the law of England and Wales has always recognised that a prosecution does not invariably follow acts which in law amount to a criminal offence. A well known statement of the position is that of the Attorney General, Sir Hartley Shawcross, in 1951, cited by Viscount Dilhorne in the House of Lords in Smedleys Ltd v Breed [1974] AC 839 at 856: "In 1951 the question was raised whether it was not a basic principle of the rule of law that the operation of the law is automatic where an offence is known or suspected. The then Attorney General, Sir Hartley Shawcross, said: 'It has never been the rule of this country I hope it never will be that criminal offences must automatically be the subject of prosecution.' He pointed out that the Attorney General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest to do so and he cited a statement made by Lord Simon in 1925 when he said: ' . there is no greater nonsense talked about the Attorney General's duty than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers call a case. It is not true and no one who has held the office of Attorney General supposes it is. Sir Hartley Shawcross's statement was indorsed, I think, by more than one of his successors." It may be relevant, especially when considering European pronouncements in this area, to note that this general position is not the same in a number of European criminal justice systems. Several of them have embedded either in constitution or criminal code the rule that the Public Prosecutor is under a prima face duty to prosecute when facts amounting to an offence are disclosed. Section 152(2) of the German Code of Criminal Code of Procedure is but one example and article 112 of the Italian constitution another. In Germany, such a domestic rule is regarded as an aspect of the principle of legality. There are broadly similar rules in Austria, Greece, Russia, Poland, Spain, Switzerland and Turkey. Whilst it is certainly true that there are increasingly provisions in many such countries permitting a decision that a prosecution in a particular case is not in the public interest, or authorising diversion to other methods of dealing with proscribed conduct (sometimes described as an aspect of the principle of expediency), this rule remains the default position. It is essential to identify the scope of the decisions thus being taken by prosecutors in England and Wales over the years. The prosecutor is expected to exercise independent judgment in scrutinising all the myriad facts of each particular case put before him. His power to decide, in the public interest, whether to proceed even where there is a prima facie case that the offence has been committed exists in every class of case, from the most trivial to the most serious. There is nothing in the least unusual in this respect about the offence under section 2(1) of the Suicide Act. The decision to be made is of the same kind as might be made, for example, in the case of a 13 year old caught shoplifting. It might well not be in the public interest to prosecute such a youngster, for example if it was apparent that he had been punished severely by either his parents or his school, or the object stolen had been a twopenny sweet. Conversely, it might be very much in the public interest if there had been longstanding widespread thieving by children in the area, there had been public warnings designed to deter which had failed, or the evidence showed that the child had recruited other younger boys to do the same. Similar decisions may have to be made in relation to offences such as causing death by careless driving. It might be judged not to be in the public interest to prosecute a mother whose careless but comparatively venial mistake at the wheel had resulted in the death of her own child where she was clearly going to bear the guilt for the rest of her life. The case against prosecution might be even stronger if the mother were herself seriously disabled in the same accident. Conversely, prosecution might well be in the public interest if she had been showing off at the wheel, had disregarded warnings to slow down, or she had had previous proven episodes of bad driving. What is common to all these decisions is that they are made ex post facto and are made individually for the single case under consideration, when all the facts have been investigated and are known. Of course some factors may recur, but in different combinations and of different intensities. Every case is different. Contrast the position when the Director of Public Prosecutions, or any other prosecutor, is asked to state in advance when a particular form of behaviour will result in prosecution and when it will not or may not. Then she is in immediate peril of crossing a constitutional Rubicon. She is in danger of doing one or both of two things. First she is likely to create an advance exemption from the law for a particular group of potential offenders. Second, she is likely in effect to modify the law as laid down in statute or at common law. She has no power to do either of these things. Both are a breach of her constitutional position. She is the head of a branch of the Executive, albeit one with the degree of independence of a non ministerial government department. As Lord Bingham pointed out in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 [2002] 1 AC 800 at paragraph 39, the power to dispense with and suspend laws and the execution of law without the consent of Parliament was denied to the Crown and its servants by the Bill of Rights 1689 (1 Will & Mary, sess 2, c 2). Section 2(4) of the Act, which requires the Director to consent to any prosecution brought under section 2(1) does not begin to alter this position, which is general to all offences, whether her consent is a requirement or not. Provisions requiring that prosecutions be brought only with the consent of the Director, or less frequently with that of the Attorney General or the Director of Her Majesty's Revenue and Customs, are relatively commonplace. The court was provided with a list of well over 130 statutes containing such stipulations. The number of offences affected is a great deal larger than 130 and they range from river pollution to insider dealing, and from lottery offences to corporate manslaughter. In evidence to the Franks Committee in 1972, the Home Office identified typical overlapping reasons for such provisions to be inserted into statutes: (a) to secure consistency in prosecutions, including where the offence may go wider than the mischief aimed at, (b) to prevent vexatious private prosecutions, (c) to enable account to be taken of mitigating factors, (d) to provide an element of central control in sensitive areas and (e) to enable account to be taken of national security or international considerations. There is no reason to think that section 2(4) was inserted into the Suicide Act with any intention of doing more than keeping the prosecutions in reliable hands. There is no reason at all to suppose that section 2(4) carries with it any greater or different function than the case specific ex post facto judgment described above. This is the "flexibility", inherent in the requirement for the Director to handle prosecutions for the section 2(1) offence, which the Strasbourg court was considering in Pretty v United Kingdom (2002) 35 EHRR 1. Similarly, the Government there also drew attention to the absence of any mandatory sentence for the offence, thus allowing lesser penalties to be imposed as appropriate. Both the process of abstaining from charging and the process of accepting mitigation in sentence are exercises in flexibility applied after the event to a person who has (or prima facie appears to have) in fact committed the offence, and both are decisions made for the individual case. Flexibility in sentencing was, for the Court, illustrated by the evidence, cited at paragraph 76, that over an eleven or twelve year period most so called 'mercy killing' cases (charged no doubt usually as manslaughter) had resulted in probation orders or suspended sentences. It was in this context that the Court addressed the article 8.2 rule of legality and went on immediately to say: "It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence." There is no occasion to read this observation, as Lord Brown read it in Purdy, as a decision that the generalised prohibition on assisting suicide was only saved from incompatibility with article 8 by the existence of the Director's powers in relation to prosecutions. The juxtaposition of those powers with discretionary sentencing is inconsistent with such a reading. Indeed, given the preponderance of generalised prohibitions on assisted suicide throughout Europe, and without any general prosecutorial discretion still less guidance as to how it might be exercised, it would have been extremely surprising if this had been what the Court was saying. The seductive argument presented on behalf of the claimant in Purdy contained a vital step which ignored the distinction here set out between examination after the event of all the facts of a case and advance exemption from the law of particular kinds of offending. The case for the claimant was opened in this way, at p 349: The discretion conferred on the Director of Public Prosecutions by section 2(4) is integral to the application of the criminal offence created by section 2(1). the flexibility introduced by the consent provisions of section 2(4) was recognised by the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 as an important factor relevant to establishing that the prohibition in section 2(1) was not a disproportionate interference with article 8: see at para 76. Section 2(4), therefore, constitutes parliamentary acknowledgment that there is a category of individuals who, notwithstanding they may have committed the offence under section 2(1), should nevertheless suffer no criminal penalty as a result and whom it is not in the public interest to prosecute. It is legitimate to say that Parliament no doubt recognised that there might be persons who commit the section 2(1) offence, whom it turns out not to be in the public interest to prosecute. That, however, is true of every offence in the criminal calendar. It is not legitimate to suppose that there is a category of such persons which can be identified in advance by the Director of Public Prosecutions. She cannot do so without crossing the constitutional boundary into either changing the law or giving advance exemption from it to a group of potential offenders. The basis of the case against the Director both in Purdy and in the present appeal of AM on the legality limb of article 8 is a suggested lack of sufficient foreseeability. The Strasbourg court has made clear that the level of precision which is required of domestic law to meet the principle of legality depends to a considerable degree on the content and that the overriding objective of the principle is to guard against arbitrary executive behaviour: see for example Gillan v United Kingdom [2010] ECHR 28; (2010) 50 EHRR 1105. But the foreseeability which any citizen is entitled to expect in relation to the decision of a prosecutor whether or not to institute proceedings is no more but no less than the knowledge that the prosecutor will examine all the facts of any case where an offence has been committed and will decide whether or not it is in the public interest to proceed. No doubt the citizen is entitled to expect more when the question is whether he has committed an offence or not, but in the case of the present appellants it is the settled assumption that they will have done so. The Court of Appeal in the present case appears to have accepted the argument that the legality rule of article 8.2 demanded that a person contemplating assisting someone else to commit suicide should know the answer to the question "What is the likelihood of a prosecution?" (see paragraph 140). But that question cannot be answered without crossing the constitutional boundary between judging each case on its merits according to the public interest and providing something close to an advance exemption in particular circumstances. The Strasbourg court has more than once made clear that the principle of legality does not extend to enabling potential offenders to avoid the application to them of a law which they may wish to avoid: see for example Weber and Saravia v Germany [2006] ECHR 1173; (2006) 46 EHRR SE 47 at paragraph 93. In the context of this law, it is the crossing of this constitutional boundary which could properly be described as arbitrary, not the preservation of an individualised ex post facto review of a case. In Purdy, the House of Lords likewise accepted the legality/foreseeability argument. Lord Hope confined himself to this reasoning, which is the way, so far as I can see, that the case for Mrs Purdy was advanced. Despite some observations which may suggest a view that section 2(1) might in some applications fail to be proportionate (Lady Hale at paras 63 64, Lord Brown at para 74), it is clear that the order made was based on acceptance of the legality/flexibility case (Lady Hale at para 64, first sentence, Lord Brown at para 85, Lord Neuberger at para 106). Even if, contrary to my respectful view, the order in Purdy was justified, the argument for AM in the present appeal cannot properly be described as anything other than an attempt to obtain for a particular category of persons an advance indication that they will not be prosecuted even though they will have committed the offence. Mr Havers QC rests his case on the contention that the existing policy issued by the Director satisfactorily indicates what may happen to relatives who, out of compassion, assist a patient to commit suicide ("class 1") but does not provide the same indication to professional carers who do so ("class 2"). It is to be noted that this is not really a claim to greater clarity, which might favour either more or fewer prosecutions; rather, it is a claim to a policy of non prosecution for class 2. The Court of Appeal accepted this argument, finding at paragraph 140 that the existing policy "does not provide medical doctors and other professionals with the kind of steer in class 2 cases that it provides to relatives and close friends acting out of compassion in class 1 cases." But the legitimate functions of the Director of Public Prosecutions do not extend to giving to a particular group of those who, however understandably, are contemplating committing a criminal offence, an advance "steer" as to whether they are likely to be prosecuted, still less an indication that they will not be prosecuted although they have committed the offence. There are several further difficulties. First, the legitimate prosecutor's function of deciding whether a particular case does or does not warrant proceedings requires a close examination of all its facts. Certainly amongst the relevant facts will be the character and motivation of the potential defendant. But even more important, in most cases, will be to ask what exactly the potential defendant has done. In the context of the section 2(1) offence, an essential factor is the kind of assistance given and what if any degree of encouragement it involved. The argument in Purdy appears to have proceeded on the assumption of only one kind of assistance, namely arranging a journey to a country where assisted suicide is lawful and within it to a respectable clinic where such assistance is provided. But as the facts of the other appeals in the present case show, this is only one of many ways in which the offence under section 2(1) might be committed. What of assistance to travel to Switzerland but in order there to adopt some different method of suicide away from the Dignitas clinic? What of the doctor who prescribes a lethal dose of barbiturates? What of the doctor who does more, and prepares a syringe for his patient to use, or for a relative to use? And what of someone such as Dr Nitschke who assembles for such as Mr Lamb a complicated piece of machinery but himself stops a millimetre or two short of giving the injection. Mr Lamb, no doubt like others, does not wish to travel abroad. He hopes for a dispensation to allow a doctor to assist him in this country. Does the location make any difference? If it does not, would someone who set up a Dignitas like clinic in an English city be entitled to the same advance steer or not ? Although the argument in Purdy may have centred entirely on a proposed journey to Switzerland, the order made against the Director did not. It required him: to promulgate policy identifying facts and circumstances which he will take into account in deciding whether to consent to prosecution under section 2(1) of the Suicide Act 1961 When, loyal to that order, the Director set about formulating more detailed policy, which involved a major exercise in public consultation, it will be observed that he eschewed altogether the otherwise central element of the kind of assistance. He was right to do so. It is quite apparent, and appears to be common ground in the present appeal, that to require his successor to give an advance indication of her policy in relation to differing forms of assistance would cross the line into requiring her to re define the offence, and that that is illegitimate. But simply to pose these questions demonstrates the illegitimacy of the order against her which is sought in the present case. The order made by the Court of Appeal was wholly open ended, namely a declaration: "that theDirector of Public Prosecutions (DPP) is in breach of section 6(1) of the Human Rights Act 1998, read with article 8.2 of the European Convention on Human Rights, in that he has made insufficiently foreseeable the consequences, in terms of the exercise of his prosecutorial discretion under section 2(4) of the Suicide Act 1961, of the encouragement or assistance of a suicide or attempted suicide." Even if this order could be narrowed to limit it to medical or other professional carers, the problem identified above remains, whilst if it were to be thus narrowed it would be shown even more clearly to be directed to advance exemption of particular groups of offenders. The second difficulty is demonstrated by the first. If it be the law that the Director must provide more specific policy guidance to offer a "steer" to Mr Havers' class 2 professional carers, it is not easy to see why she should not also be required to provide a similar steer to other groups of potential defendants, for example those whose proposed assistance would take one of the possible forms set out in para 281. If for one such group, then it ought to follow for each of the others, and no doubt for many more. Thirdly, although it can be said that the section 2(1) offence has particular characteristics, it is difficult to see any proper basis, if the Director is required to indicate in advance factors going to prosecution in this case, why the same should not be true of all other criminal offences, in relation to which her function is the same. In fact, the special nature of this offence can be overstated. It is not unique for the law to make it an offence to assist others to do what is not itself a crime, as is demonstrated for example by the offence of living on the earnings of prostitution: prostitution itself, in the absence of public soliciting, is not an offence but living on the earnings of prostitution is, whether or not it involves any element of exploitation. Those who are the 'victims' of crime may in circumstances other than assisting suicide be instigators of it, for example in some cases of forbidden sexual relationships. There may be a number of cases where the victim's article 8 interests are potentially engaged (subject to justification) unless the crime is committed, the recreational user of dangerous drugs who wants a supplier to sell to him may well be an example. It is obvious that there may well be many reluctant offenders in many crimes. But even if it can properly be said that this offence combines features which are not together found elsewhere, it is the fact that the Director controls all but a marginal set of police prosecutions see section 3(2) of the Prosecution of Offences Act 1985. If it be the law that she can be required to provide a statement of policy as to factors identifying who is likely to be prosecuted in this case, it is difficult to see why the same law does not apply to other offences. Once such a requirement is made, the criminal law is in danger of being diverted from the proper trial process into anticipatory applications for judicial review of the policy, made on hypothetical or uncertain facts by those who seek either to reduce the likelihood of prosecution or to increase it. Such a process subverts the criminal law and encourages satellite litigation. Like Lord Sumption, I am unable to see that there is any answer to the three reasons given in the Divisional Court by Toulson LJ (paras 141 to 143) why it would be wrong to require the Director to reformulate her policy. For these reasons, which supplement those of Lord Sumption with which I largely agree, AM cannot properly call for a yet further policy statement from the Director on grounds of legality/foreseeability. For my part, I do not think it is appropriate, for the reasons set out above, for any court to embark upon close construction of the terms of the Director's existing published policy, although if one is to consider it I do not dissent from the analysis set out by Lord Sumption at paragraph 253. I should also record my respectful agreement with those basic propositions of law set out in Lord Sumption's judgment at 255 subparagraphs (1) (4). Nor can AM obtain the order which he seeks against the Director on his alternative ground, relying on the justification limb of article 8.2 and on proportionality. This is a repetition of the proportionality argument in the first appeal. If section 2(1) is not disproportionate unless and until Parliament says that it is, then for the same reason the Director cannot be required to "modify" her policy, for that would be to use the Director to change the law. If on the other hand section 2(1) were to be adjudged contrary to article 8 because disproportionate, then the correct remedy would be a declaration of incompatibility; it would still be impermissible, for all the reasons set out above and as explained by Lord Kerr, for the court to use the Director's powers in an individual case to achieve wholesale changes in the law. I would for these reasons dismiss the appeals of Mrs Nicklinson and Mr Lamb, and the cross appeal of AM, but allow the appeal of the Director of Public Prosecutions. LORD CLARKE I agree that, in the first appeal, the appeals of Mrs Nicklinson and Mr Lamb should be dismissed and, in the second appeal, that the DPPs appeal should be allowed and Martins cross appeal should be dismissed. I agree that the appeals and cross appeal should be so disposed of for the reasons given by Lord Sumption, Lord Reed and Lord Hughes. I add a few words of my own on the differing views, not as to the disposal of the appeals, but as to what may happen in the future. Lord Neuberger, Lord Mance and Lord Wilson conclude that the appeal and cross appeal should be disposed of in the same way but contemplate the possibility that circumstances may arise in the future in which an application for a declaration of incompatibility might succeed. In his para 197 Lord Wilson has summarised what he calls Lord Neubergers crucial conclusions in the first appeal. I agree that those are indeed his crucial conclusions. I also agree with the conclusions at para 197(a) to (e). Among the critical factors appear to me to be the fact that the detailed proposals made by Lord Neuberger and Lord Wilson were not advanced in argument and thus have not been subjected to the kind of detailed scrutiny that these difficult questions deserve. A further critical factor is that to date Parliament has not considered the position of those in a similar position to that of Mr Nicklinson and Mr Lamb. I agree with Lord Wilson that Lord Neuberger also included the points in his para 197(f) and (g). However, he went further, in order to explain what he meant by saying in para 118 (referred to in Lord Wilsons para 197(f)) what might happen if the issue was not satisfactorily addressed. Lord Neuberger said that, for various reasons, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of the Applicants explicitly debated in the near future. Importantly, he added this: Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration. In that connection, Lord Wilsons list of factors in para 205 [above], while of real interest, might fairly be said to be somewhat premature. Subject to what follows, I agree with Lord Neuberger. If Parliament chooses not to debate these issues, I would expect the court to intervene. If, on the other hand, it does debate them and, after mature consideration, concludes that there should be no change in the law as it stands, as at present advised and save perhaps in exceptional circumstances, I would hold that no declaration of incompatibility should be made. In this regard I agree with the views expressed by Lord Mance at para 190, after referring earlier to the opinion of Rendquist CJ in Washington v Glucksberg 521 US 702 (1997) at p 735, that Parliament is certainly the preferable forum in which any decision should be made, after full investigation and consideration, in a manner which will command popular acceptance. In these circumstances I would conclude that the courts should leave the matter to Parliament to decide. I recognise that it may well be that, for the reasons given by Lord Neuberger and Lord Wilson, Parliament will conclude that some such process as they suggest might be appropriate but, as I see it, that is a matter for it (and not the courts) to determine. In particular, judges should not express their own personal views on the moral questions which arise in deciding what is the best way forward as a matter of policy. As Lord Sumption says in para 228, the imposition of the personal opinions of professional judges in matters of this kind would lack all constitutional legitimacy. LORD REED I agree with the majority of the court that, in the first appeal, the appeals of Mrs Nicklinson and Mr Lamb should be dismissed and, in the second appeal, that the DPPs appeal should be allowed and Martins cross appeal should be dismissed. In relation to these matters I am generally in agreement with the reasoning of Lord Clarke, Lord Sumption and Lord Hughes, so far as consistent with the following observations of my own. There is also a great deal in the judgment of Lord Mance with which I respectfully agree, including in particular his discussion of proportionality. I add a few words of my own in order to clarify one mattter. I entirely accept that, as Lady Hale puts it, even if the Strasbourg court would regard the issue before us as within the margin of appreciation which it accords to member states, it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law. If the question whether a provision of primary legislation is compatible with a Convention right arises before one of the courts listed in section 4(5) of the Human Rights Act 1998, the court evidently has jurisdiction to determine it. In that respect, amongst others, the Human Rights Act introduces a new element into our constitutional law, and entails some adjustment of the respective constitutional roles of the courts, the executive and the legislature. It does not however eliminate the differences between them: differences, for example, in relation to their composition, their expertise, their procedures, their accountability and their legitimacy. Accordingly, it does not alter the fact that certain issues are by their nature more suitable for determination by Government or Parliament than by the courts. In so far as issues of that character are relevant to an assessment of the compatibility of executive action or legislation with Convention rights, that is something which the courts can and do properly take into account. They do so by giving weight to the determination of those issues by the primary decision maker. There is nothing new about this point. It has often been articulated in the past by referring to a discretionary area of judgment. The question whether section 2 of the Suicide Act 1961 is incompatible with the Convention turns on whether the interference with article 8 rights is justified on the grounds which have been discussed. That issue raises highly controversial questions of social policy and, in the view of many, moral and religious questions on which there is no consensus. The nature of the issue therefore requires Parliament to be allowed a wide margin of judgment: the considered assessment of an issue of that nature, by an institution which is representative of the citizens of this country and democratically accountable to them, should normally be respected. That is not to say that the courts lack jurisdiction to determine the question: on the contrary, as I have explained. But it means that the courts should attach very considerable weight to Parliaments assessment. In the present case, I am far from persuaded that that assessment is unjustifiable under the Convention. That is not to say that it is inconceivable that the position could alter in the future: changes in social attitudes, or the evolution of the Convention jurisprudence, could bear on the application of the Convention in this context, as they have done in other contexts in the past. But that is not the position at present. LADY HALE There is so much in the comprehensive judgment of Lord Neuberger with which I entirely agree. He has shown that, even if the Strasbourg court would regard the issue before us as within the margin of appreciation which it accords to member states, it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law: Re G (Adoption: Unmarried Couple) [2009] 1 AC 173. Hence both he and Lord Wilson accept that, in the right case and at the right time, it would be open to this court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. Understandably, however, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration. Lord Mance is also prepared to contemplate that possibility, although he too thinks Parliament the preferable forum in which any decision should be made (paras 190 191)). Together with Lord Kerr and I, who would make a declaration now, this constitutes a majority who consider that the court both can and should do this in an appropriate case. Lord Clarke (para 293) and Lord Sumption (para 233) might intervene but only if Parliament chooses not to debate the issue; otherwise, they, and Lord Reed and Lord Hughes, consider that this is a matter for Parliament alone. Like everyone else, I consider that Parliament is much the preferable forum in which the issue should be decided. Indeed, under our constitutional arrangements, it is the only forum in which a solution can be found which will render our law compatible with the Convention rights. None of us consider that section 2 can be read and given effect, under section 3(1) of the Human Rights Act 1998, in such a way as to remove any incompatibility with the rights of those who seek the assistance of others in order to commit suicide. However, in common with Lord Kerr, I have reached the firm conclusion that our law is not compatible with the Convention rights. Having reached that conclusion, I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Parliament is then free to cure that incompatibility, either by a remedial order under section 10 of the Act or (more probably in a case of this importance and sensitivity) by Act of Parliament, or to do nothing. It may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative. Why then is the present law incompatible? Not because it contains a general prohibition on assisting or encouraging suicide, but because it fails to admit of any exceptions. The problem with the present law is vividly illustrated by comparing the situation of people like Mr Nicklinson, Mr Lamb and Martin with that of Ms B: see Re B (Consent to Treatment: Capacity) [2002] EWHC 429 (Fam), [2002] 1 FLR 1090. Ms B was a professional woman in her forties, who became paralysed from the neck down as a result of a cervical cavernoma. She could move her head and use some of her neck muscles but could not move her torso, arms and legs at all. She was totally dependent upon her carers in the intensive care unit where she had been for a year. Her life was supported by artificial ventilation. Without it she would have a less than 1% chance of independent ventilation. And death would almost certainly follow. She wanted the ventilator turned off but her doctors refused to do so. She brought proceedings in the Family Division of the High Court seeking declarations that she had the mental capacity to choose whether or not to accept the treatment and that the hospital was treating her unlawfully, together with nominal damages to recognise the tort of trespass to her person. Dame Elizabeth Butler Sloss P granted her the remedies she sought. The principal question was whether she had capacity to consent to or refuse life sustaining treatment. If she had that capacity it was for her to make that decision for herself and not for her doctors to make it for her. It was irrelevant whether they or anyone else thought that continued treatment would be in her best interests. It is important to note that Ms B was entitled to refuse treatment without having to go to court. The hospital should have acceded to her wishes. The only valid reason for not doing so would be a reasonable doubt about whether she had the capacity to give or refuse her consent to life sustaining treatment. Had she lacked that capacity, the question would indeed have been governed by what was in her best interests. As she did have capacity, she was entitled to take whatever decision she wanted: it was for her to decide where her own best interests lay. The reason that she had to go to court was that her request for the machine to be turned off was seen by some of the people looking after her as killing her or assisting her to die and thus ethically unacceptable (para 97). But our law draws two crucial distinctions. The most important is between the positive and the negative, between killing and letting die, between taking active steps to end a patients life, even though this is what the patient herself earnestly desires, and withholding or withdrawing life sustaining medical treatment or intervention to which a patient refuses her consent (whether at the time or in advance). While this distinction may make sense to us, it must often make little sense, especially to those who suffer the cruel fate of paralysis: those who can breathe without artificial help are denied a choice which those who cannot do so may make, should they wish to do so. For some of the people looking after them, it will be a mystery why they must switch off the machine or withdraw artificial nutrition and hydration if this is what the patient wants, but they may not painlessly administer a lethal dose of medication which the patient wants just as much. The second distinction is between killing and helping someone to kill herself, between murder (or voluntary manslaughter) and assisting suicide. Both are crimes, but the latter is less serious than the former. The distinction between them is less clear cut than the distinction between killing and letting die, but it is nevertheless important. Mercy killing is the choice and the act of the person who kills, however benevolent the motive. Committing suicide is the choice and the act of the person who does it, and that person commits no crime. Hence, as Lord Neuberger explains, assisting suicide is a very unusual offence. In Pretty v United Kingdom (2002) 35 EHRR 1, disagreeing with the majority of the House of Lords in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800, the Strasbourg court held that the right to respect for private life protected by article 8.1 of the European Convention on Human Rights was engaged by the prohibition of assisting suicide contained in section 2(1) of the Suicide Act 1961 (most clearly stated in para 86, referring back to paras 61 to 67). The court agreed with Lord Hope that the way she chooses to pass the closing moments of her life is part of the act of living, and she has the right to ask that this too must be respected (para 64). Since then, the Strasbourg court has been even clearer about what the right entails, in Haas v Switzerland (2011) 53 EHRR 33, at para 51 (repeated in Koch v Germany (2013) 56 EHRR 6, para 52, and Gross v Switzerland (2014) 58 EHRR 7, para 59): . an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. I agree with Lord Kerr that the court was not saying that the right to choose the manner and timing of ones death depends upon being physically capable of carrying out that choice without any assistance. Of course, it does not follow from a persons right to respect for her autonomous choices about how and when she wishes to die that she also has the right to demand to be provided with help from other people. It does not follow from the right to marry and found a family in article 12 of the Convention that a person has a right to be provided with a marriage partner. But it does follow from that right that the states right to place obstacles in the way of a person who does wish to become a marriage partner is severely limited. In Pretty, Haas, Koch and Gross, the Strasbourg court might have drawn a clear distinction between taking ones own life and having the help of another to do so. The court might have said that, while interfering with a persons right to take her own life would require justification under article 8.2, interfering with that persons freedom to receive the willing help of another in doing so did not require justification. But the court said no such thing. It went on in each case to consider the justifications advanced for interfering with the help which others might wish to give. And in the Gross case, it held that the interference was not justified. The House of Lords must have taken the same view in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345, when it unanimously accepted that the prohibition of assisting suicide in section 2(1) of the Suicide Act 1961 was an interference with the article 8.1 rights of the would be suicide. Had it not been such an interference, there would have been no need to look for justification under article 8.2, and the requirement that the interference be in accordance with the law would not have arisen. This Court has not been invited to hold that Purdy was wrongly decided and I for one would not be prepared to do so. It must also follow that no distinction can be drawn between those who could do it all for themselves, but merely prefer to have some help, and those who cannot do it all for themselves. I agree entirely with Lord Kerr (at para 332 of his judgment) that that cannot have been what the Strasbourg Court meant by the reference to being capable of . acting in consequence of their freely reached decision. The action could include authorising others to act as well as taking action oneself. The question, therefore, remains as it has always been. Is an outright prohibition of such help a proportionate interference with the right of the individual to choose the manner and timing of her death? As is well known, to be justified, such interference has to be (i) for a legitimate aim which is important enough to justify interfering with a fundamental right, (ii) rationally connected to achieving that aim, (iii) no more than reasonably necessary to achieve it, and (iv) in the light of this, striking a fair balance between the rights of the individual and the interests of the community (see R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621, para 45; Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, 222, para 20). The only legitimate aim which has been advanced for this interference is the protection of vulnerable people, those who feel that their lives are worthless or that they are a burden to others and therefore that they ought to end their own lives even though they do not really want to. In terms of article 8.2, this could be put either as the protection of health or as the protection of the rights of others, the right in question being the most important right of all, the right to life protected by article 2. As Lord Sumption points out, an alternative aim might be advanced, as the protection of morals. Respect for the intrinsic value of all human life is probably the most important principle in Judaeo Christian morality. It would surely justify an absolute refusal to oblige any person to help another commit suicide. It would not so obviously justify prohibiting those who freely judged that, in the circumstances of a particular case, there was no moral impediment to their assisting suicide. Respect for individual autonomy and human dignity are also important moral principles. The very complexity of the moral argument, amply demonstrated in the material before this court, tells against relying upon this as the legitimate aim of the legislation. Is it then reasonably necessary to prohibit helping everyone who might want to end their own lives in order to protect those whom we regard as vulnerable to undue pressures to do so? I can understand the argument that it is: how does a person judge which pressures are undue and which are not? We can all understand why people placed in the situation of Mr Nicklinson, Mr Lamb, Martin or Ms B might wish an end to their suffering. But (as I ventured to point out in Purdy, at para 66) there are many other reasons why a person might consider it a sensible and reasonable thing to do. On what basis is it possible to distinguish some of those pressures from others? That problem is certainly enough to justify a general ban on assisting suicide. But it is difficult to accept that it is sufficient to justify a universal ban, a ban which forces people like Mr Nicklinson, Mr Lamb and Martin to stay alive, not for the sake of protecting themselves, but for the sake of protecting other people. In Pretty, the Strasbourg court rejected the argument that Mrs Pretty was suffering inhuman and degrading treatment contrary to article 3. But no one who has read the appellants accounts of their lives and their feelings can doubt that they experience the laws insistence that they stay alive for the sake of others as a form of cruelty. It would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives. There would be four essential requirements. They would firstly have to have the capacity to make the decision for themselves. They would secondly have to have reached the decision freely without undue influence from any quarter. They would thirdly have had to reach it with full knowledge of their situation, the options available to them, and the consequences of their decision: that is not the same, as Dame Elizabeth pointed out in Re B (Treatment), as having first hand experience of those options. And they would fourthly have to be unable, because of physical incapacity or frailty, to put that decision into effect without some help from others. I do not pretend that such cases would always be easy to decide, but the nature of the judgments involved would be no more difficult than those regularly required in the Court of Protection or the Family Division when cases such as Aintree University Hospitals NHS Trust v James [2013] 3 WLR 1299 or Re B (Treatment) come before them. I mention those courts as the decision makers, because they are accustomed to dealing with such sensitive life and death questions, some of them (as Lord Neuberger points out) even more dramatic than this. But other bodies, sufficiently neutral and independent of anyone involved with the applicant, and skilled at assessing evidence and competing arguments, could be envisaged. The task would differ from that of the Court of Protection when making decisions on behalf of people who lack capacity, in that there would be no discretion or assessment of the applicants best interests involved. The whole purpose of the procedure is to respect the autonomous choice of a person who has the capacity to make it. In that respect the task would be very similar to that of Dame Elizabeth Butler Sloss in Re B (Treatment). Were there to be such a procedure, it would appear to me to be more than sufficient to protect those vulnerable people whom the present universal prohibition is designed to protect. They simply would not meet the qualifications to be allowed help. The process would not be invoked and even if it were it would not succeed in securing them that help. It would be a more suitably targeted solution than any prosecution policy, however enlightened and humane, could ever be. It would have the merit of resolving the issue in advance rather than relying on ex post facto executive discretion to solve the problem (although it should not preclude the exercise of prosecutorial discretion in a case where prior authorisation had not been obtained). To the extent that the current universal prohibition prevents those who would qualify under such a procedure from securing the help they need, I consider that it is a disproportionate interference with their right to choose the time and manner of their deaths. It goes much further than is necessary to fulfil its stated aim of protecting the vulnerable. It fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance and the interests of the community as a whole. I understand that Lord Neuberger and Lord Wilson are receptive to that view in principle, but consider that this is not the right occasion or the right time to make a declaration of incompatibility. That is an entirely understandable view, given in particular the original focus of the cases of Mr Nicklinson and Mr Lamb on voluntary euthanasia rather than assisted suicide (as explained in full by Lord Mance). The sort of process which I have suggested above was scarcely touched upon, let alone explored, in evidence or argument. However, the question for us is one of principle rather than fact: once the principle is established, the question for the judge or other tribunal which is asked to authorise the assistance would be one of fact. He or she would have to be satisfied on the evidence that the applicant had freely reached a fully informed decision which she had the capacity to reach and needed the defined help which was available to enable her to put that decision into effect. It is at that point that the evidence relating, for example, to Dr Nitschkes machine, would become relevant and important. I also understand that Lord Mance would not rule out such a solution, but he considers that we lack the evidence, in particular about the risks to people who need the protection of this law, to justify departing from the view taken by the House of Lords in Pretty. It is worth remembering that the House took the view that article 8 was not engaged at all, and so the observations made about the justification for any interference were strictly obiter dicta. Furthermore, the assertions made about the need to protect vulnerable people were just that: they were no more based on solid evidence than were the assertions to the contrary made, for example, in Carter v Canada [2012] BCSC 886. Indeed, the experience of those few jurisdictions where assisted suicide is permitted provides some means of testing the case for a universal ban. In my view, the question is one of principle rather than evidence, and in principle it is the interference which requires justification rather than the limited exception which is suggested. The Carter case will be coming before the Supreme Court of Canada, probably later this year, and it will be interesting to see how they approach the issue. Left to myself, therefore, I would have allowed the first appeal and made a declaration that section 2(1) of the Suicide Act 1961 is incompatible with article 8, to the extent that it does not provide for any exception for people who have made a capacitous, free and fully informed decision to commit suicide but require help to do so. It seems to me that as a general rule, the prohibition is justified. It is the lack of any exception to meet the particular circumstances of the sorts of case before us that is incompatible. I agree with Lord Wilson (para 203) that it is legitimate to make a declaration even though a provision only sometimes operates incompatibly with the convention rights (as in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467). I am, however, a little bit nervous about his list of factors (para 205), because factors are more readily associated with the exercise of a discretion, rather than an issue of fact, which I believe this to be, and some of them are a little suggestive of a best interests jurisdiction. But they are helpful in illustrating some of the factual matters which a decision maker might wish to explore in addressing the four essential requirements which I have outlined at para 314 above. Turning to the second appeal, the Director of Public Prosecutions is required by the order made in Purdy to clarify what facts and circumstances she will take into account in deciding whether a prosecution is in the public interest. I entirely agree with Lord Neuberger that she should reconsider her policy in the light of the difference of opinion as to its meaning which emerges from the judgments in the Court of Appeal. We were told on her behalf that the Lord Judge CJs interpretation of her policy was correct. If so, that should be made clear in the policy. People should be able to go to that policy, and not to the judgments in this court, in order to understand it. Left to myself, I would go further. It seems to me, as it seemed in Purdy, that the policy has two purposes. The first, and uncontroversial, purpose is to make the way in which decisions to prosecute will be taken sufficiently clear to meet the Convention requirement that the interference be in accordance with the law. This entails accessibility (hence the need to clarify the policy) and foreseeability, as well as consistency and lack of arbitrariness. We can debate endlessly what the Strasbourg court meant, at para 76 of Pretty (quoted by Lord Neuberger at para 32 above) by first stating that the Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate and going on to discuss the flexibility of enforcement in the next sentence. It might have been reverting to the non arbitrary requirement of legality. Or it might have been continuing its discussion of proportionality. I ventured to suggest in Purdy (paras 63 and 64) that the policy may have a part to play in securing that section 2(1) does not operate as a disproportionate interference with the right protected by article 8 and now so clearly articulated in Haas v Swizerland. The underlying theme of the factors which the DPP considers relevant to whether a prosecution will be in the public interest is clearly to identify the sort of cases which might be covered by the exception proposed above. The time may therefore be ripe for a review to see whether further progress can be made in that direction without offending against the constitutional prohibition of dispensing with the laws. But I agree that there is no need to make an order requiring the DPP to conduct a review. She will no doubt be considering the position in the light of the judgments in this Court and in the Court of Appeal. Hence, I would have allowed the appeal of Mrs Nicklinson and Mr Lamb and made the declaration of incompatibility outlined above. I am content to allow the Directors appeal and to dismiss the cross appeal in the case of Martin. I also wish to record my agreement with the important statements in para 255(2), (3), and (4) of Lord Sumptions judgment. I have, however, reservations about both the statements in paragraph 255(1), which may require some qualification or elaboration, especially in the light of Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] 1 AC 681, and Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72. A policeman is surely entitled to prevent a would be suicide from jumping off Westminster Bridge. I should perhaps add that my conclusion is not a question of imposing the personal opinions of professional judges. As already explained, we have no jurisdiction to impose anything: that is a matter for Parliament alone. We do have jurisdiction, and in some circumstances an obligation, to form a professional opinion, as judges, as to the content of the Convention rights and the compatibility of the present law with them. Our personal opinions, as human beings, on the morality of suicide do not come into it. LORD KERR I agree with Lord Neuberger, Lady Hale, Lord Mance, and Lord Wilson that this court has the constitutional authority to issue a declaration of incompatibility. In agreement with Lady Hale, I consider that there is no reason that we should refrain from doing so. The first appeal The overarching issue on the first appeal is whether section 2(1) of the Suicide Act 1961 is incompatible with the appellants rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). If it is incompatible, then it is the duty of this court to say so. That is a duty with which we have been charged by Parliament. And it is a duty from which we cannot be excused by considerations such as that the Director of Public Prosecutions can choose to implement the law in a way that will not infringe the appellants rights, or that Parliament has debated the issue and has decided not to repeal it. In making that declaration we do not usurp the role of Parliament. On the contrary, we do no more than what Parliament has required us to do. Scope of the right In Haas v Switzerland, (2011) 53 EHRR 33 at para 51 the European Court of Human Rights (ECtHR) said: the Court considers that an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. This right against unjustified interference with the freedom to decide by what means and at what point his or her life will end does not impose a positive duty on the state. For it to amount to a positive duty there would have to be some claim that the state was required to furnish the assistance, rather than merely tolerate it. There is no question of the appellants claiming that they should be assisted by the state to do what they want to do. Affirming statements to like effect appear in para 52 of Koch v Germany (2013) 56 EHRR 6 and Gross v Switzerland (2014) 58 EHRR 7, paras 59 and 60. Nor does this right, contrary to what Lord Sumption suggests in paragraph 215 of his judgment, create a right for a third party to assist. The mere fact that giving effect to the right of the person wishing to receive assistance to die has as a corollary that the assister would not be prosecuted does not mean that the assister has a Convention right to so assist. If that were so, the assister would be able to claim independently that he was entitled to render such assistance. No one contemplates that. It is suggested that the words capable of acting in consequence were carefully devised to exclude from the ambit of article 8 those who are physically incapable of bringing about their desired death. I reject that suggestion. Had it been the Strasbourg courts intention to shut out from the application of article 8 those who wished to end their lives but were physically incapable of doing so, one would surely have expected to have that position explicitly stated and, more importantly, the reasons for it expressly articulated. If some mechanical means (which they could activate) of carrying out their wish was available, they would be capable of acting in consequence of their decision. It cannot seriously be suggested that they are incapable because no such mechanical means exists but that there is available to them willing and informed human intervention. The only sensible interpretation of this proviso, and the one that accords with common sense, is simply that the person should be capable of exercising free will at all stages of the process. Reaching a decision and acting in consequence are to be read as amounting to this, the emphasis being on freely rather than on a stepwise reading of what it is that one ought freely to be able to do. Being freely capable of acting on a decision to end ones life does not therefore mean being physically capable of so acting unaided. A person is just as capable of freely acting in consequence of his decision to end his life by recourse to informed and willing assistance to bring that about as he is by drawing exclusively on his own resources. If I wish to die and am physically unable to bring the medication that will end my life to my own lips but have someone who will do that for me, I am acting just as freely by having them do so as if the hand that bore the draught was my own. The starting point, therefore, is that the appellants have a right under article 8 of ECHR to end their lives and to have recourse to willing, informed assistance to bring about their wish. The test to be applied The essential question is therefore whether the interference with that right is justified. Justification of interference with a right to bring intolerable suffering to an end must be of a different order from that which will be required to warrant intervention in most species of article 8 rights. One should not fail to confront the stark reality of this. The appellants are condemned to a life bereft of pleasure or quality. They live in the knowledge of the distress that their condition and their own misery causes to those close to them. The nature of the interference in this case is not in dispute, and the test for whether it is justified is set out in the decisions of the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167 and of this court in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621. In the latter case, Lord Wilson said at para 45: In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham of Cornhill suggested, at para 19, that in such a context four questions generally arise, namely: (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? Before dealing with the substantive application of the test, however, it is necessary to deal with these preliminary questions about how this court should approach the task: (1) the constitutional relationship between the court and Parliament and (2) the standard of review. Margin of appreciation and the division of powers in the British constitution ECtHRs decision in Pretty was that the blanket ban on assisted suicide did not breach Mrs Prettys rights under article 8 of the Convention. But that does not mean that it was found to be proportionate. As Lord Sumption has said in para 218 of his judgment, the ban was capable of being justified because although it applied to many people who were not in need of protection, it was open to the United Kingdom to take the view that it had to apply generally in order to serve the needs of those who were. The fact that it was capable of being justified and that it was open to the United Kingdom to take the view that the provision had to apply generally was sufficient to withstand Strasbourgs scrutiny because their examination is carried out at one remove from that which this court must apply. The context in which justification is to be judged is different in the domestic setting. In R (G) (Adoption: Unmarried Couple) [2009] 1 AC 173 it was held that that a fixed rule which excluded unmarried couples from the process of being assessed as potential adoptive parents interfered with their article 8 and article 14 rights. In so finding, the House of Lords said that it should not be inhibited from going further than the European court had gone because a margin of appreciation was available to member states particularly in delicate areas of social policy. At para 32 Lord Hoffmann said: It must be remembered that the Strasbourg court is an international court, deciding whether a member state, as a state, has complied with its duty in international law to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention. Like all international tribunals, it is not concerned with the separation of powers within the member state. When it says that a question is within the margin of appreciation of a member state, it is not saying that the decision must be made by the legislature, the executive or the judiciary. That is a matter for the member state. Later in his speech, Lord Hoffmann discussed the reasons that courts of this country should normally follow Strasbourg jurisprudence, Then at paras 3638 he said this: But none of these considerations can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says that the question is within the margin of appreciation. 37. In such a case, it is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch. 38. It follows, my Lords, that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status This court is likewise free (and, I would suggest, required) to give a principled and rational interpretation of section 2(1) of the 1961 Act and to determine whether its potential application goes beyond what is required in order to achieve what has been identified by the Strasbourg court in Pretty v United Kingdom, as its aim: to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life (para 74). An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with ECHR. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the courts conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, This particular piece of legislation is incompatible, now it is for you to decide what to do about it. And under the scheme of the Human Rights Act it is open to Parliament to decide to do nothing. What the courts do in making a declaration of incompatibility is to remit the issue to Parliament for a political decision, informed by the courts view of the law. The remission of the issue to Parliament does not involve the courts making a moral choice which is properly within the province of the democratically elected legislature. Lastly in this regard, it is irrelevant to the compatibility of section 2(1) that Parliament has debated this issue a number of times without repealing that section. This is something that the court must determine on the basis of its own evaluation of the evidence. What Parliament has had to say is irrelevant to the courts decision, except in so far as it provides evidence which the court can independently evaluate. Standard of review Lord Mance has referred to the judgments of Arden LJ and Lord Neuberger MR in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] 2 QB 394. The passages from the judgments of Arden LJ and Lord Neuberger to which Lord Mance has alluded (paras 170 and 189) were concerned with the intensity of review of a policy measure of a European Community institution. In my view they cannot be applied to an assessment of proportionality in the present context. The cardinal factor in this case, as established in Re G (Adoption: Unmarried Couple), is the constitutional relationship between our court and the Parliament of the United Kingdom. But the more fundamental objection to this approach is that it appears to suggest that the courts assessment of whether a particular statutory provision is incompatible should be adjusted or, indeed, disavowed, according to the courts perception of whether it or the legislature can lay claim to greater expertise. It appears to me that this is fundamentally at odds with the courts duty under section 4 of the Human Rights Act. Of course, if the court feels that it does not have enough material or even, conceivably, sufficient expertise, to decide whether a particular measure is incompatible with a Convention right, it should decline to make the declaration. The view that Parliament might have the means to consider the issue more fully or on a broader canvas does not impel the conclusion that the courts should shy away from addressing the question whether the provision is incompatible with a Convention right, judged on the material that has been presented. On the contrary, such is the courts duty when presented with that claim. It would be wrong, of course, not to recognise that some forms of interference may present greater challenges than others in terms of justification which depends on practical or empirical evidence. And that it may not be appropriate to insist on evidence of that nature in such instances. The need for a particular measure may not be susceptible of categorical proof. This is especially true in the realm of social policy where the choice between fiercely competing and apparently equally tenable opinions may be difficult to make. In those circumstances a more nuanced approach is warranted to the question of whether the interference is proportional. This should not be confused, however, with deference to the so called institutional competence of the legislature. The courts approach in these difficult areas may call for a less exacting examination of the proffered justification. But this more generous attitude is not based on the view that Parliament is better placed to make a judgment on the need for the measure than is the court or that the court should therefore regard itself as inept to conduct an assessment of the incompatibility of the measure. Rather, it reflects the reality that choices in these areas are difficult to make and that it may not be easy to prove that the right choice has been made. Rational connection In para 215 of his judgment Lord Sumption has identified three points that are made in support of a general prohibition of assisted suicide. He dismisses the first two for reasons with which I agree and on which I do not need to dilate. The third argument, the so called pressure argument, is that which Lord Sumption finds persuasive. This is the argument which proposes that if assisted suicide was lawful, some people would be too ready to bring an end to their lives under real or perceived pressure from others. It is suggested that the great majority of people contemplating suicide for health related reasons are likely to be conscious that their disabilities, because they make them more dependent on others, would feel increased pressure because the legalisation of assisted suicide would be followed by its progressive normalisation. One needs to have a clear view of the nature of the susceptibility of the vulnerable in this area and how it can be said to be increased by making assisted suicide (provided that it is accompanied by appropriate safeguards) available. It is reasonable to assume that this vulnerable class of persons is composed of persons who are physically able to commit suicide. Why should they feel more vulnerable because those who cannot do so are enabled to bring their lives to an end? One can understand that those who consider themselves to be a burden might feel constrained to consider suicide because it no longer attracts the opprobrium that it once did. But why should they be more disposed to do so because of a law which permits those who want to, but cannot, commit suicide to avail of human assistance to bring about their desire? The two situations are not linked in any logical way. On that account I do not consider that it has been demonstrated that there is the necessary rational connection between the aim of the legislation and the interference with the article 8 right. Justification of an interference with a Convention right must be evidence based. In so far as the evidence goes, it conspicuously fails to support the proposition that permitting assisted suicide will increase pressure on the vulnerable and the elderly. Ruminations that this may be the consequence of a more nuanced provision cannot be a substitute for evidence or, at least, some rational basis on which the two circumstances may be found to be connected. Whether no more than necessary It is beyond dispute that section 2(1) applies to many people who are not in need of its protection and who are prejudiced by its application to them. Unless it could be shown that the protection of the vulnerable group could only be achieved by drawing the provision as widely as it has been drawn, it is disproportionate to apply it to a category of persons whose Convention rights are violated in consequence. While, in these appeals, it may not be easy to show, by reference to empirical data, that the protection of vulnerable individuals requires the blanket provision in section 2(1), some basis at least for proposing that it is required must be established. Nothing in the case advanced by the respondent establishes that the appellants inclusion in the group affected was unavoidable to protect the vulnerable group. In the absence of evidenceor at least a tenable basis on which it might be assertedthat this was required, it is impossible to conclude that the interference with the appellants rights is proportionate. In para 112 of his judgment, Lord Neuberger has said, [W]e could properly hold that section 2 infringed article 8. But, he said in para 120, Before we could uphold [that] contention we would have to [be] satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and that the reasonable concerns expressed by the Secretary of State were sufficiently met so as to render the absolute ban on suicide disproportionate. I do not agree that a fully formed, guaranteed to function, less intrusive means of achieving the objective must be established in order to demonstrate the disproportionality of the provision. The imposition of such a requirement would herald a significant circumscription on the operation of the principle of proportionality generally. It is entirely possible to assert that a particular provision would go beyond what it seeks to achieve without having to describe the details of a more tailored measure that would attain that aim. The present case exemplifies and supports that proposition. If it is the case that it is unnecessary, in order to protect those who are vulnerable, to legally forbid those who are incapable of bringing their lives to an end from seeking assistance to do so, why should it be compulsory to show that a more targeted provision is possible? The measure must be intrinsically proportionate. It cannot assert that its proportionality is established by the absence of a viable, less intrusive alternative. If it is disproportionate measured by its capacity to achieve its own purpose, it cannot be saved from that condition by the claim that a less intrusive restriction that would have excluded the appellants has not been articulated. In any event, if it is necessary to conceive of a less intrusive means of protecting the vulnerable in order to find a lack of proportionality in the present law, this is not difficult to find. As Lord Neuberger has pointed out in para 124, the High Court has for more than 25 years sanctioned the bringing to an end of life. Why should it not do so in relation to the type of case with which we are concerned here? It can, of course, be said that this was not examined in any detail during any of the stages that this appeal has passed through. That, I believe, is not the point. If we are concerned with whether an alternative to the present scheme for the protection of the vulnerable is viable, this does not require a close examination of the precise conditions in which such an alternative would operate. To suggest that detailed evidence is required of how such a system would function is to erect an uncalled for hurdle in the way of the inescapable conclusion that an arrangement could undoubtedly be devised that would ensure sufficient protection of the vulnerable. Although the majority of the member states of the Council of Europe prohibit any form of assisted suicide, there is no evidence that in those states which permit it there has been any increase in pressure or exploitation of the position of elderly and vulnerable individuals. Similarly, in other parts of the world such as some of the states in America which permit assisted suicide, no evidence has emerged of the vulnerable, the disadvantaged or the elderly being oppressed. I do not consider, therefore, that there is any reason to conclude that the legitimate aim of protecting members of our society from pressure to commit or contemplate suicide can only be fulfilled by preservation of the law in its present state. I would therefore make a declaration of incompatibility on this basis. Fair balance Section 2(1) does not strike a fair balance between, on the one hand, the rights of those who wish to, but who are physically incapable of, bringing their lives to an end and, on the other, the interests of the community as a whole. Section 2(1) is a yoke from which the appellants yearn to be free. No one has offered a reason that the interests of the community should outweigh that earnest desire beyond that the sanctity of life entails its inviolability by an outsider as Hoffmann LJ put it in Airedale NHS Trust v Bland [1993] AC 789, 831. But what does that mean? A person who is prepared to assist someone who is physically incapable of bringing about the end of his life can hardly be described as an outsider. More importantly, is the sanctity of life protected or enhanced by insisting that those who freely wish to but are physically incapable of bringing their lives to an end, should be required to endure untold misery until a so called natural death overtakes them? I agree with Lord Neuberger that if the store put on the sanctity of life cannot justify a ban on suicide by the able bodied, it is difficult to see how it can justify prohibiting a physically incapable person from seeking assistance to bring about the end of their life. As one of the witnesses for one of the interveners, the British Humanist Association, Professor Blackburn, said, there is no defensible moral principle in denying the appellants the means of achieving what, under article 8 and by all the requirements of compassion and humanity, they should be entitled to do. To insist that these unfortunate individuals should continue to endure the misery that is their lot is not to champion the sanctity of life; it is to coerce them to endure unspeakable suffering. In paras 9094 of his judgment Lord Neuberger considers an argument based on rather different moral considerations. As he has pointed out, this was not covered in the submissions made to the court. It is to the effect that while it may be morally acceptable for a person to set up a system that would allow someone to bring about his death, it is morally unacceptable that an assister should carry out the act which causes the death. It may be true, as Lord Neuberger has said, that the law makes a significant difference between the two situations. But if there are sufficient safeguards in place to ensure that the outcome represents the voluntary, clear, settled and informed wish of the assisted person (and this must underpin the assistance in either form), I question whether there is as clear a moral distinction as Lord Neuberger seeks to draw. If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someones death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assisters aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloveds lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye. Quite apart from the lack of any rational connection between the terms of section 2(1) and its aims, and its failure to do no more than necessary to achieve those aims, I would in any case make a declaration of incompatibility on the basis that it does not strike a fair balance between the appellants rights and those of the community. The second appeal Having concluded that section 2(1) is incompatible with ECHR, I am driven to conclude that it cannot be transformed into a condition of compatibility by guidelines issued by the Director of Public Prosecutions. Even if, as a matter of practical application, the section could be operated in a way that did not give rise to breach of an individuals Convention rights, this could not redeem it from its state of incompatibility. If a provision of an Act of Parliament is incompatible with an applicants Convention right, this is a matter for Parliament. It is an elementary constitutional principle that the executive cannot correct the meaning out of an Act of Parliament. As Lord Browne Wilkinson said in R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, 552: It is for Parliament, not the executive, to repeal legislation. That elementary principle is founded in turn on the distinct powers and responsibilities of Parliament and the executive. These are clearly reflected in the scheme of the Human Rights Act, which above all treats legislation and executive action entirely separately. Its treatment of primary legislation is self contained: if it is incompatible, the court must issue a declaration of incompatibility. There is no scope for avoiding that obligation by requiring an executive agency to apply the incompatible provision in a way that avoids an actual violation of the Convention right. The ethos of the Human Rights Act is to direct remedies to the true source of the incompatibility. The court cannot avoid recognition of the incompatibility by having executive guidance reworked. I would therefore allow the Directors appeal and dismiss Martins cross appeal.

UK-Abs

These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (the Convention), and whether the code published by the Director of Public Prosecutions (the DPP) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Until 1961 suicide was a crime in England and Wales and encouraging or assisting a suicide was therefore also a crime. By section 1 of the Suicide Act 1961, suicide ceased to be a crime. However, section 2 of that Act (Section 2) provided that encouraging or assisting a suicide remained a crime, carrying a maximum sentence of 14 years in prison, but that no prosecutions could be brought without the permission of the DPP. Section 2 was amended by Parliament in 2009, but its basic effect remains unchanged. Following a decision of the House of Lords in 2009, the DPP published Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide (the 2010 guidelines) setting out his policy in relation to prosecutions under Section 2. In the first appeal, Mr Nicklinson suffered a catastrophic stroke some nine years ago, since when he was completely paralysed, save that he could move his head and his eyes. For many years, he had wanted to end his life, but could not do so without assistance, other than by self starvation, a protracted, painful and distressing exercise. He wanted someone to kill him by injecting him with a lethal drug, but if necessary he was prepared to kill himself by means of a machine invented by a Dr Nitschke which, after being loaded with a lethal drug, could be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer. Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his right to a private life under article 8 of the Convention (Article 8). The High Court refused Mr Nicklinson both forms of relief; he then declined all food and died of pneumonia on 22 August 2012. Mr Nicklinsons wife, Jane, was then added as a party to the proceedings and pursued an appeal. Mr Lamb was added as a claimant in the Court of Appeal. Since a car crash in 1991, Mr Lamb has been unable to move anything except his right hand. His condition is irreversible, and he wishes to end his life. He applied for the same relief sought by Mr Nicklinson. The Court of Appeal dismissed the appeal brought by Mr Nicklinson and Mr Lamb. In the second appeal an individual known as Martin suffered a brainstem stroke in August 2008; he is almost completely unable to move and his condition is incurable. Martin wishes to end his life by travelling to Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. Martin began proceedings seeking an order that the DPP should clarify, and modify, his the 2010 Policy to enable responsible people such as carers to know that they could assist Martin in committing suicide through Dignitas, without the risk of being prosecuted. Martins claim failed in the High Court, but his appeal was partially successful, in that the Court of Appeal held that the 2010 Policy was not sufficiently clear in relation to healthcare professionals. Mrs Nicklinson and Mr Lamb have appealed to the Supreme Court in the first appeal and the DPP has appealed and Martin has cross appealed in the second appeal. The Supreme Court, by a majority of seven to two dismisses the appeal brought by Mr Nicklinson and Mr Lamb. It unanimously allows the appeal brought by the DPP, and dismisses the cross appeal brought by Martin. Each of the nine Justices gives a judgment. On the first appeal, the Supreme Court unanimously holds that the question whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdoms margin of appreciation, and is therefore a question for the United Kingdom to decide. Five Justices (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) hold that the court has the constitutional authority to make a declaration that the general prohibition on assisted suicide in Section 2 is incompatible with Article 8. Of those five, Lord Neuberger, Lord Mance and Lord Wilson decline to grant a declaration of incompatibility in these proceedings, but Lady Hale and Lord Kerr would have done so. Four Justices (Lord Clarke, Lord Sumption, Lord Reed and Lord Hughes) conclude that the question whether the current law on assisting suicide is compatible with Article 8 involves a consideration of issues which Parliament is inherently better qualified than the courts to assess, and that under present circumstances the courts should respect Parliaments assessment. On the second appeal, the Supreme Court unanimously allows the DPPs appeal. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case are all proper and constitutionally necessary features of the system of prosecution in the public interest. In light of the Supreme Courts conclusion on the second appeal, Martins cross appeal does not arise. The first appeal: is the present law on assisting suicide incompatible with Article 8? The Supreme Court unanimously holds that, according to the case law of the European Court of Human Rights, the question whether to impose a general ban on assisted suicide lies within the margin of appreciation of the United Kingdom [66, 154, 218, 267, 339]. Whether the current law is incompatible with Article 8 is, therefore, a domestic question for the United Kingdom courts to decide under the Human Rights Act 1998. It is also the unanimous view of the court that Section 2 engages Article 8, as it prevents people who are physically unable to commit suicide without assistance from determining how and when they should die. Accordingly, it can only be a justified interference if it satisfies the requirements of Article 8(2), ie that it is necessary in a democratic society for one or more of the purposes specified in that article, which in the present context would be for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others [79, 159, 216, 335]. Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson hold that, within the constitutional settlement of the United Kingdom, the court has the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide [76, 191, 299, 326]. Lord Neuberger, Lord Mance and Lord Wilson conclude that, while the question of assisted suicide is a difficult, sensitive and controversial issue on which great significance will be attached to the judgment of the democratically informed legislature, this does not mean that the legislative judgment is necessarily determinative [76, 191]. However, while the sensitive and controversial nature of this issue does not justify the court ruling out the possibility that it could make a declaration of incompatibility, it would be inappropriate for a court to decide whether Section 2 is incompatible with Article 8 before giving Parliament the opportunity to consider the position in the light of this judgment [116]. The main justification advanced for an absolute prohibition on assisted suicide is the perceived risk to the lives of vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so [81, 171]. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way would arguably provide greater and more satisfactory protection for the vulnerable, than a system which involves a lawyer from the DPPs office inquiring, after the event, whether the person who had killed himself or herself had such a wish [108, 186]. The interference with Mr Nicklinsons and Mr Lambs Article 8 rights is grave and the arguments in favour of the current law are by no means overwhelming [111]. However, even had it been appropriate to issue a declaration of incompatibility at this time, Lord Neuberger, Lord Mance and Lord Wilson would not make a declaration in these proceedings. In the courts below the main focus was on Mr Nicklinsons submissions that necessity should be recognised as a defence to murder, whereas before the Supreme Court the case advanced was that a machine like Dr Nitschkes would offer a feasible means of suicide for those who have an autonomous wish but require assistance to do so. They are not confident that the court has the necessary evidence on, or that the courts below or the Secretary of State has had a proper opportunity to address, this issue [119 121, 153]. Lady Hale and Lord Kerr would have issued a declaration of incompatibility. It is clear that Article 8 confers a right on an individual to decide by what means and at what point his or her life will end, provided that he or she is capable of freely reaching a decision. They hold that, in making no exception for those whose expressed wish to die reflects an autonomous desire rather than undue pressure, the current ban on assisting suicide is incompatible with Article 8 [300, 326]. Lady Hale draws attention to the similarity between a procedure for identifying those who have made such an autonomous decision but require some help to carry it out and other life and death decisions currently made in the Family Division of the High Court and the Court of Protection. Lord Kerr emphasises that when courts make a declaration of incompatibility, they do precisely what Parliament, through the Human Rights Act 1998, has empowered them to do, and remit the issue to Parliament for a political decision informed by the courts view of the law [343]. The remission of the issue to Parliament does not involve the court making a moral choice which is properly within the province of the democratically elected legislature [344]. Lord Kerr would also hold that there was no rational connection between the aim of Section 2(1) and the interference with the Article 8 right [350]. Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke accept that the courts have jurisdiction under the Human Rights Act to determine whether the current universal ban on assisting suicide is compatible with Article 8, but consider that the question turns on issues which Parliament is in principle better qualified to decide, and that under present circumstances the courts should respect Parliaments assessment. The question requires a judgment about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from direct or indirect pressure to do so. It is unlikely that the risk of such pressure can ever be wholly eliminated. Therefore the real question is how much risk to the vulnerable is acceptable in order to facilitate suicide by others who are free of such pressure or more resistant to it. This involves important elements of social policy and a moral value judgment, which are inherently more suitable for decision by Parliament as the representative organ of the constitution. This is for three reasons: (1) the issue involves a choice between two fundamental but mutually inconsistent moral values, the sanctity of life and the principle of autonomy, which are sensitive to a societys most fundamental collective moral and social values and upon which there is no consensus in our society, (2) Parliament has made the relevant choice on a number of occasions in recent years, and (3) the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas in a manner which allows all interests and opinions to be expressed and considered [228 232]. The second appeal: is the 2010 Policy lawful? The Supreme Court unanimously allows the DPPs appeal. Section 2(4) of the Suicide Act 1961 precludes any prosecution of a person who has allegedly contravened Section 2 without the DPPs consent [39]. It is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy [141]. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, are all proper and constitutionally necessary features of the system of prosecution in the public interest [249, 271]. During these proceedings, counsel for the DPP indicated that under the 2010 Policy a stranger who is not profiteering from his or her action, but assisting to provide services which, if provided by a close relative, would not attract a prosecution, was most unlikely to be prosecuted. The Director will be able to consider further whether that indication should stand and whether, if so, the 2010 Policy needs amendment, without it being appropriate to order her to undertake any such review [146, 193, 251 and 323]. In light of the courts conclusion on the second appeal, Martins cross appeal does not arise. Further observations Lord Sumption summarises [255(2), (3) and (4)] the principal respects in which the law already allows for the alleviation of suffering in the terminally ill, in view of the fact that they appear to be widely misunderstood. These paragraphs are specifically endorsed by Lord Neuberger [137], Lady Hale [324] and Lord Mance [194].

Following a trial before HHJ Miller QC and a jury at Belfast Crown Court, Raymond Brownlee was convicted on 1 June 2012 of a number of offences including false imprisonment, making threats to kill and wounding with intent. He had been represented by senior and junior counsel until the close of the prosecutions case. But at that stage in the trial, differences arose between Mr Brownlee and his legal team. Initially, senior counsel intimated to the trial judge that he felt professionally compromised and had to withdraw from his representation of the accused. When the judge put this to Mr Brownlee, he said that he did not want counsel to withdraw from representing him and that he believed that things had been perhaps taken up the wrong way. At this point his solicitor intervened to say that he felt that the situation was not irretrievable. On hearing this, the learned judge decided to give the solicitor the opportunity to consult with his client over the lunch adjournment. After lunch, Mr Brownlees solicitor informed the court that his client had dismissed his legal team. The judge asked Mr Brownlee if he was to take it that he wished to dispense with the services of the solicitor and the barristers who had been acting for him. Mr Brownlee replied that he did and the judge indicated that he intended to proceed with the trial. He did not permit the prosecution to close the case to the jury but asked the accused man whether there was anything that he wished to say. Having been informed that there was nothing which Mr Brownlee wished to say, the judge proceeded to charge the jury and, after deliberations, they returned the guilty verdicts. They also found the defendant not guilty on three further counts, on one of these by direction of the judge. The case was adjourned in order to permit the defendant to retain the services of new solicitors and counsel. New solicitors came on record for Mr Brownlee on 29 June 2012. On 3 July 2012 the judge extended the legal aid certificate which he had granted in favour of the defendant to include senior counsel as well as junior counsel and solicitors. That decision was taken on foot of representations made to the judge that the sentencing exercise would be complex. The offences were grave and the pre sentence probation report suggested that the accused man was a dangerous offender and it foreshadowed an indeterminate or extended sentence as the possible disposal. Correspondence was then exchanged between the accuseds solicitors and the Northern Ireland Legal Services Commission (LSC). The Department of Justice is the sponsor department of LSC. On 4 September 2012 the LSC wrote to Mr Brownlees solicitors informing them that the fees payable for the sentencing hearing were fixed according to paragraph 15 of Part IV of Schedule 1 to the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 (the 2005 Rules SR 2005/112), as amended by the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2011 (the 2011 Rules SR 2011/152). Despite the fact that counsel who then appeared for the accused was not counsel who had represented him at trial, only the fees stipulated in the 2011 Rules were payable. In this instance, these were 100 for solicitor, 120 for junior counsel and 240 for senior counsel. No fees were payable in respect of any preparatory work that counsel would be required to undertake. It was pointed out that a substantial amount of preparation would be required in order to properly represent Mr Brownlee during the sentencing exercise. Consideration of the transcripts for five days of evidence and submissions would be necessary. A decision would have to be taken as to whether a consultant psychiatrist should be engaged. Detailed examination of the pre sentence report was essential. Considerable legal research would be required. The LSC replied to the accuseds solicitors and informed them that no exception could be made to the level of the fixed fees prescribed by the 2011 Rules. The exceptionality provision contained in the 2005 Rules had been expressly removed by the 2011 Rules and there was therefore no possibility of departing from the stipulated fees. Following this exchange of correspondence, Mr Brownlees solicitors tried to engage counsel to act for him on the sentencing hearing. This proved impossible. Despite approaching various counsel, the chairman of the Bar Council and the Bars pro bono unit, the accuseds solicitors have been unable to obtain the services of senior or junior counsel. They have been consistently informed that the absence of any allowance for preparation in the fixing of the fee level makes it unfeasible to act on behalf of the appellant for the payment specified. The statutory scheme Article 36(3) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (SI 1981/228 (NI 8)) contains the power to make rules for the purpose of carrying into effect Part III of the Order whose title is Free Legal Aid in Criminal Proceedings. As amended, article 36(3) provides: [The Department of Justice], after consultation with the Lord Chief Justice, the Attorney General and, where appropriate, the [relevant Rules Committee], and with the approval of [the Department of Finance and Personnel] may make rules generally for carrying [Part III of the 1981 Order] into effect and such rules shall in particular prescribe (d) the rates or scales of payment of any fees, costs or other expenses which are payable under [Part III]. Article 37 sets out, in a non exhaustive list, the matters to which the rule making body must have regard. Again as amended, it provides: The [Department of Justice] in exercising any power to make rules as to the amounts payable under this Part to counsel or a solicitor assigned to give legal aid, and any person by whom any amount so payable is determined in a particular case, shall have regard, among the matters which are relevant, to (a) the time and skill which work of the description to which the rules relate requires; (b) the number and general level of competence of persons undertaking work of that description; (c) the cost to public funds of any provision made by the rules; and (d) the need to secure value for money, but nothing in this Article shall require him to have regard to any fees payable to solicitors and counsel otherwise than under this Part. It can be seen, therefore, that a clear enjoinder is given to the rule making body to devise rules that will allow payment to be made which, among other things, reflects the time and skill necessary to carry out particular types of criminal legal aid work. It necessarily follows that rules which do not cater for payment on the basis of the skill and time required for such work are ultra vires the enabling power. The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 contained provisions which permitted payment to be made above the standard rate if a case presented exceptional difficulty. Rule 11(4) provided: (4) Where an advocate considers that, owing to the exceptional circumstances of the case (or part of the case which is the subject matter of the application), the amount payable by way of fees in accordance with paragraphs (2) and (3) [which made provision for the payment of standard fees] would not provide reasonable remuneration for some or all of the work involved, he may apply to the Commission for a Certificate of Exceptionality and the Commission may, in its discretion, grant such application in accordance with paragraph (5). Rule 11(5) contained a list of matters to be taken into account in deciding whether a Certificate of Exceptionality should be granted. Again it was made clear that this was a non exhaustive list. Rule 11(5) provided: When considering an application for a Certificate of Exceptionality, the Commission shall have regard, among the matters which are relevant, to (a) whether the issues involved were significantly more complex than other cases involving the same offence or Class of Offence; (b) whether the volume of evidence (including any un used evidentiary material) was significantly greater than that in other cases involving the same offence or Class of Offence; (c) any novel issues of law which were involved in the case; and (d) any new precedents established in the case Under the 2005 Rules, therefore, it would have been open to the new counsel who had been retained for the sentencing exercise to apply for a Certificate of Exceptionality on the grounds that the issues were significantly more complex for them by reason of the fact that they had not previously been involved in the case and that a substantial amount of preparation would be required on that account. The exceptionality provision was swept away by the 2011 Rules. Rule 12 of these Rules provided that paragraphs (4) to (8) of rule 11 of the 2005 Rules were to be omitted. Paragraphs (4) and (5), whereby an uplift in fees could be applied for, were no longer available for that purpose. The decision of Treacy J Mr Brownlee applied for judicial review of the departments decision not to allow any modification of the standard fees to be paid for the sentencing hearing in his case. It was argued that the refusal to allow any payment for the extensive preparatory work that would inevitably be required made it impossible for him to retain counsel. This amounted to a denial of access to justice. Treacy J agreed. At para 47 of his judgment he said: It is clear to me that the inflexibility of the impugned aspect of the scheme is preventing the applicant from being able to make his right to legal aid effective. This is a consequence of a blanket measure which makes no allowance for the exceptional and unusual circumstances which have arisen. Whilst there is much to be said for a fixed payment scheme such a scheme must not undermine the principle that lawyers should receive fair remuneration for the work they are required to do. The critical defect here is the inflexibility of the Regulations and the inability of the scheme to enable adjustments to be made even in exceptional and unusual cases where the failure to do so would lead to injustice. The judge made an order of mandamus requiring the respondent, the Department of Justice, to take all necessary steps to make the applicant's right to legal aid effective. He found that a modest adjustment to the scheme under the amended 2005 Rules was required or that some other provision had to be made to deal with the exceptional and unusual circumstances of the case and to avoid the injustice that would otherwise result. The Court of Appeal decision The Department of Justice appealed Treacy Js order. The Court of Appeal allowed the appeal. Morgan LCJ, delivering the judgment of the court, acknowledged that inadequate remuneration within a legal aid scheme can give rise to a breach of a defendants right to a fair trial under article 6 of the European Convention on Human Rights and Fundamental Freedoms, if an accused consequently finds it impossible to obtain the services of an appropriate lawyer to represent him. At para 33 of his judgment, however, the Lord Chief Justice said this: the appellant was provided with legal representatives who conducted the trial on his behalf until it was near its end at which stage he dismissed them. There is nothing to indicate that those representatives would not have continued to act in the sentencing hearing if they had not been dismissed and they, unlike newly instructed counsel, had benefitted from the overall trial fee payable. In fact, it is clear from a transcript of the hearing before HHJ Miller QC that it was senior counsel who had initiated the process of withdrawal from the case. He told the judge that he felt professionally compromised and could no longer act for Mr Brownlee. At that stage, the appellant did not want counsel to withdraw. There can be no question of counsel having been dismissed by the appellant at that point. It was only after lunch, having been given time to consult with his solicitor, that Mr Brownlee said, in answer to the judges direct question, that he wanted to dispense with counsels services. There was no further investigation of the circumstances in which that decision had been reached. It is entirely possible that the appellant had concluded that he could no longer insist on counsel representing him when counsel had indicated that he was professionally compromised. Despite the Court of Appeals finding to this effect, it is by no means clear that counsel would indeed have continued to act but for the fact that they had been dismissed by the appellant. As it happens, in para 36 of the judgment, (which is quoted below), the Court of Appeal foresaw that the sentencing judge might wish to explore further the reasons that the appellant had decided to dispense with the services of his legal team. It must be presumed that it was felt that such a further investigation might have borne directly on the question of whether, if the appellant was not legally represented, he could have received a fair trial. Notwithstanding this, it appears that the Court of Appeals conclusion that the appellant had dismissed his legal team for no good reason was central to their decision on the appeal, for at para 36 Morgan LCJ said this: An accused who loses his legal representation in the course of a trial through no fault of his own should be given the opportunity to obtain alternative representation. Where he cannot do so because of the inadequacy of legal aid funding a breach of article 6 may well follow. The inflexibility of these Rules potentially raises the possibility of such an outcome. In this case, however, the material before us suggests that the accused dismissed his counsel and solicitors without any reasonable explanation at a late stage of his trial. Whether the circumstances of this case are such that even then a breach of article 6 would arise from the absence of an ability to secure further representation by counsel necessitates a careful review of the issues in the sentencing exercise. The learned trial judge will know the factual basis for the conviction, having heard the evidence. He will have the opportunity to hear from the author of the pre sentence report and to see the psychiatric report prepared for the appellant if it is relied upon. He may wish to explore further the reasons for the decision by the appellant to dispense with his original legal team. He will be in a position to judge the materiality of previous convictions against the circumstances of the offence and the reports. All of those matters indicate that the decision as to whether the absence of legal representation gives rise to a breach of article 6 is a highly fact specific exercise which should be decided by the trial judge. The Court of Appeal clearly had it in mind that the trial judge should determine whether the matters which came up during the sentencing hearing would give rise to a breach of article 6 and that that determination should be made as and when those matters became apparent in the course of the hearing. But the judge had already decided that the issues in the case warranted the grant of a legal aid certificate for senior and junior counsel. This suggests that he had already concluded that, if the appellant was to have a fair hearing, it was essential that he be legally represented. In effect, therefore, the Court of Appeals conclusion would have required the judge to revisit a decision which he had already made. Quite apart from this, it is not difficult to envisage difficulties that a trial judge would face if he or she had to decide, on an ad hoc basis, whether legal representation for the sentencing hearing was required, if that decision was to be made in the course of the hearing itself. It is clear from the Court of Appeals judgment that they also considered that the appellants contesting of the departments refusal to adjust the standard fee constituted an impermissible collateral challenge to the criminal proceedings. In para 37 of his judgment the Lord Chief Justice referred to the decision in R (Kebilene) v Director of Public Prosecutions [2000] 2 AC 326 where the House of Lords had held that criminal proceedings should not be subjected to delay by collateral challenges, and that as a general rule the courts would refuse to entertain a judicial review application where the complaint could be raised within the criminal trial and appeal process. The circumstances in Kebilene were, of course, markedly different from those in the present case. In Kebilene an application had been made to restrain a prosecution on the basis that its continuation would constitute a violation of article 6. The House of Lords held that this was an issue which could be dealt with at the trial and, if necessary, on appeal. Here the appellant does not seek to restrain completion of the criminal process. On the contrary, he wishes to have legal representation in order to bring the proceedings to a close. The trial judge is not in a position to undertake a judicial review of the Department of Justice decision to refuse to increase the fee payable for the sentencing hearing. Unlike the position in Kebilene, therefore, the violation of the article 6 right cannot be cured or catered for in the course of the sentencing hearing. I do not accept therefore that the judicial review proceedings constituted a collateral challenge to the criminal process. It is, of course, true that the judge could have considered again the circumstances leading to the withdrawal of counsel who had originally represented the appellant. It is also true that, on that reconsideration, the judge could have confirmed his decision to grant a defence certificate for senior and junior counsel. But, from the point of view of the appellant, he was entitled to assert that the judges earlier determination of this question was (and could only be) consistent with the conclusion that he had not forfeited the right to be legally represented. Indeed, in a case such as the present, where a defendant faces the prospect of a significant prison sentence (in the appellants case an extended or even an indeterminate sentence is a distinct possibility) and where he wishes to be legally represented, a determination by a judge that the sentencing hearing should take place without legal representation could only be made if he had concluded that the defendant had forfeited his right to such representation. In allowing the Department of Justices appeal, the Court of Appeal relied on the decision in R v UIcay [2007] EWCA Crim 2379. That case was concerned with regulation 16 of the Criminal Defence Service (General) (No 2) Regulations 2001 (SI 2001/1437) which provides that any application for a change of representative may be refused or granted by the court to whom it is made on grounds which are set out in the regulation. One of the consistent requirements of regulation 16(2) (a)(i) (iv) is that a legal representative should provide details of the nature of the duty which he believes requires him to withdraw from the case, or the nature of the breakdown in the relationship between him and his client. At para 31 of the judgment the President of the Queens Bench Division said: The purpose of this part of the Regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to, the fact that the lawyer offers sensible, but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer's retainer for improper motives, the court is not bound to agree to an application for a change of representation It is implicit in this passage that the court would refuse an application for change of representation only where it had decided that the accused had terminated the lawyers retainer for improper motives or was seeking to manipulate the legal aid system. In the present case, the judge cannot have considered that the appellant was embarked on such a course because he granted a legal aid certificate for the sentencing hearing. The Court of Appeal in the present case said that the grant of a new legal aid certificate should be taken into account but that this on its own does no more than what was said at para 36 of Ulcay. This is the passage from that paragraph which the Lord Chief Justice quoted in support of his conclusion as to the limited relevance of the grant of a new legal aid certificate: The fact that the judge was prepared to transfer the legal aid certificate does not mean that he was saying that, whatever the consequences to the trial, new representation must be obtained, and that thereafter he would conduct the trial in accordance with whatever applications were made by new counsel. The clear implication of what the judge decided was that whilst he was content for new representation to be obtained at public expense and no doubt he hoped that it would, nevertheless he could not and did not abrogate his responsibilities to the interests of justice in the overall context of the trial and its proper conduct and management. It is important to keep in mind the background against which these observations were made. The appellant in Ulcay had not only withdrawn instructions from the legal team that had represented him throughout the trial until the close of the prosecution case. He had purported to withdraw admissions which he had already made in the course of the trial. In particular, he had asserted that his was not the voice heard on tapes of intercept evidence. He had previously accepted that it was indeed his voice. The new legal representatives who had been engaged to act for Ulcay asked for an adjournment of some weeks. The trial had begun on 5 September 2005 and the withdrawal of original counsel took place on 18 October. The appellant wanted the trial to be aborted and to begin again before a new jury. In these circumstances it is not surprising that the trial judge refused to adjourn the trial nor, when he was told by counsel that they could not represent the appellant unless an adjournment of some weeks was granted, that he ordered that the trial must continue. In the present case there is no question of the appellant wishing to manipulate the system by deferring the sentencing hearing. Since he has been convicted and is in custody awaiting sentence, it is obviously in his interests to have that part of the process completed. The observations in para 36 of Ulcay relate to an attempt by the appellant to have his trial aborted. This does not arise on the present appeal. In these circumstances, the fact that the trial judge granted a further legal aid certificate is indicative of his view that the engagement of a new legal team was not associated with an attempt by the appellant to manipulate the trial process. Events following the hearing of the appeal After the Court of Appeal had heard the Departments appeal but before judgment was delivered, a consultation document was published as part of a review of the 2005 Rules. A section of this document dealt with the situation that had arisen in the appellants case. At para 3.6 of the document the following appeared: One area where the 2005 Rules were challenged recently by judicial review proceedings was on their alleged failure to provide appropriate remuneration for a sentence hearing. This arose because the defendant dismissed his counsel just before conviction and required new counsel to represent him during sentencing. However, he was unable to secure the services of counsel on the basis that the fees payable did not provide sufficient remuneration for the work involved. Essentially, this was because the new counsel would have to undertake an amount of preparation work to familiarise themselves with the case before being in a position to properly represent the defendant and, in these circumstances, counsel considered that the fees available did not provide sufficient remuneration. The circumstances which caused this situation to arise were highly unusual and entirely unforeseen. This was an unambiguous acknowledgment by the Department that it had not anticipated that new legal representatives might be required to take over at the sentencing stage from those who had appeared for the accused at trial. More importantly, the consultation document implicitly accepted that the 2005 Rules, in the form that they existed after the changes brought about by the 2011 Rules, had failed to cater for the proper remuneration of counsel briefed for the first time to appear for an accused person after the trial had ended. This much is clear from a section in the document headed Omissions in the 2005 Rules para 3.16 of which stated: the Department is content that it should make adjustments to the sentence hearing fee contained in the 2005 Rules, where a new legal team is instructed following a defendants conviction, to better reflect the amount of work involved in preparing for and representing the defendant at the hearing. To achieve this, the Department is proposing to set fees, which could be applied retrospectively, that would be triggered by the volume of evidence served on the defendant by the Public Prosecution Service in relation to his case. The Department made it clear that, as well as considering responses to the consultation document, it would take into account the judgment of the Court of Appeal and might amend its proposals in relation to sentence hearing fees in light of it. The consultation exercise took place between 5 July 2013 and 16 August 2013. Submissions were received from the Bar Council, the Law Society and LSC. In November 2013 the Department published its report on the consultation. It set out its conclusion in para 3.2 (sic) of the report as follows: In light of the Court of Appeal judgment, the Department is content that it should proceed and introduce enhanced sentence hearing fees in the 2005 Rules, where a new legal team is instructed following a defendant's conviction, to better reflect the amount of work involved in preparing for and representing the defendant at the sentence hearing. To achieve this, the Department considers that it would be appropriate to introduce the fees that were the subject of public consultation Draft amendment rules were shown to this court in the course of the hearing of the appeal on 5 December 2013. We were informed that these were to be considered imminently by the Justice Committee of the Northern Ireland Assembly and that it was planned that they should come into force in January 2014. It was proposed that the rules should operate retrospectively. Rule 5 of the draft rules intimates an amendment of para 15 of Schedule 1 to the 2005 Rules by the insertion of a new para 15B which will make provision for the payment of additional fees for preparatory work undertaken by a new legal representative for a sentencing hearing. Discussion The assessment and payment of fees to a legal representative who has replaced another at the sentencing stage of criminal proceedings was, self evidently, a material consideration which should have been taken into account by the rule making body which introduced amendments to the 2005 Rules by the 2011 Rules. It has been frankly acknowledged that this situation was not adverted to at the time of the making of the 2011 Rules. There was therefore an admitted failure to have regard to a relevant factor and, on that account alone, judicial review will lie of the decision to introduce the 2011 Rules without making provision for the payment of fees which would properly reflect the preparatory work which a legal representative, new to the case at the sentencing stage, would have to undertake. Since article 37 of the 1981 Order requires the rule making body to devise rules that prescribe the payments to be made which reflect the time and skill necessary to carry out particular types of criminal legal aid work, a failure to make provision for remuneration of preparatory work by a new legal representative is, to that extent, ultra vires the enabling provision. This situation is not relieved by the circumstance that the rule making body must also have regard to the cost to public funds of any provision made by the Rules; and to the need to secure value for money. Those factors complement the obligation to have regard to the time and skill required to undertake particular forms of work; they do not extinguish it. At the conclusion of the hearing of the appeal, this court announced that it would allow the appeal for reasons to be given later. This judgment contains those reasons. At the time that the appeal was allowed, it was stated that we had concluded that a declaration should be substituted for the order of mandamus made by Treacy J. When he granted judicial review an order of mandamus was appropriate. Now that the Department has accepted that the 2005 Rules require to be amended to allow for payment for preparatory work undertaken by a new legal representative, mandamus is no longer necessary. The declaration will be to the effect that the failure of the rule making body to take account of the need to provide for such payment rendered the Rules to that extent unlawful and ultra vires their powers under article 36 of the 1981 Order. It was urged on this court that a failure to include in the Rules a general exceptionality provision and the prescription of fixed fees for every form of payment for legal work undertaken built into the Rules an inherent defect. The amount properly payable to reflect the time and skill required in every conceivable situation demanded the inclusion of a dispensing provision to cater for exceptional cases of which this was merely one instance. The need for a measure of flexibility, or rather, the perils of inflexibility, have been well recognised in Buchanan and Advocate General for Scotland v McLean [2001] SCCR 475, also reported as McLean v Buchanan [2001] 1 WLR 2425. The potential for injustice inherent in a fixed payment scheme was expressly referred to by Lord Hope in para 45 of his opinion in that case. And at para 71, Lord Clyde said this about the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, (SI 1999 No 491): The most obvious, but perhaps not the only, risk may arise from the lack of flexibility in the present Regulations. No allowance is made for any unusual or exceptional circumstances. The requirements of fairness in judicial proceedings are rarely, if ever, met by blanket measures of universal application. Universal policies which make no allowance for exceptional cases will not readily meet the standards required for fairness and justice. Lord Clyde acknowledged that his observations went further than was required to decide the issue before the Privy Council in that case. So also in the present appeal. But his words contain a salutary warning. While we are satisfied that the new draft rules, since they are to be applied retrospectively, meet the appellants complaint, it cannot be predicted with confidence that a combination of circumstances, at present unforeseen, might not give rise to a similar challenge to that which the appellant has successfully made to the Rules in the present case.

UK-Abs

This appeal concerns the provision of Legal Aid in criminal proceedings in Northern Ireland. Raymond Brownlee was convicted on 1 June 2012 of a number of offences including false imprisonment, making threats to kill and wounding with intent. He had been represented by senior and junior counsel until the close of the prosecutions case. But differences arose at that point between Mr Brownlee and his legal team, which resulted in their no longer acting for him. The judge indicated that he intended to proceed with the trial. He did not permit the prosecution to close the case to the jury but asked Mr Brownlee whether there was anything that he wished to say. Having been informed that there was not, the judge charged the jury, who returned the guilty verdicts. They also found Mr Brownlee not guilty on three further counts, on one of these by direction of the judge. The case was adjourned to permit Mr Brownlee to instruct new solicitors and counsel. New solicitors came on record for Mr Brownlee on 29 June 2012. On 3 July 2012, following representations made on Mr Brownlees behalf, the judge extended the legal aid certificate which he had granted to include senior counsel as well as junior counsel and solicitors. It had been submitted that the sentencing exercise would be complex and might result in an indeterminate or extended sentence. Consequently, a substantial amount of preparation would be required to properly represent Mr Brownlee during the sentencing exercise. But the fees payable by the Legal Services Commission (LSC) for the sentencing hearing were fixed by the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 (the Rules) at 100 for a solicitor, 120 for junior counsel and 240 for senior counsel. No fees were payable in respect of any preparatory work that counsel would be required to undertake. A provision allowing for the payment of exceptional fees had been removed by an amendment in 2011. Mr Brownlees solicitors were unable to engage counsel to act for him on the sentencing hearing. They were consistently informed that the absence of any allowance for preparation in the fixing of the fee level makes it unfeasible to act on behalf of the appellant for the payment specified. Mr Brownlee applied for judicial review of LSCs decision not to allow any modification of the standard fees to be paid for the sentencing hearing in his case. Treacy J held that the consequent impossibility of retaining counsel amounted to a denial of access to justice. He made an order of mandamus (an order that instructs a party to do a particular thing) requiring the respondent, the Department of Justice (who are responsible for LSC), to take all necessary steps to make Mr Brownlees right to legal aid effective. The Department of Justice successfully appealed Treacy Js order. Morgan LCJ, delivering the judgment of the Court of Appeal, acknowledged that inadequate remuneration within a legal aid scheme can breach a defendants right to a fair trial under article 6 of the European Convention on Human Rights if an accused consequently finds it impossible to obtain the services of an appropriate lawyer to represent him. But this was a problem of Mr Brownlees own making, so that his sentencing process should not be hindered because of it. In fact, it is clear from a transcript of the trial that it was senior counsel who had initiated the process of withdrawal from the case. He told the judge that he felt professionally compromised and could no longer act for Mr Brownlee. At that stage, the appellant did not want counsel to withdraw. There can be no question of counsel having been dismissed by the appellant at that point. It was only after lunch, having been given time to consult with his solicitor, that Mr Brownlee said in answer to the judges direct question that he wanted to dispense with counsels services. After the Court of Appeal had heard the Departments appeal but before judgment was delivered, a consultation document was published as part of a review of the Rules, which implicitly accepted that they had failed to cater for the proper remuneration of counsel briefed for the first time to appear for an accused person after the trial had ended. Draft amendment rules were shown to this court in the course of the hearing of the appeal on 5 December 2013. These were expected come into force in January 2014 with retrospective effect. The new rules will make provision for the payment of additional fees for preparatory work undertaken by a new legal representative for a sentencing hearing. The Supreme Court unanimously allows Mr Brownlees appeal and declares that the rule making bodys failure to allow for new legal representatives to be paid for preparatory work was unlawful. At the conclusion of the hearing of the appeal, this court announced that it would allow the appeal for reasons to be given later. This judgment contains those reasons. The assessment and payment of fees to a legal representative who has replaced another at the sentencing stage of criminal proceedings was, self evidently, a material consideration which should have been taken into account by the rule making body which amended the Rules in 2011. This failure to have regard to a relevant factor justifies judicial review of the decision to amend the Rules in 2011 without making provision for the payment of fees that would properly reflect the preparatory work which a legal representative, new to the case at the sentencing stage, would have to undertake [32]. Article 37 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 requires the rule making body to devise rules prescribing payments to be made to reflect the time and skill necessary to carry out particular types of criminal legal aid work. A failure to make provision for remuneration of preparatory work by a new legal representative is therefore unlawful. The cost to public funds of any provision made by the Rules and the need to secure value for money complement this obligation rather than extinguish it [33]. This court concluded that a declaration should be substituted for the order of mandamus made by Treacy J. When he granted judicial review an order of mandamus was appropriate. Now that the Department has accepted that the Rules require to be amended to allow for payment for preparatory work undertaken by a new legal representative, mandamus is no longer necessary. The declaration will be that the failure of the rule making body to take account of the need to provide for such payment rendered the Rules to that extent unlawful [34].

In 1981 Samuel Brush worked as a postman. He was also a member of the Ulster Defence Regiment. Members of that regiment were frequently targeted by paramilitary groups then operating in Northern Ireland. Because of that Mr Brush was wearing light body armour and carrying a personal protection weapon when he was ambushed by two gunmen on 13 June 1981. The ambush took place in a remote area of County Tyrone, some four and a half miles from the village of Aughnacloy. Although suffering bullet wounds from the attack on him, Mr Brush managed to fire his gun at one of his assailants. One of the bullets which he fired struck one of the gunmen. Some time later that person was admitted to hospital in Monaghan which, despite the fact that it is in the Republic of Ireland, is not far from Aughnacloy. On his trial for the attempted murder of Mr Brush, it was held that the appellant was the man who had been admitted to that hospital and that he had been engaged in the attack and was guilty of attempted murder. Those findings and the appellants conviction of the attempted murder of Mr Brush are not under challenge in this appeal. The injuries that the appellant had sustained were serious. He was airlifted to a hospital in Dublin. There he underwent significant surgery. A bullet was removed from his body. This was handed to police and was later subjected to ballistic tests. Inevitably, as a result of the operation, there was substantial scarring of the patients torso. The results of the ballistic tests and the appearance of scarring on the appellants body were significant items of evidence on his trial. After a relatively short period of convalescence in Dublin, the appellant was returned to Monaghan General Hospital on 22 June 1981. Although he was thereafter under police guard, he managed to escape on 27 June and some time after that, he left the country. On 22 August 1983, a man calling himself Terence Gerard McGeough made an application for asylum in Sweden. The name, the date of birth, the place of birth and the next of kin that were given on the asylum application all matched those of the appellant. His Irish passport was submitted with the application. An expert gave evidence on his trial that the handwriting on the application form was that of the appellant. The trial judge expressed himself as satisfied that it was the appellant who had made the asylum application. Although it was not formally accepted by the appellant that he had made that application, this has not been disputed throughout the various hearings which have taken place. Nor has it been disputed that the form in which the application for asylum was made contained information to the effect that the appellant had become an operational member of the Irish Republican Army in early 1976 and that thereafter he was given increasing levels of responsibility. These led to his being assigned to take part in the attack on Mr Brush. He carried out that attack as a member of the Irish Republican Army. That group was a proscribed organisation throughout the time of the appellants admitted membership of it. The appellant was charged with offences of attempted murder and possession of a firearm. He was convicted of both. Neither of these charges is the subject of this appeal. On the basis of the material contained in the asylum application form, he was further charged with being a member between 1 January 1975 and 1 June 1978 of the Irish Republican Army contrary to section 19(1) of the Northern Ireland (Emergency Provisions) Act 1973. He was also charged with the same offence in relation to the period between 31 May 1978 and 14 June 1981, contrary to section 21(1) of the Northern Ireland (Emergency Provisions) Act 1978. He was convicted of those charges also. The proceedings The appellants trial on all four charges took place at Belfast Crown Court in November 2010 before Stephens J, sitting without a jury. The appellant did not give evidence. On 18 February 2011, the judge delivered judgment, convicting the appellant of all the offences with which he had been charged. The convictions on the first two counts, those of the attempted murder of Mr Brush and possession of a firearm, were based on the identification of the appellant as the man whom Mr Brush had shot. This is turn depended on a number of factors, including the name and age given by the person admitted to Monaghan hospital, the presence of a tattoo on the patients arm which matched that found on the appellant after his arrest, operation scars on the appellants body which were precisely where one would expect to find them in light of the surgery which had been carried out and the fact that ballistic tests carried out on Mr Brushs personal protection weapon had rifling marks which matched the bullet removed from the patient during the operation in Dublin. The judge also drew an adverse inference against the appellant because of his failure to give evidence or to account for the scarring on his body. An application had been made during Mr McGeoughs trial that the information that had been supplied when he sought asylum in Sweden should not be admitted in evidence. The application was made on two bases. Firstly, it was contended that the evidence should be excluded under article 76 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE) because it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Secondly, it was suggested that the admission of the evidence would offend the rule against self incrimination. Before ruling on the application to exclude the evidence, Stephens J heard the testimony of Mrs Helene Hedebris, a legal expert from the migration board in Sweden. She explained that an application for asylum is made to the police department. It is then transferred to the migration board. The board takes the decision on the application. There is a right of appeal from the boards decision. Mr McGeoughs application for asylum was rejected by the board. He exercised his right to appeal. His appeal was dismissed. Mrs Hedebris gave evidence that Sweden had a centuries old tradition of openness in relation to public documents. The only exception to this related to documents whose disclosure was forbidden by a specific secrecy code made under a Secrecy Act. While this code applied to files for asylum applications generally, it did not prohibit the disclosure of information from those files which was required for a criminal investigation unless the asylum application had been successful. In that event, material obtained in the course of an asylum application was not disclosed. This is not relevant in Mr McGeoughs case, however, because, as already noted, his application was refused and his appeal against the refusal was dismissed. There was therefore no reason under Swedish law to withhold the material from the prosecuting authorities in the United Kingdom. Mrs Hedebris said that the position about disclosure of such material was widely known in Sweden. The appellant had had the benefit of two lawyers advice, the first at the time of his application for asylum and the second when he appealed against the decision to dismiss his application. It was inconceivable that he had not been advised of the position. He could not have been in doubt when he made the application, that in the event of its not succeeding, the material that it generated would enter the public domain. In the course of the application by Mr McGeough to have the information contained in the application form excluded from evidence, it was drawn to the judges attention that if, in 2009, an individual applied in the United Kingdom for asylum, an immigration officer would give him, on what is described as a statement of evidence form numbered ASL 1123, the following explanation as to how his application would be treated: The information you give us will be treated in confidence and the details of your claim for asylum will not be disclosed to the authorities of your own country. However, information may be disclosed to other government departments, agencies, local authorities, international organisations and other bodies where necessary for immigration and nationality purposes, or to enable them to carry out their functions. Information may also be disclosed in confidence to the asylum authorities of other countries which may have a responsibility for considering your claim. If your asylum application is unsuccessful and you are removed from the United Kingdom, it may be necessary for us to provide information about your identity to the authorities in your own country in order to obtain travel documentation. Stephens J was also asked to consider paragraph 339IA of the Immigration Rules 1994. This provides that information supplied in support of an application (and the fact that an application had been made), would not be disclosed to the alleged actors of persecution of the applicant. The judge held that the undertaking contained in form ASL 1123 went further than was required by Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status (the Procedures Directive). He found that the relevant obligation (in article 22 of the Procedures Directive) was restricted to the disclosure of information for the purposes of examining individual cases. It did not restrict the disclosure of information for the purposes of undertaking criminal prosecutions. Since, in order to make the application for asylum, the appellant was not under compulsion to reveal the information that he did (and there was therefore no question of a breach of the rule against self incrimination); since the appellant must have been aware that the information that he disclosed would enter the public domain if the application was unsuccessful; and since there was nothing in Swedish law, the Procedures Directive or general public policy considerations which contraindicated the disclosure of the information to prosecuting authorities in the United Kingdom, the judge decided that the conditions necessary for the exercise of his power under section 76 of PACE were not present and he directed that the material produced by the appellant in making his asylum application should be admitted in evidence. It was on this material that the appellant was convicted on the third and fourth counts of membership of a proscribed organisation. On appeal to the Court of Appeal, the basis of the objection to the admission of the evidence was described in para 10 of the judgment of the Lord Chief Justice, Sir Declan Morgan: the appellant submitted that the learned trial judge should not have admitted the Swedish asylum materials. It was argued that assertions in such an application were inherently unreliable since applicants for asylum were liable to exaggerate the basis for their claims. Secondly, it was contended that these were admissions made without caution and the approach to their admission should correspond with the admission of statements made to police in similar circumstances. Thirdly, it was submitted that since it was necessary to set out the background to the appellant's asylum claim in this documentation these statements ought to be treated as statements made under compulsion. Lastly, the appellant argued that reliance on such statements would undermine the purpose of the Refugee Convention by creating a chill factor which would prevent deserving claimants disclosing valid circumstances for fear of subsequent victimisation in their home territory if the application failed. As well as article 22 of the Procedures Directive, the appellant relied on article 41 which stipulates that state authorities responsible for implementing the Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work. The Court of Appeal dismissed the appeal. In rejecting the arguments in relation to the admission of the Swedish material, the Lord Chief Justice observed that the evidence was lawfully obtained in Sweden and in the United Kingdom in accordance with the international conventions applicable at the time. The appellant was not under compulsion. There was no question, therefore, of the rule against self incrimination being engaged. The appellant had had legal advice in Sweden as to the effect of Swedish law. Under that law the asylum documents could properly be revealed to the authorities in another jurisdiction if the asylum application was unsuccessful. The arguments On the hearing of the appeal before this court, the appellant accepted that there was nothing in the Procedures Directive or the Immigration Rules which explicitly forbade the disclosure of information concerning applications for asylum. It was contended, however, that the clear purpose of the Directive was to encourage applicants for asylum to make full disclosure to the relevant authorities. In order that this be achieved, applicants should feel secure that the information that they supplied would not be revealed to state authorities in the country from which they had fled. It was acknowledged that the relevant instruments referred to the withholding of information from the actors of persecution but it was suggested that this reflected a broader public policy that all applicants for asylum should be encouraged to be candid and open in their applications. Candour depended on assurance that the information revealed would not be disclosed. Quite apart from the need to inspire applicants with confidence that the material would not be disclosed, there was, it was argued, a distinct public policy imperative which dictated that such material would not be used in criminal proceedings against the asylum seeker. Two principal grounds were advanced in support of this contention. First, it was pointed out that undertakings given to asylum seekers in the United Kingdom would preclude the disclosure of that material. Secondly, by analogy with provisions in the Children Act 1989, the appellant argued that where an applicant for asylum was effectively compelled to give information which exposed him to the possibility of criminal sanction, that disclosure should not be used in subsequent criminal proceedings. Discussion The need for candour in the completion of an application for asylum is self evident. But this should not be regarded as giving rise to an inevitable requirement that all information thereby disclosed must be preserved in confidence in every circumstance. Obviously, such information should not be disclosed to those who have persecuted the applicant and this consideration underlies article 22 of the Procedures Directive. It provides: Collection of information on individual cases For the purposes of examining individual cases, member states shall not: (a) directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum; (b) obtain any information from the alleged actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependants, or the liberty and security of his/her family members still living in the country of origin. As the appellant has properly accepted, there is no explicit requirement in this provision that material disclosed by an applicant for asylum should be preserved in confidence for all time and from all agencies. On the contrary, the stipulation is that it should not be disclosed to alleged actors of persecution and the injunction against its disclosure is specifically related to the process of examination of individual cases. The appellants case had been examined and his application had been refused. The trigger for such confidentiality as article 22 provides for was simply not present. The appellant is therefore obliged to argue that the need for continuing confidentiality in his case arises by implication from the overall purpose of the Directive. But neither article 22 nor article 41 provides support for that claim. Article 22 is framed for a specific purpose and in a deliberately precise way. To imply into its provisions a general duty to keep confidential all material supplied in support of an asylum application would unwarrantably enlarge its scope beyond its obvious intended purpose. Article 41 provides: Member states shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work. It is not disputed that Swedish national law does not define the confidentiality principle as extending to the non disclosure of information supplied in support of an asylum application, where that application has been unsuccessful. On the contrary, the tradition of the law in that country is that information generated by such applications should enter the public domain. Article 41 cannot assist the appellant, therefore. Neither of the specific provisions of the Directive that the appellant has prayed in aid supports the proposition that its overall purpose was to encourage candour by ensuring general confidentiality for information supplied in support of an application for asylum. The Directive in fact makes precise provision for the circumstances in which confidentiality should be maintained. It would therefore be clearly inconsistent with the framework of the Directive to imply a general charter of confidentiality for such material. The fact, if indeed it be the fact, that material which an applicant for asylum in the United Kingdom supplied, in circumstances such as those which confronted the appellant when making his application in Sweden, would not be disclosed here, likewise cannot assist his case. The information which the Swedish authorities provided was properly and legally supplied. When the authorities in this country obtained that material, they had a legal obligation to make appropriate use of it, if, as it did, it revealed criminal activity on the appellants part. Neither the terms of the Directive nor the circumstances in which material would have been dealt with, if obtained in the United Kingdom, impinged on the manner in which the trial judge was required to approach his decision under article 76 of PACE. There was nothing that was intrinsic to that material nor in the circumstances in which it was provided that would support the conclusion that its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The judge was plainly right to refuse the application. The purported analogy with the provisions of the Children Act 1989 is inapt. That Act imposed an obligation on all persons giving evidence in proceedings concerning the care, supervision and protection of children to answer any relevant question irrespective of whether the answer might incriminate him or his spouse or civil partner section 98(1). In light of that compulsive provision, it is unsurprising that section 98(2) should provide that statements or admissions shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury. There is no correlative situation of compulsion in the case of an application for asylum and, consequently, no occasion for a prohibition on the use of evidence obtained through that procedure. In any event, the need for a specific provision forbidding the use of such material in the Children Act and the absence of any corresponding provision in the law relating to asylum applications underscores the inaptness of the claimed comparison. Conclusion The appeal must be dismissed.

UK-Abs

In June 1981, Mr McGeough was implicated in the attempted murder of Samuel Brush, a postman and member of the Ulster Defence Regiment who was shot in County Tyrone. In the course of the attack, Mr Brush managed to fire a gun at his assailants, striking one of them. Mr McGeough subsequently presented at a nearby hospital with a gunshot wound from what was later determined to be Mr Brushs weapon. He received treatment there and at a hospital in Dublin and, despite being placed under police guard, he managed to escape and leave the country. In August 1983 Mr McGeough applied for asylum in Sweden. The application was supported by the appellants account of his life, from which it appeared that he had been an operational member of the Irish Republican Army and had participated in the attack on Mr Brush. His application for asylum was dismissed, as was his subsequent appeal against the dismissal. In November 2010, the appellant was tried at Belfast Crown Court for attempted murder and possession of a firearm. He was convicted of both offences and neither conviction is challenged in this appeal. At the same time, he was tried on two charges of membership of a proscribed organisation (the Irish Republican Army), those charges being based on the material contained in the Swedish asylum application. An application was made during the course of the trial that the Swedish material should not be admitted in evidence, either because it should be excluded under section 76 of the Police and Criminal Evidence Act 1984 (PACE) as having such an adverse effect on the fairness of the trial that it should not be admitted, or because the admission of the evidence would offend the rule against self incrimination. Having heard evidence from a Swedish legal expert, the trial judge rejected the appellants application on the basis that there was nothing in Swedish law, nor in Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status (the Procedures Directive), nor in general public policy considerations which prevented the disclosure by Sweden of the material in the asylum application to UK prosecuting authorities. The appellant had been represented in Sweden by lawyers who must have told him of the Swedish rule that the papers in an asylum application were open public documents. The conditions necessary for exclusion of the material under section 76 PACE were therefore not present. Further, the appellant had not been under compulsion when providing the information in the asylum application so the privilege against self incrimination was not engaged. The Swedish material was admitted in evidence and the appellant was convicted of the charges of membership of a proscribed organisation. The Court of Appeal dismissed the appellants appeal against conviction. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the only judgment, with which the other Justices agree. The need for candour in the completion of an asylum application is self evident, but that should not be regarded as giving rise to an inevitable duty of confidence over material contained in them [22]. There is no explicit requirement in the Procedures Directive that material disclosed by an applicant for asylum should be preserved in confidence for all time and from all agencies, just that (per Article 22 of the Procedures Directive) it should not be disclosed to alleged persecutors or in the course of examining the individual case (neither of which applied here) [23]. Nor does the overall purpose of the Directive assist the appellant in establishing a general prohibition on disclosure: Article 22 is precisely worded and to read into it a general duty of confidence would unwarrantably enlarge its scope [24, 27]. Article 41 of the Directive requires member states implementing the Directive to abide by the confidentiality principle as defined in national law [25]. Swedish law does not contain a duty of confidentiality over information supplied in support of an asylum application where that application has been unsuccessful, but favours such applications entering the public domain [26]. The material provided by Sweden was lawfully supplied and the authorities in this country had a legal obligation to make appropriate use of it if it revealed criminal activity [28]. Whether the material would have been treated differently if it had originated in the United Kingdom did not affect the manner in which the trial judge was required to approach his decision under section 76 PACE. The judge was plainly right to refuse the application [29]. Further, the absence of compulsion in the case of an application for asylum renders comparisons with situations involving compulsion (such as the requirement to answer questions under section 98 of the Children Act 1989) inapt. The rule against self incrimination does not require a prohibition on the use of evidence obtained through a non compulsive procedure such as an application for asylum [30].

This appeal raises a short point in relation to the Proceeds of Crime Act 2002 (POCA), namely whether, in assessing the amount of the benefit obtained by a company for the purpose of a confiscation order, any Value Added Tax accounted for and/or paid for to Her Majestys Revenue and Customs should be subtracted from the turnover figure prior to any final calculation of the benefit. The appellants arguments involve consideration of the VAT collection system, the interpretation of POCA, and the effect of article 1 of the First Protocol to the European Convention on Human Rights (A1P1). The factual and procedural background In 1972, the appellant, Jack Harvey, established a company, JFL Harvey Ltd (the Company), whose business was the hiring out of items of machinery. The Company traded from premises in Cornwall, and at all times the appellant owned 98.9% of the shares, the balance being owned by his wife. The Company was registered for VAT, and its accountants ensured that the requirements of the VAT legislation were duly complied with by the Company. Following an arson attack orchestrated by the appellant on premises owned by a competitor of the Company, the police raided the Companys premises in May 2009, and discovered that a significant proportion of the items of machinery present had been stolen. The appellant was in due course convicted at the Truro Crown Court of nine counts of handling stolen goods and sentenced to 15 months imprisonment. (He was also convicted on a separate indictment of five counts of arson, for which he was sentenced to a consecutive terms of 12 years imprisonment. On appeal, the total sentence was reduced to nine years and six months.) Following his conviction for handling stolen goods, there was a five day hearing before His Honour Judge Elwen, starting on 19 March 2012, pursuant to section 6 of POCA. It was conceded on his behalf that the appellant had a criminal lifestyle as defined by section 75(3)(a) of POCA. Accordingly, the judge had to decide to what extent, if any, he had benefited over the relevant period from his general criminal conduct, as defined by subsections (1) and (2) of section 76 of POCA. As the appellant had been charged on 11 November 2009, the relevant period for the purpose of assessing the extent of his benefit began on 11 November 2003. It was common ground that by no means all the items of machinery hired out by the Company were stolen, and the Crown accepted that the Company would have been viable if it had limited itself to legitimate activities. In a judgment given on 16 April 2012, the judge assessed the benefit obtained by the appellant at 2,275,454.40, comprising 1,960,754.40 from general criminal conduct and a further 314,700 from particular criminal conduct. In very summary terms, the sum of 1,960,754.40 was assessed by means of the following three steps: (i) the Companys aggregate turnover for the relevant period was 5,159,880 (inclusive of VAT); (ii) the proportion of stolen items to the total stock over that period was 38%; (iii) the benefit from general criminal conduct was therefore 38% of 5,159,880, namely 1,960,754.40. The appellants available assets were agreed at 3,000,000; accordingly, a confiscation order was made in the sum of 2,275,454.40. The appellant was given six months (later extended to 12 months) to pay, and was ordered to serve ten years (reduced to eight years by the Court of Appeal) in default of payment. The appellant appealed to the Court of Appeal on a number of points. In a judgment given on 3 July 2013 (Jackson LJ, Wyn Williams J and HH Judge Russell QC) his appeal was dismissed (save in relation to the default sentence) [2013] EWCA Crim 1104; [2014] 1 WLR 124. The issue on this appeal The appellants appeal to this court concerns only one of the issues determined by the courts below, namely whether the judge was right to include the VAT in the figure of 5,159,880 in step (i) of his assessment as set out in para 5 above. The Crowns case, which was accepted by the judge and the Court of Appeal, was that it has been authoritatively established that a benefit is obtained for the purpose of POCA if it has been received by a defendant, even if he has subsequently had to account to a third party for some, or even all, of it. The appellants case is that, given that the Company accounted for the VAT to HMRC, it would involve an unacceptable degree of double counting if the VAT is included in the sum which is the subject of the confiscation order. The Proceeds of Crime Act 2002 The provisions of POCA which are relevant for present purposes are sections 6, 76, 79, 80 and 84. The effect of those sections has been considered in a number of cases in the House of Lords and this court, as well as in a large number of cases in the Court of Appeal. The sections are pretty fully set out in the judgment of Lord Walker of Gestingthorpe and Hughes LJ in R v Waya [2012] UKSC 51; [2013] 1 AC 294, paras 9 and 15, and they are also described in R v Ahmad [2014] UKSC 36; [2015] 1 AC 299, paras 28 33. Accordingly, it is unnecessary to set them out or to describe them in this judgment. As Lord Bingham of Cornhill pointed out in R v May [2008] UKHL 28; [2008] AC 1028, para 8, a court considering an application for a confiscation order must address and answer three questions. The first question is whether a defendant has benefited from the relevant criminal conduct; the second question concerns the value, or quantification, of that benefit; and the third question is what sum is recoverable from the defendant (and see Waya, para 7, which has a slightly fuller exegesis). When considering the first question, section 76(4) of POCA provides that [a] person benefits from conduct if he obtains property as a result of or in connection with the conduct, and property is defined as including money by section 84(1). Section 84(2) contains some rules, which include in para (b) that property is obtained by a person if he obtains an interest in it. The proper application of these provisions requires, however, a more purposive approach than the mechanical application of the law of property. In Ahmad, paras 35 36, it was acknowledged that POCA was poorly drafted, but the court went on to say that this was explicable in part by the fact that there will be obvious difficulties in applying established legal principles to the allocation of liability under [POCA], as the rules relating to matters such as acquisition, joint and several ownership, and valuation of property and interests in property, and the rights and liabilities of owners, both as against the world and inter se, have been developed by the courts over centuries by reference to assets which were lawfully acquired and owned. In para 8 of Waya, POCA was described as framed in broad terms with a certain amount of overkill. Lord Walker and Lord Hughes went on to say that [a]lthough the statute has often been described as draconian that cannot be a warrant for abandoning the traditional rule that a penal statute should be construed with some strictness, adding that, subject to this and to [the Human Rights Act 1998], the task of the Crown Court judge is to give effect to Parliaments intention as expressed in the language of the statute. The statutory language must be given a fair and purposive construction in order to give effect to its legislative policy. Later in their judgment at para 55(a), Lord Walker and Hughes LJ said that [o]nce property has been obtained as a result of or in connection with crime, it remains the defendants benefit whether or not he retains it. The overall aim of POCA has been described as being to recover assets acquired through criminal activity, both because it is wrong for criminals to retain the proceeds of crime and in order to show that crime does not pay Ahmad, para 38. To similar effect, in May, para 48(1), Lord Bingham said that the legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. Construing the legislation on that basis, in May at para 48(6), Lord Bingham explained that a defendant ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment to someone else. In Ahmad, para 49, this court observed that [i]t is clear that the amount of the benefit which a defendant obtains is not affected by the amount which might be obtained by others to whom he transfers any part of it. However, the court immediately went on to accept that there could be other cases where the court may be satisfied on the evidence that individual defendants obtained (ie assumed the rights of an owner over) only a specific part or share of the property which had been acquired as a result of the criminal activity. Article 1 of the First Protocol A1P1 was brought into United Kingdom law by the Human Rights Act 1998. The first paragraph of A1P1 provides that each person should be entitled to the peaceful enjoyment of his possessions, and that nobody should be deprived of his possessions except in the public interest and subject to the conditions provided for by law . The second paragraph derogates from the first paragraph to the extent that it states that it should not in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property for two identified purposes, namely in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. The jurisprudence both domestically and in Strasbourg on A1P1 is now clear. As Lord Hope of Craighead explained in Salvesen v The Lord Advocate [2013] UKSC 22, para 34 (omitting the citations): The tests to be applied are now firmly established. The second paragraph of A1P1 must be construed in the light of the principle laid down in the first sentence of the article. An interference must achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. The search for this balance is reflected in the structure of the article as a whole and therefore also in the second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. Value Added Tax VAT is payable on the supply of goods or services (save in relation to exempt and zero rated supplies) normally at a single specified rate, currently 20%. It is an EU tax, whose terms are governed by the VAT Directive, 2006/112/EC, which is implemented in UK law by the Value Added Tax Act 1994 (VATA) and the Value Added Tax Regulations 1995 (SI 1995/2518). Section 25(1) of VATA provides that a taxable person, such as the Company, must account for and pay VAT by reference to such periods at such time as may be determined by or under regulations . The VAT payable thereunder is based on the persons output tax, that is the tax he has charged, or is treated as having charged, in his invoices for the goods and services which he has sold. Section 25(2) explains that such a person is entitled at the end of each prescribed accounting period to credit for so much of his input tax as is allowable under section 26, and then to deduct that amount from any output tax that is due from him. In other words, to relate the position to the present case in a very summary way, where the Company purchased an item, it would pay input tax on the price to the supplier, and when it hired out an item, it would receive output tax from the hirer; and accordingly, the VAT it would pay in respect of any prescribed period would be the difference between (i) the aggregate output tax for which it had invoiced its hirers in that period and (ii) the aggregate input tax it had paid its suppliers in that period. In terms of section 1(2) of VATA, VAT on any supply of goods or services is a liability of the person making the supply, and becomes due at the time of the supply. There was therefore no scintilla temporis during which the Company possessed output tax without being liable to account for it to HMRC. The European Court of Justice explained how the VAT system should be regarded as working in this way in Elida Gibbs Ltd v Customs and Excise Comrs (Case C 317/94) [1996] ECR I 5339: 19. The basic principle of the VAT system is that it is intended to tax only the final consumer. Consequently, the taxable amount serving as a basis for the VAT to be collected by the tax authorities cannot exceed the consideration actually paid by the final consumer which is the basis for calculating the VAT ultimately borne by him. 22. It is not, in fact, the taxable persons who themselves bear the burden of VAT. The sole requirement imposed on them, when they take part in the production and distribution process prior to the stage of final taxation, regardless of the number of transactions involved, is that, at each stage of the process, they collect the tax on behalf of the tax authorities and account for it to them. 23. [A] basic feature of the VAT system is that VAT is chargeable on each transaction only after deduction of the amount of VAT borne directly by the cost of the various price components of the goods and services. The procedure for deduction is so arranged that only taxable persons are authorised to deduct from the VAT for which they are liable the VAT which the goods and services have already borne. A taxable person, such as the Company, is not therefore intended to bear the burden of VAT: the tax is intended to be neutral in its impact on taxable persons. The taxable person merely collects VAT on behalf of HMRC and accounts to it for the balance due. The taxable person does not however hold any sum on trust for HMRC. Thus, when the Company became insolvent, any unpaid VAT was a debt for which HMRC would have had to prove as an unsecured creditor. The contentions of the parties The Crowns case is simply this: according to the judges now unchallenged finding, the Company (and therefore, for present purposes, the appellant) obtained a total of 5,159,880 over the relevant period, and the fact that it had to account, and did in fact account, to HMRC for VAT out of that sum pursuant to its obligations under section 25 of VATA is irrelevant for the purposes of assessing what money was obtained for the purposes of POCA in the light of the dicta from May para 48(1) and Ahmad para 49, quoted in para 13 above. Mr Mitchell QC also made the valid point on behalf of the Crown that, when assessing the value of what has been obtained for the purposes of POCA, a defendant cannot argue that a sum of money, or the value of an asset, acquired as a result of criminal activity should be reduced by other liabilities. For instance, no deduction can be made to take into account the amount of income tax or corporation tax which is paid in respect of the activity; nor can other expenditure necessarily incurred in connection with, or as a result of, the acquisition of an asset through criminal activity be deducted from the value of what has been acquired in order to assess the value of what has been obtained for the purposes of POCA. The appellants case is that the figure of 5,159,880, in step (i) of the judges assessment as set out in para 5 above, should have been reduced to take into account any VAT which had been paid, or accounted for in a VAT return, to HMRC. This is said by Mr Boyce QC on behalf of the appellant, (a) to follow from the wording of POCA, interpreted according to normal domestic principles, or alternatively (b) to result from the incidence of A1P1. No argument has been advanced as to the compatibility of the judges approach with EU law relating to VAT or the confiscation of the proceeds of crime. Discussion The principle stated in the passages cited in para 13 above is generally applicable. As Jackson LJ put it in this case at [2014] 1 WLR 124, para 52, relying on what Leveson LJ said in R v Del Basso [2010] EWCA Crim 1119; [2011] 1 Cr App R (S) 268, [t]he court ha[s] to focus on the property coming to the offenders, not what happened to it subsequently, a conclusion subsequently approved in Ahmad at para 49, cited in para 14 above. Hence the factual basis for Mr Mitchells argument as summarised in para 22 above is correct: the fact that income tax or corporation tax has been paid in respect of a sum of money or an asset which has been acquired as a result of criminal activity, cannot be invoked to reduce the value of the property or the sum of money when assessing what has been obtained for the purposes of POCA. However, it can fairly be said that, in a number of respects VAT for which a defendant had to account, and has accounted, to HMRC is in a different category from either income or corporation tax, and, a fortiori, from expenses incurred in connection with acquiring money or an asset. First, income tax and corporation tax are computed on a taxpayers overall, or aggregate, net income, and therefore cannot be allocated to a particular transaction or the obtaining of particular property. By contrast, a VAT liability arises on each taxable supply, and therefore can be directly and precisely related to the obtaining of the property in question under POCA. This makes it clear, at least in a case where the VAT on a particular transaction has been paid, or even accounted for, to HMRC, that, if the courts below are correct, the United Kingdom government will, albeit through different arms, enjoy double recovery of the VAT: once under VATA and again through POCA. Secondly, although no question of a trust arises, the fact remains that, where money is paid to a defendant as a result of a transaction which is liable to VAT, the defendant is regarded under EU law as collecting the VAT element on behalf of HMRC see Elida Gibbs cited in para 19 above. As discussed in para 20 above, the tax is intended to be neutral in its impact on taxable persons. We note that the ECJ in Commission of the European Communities v Kingdom of the Netherlands (Case C 338/98) [2004] 1 WLR 35, para 55, referred to the objectives of the predecessor to the present VAT Directive as including fiscal neutrality and the avoidance of double taxation. Consistently with that approach, and indeed with the reality of the situation, it is difficult to regard output tax which has been collected and accounted for as forming part of the economic advantage derived from criminal offences. These considerations suggest that, where a taxable person has accounted to HMRC for the tax which he collected on their behalf, there may be a degree of artificiality involved in treating him as having obtained the VAT in question for the purposes of POCA. Again, no such considerations apply to income tax or corporation tax. Thirdly, at least in some cases, the defendant will have paid VAT in the form of input tax to its suppliers. It would seem particularly harsh, even penal, in a case where a defendant has accounted for all the VAT for which he is liable, not to allow him credit for that sum, but that would be the effect of his being rendered liable to a confiscation order in respect of the output tax on his transactions. We accept that it may well be that the Company in this appeal paid no input tax in respect of such of the items used in its hire business as were stolen. However, even if that is the case, this point has force, as it would be hard to justify treating the Company in the same way regardless of whether it had paid the input tax or not. Fourthly, HMRC does not as a matter of practice seek double recovery both of the excise duty due in respect of smuggled goods and a confiscation order in the same sum. Instead, they seek a confiscation order only, and do not seek to recover the duty: see R v Edwards [2004] EWCA Crim 2923; [2005] 2 Cr App R (S) 160, paras 24 25, where it is explained that the existence of this practice was the reason why no breach of A1P1 to the ECHR was argued. In Waya, it was observed at para 33 that it might need to be argued in the future whether a proportionate result should not be left to be achieved by way of Executive concession but rather should be the responsibility of the court to which an application for a confiscation order was made. Whatever the basis may be for bringing confiscation proceedings in such cases as to which, we note the observations of Lord Phillips of Worth Maltravers and Lord Mance in R v Varma [2012] UKSC 42; [2013] 1 AC 463, paras 60 65 it is questionable whether the same approach can be adopted in relation to VAT. Since VAT is a tax imposed under EU law, the scope for its non collection as a matter of concession may be less than under domestic law. It is unnecessary to decide that question in the present proceedings, but it raises the possibility of double recovery which HMRC have recognised, and sought to avoid by extra statutory means, in the context of excise duty. The factors discussed in paras 25 29 above give rise to a powerful argument that, at least when the VAT has been accounted for to HMRC, it, or a sum equivalent to it, has not been obtained by the defendant as a matter of ordinary domestic statutory construction. There are judicial observations as to how POCA is to be construed, and in particular what was said in Waya para 8 could be cited to support that view. However, we see the force of the argument that POCA is a statute which is complex and difficult to interpret in any event, and that it is important to hold fast to the principle enunciated in Waya, para 55(a) and the other judicial observations discussed in para 13 above and by Lord Toulson in paras 94 101 below. In the light of these observations, and in the interests of minimising the risk of uncertainty as to the meaning of POCA, we reject the first way in which the appellant puts his case. However, the same reasoning does not, in our view, justify rejecting the alternative way in which he puts his case, based on A1P1. Although application of the 1998 Act can be said to involve interpretation of POCA, the issue raised by the appellants alternative case involves accepting that POCA, normally construed, has the effect argued for by the Crown, but then going on to consider whether that interpretation infringes A1P1, and, to the extent that it does, modifying the effect of that construction so that it no longer has that infringing effect. Any provision which entitles the Executive to effect double recovery from an individual, although not absolutely forbidden by A1P1, is clearly at risk of being found to be disproportionate. That proposition would seem to apply in relation to any sum payable pursuant to POCA, which, while intended to be deterrent, is not intended to be punitive. This court considered A1P1 in Waya at paras 28 33, where it was made clear that, where the proceeds of crime are returned to the loser, it would be disproportionate to treat such proceeds as part of the benefit obtained by a defendant as it would amount to a financial penalty or an additional punitive sanction, which should not be imposed through the medium of POCA. Lord Hughes is right in para 71 to say that recognition of the disproportionality of treating property restored to the victim as property obtained for the purpose of POCA is not directly in point as it does not concern double recovery. However, given that VAT is effectively collected by a taxpayer as explained above, the two situations are quite similar; furthermore, as Lord Mance points out, the policy behind the principle discussed in Waya, paras 28 34 is in part that a defendant who makes good a liability to pay or restore should not be worse off than one who does not. As Lord Walker and Hughes LJ recognised in para 34 of Waya, [t]here may be other cases of disproportion analogous to that of goods or money entirely restored to the loser, which would have to be resolved case by case, That came to pass in Ahmad, where this court held that it would be disproportionate for the same sum to be recovered from two co conspirators in respect of the same property which they had obtained jointly. At para 71, the court said that it would not serve the legitimate aim of the legislation and would be disproportionate for the state to take the same proceeds twice over. The point was repeated in the following paragraph, where it is said that: [t]o take the same proceeds twice over would not serve the legitimate aim of the legislation and, even if that were not so, it would be disproportionate. We consider those observations are applicable in this case in relation to the VAT which has been accounted for to HMRC. It remains to address the point made by Lord Toulson in paras 123 124, namely the difficult full accountancy process which the appellants case is said to require at least in some cases. It should be said at the outset that the potential inconvenience involved in applying POCA in a manner which is consistent with A1P1 is not a good reason for failing to do so. There are also likely to be many cases where there will be no good reason to doubt that VAT has been properly accounted for to HMRC. Nevertheless, particularly given that POCA claims almost always involve dishonest defendants, we would accept that there may often be difficulties in assessing the amount of VAT to be treated as accounted for to HMRC. However, in some cases, it will be clear, and, where it is not, the judge trying the issue should be guided by two important factors. First, although the burden may be on the Crown to establish the gross value of the benefit obtained by the defendant (ie in this case 2,275,454.40), the burden of establishing that a sum, and if so what sum, should be deducted from that value to reflect VAT accounted for to HMRC lies on the defendant. Secondly, as in many exercises involved in assessments under POCA, a judge should be robust in making such a determination. There is nothing disproportionate about taking a broad brush approach to questions of what sums were received or paid in the context of criminal activity, where the evidence is confusing, unreliable and/or incomplete. On the contrary: the risk of disproportionality may lie more in spending much time and money pursuing a precise answer which is at best elusive and more frequently unattainable. For these reasons, we are of the view that, although it would be appropriate under the terms of POCA as traditionally interpreted, it would be disproportionate, at least when VAT output tax has been accounted for to HMRC (either by remittance or by its being set off against input tax), to make a confiscation order calculated on the basis that that tax, or a sum equivalent to it, has been obtained by the defendant for the purposes of POCA. We would leave open the position in relation to VAT for which the defendant is liable, but in respect of which he has not accounted, to HMRC, essentially for the reasons given in paras 27 28 above. We are conscious that we are leaving undecided a question which will in practice confront Crown Court judges, but it is one which raises difficult issues extending beyond VAT (as Lord Mance explains in para 47), on which the court has not been addressed in the present appeal. Conclusion Accordingly, we would allow this appeal. LORD MANCE: I agree with the reasoning and conclusions of Lord Neuberger and Lord Reed both on the issue whether VAT accounted for has been obtained and on the issue regarding the application of A1P1. As to A1P1, Lord Hughes relies (paras 71 to 72 and 76) on R v Waya [2012] UKSC 51; [2013] 1 AC 294, as supporting his conclusion that it is not disproportionate to ignore output VAT for which the defendant has accounted. In my view that decision both opens the issue under A1P1 and leaves its resolution open. Likewise, although there is a distinction between evasion cases (where payment may be said to redress the offence) and the present case (where the dishonest transaction under which the VAT was obtained remains unredressed), that does not answer the question whether VAT accounted for should be given special treatment under A1P1. Lord Hughes is correct that cases of restoration of misappropriated property to its loser differ in some respects from the present. But they have this in common, that one reason why restoration is taken into account is that a defendant who has made good his liability to restore should not be in a worse position when it comes to the making of a confiscation order than a defendant who has not done so. That also applies to a defendant who has actually accounted for VAT to HMRC. I consider that the issues before the Supreme Court require, and certainly make it highly desirable for future guidance, that we also address the position if output VAT is offset against input VAT. The actual question certified by the Court of Appeal was whether any VAT accounted for and/or paid to HMRC should be subtracted from the turnover figure (emphasis added). Consistently with this, the agreed statement of facts and issues (para 31) identifies as the question for our determination whether any deduction should be (i) the total amount of VAT received from customers; (ii) the net amount paid to HMRC (after deduction of input tax); or (iii) some other figure. It is true that output VAT may be offset against input VAT that is unconnected with the transaction giving rise to the output VAT. As indicated in paras 16 and 17 of Lord Neubergers and Lord Reeds judgment, output VAT is due when charged to the recipient of the goods or services. The entitlement to set it off against input VAT is merely a facility that is permitted at the end of a relevant accounting period in which there happens to be such input VAT: Value Added Tax Act 1994 (VATA), section 25(2). Lord Hughes (para 77) points out that, particularly with dishonest defendants, questions may arise whether the input VAT claimed was genuinely due. That is also true. But equally there will be cases where it is crystal clear that the input tax was due. Could the happenstance that the defendant has offset output VAT against input VAT clearly payable to him by HMRC, rather than actually disbursed the output VAT to HMRC, make all the difference? In my opinion, not. Either way the defendant has in reality and law satisfied his obligation to HMRC to account for or pay the full output VAT he has received. Lord Hughes and Lord Toulson observe that the process of making a confiscation order is already complex, and argue that it would not be proportionate (Lord Hughes, para 77) to make it more so, and could give rise to accounting problems (Lord Toulson, paras 115 to 123). As regards the difficulties involved, that is a generalisation, which, as noted in the previous paragraph, will by no means necessarily be true. But, even when and where it is true, the process of making a confiscation order is, as Lord Hughes and Lord Toulson themselves recognised, inherently complex. Criminal courts have under the Proceeds of Crime Act 2002 to make a whole series of often very difficult assessments, eg as to the nature and scale of offending, as to benefits received and as to means. The question whether it would be disproportionate to include in a confiscation order output VAT for which the defendant has accounted is, under A1P1, a question of substantive justice, which courts cannot and should not avoid addressing for reasons of convenience. The onus will also be on the defendant to show that he has accounted for and met his obligations in respect of output VAT whether by remittance or set off against input VAT due from HMRC. Judges can and should also be robust in their assessments and determinations under POCA, as Lord Neuberger and Lord Reed indicate in para 35 of their judgment. For these reasons, I consider that the answer to the question contained in the agreed statement of facts and issues is that, in a case such as the present, the court when making a confiscation order should ignore the total amount of VAT received from customers for which the defendant shows that he has accounted to HMRC either by actual remittance or by set off against input tax due. The question in the agreed statement does not address the case of a defendant who has received, or is to be taken as having received, output VAT for which he has not accounted to HMRC either by remittance or by offset against input VAT. In such a case, the question may arise whether a confiscation order may be made by reference to the VAT received or taken as received, even though such VAT remains due to HMRC who may require it to be paid or accounted for. That has a parallel in the question arising from cases such as R v Smith (David) [2001] UKHL 68, [2002] 1 WLR 54 and R v Edwards [2004] EWCA Crim 2923, [2005] 2 Cr App R (S) 160 and considered in passing in R v Varma [2012] UKSC 42, [2013] 1 AC 463 whether it is legitimate in evasion cases for the Crown to seek and obtain a confiscation order based on the VAT due but evaded, on the basis that HMRC will not in practice (provided at least the confiscation order specifically identifies the VAT based element of the confiscation order and the period or transaction to which it relates) thereafter seek to recover such VAT as such. As in R v Varma, so too in this case, the question identified in the preceding paragraph must remain open. What can be said about HMRCs expressed policy and practice is that it gives some comfort to the conclusion that it would be disproportionate to contemplate a scenario in which the Crown could, after output VAT had been accounted for to HMRC by payment or offset, seek the equivalent amount by way of a confiscation order. LORD HUGHES: (dissenting) The defendant was convicted of nine offences of handling stolen plant and machinery, which he had used in the course of his plant hire business. He was also convicted of arson of a competitors machinery. After reduction on appeal, he is serving a total sentence of nine years and six months. He had carried on his business through a limited company which was properly treated as his alter ego, so that its receipts were his. On the findings of the judge, he had effectively run his business to a considerable extent on stolen machinery. Some 38 different stolen machines, plus a quantity of accessories, were identified and traced following the intervention of the police; the earliest thefts were some nine years beforehand. The judge assessed the proportion of stolen machinery in his total stock at 38%. The defendant was found to be in possession of blank invoices in varying names, such as strongly suggested a practice of forgery to disguise the origins of stolen property. The handling offences gave rise to confiscation proceedings pursuant to Part 2 of the Proceeds of Crime Act 2002 (POCA). Because of the number of offences the lifestyle provisions of that Act applied to the assessment of the defendants benefit. Accordingly, all property passing through his hands in the relevant six year period was to be assumed to be the proceeds of crime except to the extent that the defendant could prove on the balance of probabilities that any item was not, and unless the making of such an assumption would give rise to a serious risk of injustice: see section 10. The judge heard the evidence of the defendant himself and several witnesses called on his behalf. Except for the accountant who prepared the company accounts, the judge found the evidence untruthful; the accountant was truthful but much of his source material provided by the defendant was not. The judge accordingly found that the principal component of the benefit obtained by the defendant as a result of or in connection with his criminal conduct was 38% of the total business receipts of the company from the hiring out of plant. There is no complaint about this method of calculation. Other benefit brought the total to 2,275,454.40. The appeal is grounded on the single issue of the treatment of the Value Added Tax (VAT) element of the business receipts. Both the judge and the Court of Appeal held that there was no basis for deducting that element from the gross receipts (or, rather, from 38% of them) in arriving at the benefit obtained and thus, in due course, at the amount of the confiscation order. The defendant challenges those decisions. He does so on three alternative bases: if that is wrong and he did obtain the VAT element, he contends that i) he contends that the VAT element in his receipts was never obtained by him, alternatively was not obtained to the extent that he accounted for it to HMRC by declaring it on his VAT returns; or ii) his interest in that element was nil; or iii) if both are wrong, he contends that it is nevertheless disproportionate to make a confiscation order which is not reduced by the amount of VAT received by him from his customers, alternatively received by him and accounted for to the Revenue. The figures given to the judge were these: Gross receipts in the six year period (including an estimated figure of 94,400 for unrecorded or off book trading in cash) 5,159,880.00 38% thereof 1,960,754.40 Output VAT declared) 843,827.00 Input VAT reclaimed) all total figures 643,081.97 VAT paid) 200,745.03 It should be noted that there has been no assessment of the accuracy of the VAT declarations. Since the judge declined to deduct any VAT element, it was not necessary to embark on such an investigation. The defendants use of forged invoices, never mind the clear findings of unrecorded trading, would at the least raise real queries as to the figures. Moreover, the declared output tax would seem to have been upon the on book transactions of which the accountant had knowledge, but presumably not on the off book ones. So it would appear distinctly likely that the defendant under declared output VAT, at least to the tune of 20% of 94,400, which is a little under 12,900. Benefit under POCA Post conviction confiscation orders under POCA are dependent first upon ascertainment of the benefit. This is defined by section 76. Under section 76(4): A person benefits from conduct if he obtains property as a result of or in connection with the conduct. By section 76(7): If a person benefits from conduct his benefit is the value of the property obtained. Subsection 76(5) is not directly applicable to the present case but should be noted. It provides: If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. Two things are fundamental to the scheme of POCA: (a) The measure of benefit is what is obtained, not what is retained. (b) The measure of benefit is not reduced by the costs or outgoings associated with obtaining it. There has been no dispute about either of these propositions and it is not necessary to rehearse in detail the long line of authorities by which they are established. Both have been established law under successive confiscation statutes for many years. They are, inter alia, integral to the reasoning of the House of Lords in R v May [2008] UKHL 28; [2002] AC 1028 and to that of the Supreme Court in R v Waya [2012] UKSC 51; [2013] 1 AC 294. Proposition (1) follows from the terms of the statute. It was also specifically decided by the House of Lords in R v Smith (David) [2001] UKHL 68; [2002] 1 WLR 54. There, the benefit obtained was (as was agreed) the pecuniary advantage of evading payment of (not liability for) excise duty on smuggled cigarettes. That pecuniary advantage was indisputably obtained. As Laws LJ had put it in a case of tax evasion by fraud, if the crime had not been detected, the defendant would have been better off to the tune of 4m (R v Dimsey [1999] EWCA Crim 2261). The decision of the House of Lords in Smith was that the fact that that benefit was subsequently lost by detection and, in the case of the smuggler in Smith, additionally negated by seizure of the cigarettes under the excise legislation, could not alter the fact that the benefit had been obtained. For the same reason, the burglar remains liable to confiscation in the value of the jewelry and laptops stolen notwithstanding that he lodged the jewels with a dishonest associate who made off with them and that the laptops were ruined by a thunderstorm after he had hidden them in a hedge to make good his escape. The same principle is also inherent in Lord Binghams seminal judgment in May, for it was there decided that the fact that the benefit had been jointly obtained with, and shared with, an accomplice did not mean that the defendant had not obtained the whole of it (recently re affirmed in R v Ahmad [2014] UKSC 36; [2015] AC 299). This principle famously led Lord Bingham to make clear, in the same judgment at para 9, that proceeds of crime legislation is not confiscation as the schoolboy would understand it: Although confiscation is the name ordinarily given to this process, it is not confiscation in the sense in which schoolchildren and others understand it. A criminal caught in possession of criminally acquired assets will, it is true, suffer their seizure by the state. Where, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained. Confiscation is, as Lord Hobhouse of Woodborough observed in In re Norris [2001] 1 WLR 1388, para 12, a misnomer. The post conviction provisions of POCA (Parts 2, 3 and 4 for England and Wales, Scotland and Northern Ireland respectively), and their statutory predecessors, constitute a scheme for penalising criminals by imposing not a fine but a financial order geared to what they obtained by their crime. A fine would be unrelated to what was obtained and would be measured, rather, by the culpability and harm involved in the underlying offence. It would take account of the obligations as well as the assets of the defendant. A post conviction confiscation order is different, and may often be swingeing. It was described in Waya at para 12 as deprivation of property as a form of penalty. It should be emphasised that such confiscation is not designed to restore money to the state, since the state is, in most cases, not the loser by the crime. It is designed to deprive the offender. No doubt a different scheme could have been prescribed, and one such might have involved calculation of retained benefit. In some countries schemes for the confiscation of criminal proceeds do follow this approach, notably those which rely upon tracing and recovering specific property. The UK system does not. It depends upon ascertaining the value of what was obtained, and then recovering not specific property but, rather, that sum. Having obtained such a sum through crime, the defendant is expected to surrender it from any assets which he holds, whether they were legitimately or criminally acquired. That, as Lord Bingham observed in May at para 46, involves no injustice or lack of proportionality. It might be added that two considerable disadvantages of a system which depends on retained benefit are the ease with which confiscation can be avoided by complicated concealment of what has happened to the initial proceeds and the complexity of the investigation and calculations which fall to be made by the court into transactions which a criminal is unlikely to record. UK confiscation under POCA does not, it might be thought, at present want for sufficient complexity. Proposition (2) is of almost equal length of standing. It was decided specifically by the Court of Appeal in R v Smith (Ian) [1989] 1 WLR 765,769, R v Simons (1993) 98 Cr App R 100 and R v Banks [1997] 2 Cr App R (S) 110, which decisions were expressly approved by the House of Lords in May (see para 15). In Banks Lord Bingham CJ said that there were four insuperable objections to the argument that the defendants payment or reward (which expression was then the relevant one under section 4(1) of the Drug Trafficking Act 1994) was limited to his net, rather than his gross, proceeds. They are set out in detail in the judgment of Lord Toulson at paras 98 100; I respectfully agree with what he says and there is no occasion to repeat it here. Are taxes different? Are taxes different from other expenses or incidental outgoings because they are money paid to the State, which is also the recipient of confiscation orders? No doubt in the case of the simple paradigm criminal, the question is unlikely to arise. The burglar or thief will rarely pay income tax or fall liable to other taxes in connection with his crime. But many of the most serious acquisitive criminals will. Those who make a business out of their crime may well do so, and especially if they adopt the cover of legitimate trade under which to pursue offences such as drug trafficking, fraud or smuggling. The bigger the criminal operation, the more likely it is that the outgoings incidental to the crime will include one or more forms of tax payable to the state. The smuggler running a fleet of lorries will need operators licences, will pay probably heavy liabilities in fuel duty, will pay business rates on his depot(s) and employers national insurance contributions for those who work for him, as well as falling liable to corporation tax on his business profits. If what he is smuggling is drugs, they will probably be sold clandestinely and there will be no question of corporation tax being paid on the profits. But if the contraband is container loads of cigarettes or wine and spirits, it may well be sold as if legitimate through the front of an apparently honest trade outlet, and corporation tax accordingly may be paid. These outgoings are no different from the other expenses of criminal offending, some of which may themselves be overtly criminal, such as payments to subordinates or the purchase price of drugs or contraband, and some of which may be neutral, such as the cost of fuel or accommodation or the stamp duty paid on the laundering of the proceeds through the purchase of real property. There is no relevant difference, for example, between the prime cost of fuel used to transport contraband and the fuel tax element of the pump price. It is simply impossible to distinguish between these different types of outgoing on the basis that some are payments made to the state and others are not. None of these outgoings affects the question of what is obtained. Nor, when it comes to proportionality of the confiscation order, does any of them give rise to any disproportion if the order is based on the gross receipts. Nor has the contrary been suggested in any of the arguments before this court. Is VAT different? If taxes generally cannot fall for deduction from benefit, is VAT different? It is certainly true that distinctions can be identified between the mechanics of VAT and those of other taxes, for example corporation tax. i) Corporation tax is assessed on the profits of the business, as is income tax for a non corporate trader. VAT is levied upon each supply made by the trader. It is thus transaction specific, and the VAT component in each invoice can be identified. ii) The overall scheme of VAT is intended to be that the ultimate burden falls on the last purchaser in the chain who cannot reclaim input tax, usually the non trading consumer. This is sometimes described as the principle of fiscal neutrality. In Revenue and Customs Comrs v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15; [2013] 2 All ER 719, both Lord Reed and Lord Walker emphasised this characteristic of VAT: see paras 72 75 and 113. At para 113, Lord Walker quoted Advocate General Lenz in BLP Group plc v Customs and Excise Comrs (Case C 4/94), [1996] 1 WLR 174 (para 30) as envisaging: an ideal image of chains of transactions intended to attach to each transaction only so much VAT liability as corresponds to the added value accruing in that transaction, so that there is to be deducted from the total amount the tax which has been occasioned by the preceding link in the chain. iii) This same characteristic of fiscal neutrality has led the European Court of Justice to refer to the taxable traders position under the VAT system as one of collecting the tax on behalf of the tax authorities. In Elida Gibbs Ltd v Customs and Excise Comrs (Case C 317/94) [1996] ECR I 5399 the court described the overall effect of VAT in this way: 22. It is not, in fact, the taxable persons who themselves bear the burden of VAT. The sole requirement imposed on them, when they take part in the production and distribution process prior to the stage of final taxation, regardless of the number of transactions involved, is that, at each stage of the process, they collect the tax on behalf of the tax authorities and account for it to them. iv) For the purposes of the Companies Act 2006, it is provided by section 474 that turnover is defined to exclude the VAT element in receipts. The questions which matter are therefore whether these differences in the mechanics of VAT are significant for the issues in this and similar cases. In particular, do they mean (1) that the trader does not obtain the VAT element of his receipts for the purpose of POCA, or (2) that even if he does, he has no interest in that part of what he obtains, so that its value is nil, or (3) that despite the VAT element being obtained, it would be a disproportionate infringement of the defendants rights under A1P1 to recover its value as part of a confiscation order? All taxes have specific mechanics, and few are the same as others. It is certainly true that corporation tax and income tax are essentially taxes on profits, and that they are not taxes on individual transactions. But this is not a material distinction. Other taxes, such as fuel tax and excise duty on alcohol, are essentially levied on individual transactions, and moreover the tax paid by the trader is passed on to consumers in the price of each later transaction. Business rates are levied neither on profits nor individual transactions, but on the occupation of premises. National insurance is levied on the engagement of employees. There is nothing distinctive in the mechanics of VAT which differentiates it relevantly from other taxes when it comes to asking the questions posed at para 60. Fiscal neutrality means that, for the trader, the (output) tax which he pays to the Revenue is identical to the charge which he makes (either explicitly or by statutory implication) in his invoice to his customers. Likewise the (input) tax which he is entitled to reclaim is identical to the total VAT which he has been charged by those from whom he has bought goods or services. This is indeed an important characteristic of VAT. But it does not follow from this that he has not obtained the (output) VAT which is included in his charges to his customers. On the contrary, fiscal neutrality is equally achieved if he does obtain the VAT element, but is then required to pay an identical sum to the Revenue. Nor does it follow that his interest in the VAT element obtained is nil; there will still be fiscal neutrality if his interest is substantial but he comes under a corresponding obligation to pay the same sum to the Revenue. Nor, lastly, does fiscal neutrality answer the question whether there is anything disproportionate in declining to net off the VAT element when calculating the amount of a confiscation order under POCA, in the same way as it is agreed that the system declines to set off other outgoings, including other taxes payable to the state. The proposition that the taxable trader collects the VAT on behalf of the state is a no doubt convenient shorthand way of expressing the concept of VAT accumulating in successive transactions, with traders reclaiming inputs and setting them off against outputs, so that the ultimate burden falls on the consumer who pays it but cannot reclaim it. But the mechanics of VAT simply do not work by making the taxable trader the agent of the state in collecting VAT. He is obliged by the Value Added Tax Act 1994 to charge VAT on his supply of goods or services, and he is treated as having done so by the statutory rule that his price for such supply is deemed to be VAT inclusive. But if his customer pays his price, the VAT element in no sense belongs to the Revenue, but to the recipient trader. It is not held on any kind of trust for the Revenue. The trader is free to do with the money whatever he wants. His obligation to the Revenue is not to deliver up something which he has collected for it, but the different one of accounting for tax according to what he has charged and what he has paid out. When he renders the invoice he comes under the obligation to account to the Revenue for the VAT element, that is to say to declare it. In due course at the end of the accounting period he is obliged to pay the Revenue not the amount of VAT charged to his customers, but the difference between the total output VAT charged and the total input VAT paid. The input tax which he can reclaim is not transaction specific. He can reclaim any input tax which he has paid in any part of his business, and even if he has paid nothing at all in relation to the subject matter of the supply(ies) on which he has charged output tax. If his input tax exceeds his output tax, as it may well if he is trading predominately in exempt or zero rated supplies, he has to pay nothing to the Revenue even though he has charged and received output tax on some of his trading. Otherwise his obligation is only to pay the difference between the sums charged by way of output tax and the sums paid out by way of input tax. He is under that obligation whether or not his customer has paid him. There is provision in the Act (section 36) for subsequent adjustments as between the trader and the Revenue by way of bad debt relief if the customer fails altogether to pay, but in the meantime the traders liability to pay the Revenue the difference between output receipts and input payments is unaffected by any such failure, whilst if the customer simply delays, the trader must nevertheless pay up promptly. None of these rules can possibly co exist with a legal framework in which the trader is collecting the output tax on behalf of the Revenue. For the same reasons, Advocate General Lenzs ideal image (see para 59(ii) above) is a helpful illustration of the philosophy behind VAT rather than a legal analysis of the actual mechanics of the tax. Input tax need not relate to the transaction on which output tax has been charged. Moreover, whilst it is undoubtedly true that the philosophy underlying the tax is that the effective burden of it will fall on the ultimate consumer, this is by no means only true of VAT. In the UK, the predecessor of VAT was purchase tax, which was levied on wholesalers only. But in effect that tax was passed down the line of supplies and similarly ended up being felt in the price paid by the consumer: see the analysis of Mance LJ (as he then was) in Debenhams Retail plc v Sun Alliance and London Assurance Co Ltd [2005] EWCA Civ 868; [2005] STC 1443, para 28, where the economic reality of VAT was held to be in this respect very similar to that of purchase tax. That case also demonstrates that the expression turnover, like almost any legal expression, takes its meaning from its context. It was there held that for the purpose of a rent clause which made the rent variable with the tenants turnover, that expression included the VAT element in receipts. The provision in the Companies Act 2006 on which the appellant in the present case relies is similarly contextual. It is applied by section 474 for the purposes of Part 15 of that Act only. Part 15 is concerned with rules for companies to render accounts and reports. The references to turnover in that part of the Act are to the means of classification of companies as small, or as medium sized, for the purposes of differing regimes for accounts and reports: see sections 381 383, 441 444 and 465 466. Turnover does not refer to anything stated in accounts. There is no comparability between this categorisation rule and the entirely different context and purposes of POCA, and it is not possible to read across from the one to the other. Was the VAT element obtained? The mechanics of VAT, as described above, make it clear that when the defendant was paid by his customers a price which was VAT inclusive, he obtained the VAT element as well as the rest of the price paid. It became his to do with as he wished. That he came under an obligation to declare it cannot mean that he did not obtain it. Nor can his subsequent declaration of it (or accounting for it) un obtain it. The features of VAT which are relied upon do not alter these legal facts. Was the defendants interest in the VAT element nil? For the same reasons, when the defendant obtained the VAT element, it became his own. His interest in it was not qualified or limited by any other proprietary interest held by anyone else. The Revenue had no interest in it but only an expectation that it would be paid the difference between output and input tax. There can be no question of the defendant having a nil interest in the VAT element of his receipts. Proportionality and double recovery The remaining question is whether it is a disproportionate interference with the defendants A1P1 rights to make a confiscation order in the sum of the benefit which he obtained, and in particular whether an order is disproportionate unless the VAT element in what he obtained is deducted. It is important to understand that the overriding principle, derived from A1P1, that a confiscation order must be proportionate, does not affect the question of what is obtained. The test of proportionality comes to be applied at the next stage, when one asks what confiscation order is to be made. This was explained in Waya at paras 15 and 16. The A1P1 requirement of proportionality is given effect by reading down section 6(5)(b) of POCA. There is no question of reading down section 76(4) or (7), which is where it is provided that a defendant benefits when he obtains property as a result of or in connection with his (criminal) conduct, and to the extent of the value of what he obtains. Nor is there any question of reading down section 80, which is where the rules for valuation of benefit are set out. The section which is read down is section 6(5)(b) which requires the making of an order in the sum of the recoverable amount (defined in section 7(1) as the value of the benefit obtained). Section 6(5)(b) is read down by adding the qualification except insofar as such an order would be disproportionate and thus a breach of article 1, Protocol No 1 and the section has now been amended to this effect. This difference is not simply technical. It may matter. Because the focus is on the fairness (proportionality) of the amount of the ultimate order, then if the VAT element is to be deducted there might be a difference between a defendant who has paid the VAT element over to the Revenue, and a defendant who, even if he has declared it, has not paid it. The argument of the appellant runs as follows: (a) The VAT element (or a sum equal to it) was a mandatory inclusion in the defendants price, imposed on him by the state. (b) In reality all he did was to collect the tax for the state. (c) The state is the recipient of anything paid under a confiscation order. (d) Therefore if the confiscation order includes the VAT element, the state will recover the same money twice, and this is disproportionate. It seems sometimes to be asserted in argument that the decision of this court in Waya established a general principle that disproportionality of a confiscation order is demonstrated if it entails something described as double recovery. That is not what Waya says and there is no such general principle. Waya did not purport to lay down any general test for disproportionality. It was a case of mortgage fraud in which the deception did not impact in any way on the deceived lenders full security, and indeed he had been repaid some time before the offence was discovered, with the addition of 58,000 for early redemption. In the end, the amount of the confiscation order depended on the correct analysis of what benefit had been obtained rather than on departure from the amount of such benefit on grounds of disproportion: see para 78. Given the kind of case it was, the court unsurprisingly concentrated its more general observations on the possible disproportionality of cases in which the benefit gained has been wholly restored intact to the loser: see the treatment at para 28 of R v Morgan [2008] EWCA Crim 1323; [2008] 4 All ER 890 and at para 31 of R v Wilkes [2003] EWCA Crim 848; [2003] 2 Cr App R (S) 625. It raised at para 34 the possibility that there might be other scenarios analogous to total restoration. It also adverted in passing at para 17 to R v Shabir [2008] EWCA Crim 1809; [2009] 1 Cr App R (S) 497, which was a very exceptional case of a different kind of disproportion; it involved an absurdly excessive disparity between the amount gained (464) and a benefit figure more than four hundred times greater, which derived from a technical application of POCA and the manner in which the offences had been charged. None of the foregoing had anything to do with double recovery. The only mention in Waya of the expression double recovery is to be found in para 33 in the context of rejecting any suggestion that R v Smith (David) [2002] 1 WLR 54 contained anything inconsistent with what had been said about total restoration cases. As has already been explained at para 55 above, that decision of the House of Lords proceeded upon two clearly correct propositions: first that the defendant had obtained the pecuniary advantage of evading payment of excise duty (not the liability to pay it), and second that the subsequent forfeiture of the contraband did not un obtain that pecuniary advantage. The court in Waya went on to disclaim any analysis of excise duty cases, but it recorded that the practice of the Revenue is not, in cases of evasion of payment, to claim both confiscation in the amount of the excise duty and civil recovery of the same excise duty. That practice, the court noted, appeared to have been adopted in order to avoid disproportionate double recovery. That Revenue practice, described also in the judgment of the Court of Appeal in R v Edwards [2004] EWCA Crim 2923; [2005] 2 Cr App R (S) 160, paras 24 to 25, has been confirmed to this court in the course of argument, albeit it is recorded only in various letters written in individual cases. It appears to be adopted at least in those cases where the offence charged is of tax evasion and the confiscation order is for (or includes) the same specified sum of tax evaded. It is not difficult to see that offences of evasion of payment of taxes are in a category of their own. There, the benefit consists of the pecuniary advantage of evasion of payment, not of liability. Payment, once made, satisfies the obligations of the defendant. So if payment is then made in full, whether voluntarily, or by way of civil recovery by the Revenue, or under a confiscation order made for the sum evaded, the liability has been met. In that sense, the position is analogous to total restoration cases. But the excise duty cases, such as R v Smith (David), also demonstrate the absence of any wider or more general rule against double recovery, for it is the state which forfeits contraband which is discovered, but that does not in any sense invalidate the proportionality of imposing on the smuggler a confiscation order based upon his evasion of payment of duty. In Ahmad this court confronted a different kind of double recovery. The two defendants had jointly obtained some millions of pounds through their crime. This court held that although confiscation orders against each of them were properly made for the full amount obtained, it would be disproportionate for the orders both to be enforced in full, thus yielding twice the proceeds of crime to the state. That sheds no light on the present question. Each case will depend on its own facts. But the case of a trader defendant who did not declare any output VAT need not affect the answer to the question posed. He might be prosecuted also for evasion of that liability. Assuming, however, that the VAT element of gross receipts does not fall to be deducted, the benefit of the VAT offence would overlap with the benefit of the dishonest handling and would not increase it. There is of course some initial attraction in a general proposition that it is unjustified and disproportionate for a confiscation order to include a sum already paid to the state. But it is clear both in principle and from the judgment in Waya that there is no room for any general rule that double recovery is either (a) a necessary or (b) a sufficient determinant of when a confiscation order will be disproportionate. As to (a), cases of total restoration to the loser cannot be described as involving double recovery for the loser is in most such cases not the state. As to (b), it is clear from Waya, as from the argument in the present case, that there is nothing disproportionate about a proceeds of crime regime which confiscates the gross proceeds of offending without giving credit for taxes, direct or indirect, paid to the state. That is so, even though this plainly involves the state both receiving the taxes earlier paid and recovering by way of the confiscation order. This follows from the general rule that confiscation is entitled to fasten on gross receipts rather than on profits. There is nothing disproportionate in the mere fact that the consequences of detection and confiscation may leave the criminal worse off than if he had not committed the crime. Once the position as to taxes generally is accepted, there is no sufficient basis for singling out VAT as requiring different treatment; indeed it would be inconsistent to do so. For the reasons set out in paras 59 65 above, the characteristics of VAT, to the extent that they can be distinguished from those of other taxes, are distinctions without a relevant difference. The contention on behalf of the present appellant was that the confiscation order was unlawfully disproportionate to the extent that it did not give credit for 38% of the total output VAT declared (ie 38% x 843,827 = 320,654; see para 52 above), because that was said to be the sum which would be wrongly doubly recovered. If that were to be the necessary consequence of giving credit for the VAT element in gross receipts, it would follow that the Crown Court would have to determine whether there had been a full declaration of output tax and, in order to discover the extent of double recovery, it would have also to determine whether the input tax claimed was all properly offsettable. That would add inordinately, and inappropriately, to the already complex task of the Crown Court when considering a confiscation application, and would in practice mean that the Revenue had to be a participant in every case. That would not be proportionate. It would also mean, as Jackson LJ pointed out in the Court of Appeal, that the order is reduced even though the defendant has used the criminally obtained output VAT element of his receipts from customers to buy goods and services, which is itself an offence: see the passage quoted by Lord Toulson at para 117. But an alternative way of giving credit for VAT might, if the principle were a sound one, be to deduct from the gross receipts the net VAT actually paid (here 200,745.03) or, more accurately I think, 38% of that sum (76,283.11). However, for the reasons given, the suggested principle is unsound. Contrary to this view, the judgments of Lord Neuberger, Lord Reed and Lord Mance hold that in order to meet the requirement of proportionality the output VAT element in relevant receipts must (unlike other taxes payable) be deducted from the confiscation order in some circumstances. It is to be deducted, they all agree, when it has been accounted for to HMRC (either by remittance or by its being set off against input tax): see Lord Neuberger and Lord Reed at para 36 and Lord Mance at para 46. That would appear to mean that the output tax is to be subtracted from the confiscation order if the trader has declared it and paid either it, or the difference between it and input tax he claims to set off. That, as I understand it, will leave it to the Crown Court to determine in each case whether to investigate the propriety of the input set off or not. For the reasons set out above and those additionally explained by Lord Toulson, I myself do not regard this as satisfactory, as a means of determining when an order will be disproportionate, but the working out of this principle must be for Crown Courts and the Court of Appeal; it may be that in practice Crown Courts will be entitled to take the view that the input tax can be taken as correct unless good reason is shown by the Crown (or by the Revenue) to query it, but since most defendants will by definition be unreliable or dishonest, such good reason is very likely to exist in most cases. In that event the kind of case management envisaged by Lord Toulson (para 125) seems likely to be necessary. The question of what to do if the output tax has not been paid (with or without set off for input tax) is left open (see Lord Neuberger and Lord Reed at para 36). The intention would seem to be to avoid requiring the defendant to pay the VAT output element twice, once by way of inclusion in a confiscation order and once by way of orthodox recovery of VAT by the Revenue. If that is the intention, Crown Court judges need to know how to proceed when confronted by a confiscation application. They are obliged to make an order and have no discretion not to do so. There is no mechanism by which they can put the Revenue, which is not a party to the proceedings, on terms that the VAT is not to be recovered by orthodox enforcement. If they simply deduct the output VAT element whether it has been paid or not, and whether or not there is any reasonable prospect of it being paid, they risk making an order which is unduly favourable to the defendant and in no sense required by proportionality, even on the majority view. However that may be, for the reasons given my own clear conclusion is, like that of Lord Toulson, that it was not disproportionate for the confiscation order in the present case to be made on the basis of the defendants benefit, ie gross receipts from dishonest trading, without first deducting the VAT element in those receipts. The practical difficulties set out in para 35 which surround giving effect to the decision of the majority in this case seem to me to provide additional reasons why this is so. For these reasons I would have dismissed this appeal. LORD TOULSON: (dissenting) The question certified by the Court of Appeal is whether, in assessing the amount of benefit obtained by a company for the purpose of confiscation, any VAT accounted for and/or paid to HMRC should be subtracted from the turnover figure prior to any final calculation of the benefit figure. The appellants primary argument is that the question should be answered in the affirmative because on the proper construction of the Proceeds of Crime Act 2002 he did not obtain the VAT element of income received as a result of or in connection with his criminal conduct. He has an alternative argument based on article 1 to the first protocol to the European Convention on Human Rights and Fundamental Freedoms (A1P1). The appellant pleaded guilty to nine counts of handling stolen goods. The stolen goods were items of plant used by a plant hire company, referred to as JHL, which was under his ownership and control. On the prosecutions application for a confiscation order against the appellant under the 2002 Act, it was conceded that the court was entitled to treat deposits into the companys bank account as property obtained by the appellant himself. It was undisputed that the appellant had a criminal lifestyle within the definition of the Act. In those circumstances, section 6 required the court to decide whether he had benefited from his criminal conduct over the period beginning six years prior to the commencement of proceedings against him; and, if so, it required the court to make a confiscation order against him for the recoverable amount. Section 7 provides that the recoverable amount is an amount equal to the defendants benefit from the conduct concerned, unless that amount exceeds the amount available to the defendant, in which case the recoverable amount will be the available amount or, if that is nil, a nominal amount. Section 76(4) is critical. It provides that: A person benefits from [criminal] conduct if he obtains property as a result of or in connection with the conduct. This subsection reproduces verbatim the language of section 71(4) of the Criminal Justice Act 1988 (CJA 1988) and is central to the statutory confiscation scheme. Section 76(7) provides that: If a person benefits from conduct his benefit is the value of the property obtained. Property is defined in section 84(1)(a) in wide terms and includes money. Section 80 deals with the valuation of property obtained from conduct. Section 80(2) provides that the value is the greater of (a) the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value of money or (b) the value of any substitute property. This subsection substantially reproduces section 74(5) of the CJA 1988. The present Act is the latest in a series of statutes providing for the confiscation of assets after conviction. The prototype was the Drug Trafficking Offences Act 1986. It was followed by the CJA 1988, which dealt with offences other than drug trafficking. Between 1988 and 2002 other Acts made refinements. The 2002 Act brought together the provisions for confiscation orders in drugs cases and other cases into a single piece of legislation. Whilst the various Acts made changes in matters of detail, the essential structure of the original regime has been retained, as Lord Bingham observed in R v May [2008] UKHL 28; [2008] 1 AC 1028, para 8. The court has to address three central questions: whether the defendant benefited from the relevant conduct, what is the value of any benefit and what is the recoverable amount. relevant period came from the hiring out of stolen plant. As I see it, that part of the companys income falls squarely within section 76(4) of the present Act. It was money paid into the companys account as a result of, or in connection with, the use of stolen property. A person obtains property within the meaning of section 76(4) if in law he owns it or he assumes the rights of an owner over it: R v May para 48(6), R v Allpress [2009] EWCA Crim 8; [2009] 2 Cr App R (S) 399, para 63 and R v Ahmad [2014] UKSC 36; [2015] AC 299, para 42. On the agreed basis that for the purposes of the confiscation proceedings in this case no distinction is to be drawn between the assets of the company and the appellant, there is no doubt that the appellant owned the money paid into the companys bank account. Strictly speaking, what we talk of colloquially as money in a bank account is a thing in action between the account holder and the bank, which in law belongs to the account holder (save in exceptional circumstances where the account holder is a bare nominee): see R v Sharma [2006] EWCA Crim 16; [2006] 2 Cr App R (S) 416, para 19, R v May, para 34 and R v In this case the judge found that 38% of the companys income over the Allpress, paras 85 86. Referring to the decision in R v Sharma, Lord Bingham said in R v May, para 34: It was rightly held (para 19), applying general principles of law, that a person who receives money into his bank account obtains it from the source from which it is derived and, where he is the sole signatory on the account, he obtains the money and has possession of it for his own benefit. In this case the relevant income paid into the companys account was derived from invoices sent to customers for the hire of stolen goods. It was payment both as a result of and in connection with the appellants criminal conduct. HMRC had no proprietary interest in the money in the companys account. The appellant (or more strictly the company) was under a liability to pay such amount, if any, in respect of VAT as was due after setting off any input tax, but it was a matter for the company what resources it used to pay any balance due. The appellant argues that to the extent that the company paid or accounted for its VAT liability to HMRC in respect of transactions for which it had invoiced its customers, it should thereupon be deducted from the sums received from the customers in calculating what he had obtained and/or its value. But the legislation requires the court to calculate what the defendant has obtained, and not what he has retained. In R v Smith (David) [2001] UKHL 68; [2002] 1 WLR 54, a case about the pecuniary advantage obtained by the smuggling of cigarettes which were soon seized by customs officers, Lord Rodger said at para 26: Under section 74(5) for the purposes of making a confiscation order the value of the property is its value to the offender when he obtained it. In this case the respondent derived a pecuniary advantage by evading the duty at the moment when he imported the cigarettes. The sum equalling that pecuniary advantage is treated as property obtained by the respondent at that moment. (Lord Rodger was referring to section 74(5) of the CJA 1988. As mentioned at para 88 above, that subsection was the predecessor of section 80(2) of the present Act.) Similarly in R v Waya [2012] UKSC 51; [2013] 1 AC 294, at para 55(a), Lord Walker and Hughes LJ said: Once property has been obtained as a result of or in connection with crime, it remains the defendants benefit whether or not he retains it. This is inherent in the value based scheme for post conviction confiscation. The appellant accepts that if the company had never paid the VAT due to HMRC, the property obtained by him would have been the income paid into the companys account. When was that property obtained? The answer can only be when the income was received. If it was property obtained at that moment, as a result of or in connection with the hiring out of stolen goods (as it plainly was), that fact cannot be retrospectively altered by subsequent payment of the companys VAT liability. (The payment of VAT may have an impact under A1P1, but that is a matter for separate consideration.) Early in the history of the legislation the question arose whether in calculating the defendants benefit the relevant figure is his gross receipts or his net receipts. There is a long and unbroken line of authority that it is the former. In R v Banks [1997] 2 Cr App R (S) 110 the Court of Appeal was concerned with section 4(1) of the Drug Trafficking Act 1994. This provided that any payments or other rewards received by a person in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking and the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards. It was argued that the value of such payments should be taken to be the net value. Lord Bingham CJ said that there were four insuperable objections to this argument. The first derived from the statutory language, which he read as directing the courts attention to gross payments. The second objection was to be found in a series of decisions under the Drug Trafficking Offences Act 1986 (the predecessor of the 1994 Act). Among other authorities he cited the judgment of Lord Lane CJ in R v Smith (Ian) [1989] 1 WLR 765, 769: The words any payments are on the face of them clear. They must mean, indeed it is clear from the wording, any payment in money or in kind It seems to us that the section is deliberately worded so as to avoid the necessity, which the appellants construction of the section would involve, of having to carry out an accountancy exercise, which would be quite impossible in the circumstances of this case. It may be that the wording is draconian, and that it produces a draconian result. But it seems to us that if that is the case, it was a result intended by those who framed the Act. Lord Binghams third insuperable objection was that the relevant provisions of the 1986 Act had been re enacted in almost precisely the same terms in the 1994 Act. It could not be said that the statute had simply been reproduced without attention being paid to the intervening case law, because other amendments had been made which showed that attention had been paid to intervening case law. The court was therefore bound to proceed on the assumption that Parliament re enacted the provision, knowing of the decisions which had been made on them and intending that they should have that effect. Lord Binghams fourth objection was that the 1994 Act also contained provisions which made it an offence to conceal or disguise property which directly or indirectly represented the proceeds of drug trafficking. Lord Bingham considered that it would reduce those provisions to absurdity if they did not refer to the aggregate of the payments received, and that the same term must bear the same meaning in the earlier and later sections of the Act. The same four points apply to section 76(4) of the 2002 Act. It is true that its language is slightly different from the language used in the earlier drug trafficking legislation (although not the language of the CJA 1988), but Lord Bingham said in Jennings v Crown Prosecution Service [2008] UKHL 29; [2008] AC 1046, para 13 that the appellate committee regarded the meaning of section 71(4) as in substance the same as the equivalent provisions of the drug trafficking legislation. Lord Binghams fourth point in R v Banks can be made by reference to the money laundering offences in sections 327 to 329 of the 2002 Act. These penalise various forms of dealing with criminal property, which is defined in section 340(3) as property which constitutes or represents a persons benefit from criminal conduct. More broadly, for nearly 30 years it has been a central feature of the statutory confiscation schemes that in identifying and assessing the defendants benefit from criminal conduct, the court is concerned with the gross value of what he has obtained in cash or in kind. As Lord Walker and Hughes LJ observed in R v Waya at para 26, to embark on an accounting exercise in which the defendant is entitled to set off the cost of committing his crime would be to treat his criminal enterprise as if it were a legitimate business and confiscation as a form of business taxation. The cost to the appellant of his form of criminal conduct included his liability to HMRC for VAT on the service provided by him to customers; the gross value of what he obtained was the gross income from hiring out stolen goods. In summary, I reject the argument that in deciding what benefit the appellant obtained, within the meaning of section 76(4) of the 2002 Act, by way of payments into the companys accounts of invoices for the hire of stolen goods, the amount of moneys subsequently paid (or accounted for) by the company to HMRC, in respect of its VAT liabilities on the supply of the goods, is to be deducted, for the following reasons: i) The argument is incompatible with the plain language of the sub section, which is a re enactment of earlier legislation going back to section 71(4) of the CJA 1988. ii) It is a core feature of the scheme of post conviction confiscation of the legislation from the Drug Trafficking Offences Act 1986 onwards, as interpreted in a line of authorities including at the highest level, that the scheme strikes at the gross value of money or other property obtained as a result of or in connection with the relevant criminal conduct. iii) The relevant provisions have been re enacted by Parliament with knowledge of their judicial interpretation. iv) A person obtains money or other property within the meaning of section 76(4) if he becomes the owner or assumes the ownership of it. The company was unquestionably the legal owner of the money in its bank account (and it was conceded that the court was entitled to treat it as obtained by the appellant himself). v) The appellants argument fails to focus on the moment when the moneys were paid into the companys account, but depends on later payments out of the account. This approach is contrary to the proper approach as stated in R v Smith (David) and R v Waya. Departure from that approach in this case is not only contrary to the language of the statute and to authority, but it would lead inevitably to future arguments and uncertainty about whether the courts should make similar exceptions in other cases of perceived hardship. It then becomes necessary to consider the effect of A1P1. This raises separate issues. The courts obligation under section 6(5)(b) of the 2002 Act to make a confiscation order requiring a defendant who has benefited from criminal conduct in the available amount has to be read with the qualifying words except in so far as such an order would be disproportionate and thus a breach of [A1P1], as the court held in R v Waya. (Since 1 June 2015 the section has been amended so as to make the qualification express: see the Serious Crime Act 2015, section 85 and Schedule 4, paragraph 19.) A1P1 provides as follows: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. A measure which deprives a person of his property must not only serve a legitimate aim, but there must be a reasonable relationship of proportionality between that aim and the measure adopted to achieve it. In deciding whether that requirement is satisfied, the Strasbourg court has recognised that the state enjoys a wide margin of appreciation as to the choice of means of enforcement and its assessment of whether consequences are justified in the general interest for the purpose of achieving its legitimate aim: see, for example, Jahn v Germany (2005) 42 EHRR 1084, para 93. The primary aim of the present legislation is to provide a practicable means of taking away from criminals their proceeds of crime. A secondary aim is to deter others. These are legitimate aims. The mere fact that enforcement of the order will in many cases leave the criminal worse off than if he had never committed an offence does not of itself mean that the measure is disproportionate. Double recovery of the same benefit is another matter and is liable to be disproportionate as going against the grain of the legislation: see R v Waya, paras 20 and 30 to 34. But it is important to be careful in the use of the expression double recovery. Lord Walker and Hughes LJ instanced a case of a confiscation order being sought solely on the basis of the momentary benefit of a thief (or handler of stolen goods) obtaining property which had been restored intact to the true owner before the making of a confiscation order. In such a case the benefit obtained and the benefit restored are identical. To make a confiscation order in respect of that benefit in those circumstances would be disproportionate. It would not serve the aim of the legislation. (It might, on the contrary, act as a disincentive to a thief making reparation before the imposition of a confiscation order; if he had stolen money, he might be better off to keep it and use it to pay the confiscation order.) The court recognised that there might be other cases of disproportion analogous to that of goods or money entirely restored to the owner. These would have to be resolved case by case. In R v Ahmad the question of double recovery arose in another way. Co defendants were found to have benefited jointly from their offending. This court held that it was proper in principle to make confiscation orders against each of them for the full amount of the benefit jointly obtained, but that the orders should contain a provision preventing their enforcement in such a way that the state recovered the same benefit twice over. The court said that it would not serve the legitimate aim of the legislation and would be disproportionate for the state to take the same proceeds twice over and that a violation of A1P1 would occur at the time when the state sought to enforce an order for the confiscation of proceeds of crime which have already been paid to the state (paras 71 72). In this case the appellant argues that where the benefit consists of income derived from payments by customers of invoices for the hire of stolen plant which included (or are to be taken as including) the VAT for which the supplier was liable on the supply, and where the supplier has either paid that amount to HMRC or offset it against input tax paid on purchases of goods or services by the supplier, the amount so paid or offset should be deducted in arriving at the final amount of the confiscation order so as to avoid double recovery, which would be disproportionate and contrary to A1P1. The prosecution argue that liability for VAT is part of the expense of carrying on a business. Under section 1 of the Value Added Tax Act 1994, VAT on any supply of goods and services is a liability of the person making the supply. It is not disproportionate to the object of the legislation that in making a confiscation order the court should ignore expenses incurred by defendant, whether of a fiscal nature or otherwise. The appellant counters that argument by saying that VAT is unlike other forms of taxation. It is regulated by a series of European Directives. Its purpose and nature are that the trader in gathering and paying VAT is acting as a tax collector for the state: Elida Gibbs Ltd v Customs and Excise Comrs (Case C 317/94) [1996] ECR 1 5339, para 22. (The trader who is VAT registered is required by regulations to provide a VAT invoice to the customer, and even if VAT is not shown as a discrete charge in a traders invoice, it is treated as such for revenue purposes: paragraph 5 of Schedule 11 of the VAT Act.) By paying or accounting for that element of the benefit received by way of customers payments, the trader makes restitution to the state, and for that amount to be included in the confiscation would amount to the state taking the same thing twice. For my part, as a matter of general principle I do not consider it disproportionate to the legitimate aim of the legislation for the court, when making a confiscation order, to disregard outgoings associated with property obtained by a defendant as a result of or in connection with his criminal conduct; and I cannot see a satisfactory reason in general for distinguishing fiscal from other outgoings. Examples would include a person who pays income tax on criminal earnings, a company which pays corporation tax on the profits from criminal business or a person who pays stamp duty or capital gains tax in connection with the laundering of criminal property. In such cases the liability to tax arises because the defendants overall profit after setting off allowable losses or expenses during the relevant tax period exceeds the relevant tax threshold. They are not cases of the state taking the same proceeds twice over, in the sense that the court was speaking of in R v Ahmad. They are readily distinguishable from cases in which a thief or handler restores stolen property to its owner or where the amount of confiscation orders made against two or more defendants in respect of their joint benefit is paid off by one or some of them. There is not the same degree of identity between the benefit obtained and the benefit restored or surrendered. Does A1P1 require a different approach to be taken in the present case? The arguments were presented at a rather abstract level, but the factual setting is relevant to a full understanding of the issues and their ramifications. The known receipts of the company during the relevant period were 5,159,880. There was also significant off the book trading. Because of the statutory assumptions applicable to a defendant with a criminal lifestyle, the burden was on the appellant to show what part, if any, of the sums received by the company was not the benefit of his criminal conduct. It has been held that rebuttal of the assumption requires clear and cogent evidence. For this purpose at the confiscation proceedings the appellant gave evidence and called evidence from his two daughters and a friend. The judge found that none of them was worthy of belief. In an attempt to show that nearly all the companys income was from the use of plant lawfully obtained the appellant produced invoices and receipts, but he was unable to show which invoices fitted which pieces of plant. Further there was evidence of forgery of invoices. At his daughters home the police discovered draft invoices in the names of other plant and machinery traders, and the judge disbelieved the defence evidence about how they came to be there. The only point which told in the appellants favour was that of 91 pieces of plant found by the police at the companys premises only 39 were identified as having been stolen. Adopting a broad approach, the judge found that not less than 38% of the companys turnover came from the use of stolen plant. The evidence of the companys accountants about VAT was that during the relevant period the company received 843,827 VAT in respect of sales and services provided, according to its VAT returns; it paid 200,745 VAT to HMRC; and it offset the balance against VAT input tax which it claimed to have paid on purchases. The appellants primary argument is that 38% of the entire sum of 843,827 should be deducted from the amount of the confiscation order. Rejecting this argument in the Court of Appeal, Jackson LJ said at [2013] EWCA Crim 1104; [2014] 1 WLR 124, para 79: In relation to VAT, the way in which JHL dealt with these moneys is significant. JHL expended three quarters of the VAT which it collected upon the purchase of goods and services. In doing so, JHL was using the proceeds of criminal conduct to purchase those goods and services. It would be wrong in principle for the defendant to be given credit in respect of the VAT element of these purchases. I agree. The use of criminal proceeds to purchase goods and services would in fact be itself an offence under section 329 of the 2002 Act. I do not see the courts refusal to reduce the amount of the confiscation order by the amount spent by the company from its criminal receipts on other trading (including the VAT element of such expenditure) as disproportionate to the proper objectives of the legislation. The appellants alternative argument is that there should be a deduction of 38% of the lesser sum of 200,745 said to have been paid to HMRC. Rejecting that argument in the Court of Appeal, Jackson LJ said, at para 80, that it would be wrong for the court to carry out an accounting exercise in respect of VAT collected through the use of stolen property. He had earlier, at para 76, made the general point that in confiscation proceedings the focus is on what money was received and not how it was spent: Waya, para 26. The question whether there would be dual recovery of the same benefit, such as to offend against A1P1, if the confiscation order were to include the VAT element of his criminal benefit which the appellant has already paid to the state is at first sight more difficult than the appellants primary argument. In R v Waya, para 34, the court spoke of taking a case by case approach to the application of A1P1 to the post conviction confiscation legislation. Inevitably there will be cases in which it will be possible to point to apparent anomalies on whichever side of the line the question is resolved. On first impression the appellants alternative argument has a beguiling simplicity and attraction: that in charging VAT to customers the trader acts as a tax gatherer for the state, and, if he pays it to HMRC, he should not be made subject to a confiscation order which includes that amount. But on fuller consideration I am not persuaded that the court should make a distinction between the 843,827 and 200,745. It is argued that the company was a mere temporary custodian of the 200,745 for the state, but that argument (which goes really to the question whether it was a benefit obtained by the appellant) is unsound. The company was not a custodian of the 843,827 or the 200,745. The entire money received by the company was its money. The description of the company as a tax gatherer for the state is misleading if it is intended to suggest that the company was an agent or trustee of HMRC. The effect of taxing the company on the amount charged by it for the supply of goods and services was to reduce its net profit after tax (unless it increased its charges accordingly) but the same would be true of other forms of taxation, such as corporation tax or capital gains tax or stamp duty on the purchase of a property as part of a crime or as a form of laundering of criminal property. Other examples could be given. Jackson LJ referred in the passage cited to JHL having expended three quarters of VAT which it collected on the purchase of goods and services, but, for all that is presently known, it may have used the entirety of the initial proceeds of its criminal transactions in other transactions funded by money criminally obtained; the use of the criminal funds may or may not have been off the books; and the amount paid by the company to settle its VAT liabilities may or may not have been exceeded by other benefits, which may or may not have been reflected in the companys records. The answers would depend on a full accountancy process, if that were possible. I do not see that it is possible, in principle or in practice, to draw a satisfactory distinction between VAT accounted for and VAT paid. The judge in the Crown Court will face these questions when this case goes back to him to assess the amount of the confiscation order. The majority recognise that there may be difficulties in assessing the amount of VAT to be treated as accounted for to HMRC in the case of a dishonest defendant; that the burden of proof lies on the defendant; and that the court may take a robust and broad brush approach (para 35). I take it from these observations that the judge will not be obliged to accept that the defendant has accounted to HMRC for VAT merely by producing VAT returns purporting to show that he has offset VAT due against input tax paid on purchases of goods or services. Especially in view of the evidence of forgery of invoices, together with the appellants possession of draft invoices in the names of other plant and machinery suppliers, the court would be entitled to require evidence from a credible source that the purported transactions, generating the supposed input tax against which the appellant claimed to have offset output tax, were genuine. One test of their genuineness would be whether the supposed supplier had accounted for the input tax claimed to have been paid to the supplier by the appellants company. This is just the sort of accountancy exercise against which the courts have taken a firm stand from the outset (see, for example, Lord Lane CJs judgment in R v Smith (Ian) referred to at para 98). Moreover, supposing that there were purchases by the company of goods and services in respect of which it paid input tax to the supplier, if those purchases were part of the companys criminal trading it is hard to see why the company should be able effectively to recoup that part of its criminal expenditure by offsetting it against the output tax due from the company to HMRC. For my part, I do not consider it to be disproportionate to the proper object of the confiscation scheme to treat the entirety of the companys receipts from its criminal conduct as having been obtained by the appellant, but the majority consider otherwise. As a matter of practicality, I would expect the next step to be for the judge of the Crown Court to arrange a hearing for directions about evidence. The court should be encouraged to use its case management powers to ensure that the appellant produces all evidence, whether by way of witness statements, documents or expert evidence, in support of his claim to deduct VAT from the amount of the confiscation in a clear and timely fashion. I conclude that the question certified by the Court of Appeal should be answered either in the affirmative or in the negative, but not half and half; and that, although the results in an individual case may seem harsh, A1P1 is not violated by the court adhering to the general principle that in determining the amount of a confiscation order the focus is on the benefits received, ignoring associated outgoings, including tax liabilities. I do not see the application of that principle as going against the grain of the legislation. I would therefore answer the certified question in the negative and dismiss the appeal.

UK-Abs

The appellants company hired out items of machinery. Following an arson attack orchestrated by the appellant on a competitors premises, the police raided the premises of the appellants company and discovered that a significant proportion of the machinery present had been stolen. The appellant was convicted of handling stolen goods, and sentenced to 15 months imprisonment. Following this conviction, there was a hearing pursuant to section 6 of the Proceeds of Crime Act 2002 (POCA). The appellant conceded he had a criminal lifestyle and thus the judge had to decide whether and to what extent he had benefited from this. Not all of the machinery hired out by the appellants company had been stolen. The judge assessed the benefit obtained by the appellant at 2,275,454.40, comprising 1,960,754.40 from general criminal conduct and a further 314,700. Of this, the 1,960,754.40 was calculated on the basis that the proportion of stolen items to the total stock over the relevant period was 38%, and the companys aggregate turnover for the relevant period was 5,159,880 (inclusive of VAT). A confiscation order was made in the sum of 2,275,454.40. The appellant was given six months (later extended to 12 months) to pay, and was ordered to serve ten years (reduced to eight years by the Court of Appeal) in default of payment. This appeal considers whether the judge was right to make the confiscation order on the basis that the VAT had been obtained by the appellant for the purposes of POCA, in circumstances where the appellants company had already accounted for the VAT to HMRC. Before the Court of Appeal, the appellant argued that to include VAT in the amount of the confiscation order would involve an unacceptable degree of double counting. The Crown argued that a benefit is obtained for the purpose of POCA if it has been received by a defendant, even if he has subsequently had to account to a third party for some, or even all, of it. The Court of Appeal accepted the Crowns case. The Supreme Court allows Mr Harveys appeal by a majority of 3:2. Lord Neuberger and Lord Reed give the leading judgment. Lord Mance writes a concurring judgment. Lord Hughes and Lord Toulson each write dissenting judgments. Lord Neuberger and Lord Reed find that the VAT for which a defendant has accounted to HMRC is in a different category from either income or corporation tax, and from expenses incurred in connection with acquiring money or an asset [24]. First, income and corporation tax are computed on a taxpayers overall or aggregate income. They cannot be invoked to reduce the value of the property or money obtained from criminal activity when assessing what has been obtained for the purposes of POCA. VAT liability on the other hand arises on each taxable supply, and can be directly and precisely related to the obtaining of the property in question. In a case where the VAT on a transaction has been accounted for to HMRC, then the Court of Appeals approach would lead to the UK government enjoying double recovery of the VAT: once under POCA and once through the Value Added Tax Act 1994 [25 26]. Secondly, VAT is intended to be neutral in its impact on taxable persons: where money is paid to a defendant as a result of a transaction which is liable to VAT, the defendant is regarded as collecting the VAT element on behalf of HMRC. It is difficult to regard VAT which has been collected and accounted for to HMRC as forming part of the economic advantage derived from criminal offences [27]. Thirdly, it would be particularly harsh, where a defendant has accounted to HMRC for all the VAT for which he is liable, not to allow him credit for that sum, but this would be the effect of his being rendered liable to a confiscation order in respect of the output tax on his transactions. He would then be treated in the same way regardless of whether he had paid the tax or not [28]. Fourthly, the possibility of double recovery has been recognised, and avoided by extra statutory means, in the context of excise duty: HMRC does not seek to recover the excise duty due in respect of smuggled goods where a confiscation order has been made in the same sum [29]. Lord Neuberger and Lord Reed acknowledge that these factors give rise to a powerful argument that when VAT has been accounted for to HMRC, it has not been obtained by the defendant. However, they reject the appellants submission that this conclusion follows from the wording of POCA, because of the principle enunciated in R v Waya [2012] UKSC 51 that property obtained as a result of or in connection with crime remains the defendants benefit whether or not he retains it [30]. Nonetheless, these factors are relevant to consideration of whether the effect of the Crowns interpretation of POCA breaches Article 1 Protocol 1 of the European Convention on Human Rights (A1P1), the right to peaceful enjoyment of possessions [31]. Although a provision effecting double recovery is not forbidden by A1P1, it is at risk of being found disproportionate, given that sums payable pursuant to POCA are intended to be deterrent and not punitive [32]. Waya made clear that where the proceeds of crime are returned to the loser it would be disproportionate under A1P1 to treat such proceeds as the benefit obtained. That situation is similar to the collection of VAT, and the policy underlying the principle is in part that a defendant who makes good a liability to pay or restore should not be worse off than one who does not [33]. In R v Ahmad [2014] UKSC 36 it was held that it would be disproportionate for the same sum to be recovered from two co conspirators in respect of the same property which had been jointly obtained. The observations made in these cases are applicable in relation to VAT which has been accounted for to HMRC [34]. Although the burden may be on the Crown to establish the gross value of the benefit obtained by the defendant, the burden of establishing any sum which should be deducted to reflect the VAT accounted for to HMRC lies on the defendant. There is nothing disproportionate about a judge taking a broad brush approach where the evidence is confusing, unreliable or incomplete [35]. Thus, where VAT has been accounted for to HMRC, it would be disproportionate under A1P1 to make a confiscation order calculated on the basis that the VAT, or a sum equivalent, was obtained by the defendant for the purposes of POCA. The position in relation to VAT for which a defendant is liable but has not accounted to HMRC is left open [36]. Lord Mance agrees with Lord Neuberger and Lord Reed and writes a concurring judgment [38 48]. Lord Hughes would have dismissed the appeal. He states that POCA is not designed to restore money to the state, which in most cases is not the loser, but is designed to deprive the offender [55]. When the defendant was paid a VAT inclusive sum by his customers, he obtained the VAT element, and this is not affected by his obligation to declare it [66]. It is not disproportionate to confiscate the gross proceeds of offending without giving credit for taxes paid to the state [76]. Lord Toulson would also have dismissed the appeal [102]. He finds that it would not be disproportionate under A1P1 to treat the entirety of the companys receipts from its criminal conduct, ignoring associated outgoings such as tax liabilities, as having been obtained by the appellant [125].